                                                               FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                  PUBLISH               December 20, 2011
                                                       Elisabeth A. Shumaker
                 UNITED STATES COURT OF APPEALS            Clerk of Court

                             TENTH CIRCUIT


JASON KERNS; ARCHIE KERNS;
MARY ANN KERNS,

            Plaintiffs - Appellees,

v.                                                 No. 09-2273
                                        (D.C. No. 1:07-CV-00771-JB-ACT)
Albuquerque Police Department                        (D.N.M.)
Officers DREW BADER; MATT
THOMPSON; RUSSELL CARTER, in
their individual capacities,

            Defendants - Appellants,

and

BOARD OF COMMISSIONERS OF
BERNALILLO COUNTY; Bernalillo
County Sheriff DARREN WHITE, in
his individual and his official
capacity; Bernalillo County Sheriff’s
Detectives BRIAN LINDLEY;
RALPH GONZALES; JAMES
HAMSTEN, in their individual
capacities; Bernalillo County Sheriff
Deputies LAWRENCE KOREN;
SEAN CONNORS; AARON
WRIGHT; TIMOTHY HIX; RHONDA
MOYA, in their individual capacities;
THE CITY OF ALBUQUERQUE;
Albuquerque Police Department
Officers ROBERT JOHNSTON;
JAMES MONTOYA, in their
individual capacities; Metropolitan
Forensic Science Center Firearm and
Tool Mark Examiner MIKE HAAG, in
his individual capacity; JOHN DOES
1-10, in their individual capacities,

                Defendants.

----------------------------------------

JASON KERNS; ARCHIE KERNS;
MARY ANN KERNS,

                Plaintiffs - Appellees,

v.                                                          No. 10-2103
                                                 (D.C. No. 1:07-CV-00771-JB-ACT)
BOARD OF COMMISSIONERS OF                                     (D.N.M.)
BERNALILLO COUNTY;
BERNALILLO COUNTY SHERIFF
DARREN WHITE, in his individual
and his official capacity;
BERNALILLO COUNTY SHERIFF
DETECTIVE BRIAN LINDLEY;
BERNALILLO COUNTY SHERIFF
DEPUTY, LAWRENCE KOREN,

                Defendants - Appellants,

and

BERNALILLO COUNTY SHERIFF’S
DETECTIVES RALPH GONZALES,
and JAMES HAMSTEN, in their
individual capacities; SEAN
CONNORS, AARON WRIGHT,
TIMOTHY HIX, and RHONDA
MOYA, in their individual capacities;
THE CITY OF ALBUQUERQUE,
ALBUQUERQUE POLICE
DEPARTMENT OFFICER DREW
BADER, MATT THOMPSON,
RUSSELL CARTER, ROBERT

                                           -2-
JOHNSTON and JAMES MONTOYA,
in their individual capacities;
METROPOLITAN FORENSIC
SCIENCE CENTER FIREARM AND
TOOL MARK EXAMINER MIKE
HAAG, in his individual capacity; and
JOHN DOES 1-10, in their individual
capacities,

                  Defendants.

---------------------------------------------
MIKE HAAG; JASON KERNS;
ARCHIE KERNS; MARY ANN
KERNS,

              Plaintiffs - Appellees,

v.
                                                                 No. 10-2106
METROPOLITAN FORENSIC                                 (D.C. No. 1:07-CV-00771-JB-ACT)
SCIENCE CENTER FIREARM AND                                         (D.N.M.)
TOOL MARK EXAMINER MIKE
HAAG, in his individual capacity,

              Defendant - Appellant,

and

BOARD OF COMMISSIONERS OF
BERNALILLO COUNTY,
BERNALILLO COUNTY
SHERIFF DARREN WHITE, in his
individual and his official capacity;
BERNALILLO COUNTY SHERIFF’S
DETECTIVES BRIAN LINDLEY,
RALPH GONZALES, and
JAMES HAMSTEN, in their
individual capacities; BERNALILLO
COUNTY SHERIFF DEPUTIES
LAWRENCE KOREN, SEAN

                                                -3-
 CONNORS, AARON WRIGHT,
 TIMOTHY HIX, and RHONDA
 MOYA, in their individual capacities;
 THE CITY OF ALBUQUERQUE,
 ALBUQUERQUE POLICE
 DEPARTMENT OFFICERS DREW
 BADER, MATT THOMPSON,
 RUSSELL CARTER, ROBERT
 JOHNSTON and JAMES MONTOYA,
 in their individual capacities; and
 JOHN DOES 1-10, in their individual
 capacities,

       Defendants.



Stephanie M. Griffin, Assistant City Attorney, City of Albuquerque Legal
Department, Albuquerque, New Mexico, and Daniel J. Macke, Robles, Rael &
Anaya, P.C., for Defendants-Appellants.

Marc M. Lowry, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenberg &
Bienvenu, LLP, Albuquerque, New Mexico, for Plaintiffs-Appellees.


Before O’BRIEN, HOLLOWAY, and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.



      Do we have to decide a qualified immunity appeal involving close

questions of law that the district court hasn’t yet addressed? Do the police violate

a suspect’s clearly established rights by requesting his hospital records? And do

authorities have probable cause to arrest a trained marksman who makes



                                        -4-
suspicious statements in the wake of a shooting, who leads officers on a high

speed chase, and who has a recently concealed rifle shell casing lying at the

bottom of his trash can? We answer no to the first two questions and yes to the

last.

                                          I

        On a summer evening in 2005 a sniper shot down a police helicopter over

Albuquerque. When the authorities reached the scene, one man stood out. His

name was Jason Kerns. Mr. Kerns was quick to tell the police that he was

watching the helicopter from his backyard when it went down — and that he had

heard a loud, ear-ringing pop just to his left and the sound of rocks kicking up

nearby. In response to this information, SWAT and K-9 units canvassed the area

Mr. Kerns described.

        They soon noticed that something seemed amiss when they reached Mr.

Kerns’s house: a door was ajar, music was playing, no lights were on. Things

took an even darker turn when the officers noticed a broken window. A silver-

dollar-sized hole punctured a window of the house, with shattering concentrically

outward. This, the police thought, might be the result of a gunshot — perhaps by

the same sniper who had just fired on the police.

        Concerned that an armed suspect might be hiding inside (perhaps even

holding hostages), three officers — Bader, Thompson, and Carter — attempted to

make contact with the occupants of the house. No one answered their repeated

                                        -5-
knocks. Finding a side door unlocked, Officers Bader, Thompson, and Carter

announced and entered. Inside they soon encountered Mr. Kerns’s girlfriend,

Michelle Zisser, who hadn’t heard their knocks. One of the officers explained

that he was looking for a possible shooting suspect and was concerned the suspect

might be hiding somewhere inside. Ms. Zisser agreed to let them look around.

The police did a quick sweep, everything appeared to be in order, and they soon

left. Indeed, it later turned out that the broken window had been caused by an

errant golf ball some time before.

      As police continued to investigate, it seemed to them that some of Mr.

Kerns’s statements didn’t add up. He told police that he had heard a loud clap

when the helicopter went down. But none of his neighbors reported hearing

anything like this. He told police that rocks kicked up nearby at the same time.

But the police couldn’t find a rock bed anywhere near the location Mr. Kerns

described. Deputy Lindley learned that Mr. Kerns had served in the military as a

helicopter mechanic and marksmanship instructor. Deputy Lindley also learned

that Mr. Kerns had been trained to hit man-sized targets up to 2100 feet away —

and could likely hit a helicopter-sized target at a much greater distance. For his

part, Mr. Kerns estimated that the helicopter had been less than 1000 feet away

from his house when it was shot down.

      Later interactions with Mr. Kerns only made him appear more suspect in

the authorities’ eyes. In a written statement, he admitted that he had been looking

                                        -6-
at the helicopter and had been “annoyed” by it. He bragged to Deputy Lindley

that he would have been able to “make that shot” with “no problem.” He added

that he had trained to take shots at even greater distances. Deputy Lindley

prodded Mr. Kerns a bit, asking him whether someone near Mr. Kerns’s house

would have been able to see the helicopter from that angle. Not missing a beat,

Mr. Kerns replied that he had been able to see the helicopter just fine, and the

way it was backlit made it “a great target.” He even explained how the

helicopter’s red strobe lights gave him an indication of the helicopter’s flight

path.

        Later, detectives attempted to follow Mr. Kerns in an unmarked car. It

wasn’t long before Mr. Kerns noticed he was being tailed and began to drive over

one hundred miles per hour in an admitted attempt to lose the trailing car. As he

later explained, he thought he was being followed by police and “if they’re just

watching now, I’m not gonna make it easy for anybody.” Aplt. App. at 215. He

also told investigators that he suffered from Post Traumatic Stress Disorder

(PTSD), and that being followed by an unmarked police car had triggered a

negative reaction. He declined to tell police, however, what other situations

might prompt his PTSD.

