Divided Panel Rejects Civil Rights Claims Regarding Improper Warrant, Search; Remands Immunity Issue

Kerns v. Bader, 2011 WL 6367728 (12/20/11) (N.M,) (Published) - The 10th, omitting from the arrest warrant affidavit the inaccurate information that the bullet fragments from the helicopter that was shot down could have come from the defendant's rifle and that the shooter could have been in the defendant's backyard, found probable cause to arrest the defendant where: the defendant reported the downing of the helicopter, made some "questionable" statements, told police he was a trained military marksman and bragged to them the helicopter made a great target; a casing from the defendant's rifle was found in the defendant's trash concealed by fresh tape; and he led officers on a high speed chase when the police followed him in an unmarked car. That the shooter could not have been in the defendant's backyard at the time of the shooting would only undermine probable cause if the defendant had been in his backyard at the time. That the defendant's rifle could not have been the firearm involved in the shooting was meaningless because nothing in the probable cause analysis depends on the discovery of the weapon responsible for the crime.
The 10th also holds that it was not clearly established the 4th Amendment or due process prohibits officers from asking for and obtaining medical records from third parties without a warrant or even reasonable suspicion. The 10th distinguished Ferguson v. City of Charleston, 532 U.S. 67 (2001), because that case involved taking urine samples, not obtaining medical records. The 10th distinguished due process cases because they involved officer disclosure of private records to the public, not obtaining information for law enforcement use.
The 10th decided to remand for consideration of the qualified immunity question regarding whether there were exigent circumstances to justify officers' entry into the plaintiff's home. The 10th thought the district court had not decided that question.
In his dissent, Judge Holloway was appalled by all of the majority's decisions. He felt the hypothetical affidavit resulting from putting in accurate information was self-contradictory and insufficient to establish probable cause. He concluded the reason there were no cases with facts exactly on point regarding officers getting medical records without sufficient grounds was because it was so obvious medical records are protected by the 4th Amendment no one had argued otherwise. He also thought the district court had addressed the qualified immunity issue regarding the officers' illegal entry and made factual findings that could not be reviewed on appeal at this summary-judgment stage of the proceedings.