(CN) - A military-trained marksman has stumbled in his efforts to sue investigators who arrested him after a sniper shot down a police helicopter and the evidence initially pointed his way.
Investigators zeroed in on Jason Kerns after a police chopper was shot out of the sky over Albuquerque, N.M., one summer night in 2005. Kerns, who served in the military as a helicopter mechanic and marksmanship instructor, said he witnessed the crash from his backyard and made a series of suspicious statements. He said he had been "annoyed" by the helicopter and that it would have been "no problem" to "make that shot," adding that the way the helicopter was backlit made it "a great target."
When detectives tried to follow Kerns in an unmarked car, he led them on 100 mph chase, later claiming that post traumatic stress disorder triggered his reaction.
The Bernalillo County Sheriff's Department later executed a warrant to search Kerns' home and persuaded a veteran's hospital to voluntarily release Kerns' psychiatric records. The U.S. Attorney prosecuting the case dropped all charges against Kerns after an independent expert found that the police relied on a faulty a ballistic report and trajectory analysis.
Kerns responded with three lawsuits against the officers who searched his home, the sheriff who obtained his psychiatric records and other officials for false arrest.
All the defendants moved to dismiss the suits on the basis of qualified immunity, but a federal judge denied relief. They fared better on appeal to the Denver-based 10th Circuit.
The 34-page majority opinion notes that, in cases involving qualified immunity, plaintiffs carry the burden of showing that "(1) the defendant-officer in question violated one of his constitutional rights and (2) the infringed right at issue was clearly established at the time of the allegedly unlawful activity such that every reasonable official would have understood that what he was doing violated the law."
But the trial court had addressed only one of those two components.
"The court did not analyze the clearly established law element," Judge Neil Gorsuch wrote for the court. "Instead, the court held only that the defendants had actually violated Mr. Kerns' Fourth Amendment rights and from this holding it proceeded directly to the conclusion that they were not entitled to qualified immunity. In other words, the district court's opinion addressed only the first part of the two-part test for qualified immunity."
The correct course of action is to remand the matter back to District Court for consideration of the second qualified immunity component, he added, noting that the 10th Circuit cannot consider constitutional or qualified immunity questions until such analysis by the lower court.
"That course is especially prudent where, as here, the issue is close and the briefing on appeal less than entirely satisfactory," Gorsuch wrote.
The panel also sided with Sheriff Darren White on Kerns' Fourth Amendment claims. Deputy Lawrence Koren, Detective Brian Lindley and Mike Haag, the county medical examiner, were also dismissed from the lawsuit on appeal.
Kerns had said there was no probable cause for the arrest because Haag signed a faulty ballistic report and Koren similarly fumbled the trajectory analysis.
But the panel ruled that "the fact remains, at the end of the process, enough truthful information existed in the arrest warrant and grand jury proceedings to establish probably cause. And because of that, we remain obliged by law to extend qualified immunity."
Judge William Holloway wrote a 35-page dissent, saying the trial judge fully satisfied the qualified immunity analysis and ruled correctly.
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