        Eventually, the Bernalillo County Sheriff’s Department executed a warrant

to search Mr. Kerns’s home for weapons and ammunition. They found plenty of

both, as well as a silencer, military literature, and several high power rifles they

                                         -7-
thought capable of downing a helicopter. One rifle in particular, a Fabrique

Nationale Model 30.06 bolt-action rifle (“FN rifle”), captured their attention. As

part of the search, police also examined the trash outside Mr. Kerns’s home.

There they found something else curious: a spent rifle shell wrapped in tape and

buried at the bottom of the trash can. Mr. Kerns said the shell was an old one he

found while cleaning his garage. But analysis of the tape showed that it was

fresh, neither dry nor dirty. All this suggested to police that someone had

attempted to conceal the shell and had done so recently.

      While these events were unfolding, Sheriff White began to question

whether Mr. Kerns could lawfully possess weapons at all. Given Mr. Kerns’s

admission that he suffered from PTSD, Sheriff White decided to investigate

whether he had ever been adjudicated to have a mental defect and so unable to

possess firearms under 18 U.S.C. § 922(g)(4). In aid of his effort, the Sheriff sent

a letter to the local Veteran Affairs hospital, where Mr. Kerns had received

psychiatric treatment, asking for “any and all records possessed by the VA

pertaining to [Mr. Kerns’s] psychiatric condition as it would apply to 18 U.S.C.

[§] 922(g)(4).” Aplt. App. at 308. A few days later the hospital voluntarily

complied.

      Meanwhile, other investigators sought to learn more from the wreckage of

the helicopter. They evaluated the apparent trajectory of the bullet through the

helicopter to determine where the bullet had come from, and they retrieved a few

                                        -8-
fragments of the bullet itself. Though these fragments were badly mangled, a

forensic expert, Michael Haag, told investigators that the bullet could have come

from Mr. Kerns’s FN rifle but not his other high powered rifles. Mr. Haag also

concluded that the FN rifle fired the spent cartridge retrieved from Mr. Kerns’s

trash.

         Another investigator, Deputy Koren, was able to retrieve GPS data from the

crashed helicopter. Using this data, he estimated the direction the helicopter was

facing at the time it was hit and calculated that the aircraft was about 1670 feet

from Mr. Kerns’s house. Deputy Koren also combined the entry angle of the

bullet with an approximation of the helicopter’s altitude at the time of the shot to

determine how far away the shooter would have been from the helicopter. Putting

this information together, and performing a bit of trigonometry, he estimated the

shooter had fired from a distance of about 1630 feet.

         Based on all this, Deputy Lindley prepared an affidavit in support of an

arrest warrant for Mr. Kerns. In the affidavit, Deputy Lindley explained how Mr.

Kerns was a former military marksmanship instructor trained to hit man-sized

targets 2100 feet away. The Deputy noted that, by Mr. Kerns’s estimate, the

helicopter was less than 1000 feet away at the time it went down. He reported

that Mr. Kerns had bragged he could have hit the helicopter with “no problem”

and that it was “a great target.” He recounted how Mr. Kerns had made what

seemed to be a questionable statement — that he’d heard a loud noise and rocks

                                          -9-
kick up to his left, even though none of his neighbors reported hearing anything

like this and no rock bed could be found in the location Mr. Kerns described. The

Deputy also wrote of Mr. Kerns’s suspicious behavior, how he had raced at over

one hundred miles an hour in an attempt to lose following detectives. And he

reported that a search of Mr. Kerns’s home had yielded several firearms

(including the FN rifle); boxes of ammunition; at least one silencer; and a spent

shell casing, freshly wrapped in tape and buried in a trash can.

      Deputy Lindley’s affidavit also included the results of Koren and Haag’s

forensic work. The affidavit explained that, based on Deputy Koren’s

calculations, the shooter had been about 1630 feet from the helicopter. Deputy

Lindley noted that this was within the range of the FN rifle — and that the

distance from where the helicopter was hovering to Mr. Kerns’s house was

approximately 1670 feet. Finally, Deputy Lindley reported that the bullet

fragment taken from the helicopter could have been fired by the FN rifle.

      In light of all this information in Deputy Lindley’s affidavit, an arrest

warrant was issued and Mr. Kerns was arrested. A few days later, Mr. Haag and

another witness presented much of the same information to a federal grand jury

that soon indicted Mr. Kerns.

      But then things took a turn. A forensic expert hired by Mr. Kerns found

that Mr. Haag’s ballistics report was sorely mistaken — and soon Mr. Haag

admitted that Mr. Kerns’s FN rifle could not have been the one that shot the

                                        - 10 -
helicopter. Deputy Koren’s trajectory analysis came into question as well, with

competing expert testimony suggesting the shooter had only been 939 feet away,

and that the bullet may not have come from the direction of Mr. Kerns’s home. In

light of these developments, the U.S. Attorney dismissed the charges against Mr.

Kerns.

      It was then these lawsuits followed, proceeding in three essential

movements. First, Mr. Kerns sued Officers Bader, Thompson, and Carter under

42 U.S.C. § 1983, alleging they had violated his Fourth Amendment rights by

briefly entering his house on the night of the crash. Second, he sued Sheriff

White, arguing the Sheriff’s efforts to obtain his psychiatric records violated his

Fourth and Fourteenth Amendment privacy rights. Finally, he accused Deputy

Lindley, Deputy Koren, and Mr. Haag of false arrest, false imprisonment, and

malicious prosecution. All the defendants moved for summary judgment on the

basis of qualified immunity, but the district court denied relief, and the

defendants now appeal. 1

                                          II


      1
         Mr. Kerns acknowledges that a district court’s denial of summary
judgment on grounds of qualified immunity is subject to immediate review when
the issues appealed are ones of law. But he cautions us that the defendants’
arguments sometimes seem to him to be rooted in disputed factual issues which
are not subject to interlocutory review. We proceed mindful of this constraint on
our jurisdiction and limit the scope of our inquiry to legal challenges to the
court’s denial of qualified immunity. See Lewis v. Tripp, 604 F.3d 1221, 1225-26
(10th Cir. 2010).

                                        - 11 -
      We begin our analysis with Officers Bader, Thompson, and Carter, each of

whom insists he is entitled to qualified immunity for his role in the search of Mr.

Kerns’s house on the night of the crash. Law enforcement officers are, of course,

entitled to a presumption that they are immune from lawsuits seeking damages for

conduct they undertook in the course of performing their jobs. “If qualified

immunity is to mean anything, it must mean that public employees who are just

doing their jobs are generally immune from suit.” Lewis, 604 F.3d at 1230.

      A plaintiff can overcome this presumption of immunity only by carrying

the heavy burden of showing both 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. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080, 2083 (2011) (internal quotation

marks omitted). Failure on either qualified immunity element is fatal to the

plaintiff’s cause.

      In fact, the Supreme Court has recently instructed that courts should

proceed directly to, “should address only,” and should deny relief exclusively

based on the second element, Camreta v. Greene, 131 S. Ct. 2020, 2032 (2011),

in seven particular circumstances outlined in Pearson v. Callahan, 555 U.S. 223,

236-42 (2009) — namely when (1) the first, constitutional violation question “is

so factbound that the decision provides little guidance for future cases”; (2) “it

                                         - 12 -
appears that the question will soon be decided by a higher court”; (3) deciding the

constitutional question requires “an uncertain interpretation of state law”; (4)

“qualified immunity is asserted at the pleading stage” and “the precise factual

basis for the . . . claim . . . may be hard to identify”; (5) tackling the first element

“may create a risk of bad decisionmaking” due to inadequate briefing; (6)

discussing both elements risks “bad decisionmaking” because the court is firmly

convinced the law is not clearly established and is thus inclined to give little

thought to the existence of the constitutional right; or (7) the doctrine of

“constitutional avoidance” suggests the wisdom of passing on the first

constitutional question because “it is plain that a constitutional right is not clearly

established but far from obvious whether in fact there is such a right.” See also

Morgan v. Swanson, 659 F.3d 359, 385 (5th Cir. 2011) (en banc).

       With respect to the last consideration, constitutional avoidance, the

Supreme Court has told us that courts may “avoid avoidance” — and so answer

the first qualified immunity question before proceeding to the second — in cases

involving a recurring fact pattern where guidance on the constitutionality of the

challenged conduct is required and the conduct is only likely to be challenged

within the qualified immunity regime. Camreta, 131 S. Ct. at 2031 & n.5. But

the Court has also told us that this should be the exception, not the rule — that as

a general matter, constitutional avoidance considerations trump and “courts




                                          - 13 -
should think hard, and then think hard again, before turning small cases into large

ones.” Id. at 2032.

      Before the district court the officers argued that Mr. Kerns’s claims fell

short on both aspects of the qualified immunity test. They argued that the exigent

circumstances posed by the nearby shooting of a police helicopter, coupled with

Mr. Kerns’s own statements, justified their fear that a shooter might be hiding out

in his home, perhaps even holding hostages. At the least, they insisted, these

circumstances justified their brief incursion before they won consent from Ms.

Zisser. And even if they did somehow violate the Fourth Amendment, the

officers added, they did not violate clearly established Fourth Amendment law.

See Aplt. App. 90-94. In his opposition to summary judgment, Mr. Kerns

understood both prongs of the qualified immunity analysis to be in play and

proceeded to explain his view that the officers violated his Fourth Amendment

rights, id. at 151-56, as well as why our precedent clearly established that their

conduct violated those rights, id. at 148-51. Though the dissent rightly notes the

question is close, it ultimately accepts that both aspects of the qualified immunity

test were placed in play by the parties before the district court.

      Despite this, however, the district court did not analyze the clearly

established law element. Instead, the court held only that the defendants had

actually violated Mr. Kerns’s Fourth Amendment rights, and from this holding it

proceeded directly to the conclusion that they were not entitled to qualified

                                        - 14 -
immunity. In other words, the district court’s opinion addressed only the first

part of the two part test for qualified immunity.

      What to do when the district court fails to address the second, clearly

established law, element? If it were clear that no constitutional violation took

place, as the defendants urge, we might simply reverse the district court and grant

qualified immunity. But the answer to that question isn’t so clear in this case.

Faced with that problem we usually do well — as Pearson and Camreta remind

us — to proceed directly to the clearly established law question when we’re sure

it yields immunity anyway. But there again the answer isn’t so obvious in this

case. So it is that we are left in a situation without obvious answers to either

qualified immunity question and risk confronting difficult constitutional questions

without the benefit of a full analysis from the district court.

      In these circumstances, there remains, however, another course available to

us — remanding the matter back to the district court to finish the work of

answering the second qualified immunity question. See Distiso v. Town of

Wolcott, 352 F. App’x 478, 482 (2d Cir. 2009) (unpublished) (“When a district

court gives only cursory treatment to the immunity defense, [we] will remand to

the district court with instructions to give further consideration to the matter.”)

(internal quotation omitted). That course bears the advantage of allowing the

adversarial process to work through the problem and culminate in a considered

district court decision, a decision that will minimize the risk of an improvident

                                         - 15 -
governing appellate decision from this court. And that course is especially

prudent where, as here, the issue is close and the briefing on appeal less than

entirely satisfactory. Indeed, many of the same considerations that Pearson and

Camreta identify as counseling in favor of proceeding directly to the second

qualified immunity element — the possibility of avoiding a needless

constitutional question, the quality of briefing, and the desire to avoid the risk of

a poor decision — also counsel in favor of remanding to ensure the district court

addresses the second element before we begin to tangle with a case on appeal.

And it is for these very reasons that we reserve decision on both aspects of the

qualified immunity question in this case until after the district court, on remand,

has finished its work on the clearly established law prong.

      Our dissenting colleague proceeds to reach the questions we think prudent

to defer, offering views on both prongs of the qualified immunity analysis. He

does so in part because he reads the district court’s opinion as having already

addressed the clearly established law question in two passages. We regret we are

unable to agree. First, the dissent cites the background section of the district

court’s order where it simply recites the familiar two prong qualified immunity

test without applying it to this case. See Aplt. App. at 217. We don’t doubt the

district court exhaustively recited the second qualified immunity question. The

problem is the court didn’t proceed to answer it. Second, the dissent points to a

single sentence in the district court’s self-described “analysis” section (a single

                                         - 16 -
sentence out of a four page section). But that sentence says simply this: “The

Kerns[es] have a Fourth Amendment expectation of privacy in their own home

that is well-established. See Payton v. New York, 445 U.S. at 585.” See Aplt.

App. at 220. By its own terms, that sentence doesn’t purport to issue any holding

on the second qualified immunity question. It does not, for example, state that

the officers violated the clearly established right it identified or explain how they

did so.

      But even if the dissent’s reading were correct and the district court’s

formulaic statement of a general legal proposition was intended as a holding on

the clearly established law question, it is simply inadequate to that task. Of

course, Mr. Kerns (like everyone else) has a well-established privacy interest in

his home. But the Supreme Court and we have explained that, when it comes to

deciding the second qualified immunity question, it is “not enough to look at,”

and declare a law enforcement officer liable, based on such “generalized

principles.” Medina v. City and County of Denver, 960 F.2d 1493, 1497-98 (10th

Cir. 1992) (citing Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). The

Supreme Court vigorously underscored the point recently, reminding us with

some apparent exasperation that it has “repeatedly told courts . . . not to define

clearly established law at a high level of generality. The general proposition, for

example, that an unreasonable search or seizure violates the Fourth Amendment is

of little help in determining whether the violative nature of particular conduct is

                                         - 17 -
clearly established.” Ashcroft, 131 S. Ct. at 2084 (internal citations omitted).

Instead, for any court to reach a determination that a violation of clearly

established law has taken place a “more particularized” inquiry is required.

Anderson, 483 U.S. at 640. The court must ask whether “every reasonable

official would have understood that what he [did] violate[d] that right.” Ashcroft,

131 S. Ct. at 2083 (emphasis added) (quotation omitted). To satisfy this standard,

“[w]e do not require a case directly on point,” but neither may a district court

deny immunity unless “existing precedent [has] placed the statutory or

constitutional question beyond debate.” Id. (emphasis added).

      The relevant question the district court needed to address, thus, wasn’t

whether we all have some general privacy interest in our homes (of course we

do). It was instead whether it was beyond debate in 2005 that the officers’ entry

and search lacked legal justification. In addressing this question the district court

needed to address the officers’ claim that exigent circumstances existed (based on

a belief that someone who had just shot down a police helicopter might be hiding

in or near the home) and their claim that their intrusion was justified in part

because of the consent Ms. Zisser supplied (at least after the incursion was first

made). And these questions the district court simply left unanalyzed.

                                          III

      We turn next to the case against Sheriff White. Before the district court,

Mr. Kerns argued that the Sheriff violated his clearly established Fourth and

                                         - 18 -
Fourteenth Amendment rights by asking the VA hospital to share its records

concerning Mr. Kerns’s treatment. To be exact, Mr. Kerns didn’t argue that he

owned the hospital records. See Daniel J. Gilman & James C. Cooper, There is a

Time to Keep Silent and a Time to Speak, the Hard Part is Knowing Which is

Which: Striking the Balance Between Privacy Protection and the Flow of Health

Care Information, 16 Mich. Telecomm. & Tech. L. Rev. 279, 309 (2010)

(explaining that health care providers generally own patient records). Neither did

he seek to hold anyone liable for violating state or federal statutes seeking to

ensure some degree of privacy in patient records. See, e.g., Health Insurance

Portability and Accountability Act (HIPAA), Pub. L. 104-191, 110 Stat. 1936

(1996). Instead, Mr. Kerns submitted only that, whoever owned the records and

whatever other laws may say about how and when they might be shared with law

enforcement, he had a constitutionally protected expectation that the hospital

would keep its records shielded from the Sheriff absent a warrant.

      The district court analyzed both aspects of the qualified immunity test

before agreeing. On appeal, the Sheriff disputes whether he violated Mr. Kerns’s

constitutional rights by asking a hospital to share its records voluntarily — and, if

he did, whether those rights were clearly established at the time. Because we

agree with Sheriff White on the latter (clearly established law) question, we

reverse without addressing the former (constitutional violation) question. And we

pursue this course because doing so allows us to avoid rendering a decision on

                                        - 19 -
important and contentious questions of constitutional law with the attendant

needless (entirely avoidable) risk of reaching an improvident decision on these

vital questions.

      We begin with Mr. Kerns’s Fourth Amendment claim, because it provides

the more “explicit textual source of constitutional protection” against law

enforcement searches. County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998)

(quotation omitted). At step two of the qualified immunity analysis, the question

before us is whether Mr. Kerns can show that Sheriff White’s request to a third

party (the hospital) for records that it may own but in which Mr. Kerns claims a

privacy interest (an interest which we accept exists for our purposes at step two)

violated clearly established Fourth Amendment law as of 2005.

      He cannot. In Douglas v. Dobbs, 419 F.3d 1097 (10th Cir. 2005), this court

accepted that a patient has a privacy interest in medical records held by a third

party medical services provider. At the same time, however, the court proceeded

to explain that statutes requiring disclosure of those records to “law enforcement”

may not always violate the Fourth Amendment. Id. at 1102 n.3. And then, in

language directly pertinent here, the court added that the question whether, in the

absence of such a statute, “a warrant is required [for law enforcement] to conduct

an investigatory search of [medical] records [held by a third party] . . . is an issue

that has not been settled.” Id. at 1103. Given this court’s express recognition of

the uncertain state of the law in 2005 regarding the very circumstances we now

                                        - 20 -
face, we are hardly in a position to say that the proper resolution of the issue was

simultaneously beyond doubt. See also Herring v. Keenan, 218 F.3d 1171, 1173

(10th Cir. 2000) (recognizing “a constitutional right to privacy” in medical

records but granting qualified immunity because no clearly established law put

defendant on notice that his conduct violated that right).

      Complicating the Fourth Amendment analysis in this case is the role of

third party doctrine. Under that doctrine, “the Fourth Amendment does not

prohibit the obtaining of information revealed to a third party and conveyed by

[the third party] to Government authorities, even if the information is revealed [to

the third party] on the assumption that it will be used only for a limited purpose

and the confidence placed in the third party will not be betrayed.” United States

v. Miller, 425 U.S. 435, 443 (1976). The Supreme Court has already applied third

party doctrine to financial information, holding that the government may seek

without a warrant confidential information clients have entrusted to their banks

for safe keeping. Id. And at least some courts have indicated the same analysis

applies to personal medical records entrusted by patients to hospitals or care

providers — allowing law enforcement to seek without a warrant medical records

held by third parties. See Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 2.7(d) (4th ed. 2004) (collecting authority). While

there’s certainly room to debate whether and how third party doctrine should

apply to medical records, see, e.g., Poornima L. Ravishankar, Comment, Planned

                                        - 21 -
Parenthood is Not a Bank: Closing the Clinic Doors to the Fourth Amendment

Third Party Doctrine, 34 Seton Hall L. Rev. 1093 (2004); United States v.

Warshak, 631 F.3d 266 (6th Cir. 2010) (declining to extend Miller to ISP

records), and while we in no way prejudge these questions, the fact that a live

(and heated) debate exists on them is more than enough to preclude us from

saying that the Sheriff violated clearly established law when he sought records

held by a third party care provider.

      In an effort to shoulder his burden of showing otherwise, Mr. Kerns

depends principally on Ferguson v. City of Charleston, 532 U.S. 67 (2001). But

in that case the Supreme Court expressly declined to answer the question posed in

this one. Ferguson held that state hospital employees conducted an unlawful

search in violation of the Fourth Amendment by taking urine samples from

pregnant mothers without their consent in order to test them for cocaine and

provide the results to law enforcement for use against the patients. Id. at 77, 84-

85. In reaching its result, the Court took care to emphasize that the only search at

issue was the taking and testing of urine for police use. See id. at 78 n.13. The

Court expressly left open whether disclosure of preexisting medical records held

by the hospital would also be a search implicating the Fourth Amendment. Id. at

77 n.9. In fact, the Court even acknowledged that in some situations a patient

might well “expect that members of the hospital staff might turn over evidence”

without his or her consent. Id. at 78 n.13. And after the Supreme Court

                                        - 22 -
remanded the case to the Fourth Circuit, that court, too, held only that the

hospital’s nonconsensual “taking and testing” of urine for law enforcement

purposes was an unlawful search, and again expressly declined to decide “whether

the disclosure of test results to law enforcement also implicate[s] the Fourth

Amendment.” 308 F.3d 380, 395 (4th Cir. 2002). According to the terms of

Ferguson itself, then, it hardly placed the Fourth Amendment question before us

beyond debate. Underscoring our conclusion, Professor LaFave has explained

that Ferguson cannot be taken as having “disapprov[ed] of the result in cases”

applying third party doctrine to medical records and finding no Fourth

Amendment violation where (as here) a law enforcement officer seeks medical

records held by third party care givers. LaFave, Search and Seizure § 2.7(d). 2

      Turning to the Fourteenth Amendment, the same sort of problems recur. In

Douglas, this court examined Fourteenth as well as Fourth Amendment case law

before concluding that a warrantless request for third party-held records did not

violate clearly established law as of 2005. 419 F.3d at 1101-03. And, again, we

      2
         Alternatively, Mr. Kerns directs us to a pair of Tenth Circuit cases in aid
of his Fourth Amendment claim. First, he finds hope in Lankford v. City of
Hobart, 27 F.3d 477 (10th Cir. 1994), where this court said “it is possible” a
Fourth Amendment violation had occurred under somewhat similar circumstances.
Id. at 480 n.2. For its part, the dissent also relies extensively on Lankford. See
Dissent at 19-21. But whatever else one wants to say about that decision, its
language hardly announced “clearly established law.” At best, Lankford’s
equivocation declined to foreclose the possibility of a Fourth Amendment
violation. Likewise, we reject Mr. Kerns’s suggestion that the out-of-circuit
concurrence in United States v. Abrams, 615 F.2d 541 (1st Cir. 1980), clearly
established that Sheriff White’s conduct was unlawful.

                                        - 23 -
are hardly able to say otherwise now. It is also unclear whether and to what

degree the Fourth Amendment’s third party doctrine might — or might not — also

inform the parameters of a patient’s Fourteenth Amendment’s privacy interest in

third party medical records. See, e.g., Lewis, 523 U.S. at 841 (noting that the

Supreme Court is “reluctant to expand the concept of substantive due process . . .

where a particular Amendment [like the Fourth already] provides an explicit

textual source of constitutional protection”) (quotation omitted).

      Confirming the lack of a clear answer here, most of the Fourteenth

Amendment cases Mr. Kerns cites involve state actors who publicly disclosed a

citizen’s private information, not law enforcement officers who requested the

voluntary production of records held by a third party for use in legitimate law

enforcement efforts.3 And the Supreme Court in Whalen v. Roe, 429 U.S. 589

(1977), a case which Mr. Kerns seeks to rely upon, suggested a meaningful

constitutional difference may exist between these situations, indicating that access

by the government without a concomitant public disclosure “does not

automatically amount to an impermissible invasion of privacy.” Id. at 600, 602.

      3
        See, e.g., A.L.A. v. West Valley City, 26 F.3d 989, 990 (10th Cir. 1994)
(considering claims arising from “disclosure of [] confidential medical
information”) (emphasis added); Stidham v. Peace Officer Standards & Training,
265 F.3d 1144, 1155 (10th Cir. 2001) (“interest in avoiding disclosure of personal
matters”) (emphasis added) (quotation omitted); Flanagan v. Munger, 890 F.2d
1557, 1570 (10th Cir. 1989) (“[T]he constitutional right to privacy protects an
individual’s interest in preventing disclosure by the government of personal
matters.”) (emphasis added); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.
1986).

                                        - 24 -
Repeating the point last term, the Supreme Court revisited Whalen and held that

the government’s mere collection of information didn’t violate an assumed

privacy interest when the information was sufficiently protected against public

disclosure. See NASA v. Nelson, 131 S. Ct. 746, 761-62 (2011).

      To be sure, Mr. Kerns cites two cases in which this court held that

government officials violated plaintiffs’ substantive due process privacy rights by

accessing their records without public disclosure. But both of those cases

involved another element not present here: the government officials involved

accessed the plaintiffs’ confidential information as part of an unlawful campaign

of sexual harassment.4 Obviously, that situation isn’t present here; there is no

dispute that Sheriff White was pursuing what was an otherwise lawful

investigation. Neither is this point of distinction clearly immaterial. The cases

on which Mr. Kerns relies are consistent with the logic of the common law

privacy torts — accessing confidential medical information for the purpose of

sexual harassment is exactly the sort of “highly offensive” conduct that might

give rise to the tort of intrusion upon seclusion. See Restatement (Second) of

Torts § 652B (1977). Meanwhile, it’s less than clear that an officer’s requesting a

      4
         See Lankford, 27 F.3d at 478; Eastwood v. Dep’t of Corr., 846 F.2d 627,
629-30 (10th Cir. 1988). These cases are explicitly directed at “protecting
employees’ private information from being obtained by their employers without a
valid reason.” See Lankford, 27 F.3d at 479 (emphasis added); Eastwood, 846
F.2d at 631 (10th Cir. 1988) (the Fourteenth Amendment “protects the individual
from governmental inquiry into matters in which it does not have a legitimate and
proper interest”).

                                       - 25 -
suspect’s medical records for legitimate law enforcement purposes would meet

this same standard. Cf. Setzer v. Farmers Ins. Co., Inc., 185 F. App’x. 748, 755

(10th Cir. 2006) (unpublished) (insurance company’s conduct was not “highly

offensive to a reasonable person” when the company made a general request for

medical records with consent for a disclosure of only limited information). Our

cases simply don’t speak to that question, let alone do so clearly.

      Of course, a case on point isn’t required if the impropriety of the

defendant’s challenged conduct is clear from existing case law. If we could be

sure that the distinction between public disclosure or government access without a

valid purpose, on the one hand, and more limited government access for otherwise

legitimate purposes, on the other, is a trivial one we would rule in Mr. Kerns’s

favor. See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“general statements of the

law are not inherently incapable” of satisfying the second prong of the qualified

immunity test) (quotation omitted). The difficulty is that the Supreme Court in

Whalen and NASA and the logic of our own cases preclude such a conclusion and

acknowledge instead that such a distinction might make a constitutional

difference.

      The dissent eloquently argues that if the scope of Mr. Kerns’s Fourth and

Fourteenth Amendments rights in third party held medical records isn’t clear

enough then we should use this case to address the matter definitively. But to

voice this argument is to confirm that the issue we confront today hasn’t yet been

                                        - 26 -
clearly resolved — and why qualified immunity is unavoidable. The Supreme

Court has warned us that small qualified immunity appeals are rarely the right

place to decide large new issues of constitutional law. We always do well to

abide its warnings. And perhaps especially so here, where the Fourth and

Fourteenth Amendment questions surrounding medical records are complex, the

third party overlay adds another dimension to the problem, the parties’ briefing

unhelpfully skates past many of the important issues, and the lack of clearly

established law is readily apparent from our case law and that of the Supreme

Court. So it is we leave the bigger questions for another day and today rest our

decision on a much humbler premise, reversing the district court’s entry of

summary judgment against Sheriff White and ordering the entry of summary

judgment in his favor only because Mr. Kerns has failed to identify clearly

established law rendering beyond debate that the Sheriff’s conduct was unlawful

as of 2005. 5

                                         IV

       Finally we turn to Mr. Kerns’s false arrest, false imprisonment, and

malicious prosecution claims against Deputy Lindley, Deputy Koren, and Mr.

Haag. Although these torts require Mr. Kerns to prove a variety of different


       5
         Neither do we doubt that the scope of the Constitution’s protection for a
patient’s hospital records can be adequately decided in future cases where the
qualified immunity overlay isn’t in play (e.g., through motions to suppress
wrongly seized records or claims for injunctive or declaratory relief).

                                       - 27 -
elements, and although defendants pursue various qualified immunity arguments

in their respective appeals, there is at least one piece of common ground. To

prove any of his claims, Mr. Kerns acknowledges he must establish that his arrest

and detention were without probable cause. And, in the defendants’ view, this he

cannot do because whatever mistakes, omissions, or misstatements they may have

made in connection with the arrest warrant affidavit or in grand jury proceedings,

there was still probable cause to arrest and detain him during the period of his

prosecution. With this much we agree, and we proceed to uphold the defendants’

claim of qualified immunity on this basis because doing so turns out to be the

easiest and most economical way to resolve their various appeals. See Pearson,

555 U.S. at 236 (“[T]here are cases in which there would be little if any

conservation of judicial resources to be had by beginning and ending with a

discussion of the ‘clearly established’ prong.”).

      Procedurally we approach the probable cause question this way. Where

false statements are alleged to have been included in an arrest warrant affidavit or

grand jury testimony, “probable cause is determined by setting aside the false

information and reviewing the remaining” truthful facts. Wolford v. Lasater, 78

F.3d 484, 489 (10th Cir. 1996). Similarly, where true information has been

allegedly and unlawfully omitted from an affidavit or grand jury proceeding, the

existence of probable cause is determined “by examining the affidavit [or

proceedings] as if the omitted information had been included and inquiring if the

                                        - 28 -
affidavit [or proceedings] would still have given rise to probable cause.” Id.

(internal quotation omitted); see also Taylor v. Meacham, 82 F.3d 1556, 1562

(10th Cir. 1996).

      Substantively, the question whether probable cause existed in light of the

— so defined — factual record does not require proof beyond reasonable doubt.

It does not even require the suspect’s guilt to be “more likely true than false.”

Texas v. Brown, 460 U.S. 730, 742 (1983); see also United States v. Ludwig, 641

F.3d 1243, 1252 (10th Cir. 2011). Instead, the relevant question is whether a

“substantial probability” existed that the suspect committed the crime, Taylor, 82

F.3d at 1562, requiring something “more than a bare suspicion.” Ludwig, 641

F.3d at 1252 (quoting United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999)).

      Evaluated using this technique — striking the allegedly false information

and inserting the allegedly truthful but omitted information — and in light of this

substantive standard — requiring more than a bare suspicion but not proof beyond

a reasonable doubt or even a preponderance — the affidavit and grand jury

testimony still featured sufficient evidence to warrant Mr. Kerns’s arrest and

detention.

      We begin with what was included in the affidavit and isn’t challenged by

Mr. Kerns before this court. Mr. Kerns admitted to police that he was looking at

the helicopter and “annoyed by it” at the time it was shot. He was trained both as

a military marksmanship instructor and as a helicopter mechanic. He bragged to

                                        - 29 -
police that the helicopter made “a great target,” that he could have “made that

shot,” and that the helicopter’s strobe lights had given him an indication of the

helicopter’s flight path. Mr. Kerns behaved suspiciously from the night of the

shooting straight through to his arrest. At one point he led detectives on a high

speed car chase. (It is true that the police were in an unmarked vehicle and Mr.

Kerns admitted only after his arrest that he suspected the car belonged to the

police all along, but the police (understandably) thought the behavior suspicious

at the time it occurred.) At other points he gave questionable statements to police

— no one else reported hearing a gunshot near his house, and police never found

the rocks Mr. Kerns said he heard kicking up next to him. And even granting, as

Mr. Kerns contends, that Mr. Haag should have excluded the FN rifle and with it

the spent shell casing in the trash as the one responsible for downing the

helicopter, it is uncontroverted that the tape concealing the casing was fresh and

new — again suggesting that Mr. Kerns was attempting to hide something

peculiar.

      All this taken together was enough to give police substantial if not

incontrovertible reason to believe that Mr. Kerns was responsible for the

shooting. Indeed, other courts have found probable cause in circumstances

analogous in various ways to those presented by this case. See, e.g., United

States v. Mills, 280 F.3d 915, 921 (9th Cir. 2002) (defendant’s dubious statements

about presence near remote crime scene and officer’s knowledge of defendant’s

                                        - 30 -
criminal history sufficient for probable cause to arrest); Tom v. Voida, 963 F.2d

952, 958-59 (7th Cir. 1992) (discussing flight as a “relevant and probative factor”

in probable cause analysis and holding that flight from an officer “may certainly

provide information to ripen an officer’s preexisting suspicions into probable

cause”); Husbands ex rel. Forde v. City of New York, 335 F. App’x 124, 127 (2d

Cir. 2009) (unpublished) (probable cause to arrest for shooting where officer

heard shots suddenly fired, saw individual standing alone in the direction where

the shots were fired, individual immediately turned around and proceeded in the

direction from which the shots had come); Young v. Renico, 346 F. App’x 53, 58-

59 (6th Cir. 2009) (unpublished) (probable cause to detain defendant suspected

for murder of his wife and son where police had information suggesting

defendant’s motive and defendant had told doctors to immediately remove his son

from life support after learning of his condition); see also Johnson v.

Schneiderheinz, 102 F.3d 340, 341-42 (8th Cir. 1996) (evidence that suspect was

in vicinity of the murder and had lied to police about other details created at least

“arguable” probable cause to arrest). Neither does Mr. Kerns identify any

contrary authority that would lead us to reject a finding of probable cause in light

of all the appropriately included facts.

      Instead, Mr. Kerns asks us to focus on facts that the affidavit and grand

jury testimony omitted, insisting that including those facts would have ruled him




                                           - 31 -
out as the shooter — even in light of the facts the affidavit properly contained.

And this, he says, is the case for two reasons.

      First, he argues (as does the dissent) that if the defendants had disclosed the

true location and heading of the helicopter it would have been clear that the shot

couldn’t have come from his backyard. But none of this is necessarily

exculpatory. It only does Mr. Kerns any good if he can show he was in his

backyard at the time of the shooting. But the only evidence of that comes from

Mr. Kerns’s self-interested statements. And by the time of his arrest Mr. Kerns

had already proved himself unreliable through a variety of misleading and

contradictory statements and actions — statements and actions outlined in the

arrest warrant affidavit and grand jury testimony. Including the omitted

information about the track of the helicopter, thus, would have done nothing to

negate the probable cause that already existed.

      Second, Mr. Kerns says that, if Mr. Haag had followed the standards of his

profession, he would have excluded the FN rifle as the one that shot down the

helicopter — and the inclusion of this fact in the arrest warrant affidavit or grand

jury proceedings would have negated probable cause to support his arrest and

detention. But the difficulty with this line of argument is that nothing in the

probable cause analysis we have set forth or the precedents we have discussed

depends on the discovery of the weapon responsible for the crime. Even if the

police had said that the FN rifle wasn’t involved in the shooting, sufficient other

                                        - 32 -
evidence existed to provide probable cause to think Mr. Kerns was the shooter,

including Mr. Kerns’s boasting about being able to hit the helicopter, his

background, his many questionable statements, and his evasion of police. Each of

these facts was known to the officers and does not require any speculation on

their behalf. Indeed, probable cause to arrest often arises from circumstantial

evidence when the weapon responsible for the crime cannot be found or

identified, as the precedents cited above illustrate and confirm.

      The existence of probable cause disposes of all of Mr. Kerns’s claims

against all three defendants. For its part, the dissent disagrees with us about the

existence of probable cause, but it doesn’t grapple with the authority we’ve cited

or offer any of its own. And it proceeds to deny qualified immunity to all three

defendants without pausing to address the clearly established law question. To be

sure, the dissent appears very concerned by the fact that Mr. Haag’s ballistic

analysis and Officer Koren’s trajectory analysis seem to have been faulty and

perhaps even recklessly so. And, to be equally clear, we share that concern. Of

course and emphatically, when assessing the existence of probable cause we must

exclude such false or reckless information and include any suppressed material

exculpatory information. But we have done exactly that and the fact remains, at

the end of the process, enough truthful information existed in the arrest warrant




                                        - 33 -
and grand jury proceedings to establish probable cause. And because of that we

remain obliged by law to extend qualified immunity. 6

                                       ***

      The district court’s order denying qualified immunity with respect to Mr.

Kerns’s Fourth Amendment claim against Officers Bader, Thompson, and Carter,

is vacated and that matter is remanded for further proceedings consistent with the

guidance provided above. The district court’s order denying qualified immunity

with respect Mr. Kerns’s claims against Sheriff White, Deputy Lindley, Deputy

Koren, and Mr. Haag, is reversed and the court is directed to grant dismissal to

these defendants on the basis of qualified immunity. We have no occasion to

reach the defendants’ other arguments as to why they should be entitled to

absolute or qualified immunity. Similarly, Deputy Lindley’s and Deputy Koren’s

argument that the district court ruled on their summary judgment motion

prematurely is mooted by our reversal in their favor.



      6
         Mr. Kerns (but not the dissent) suggests that the U.S. Attorney’s decision
to drop criminal charges against him after Mr. Haag admitted error proves that
probable cause depended on Mr. Haag’s testimony. But this conflates two
logically different questions. A prosecutor’s decision not to proceed to trial
where proof beyond a reasonable doubt is required does not necessarily prove that
a prior indictment lacked probable cause. Separately, Mr. Kerns notes that
Deputy Lindley’s affidavit overstated the certainty that the recovered bullet
fragments were consistent with ammunition found in Mr. Kerns’s house. But he
doesn’t argue that this statement was actually false, and the link between Mr.
Kerns’s ammunition stash and the bullet fragments is, again, unnecessary to
establish probable cause.

                                       - 34 -
Nos. 09-2273, 10-2103, & 10-2106, Kerns v. Bader

HOLLOWAY, Circuit Judge, dissenting:

      I am unable to join the majority’s holdings and so must respectfully dissent.

I agree with the majority that we have jurisdiction to review the legal issues in

these appeals.

                               I. Appeal No. 09-2273

                                           A

      In this, the first of these related appeals, the Appellants are Officers Bader,

Thompson, and Carter (the Officers), three Albuquerque police officers. The

claims against these Officers were brought by Jason Kerns and his parents, Archie

Kerns and Mary Ann Kerns (Plaintiffs). Plaintiffs sought damages against the

Officers under 42 U.S.C. § 1983 for violation of their Fourth Amendment right to

be free of unreasonable searches. This claim arose from the Officers’ entry in the

Plaintiffs’ residence on the night of the helicopter crash.

      I would affirm the district court’s denial of the Officers’ motion for

summary judgment sought on grounds of qualified immunity. The district court

held that a jury could find that there was no imminent threat that would justify the

Officers’ entry into the Plaintiffs’ home. The Officers’ only argument on appeal

is that there were exigent circumstances, which under established law would have

justified their intrusion into the home.

      Because our review is limited to questions of law, it is not necessary to

enlarge on the majority’s summary of the facts, even though the majority seems to
have strayed at times from viewing the facts in the light most favorable to

Plaintiffs as we are constrained to do in the posture of this appeal.1 It is sufficient

to note that the district court held that the jury would have to decide if a

reasonable officer would have perceived that an imminent danger existed that

would justify the entry. We do not have jurisdiction to review that holding in this

interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 313 (1995).

      The Officers do attempt to frame their argument as a legal issue. They

contend that the district court erred in its application of the legal standards

enunciated in United States v. Najar, 451 F.3d 710 (10th Cir. 2006). But in fact

their argument rests on rejection of the district court’s holding that the jury must

decide questions of fact pertaining to whether a reasonable officer would have

perceived an immediate need to protect himself or others under the circumstances.

And as noted, that holding is not reviewable in this interlocutory appeal.

      The Officers do not contend that their entry into the home was justified on

any other basis. Therefore, if exigent circumstances did not exist, the Plaintiffs’

Fourth Amendment rights were violated by the Officers’ entry into their home. I

thus do not understand the majority’s assertion that there is no easy answer to

either of the two questions involved in the qualified immunity analysis. On the


      1
       The existence vel non of exigent circumstances is a mixed question of fact
and law. See United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir. 1992).
The ultimate question whether the facts as found by the jury meet the legal
standard of exigency is a question of law. Id.

                                          -2-
facts as we must take them, i.e., that Plaintiffs produced sufficient evidence in the

district court to support a possible jury finding in their favor on the underlying

factual questions, the answer to the first question surely is easy: An entry into the

home is unlawful when there is neither a warrant nor probable cause and when the

purported exigency is not one that would cause a reasonable officer to believe that

someone inside the home was either an imminent threat to others or was herself in

imminent danger.

                                          B

      I disagree with the majority’s assertion that the district judge did not

address the second prong of the qualified immunity analysis (the clearly

established right prong). First, I note that the Officers made only the slightest

gesture towards raising the issue concerning a clearly established right in the

district court. Indeed, to show that the issue was raised, the majority is only able

to point to a single sentence in a sub-heading of the Officers’ summary judgment

briefing. There, the Officers made only a conclusory assertion that the Plaintiffs

had not shown the violation of a clearly established right.2 I am willing to agree

that this was sufficient to raise the issue. But I highlight this point to underscore

that the district court’s concise treatment of the issue is completely unsurprising

in light of the Officers’ failure to make any reasoned argument on the issue.

      2
      The primary focus of the Officers’ argument both in the district court and
on appeal is that their conduct was lawful under the recognized exigent
circumstances exception to the Fourth Amendment.

                                          -3-
      In spite of the fact that the Officers had merely referred to a general

principle rather than making a reasoned argument, the district judge nevertheless

prefaced his analysis with a thorough discussion of the applicable law. First, the

judge assessed what is meant by a clearly established right, Aplt. App. 217, and

then moved on to discuss the law to be applied to Plaintiffs’ claims in this case.

After quoting the Fourth Amendment, the judge noted the applicable principles of

Fourth Amendment law: For a search without a warrant to be valid, it must fall

within a recognized exception to the warrant requirement; searches within the

home without a warrant “are presumptively unreasonable”;3 the home is entitled

to the greatest protection under the Fourth Amendment;4 and the government

bears the burden of proving that the exigency exception to the warrant

requirement applies, a burden which is “especially heavy when the exception

must justify the warrantless entry of a home.”5 As the district judge then

proceeded to apply the Fourth Amendment principles to the evidence submitted

by the parties, he prefaced that analysis with the assertion that the Plaintiffs “have

a Fourth Amendment expectation of privacy in their own home that is well-

established.” Aplt. App. at 220. Each of these statements of the governing legal

principles is beyond dispute, of course.


      3
          Payton v. New York, 445 U.S. 573, 586 (1980).
      4
          Kyllo v. United States, 533 U.S. 27, 31 (2001).
      5
          United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006).

                                           -4-
      The district court merely held that, depending on what facts are found by

the jury, the Officers may have entered the Plaintiffs’ home when no reasonable

officer would have perceived any imminent danger to anyone. Such an entry

would violate the clearly established law that the district judge had surveyed.

      I disagree with the majority’s view that the district judge’s analysis was

inadequate because it was based only on generalized principles. Some cases do

indeed require a more particularized inquiry. This is not one of them. As

discussed more fully in Part II-B of this dissent, “general statements of the law

are not inherently incapable of giving fair and clear warning . . . .” Hope v.

Pelzer, 536 U.S. 730, 741 (2002).

      Thus the majority is incorrect to say that the district judge did not address

the second prong of the qualified immunity analysis. The question is not a

difficult one in my view, and so I disagree with the majority’s decision to remand

the matter to the district court to rule again on this strictly legal question. The

Officers had neither a warrant nor probable cause. If the circumstances they

encountered did not support a reasonable belief that danger to someone was

imminent, then the armed, nighttime entry into the home violated clearly

established Fourth Amendment law. The district judge’s ruling denying summary

judgment for the Officers should be affirmed.

      Even if I were otherwise in agreement with the majority in this first of

these appeals, I would still disagree with its formulation of the issue to be

                                          -5-
addressed by the district court on remand. Maj. op. at 18. The majority states the

issue with a myopic focus on the facts of this case, apparently inviting the district

court to indulge in, rather than avoid, a “scavenger hunt for prior cases with

precisely the same facts.”6 Moreover, the majority’s statement of the issue it

would have the district court address suffers from other flaws. The majority’s

reference to the Officers’ “belief” that exigent circumstances existed should not

deter the district court on remand from correctly focusing on whether a reasonable

officer would have believed that exigent circumstances existed (an issue which, as

I have said, must in this case be resolved by the jury).

      The majority’s assertion that the district court must consider the Officers’

“claim that their intrusion was justified in part because of the consent Ms. Zisser

supplied (at least after the incursion was first made)” is surprising because the

Officers have not made this contention on appeal. More importantly, the

majority’s instruction to the district court that it should consider this is very

problematic because the issue appears to be one that the district court on remand

in the summary judgment stage must resolve against the Officers. Ms. Zisser

testified that she was unaware of the Officers until they had already crossed the

threshold. Obviously being unaware of their entry, she did not consent to it.

Encountering armed officers inside the home in the middle of the night, Ms.

Zisser did not tell them to leave immediately. The district court noted that Ms.

      6
          Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

                                          -6-
Zisser had stated (presumably in her deposition) that “she did not feel she could

deny the officers’ request [to look around inside the house], as they had their

weapons displayed.” Aplt. App. at 213-14. Barring a concession by the Plaintiffs

that Ms. Zisser’s consent was voluntarily given, which seems most unlikely given

her testimony, I believe that in its reconsideration of the Officers’ motion for

summary judgment, the district court must regard the Officers’ continued

presence in the home as being without consent.

                               II. Appeal No. 10-2103

      This appeal is brought by Sheriff White, Deputy Lindley and Deputy

Koren. The claims against White, Lindley, and Koren were brought only by Jason

Kerns. The issues raised by Sheriff White are, however, quite distinct from those

raised by Deputies Lindley and Koren. The issues raised by the latter two are in

fact related to the issues raised in the third of these three related appeals and

accordingly will be addressed in Part III of this dissent.

                                          A

      I must respectfully dissent from the majority’s decision to reverse the

district court’s proper denial of Sheriff White’s motion for summary judgment

sought on qualified immunity grounds. The claim against Sheriff White is based

on the Sheriff’s role in acquiring Jason Kerns’s medical records from the




                                          -7-
Veterans Administration.7 Because I would affirm the district court’s ruling

denying Sheriff White’s motion for summary judgment, I would necessarily

address both prongs of the qualified immunity defense.

      Jason Kerns served in our military. Like far too many others, he apparently

came home from his service only to experience difficulties adjusting to civilian

life. Without examining the confidential medical records that are the subject of

his claim against Sheriff White, we do not know what caused him to seek

psychiatric treatment at his local Veterans Administration Hospital, nor do we

know more than that he was diagnosed as suffering from post-traumatic stress

disorder. We do know, or in any event his attorney tells us and our precedents

require us to assume, that his treatment involved disclosure to his caregivers of

intimate details of his personal life.

      In the course of investigating the crash of the Albuquerque police

helicopter, Sheriff White apparently learned that Jason Kerns had told an officer

that he had post-traumatic stress disorder. Sheriff White thus thought it possible

that Kerns’s mere possession of firearms might be illegal, owing to the fact that

Mr. Kerns’s voluntary treatment for post-traumatic stress disorder suggested the


      7
       References in this dissent to “Jason Kerns’s records” are made merely for
convenience, not to address the irrelevant question of whose property interests are
involved. This case is not about title to personal property but about the
constitutionally privileged information contained in the records. Thus, I use the
phrase “Jason Kerns’s records” as an abbreviated reference to the protected
information contained in those records.

                                         -8-
possibility, although not the likelihood, that he had been committed to a mental

institution or adjudicated a mental defective.8 Acting on this possibility, 9 Sheriff

White requested from the VA hospital, by letter, “any and all records” relevant to

Mr. Kerns’s “psychiatric condition as it would apply to 18 U.S.C. [§] 922(g)(4).”

And for some reason the Sheriff decided to seek information from the VA rather

than from the courts, where public record of any such adjudication or involuntary

commitment would have been found (as any competent law enforcement officer

undoubtedly would have known).10 In response to his letter, the Sheriff’s deputy

received Jason’s entire medical file from the VA. Every intimate detail that Jason

had reported to his caregivers under a presumption of confidentiality was relayed

to the Sheriff’s deputy for his perusal. 11


      8
       This part of the investigation clearly was not directly relevant to the
helicopter crash under investigation. Instead, it was an effort to determine
whether a different offense had been committed. While I do not question that
such an inquiry is legitimate police work, if properly undertaken, in the context of
a warrantless search it is relevant to the constitutional analysis whether law
enforcement’s need for the information was urgent.
      9
       Sheriff White argued unsuccessfully in the district court that his quest for
Jason’s medical records was supported by probable cause. On appeal, he does not
repeat that argument, nor does he even assert that the quest was supported by
reasonable suspicion. I conclude therefore that at this stage of the litigation, we
must assume that the quest was based on nothing more than speculation.
      10
           The VA records yielded no indication that either had occurred.
      11
        A presumption of confidentiality was reasonable and in accord with
traditional professional restrictions. A modern version of the ancient Hippocratic
Oath states the physician’s duty of confidentiality in these terms: “I will respect
                                                                       (continued...)

                                              -9-
      Sheriff White undertook to obtain all of Jason’s records,12 in spite of their

privileged nature, without consent, without a warrant or any other judicial

process, in the complete absence of exigent circumstances, and without probable

cause; his request was based only on his suspicion that a crime might have been

committed.13 If constitutional privacy protections mean anything at all, this

conduct violated Plaintiff’s right of privacy. As discussed infra, I believe that

this is so obvious and so solidly grounded in existing law that a reasonable public

official should have known that this intrusion into the Plaintiff’s privacy was

unlawful. Because the violation of Mr. Kerns’s constitutional rights must be

discussed in that context, I will forgo further elaboration of my views on that

point and turn to the majority’s decision to avoid deciding whether a

constitutional violation occurred here.

      I strongly believe that the majority’s decision to avoid the question whether

the Plaintiff’s rights were violated is unwise. In Pearson v. Callahan, 555 U.S.

223 (2009), the Court held that lower federal courts have the discretion to address


      11
        (...continued)
the privacy of my patients, for their problems are not disclosed to me that the
world may know.” Peter Tyson, The Hippocratic Oath Today, Public
Broadcasting Service,
http://www.pbs.org/wgbh/nova/body/hippocratic-oath-today.html (March 27,
2001).
      12
        The Sheriff’s letter requested the VA to produce “any and all records”
relevant to Jason Kerns’s psychiatric condition. (Emphasis added.)
      13
           See n.9, supra.

                                          -10-
only the second or “clearly established right” prong of the qualified immunity

analysis, abrogating its holding in Saucier v. Katz, 533 U.S. 194 (2001).

Nevertheless, even as the Court removed the requirement for the lower courts to

address first whether a constitutional violation had occurred, the Court went on to

explain that there remain sound reasons for addressing the first prong in many

cases. Pearson, 555 U.S. at 236. This is such a case.

       As the Court noted more recently, “our regular policy of avoidance

sometimes does not fit the qualified immunity situation because it threatens to

leave standards of official conduct permanently in limbo.” Camreta v. Greene,

131 S. Ct. 2020, 2031 (2011). Dismissing cases on the second prong of the

qualified immunity analysis “thus may frustrate the development of constitutional

precedent and the promotion of law-abiding behavior.” Id. (internal quotation

marks omitted). The Court also cautioned there that lower courts should avoid

turning small cases into large ones, as the majority notes in discussing the first of

these three appeals. But this case does not present that danger because the answer

to the first question is so patent.

       On the other hand, however, the majority insists that this is a contentious,

complicated question. The obvious implication is that the Sheriff’s conduct here

might have been lawful. In other words, even though the majority is willing to

“accept for our purposes at step two” that Jason Kerns has a protected privacy




                                         -11-
interest in the very personal information contained in his medical records, 14 that

protection may mean nothing in the face of a request from law enforcement for

access to that very personal information. That implication should be closely

scrutinized.

      Suppose that Sheriff White had decided to investigate the legality of Jason

Kerns’s gun ownership by checking court records. This would have been a

logical thing to do, of course, since the question was whether Jason Kerns had

been adjudicated a mentally defective or involuntarily committed, i.e., committed

by court order, to an institution for psychiatric care. If the Sheriff had elected to

pursue that course, he could have expected to encounter no obstacles, for court

records are publicly available. He would not have needed a warrant, nor would

he have needed to show Jason Kerns’s consent to his request for the information.

There would have been no need for him to have shown probable cause or even

reasonable suspicion.

      In saying that the question whether a constitutional violation occurred is a

complicated, difficult one that ought to be avoided in the actual circumstances

presented here, the majority implicitly suggests that the law may treat Sheriff


      14
         Maj. op. at 20. The majority seems almost reluctant to accept that Mr.
Kerns has a privacy right. This is odd because this is a principle that several of
our cases have recognized, see, e.g., A.L.A. v. West Valley City, 26 F.3d 989, 990-
91 (10th Cir. 1994) (“There is no dispute that confidential medical information is
entitled to constitutional privacy protection.”), and is not contested by the Sheriff
in this litigation.

                                         -12-
White’s acquisition of constitutionally protected, highly personal information the

same way it would have treated his acquisition of information that may be readily

obtained by the general public. In other words, information that has long been

held to be protected by the Constitution may in fact not be protected at all but

may be as readily available to law enforcement as public records are.

      I cannot accede to that view. The question we face in the first prong of the

qualified immunity analysis is not a complicated one but a very simple one.

Because the Sheriff’s conduct was so blithely oblivious to the constitutional and

statutory protections afforded to the information he sought, we need not consider

whether probable cause would have justified his acting without a warrant, or

whether the Sheriff would have needed probable cause plus exigent circumstances

for justification, to cite but one example of circumstances that could make this

case less clear. This case is crystal clear. Against the protections afforded by the

Constitution, the Sheriff can rely only on the fact that he had no improper motive.

If this was not a constitutional violation, then intimate personal information

contained in medical records is not protected by the Constitution and our

precedents to the contrary are meaningless.

      The majority concludes that one statement from one very different case is

dispositive here. In Douglas v. Dobbs, 419 F.3d 1097 (10th Cir. 2005), we

considered whether an assistant district attorney and her supervisor were entitled

to qualified immunity for their role in advising law enforcement in the

                                         -13-
preparation of a “motion and order” to produce the plaintiff’s pharmaceutical

records. In the course of determining that the attorneys were entitled to qualified

immunity at the second step of the analysis, our court observed – in what appears

to be nothing more than obiter dictum – that it had not been settled whether a

warrant was required to obtain the records. Id. at 1103. 15

      The majority is plainly wrong to say that this dictum addresses “the” issue

presented in the instant case and that the dictum concerns “the very circumstances

we now face . . . .” Maj. op. at 20.16 First, the dictum addresses pharmaceutical

records, not psychiatric records, and it is the latter that have been the subject of

our prior cases. Further, as I have already said, the instant case requires us to

consider whether privileged medical information can be obtained by law

enforcement without a warrant or any other justification other than a suspicion

that perhaps a crime may have been committed. It may be unclear whether a

warrant is required. But the possibility that Sheriff White’s conduct could have

been justified on some basis other than the existence of a proper search warrant –

for example by probable cause plus exigent circumstances – has but minimal

      15
        In Douglas, law enforcement had acted on information that the plaintiff’s
physician suspected plaintiff was forging prescriptions. Moreover, we noted that
law enforcement was acting under the authority of a state statute. Id. at 1102,
n.3.
      16
        Given that Douglas twice cites a state statute that appears to authorize the
conduct of law enforcement there, I do not understand the majority’s description
of the dictum as addressing the necessity vel non of a warrant “in the absence of
such a statute . . . .”

                                         -14-
relevance to our inquiry here because of the extremely thin justification for the

Sheriff’s conduct here.

      The majority says that the question whether a constitutional violation

occurred here is further complicated by the “role of third[-]party doctrine.” Maj.

op. at 21. I do not think that the there is any complication here. Our cases on the

constitutional protection afforded to intimate personal information contained in

medical records, discussed more in Part II-B, infra, afford no role to third-party

doctrine, nor have we recognized in those cases that United States v. Miller, 425

U.S. 435 (1976), a case regarding bank records, has any relevance.

      One case cited by the majority is of more immediate interest, however,

because it provides a useful comparison. In United States v. Warshak, 631 F.3d

266 (6th Cir. 2010), the court addressed the good-faith exception to the warrant

requirement of the Fourth Amendment, which involves a standard similar to the

qualified immunity standard. At issue in the case was the government’s

acquisition of the criminal defendant’s electronic mail from his internet service

provider. The government relied on the authority of a statute to support its

argument that law enforcement officers had acted in objective good faith. The

court held that the government could not rely on the statute if its officers had

exceeded the scope of the authority granted by the statute. Id. at 289.

      In the instant case, both in the district court and on appeal, Sheriff White

has relied on a provision of the Federal Privacy Act. The district court rejected

                                         -15-
that argument, finding that the provision authorizing sharing of information

between agencies applied only to federal agencies, and so could not authorize

Sheriff White’s actions here. 707 F.Supp.2d at 1257-59. I agree with that

conclusion. Moreover, the district judge sua sponte considered whether the

Sheriff’s conduct might have been permissible under the Health Insurance

Portability and Accountability Act, Pub. L. 104-191 (HIPAA), and concluded that

it was not. The lack of statutory authority for the Sheriff’s acquisition of

Plaintiff’s medical records leaves Plaintiff’s privacy expectation undiminished

and underscores the unlawfulness of Sheriff White’s acts.

      The majority says that “the scope of the Constitution’s protection for a

patient’s hospital records can be adequately decided in future cases where the

qualified immunity overlay isn’t in play (e.g., through motions to suppress

wrongly seized records or claims for injunctive or declaratory relief).” Maj. op.

at 27, n.5. But we need not here decide the scope of the protection, only its

existence. This case is about whether the protection is real or only illusory,

because if the Sheriff did not violate Mr. Kerns’s rights by acquiring his medical

information based on nothing more than a desire to investigate whether a crime

had been committed, there is no protection at all.

      We should not hesitate to declare the obvious: Courts have for decades

recognized a constitutionally protected right of privacy in the highly personal

information contained in medical records, and law enforcement therefore must

                                         -16-
have something more than merely a legitimate investigatory interest in the

protected information to justify invading that privacy.

                                             B

      I am convinced that the district court was correct to hold that Sheriff

White’s actions violated Jason Kerns’s clearly established right to have his highly

personal medical information protected from a law enforcement officer whose

access to that information was supported only by a generalized interest in whether

a crime might have occurred. As discussed infra, existing law certainly gave the

Sheriff fair notice that his conduct was unlawful. I believe the majority errs in

effectively holding that the right to privacy in medical records cannot be “clearly

established” absent an affirmation of the right in some prior case with factual

circumstances that differ only trivially.

      As Judge Posner has aptly and succinctly noted in pointing out that denial

of qualified immunity can be proper even absent an earlier factually identical

case, “The easiest cases don’t even arise.” K.H. Through Murphy v. Morgan, 914

F.2d 846, 851 (7th Cir. 1990). This is a pertinent maxim when applied to Sheriff

White’s actions. Sheriff White’s asking the VA for Mr. Kerns’s private medical

records in the circumstances existing here is so far out of the realm of

constitutional behavior that we should not hesitate to hold that it was unlawful,

even if we did not have precedents closely on point that mandate that result. But

the precedents that do exist are easily close enough on point that any reasonable

                                            -17-
law enforcement officer would have known that constitutionally protected

medical records cannot be obtained simply because a possibility exists that the

information would be helpful. Constitutional protection means that such records

cannot be routinely obtained without a warrant, without consent, without probable

cause, and without exigent circumstances.

      We have recognized for at least 25 years that the type of intimate, personal

information contained in medical records is protected under the Constitution.

Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986). In Mangels we said that

information “is constitutionally protected when a legitimate expectation exists

that it will remain confidential while in the state’s possession.” Id. We noted

specifically there that medical records are within the ambit of this protection. Id.

(citing United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.

1980)). We acknowledged in Flanagan v. Munger, 890 F.2d 1557, 1570 (10th

Cir. 1989), that judicial recognition of the “constitutional right to privacy [which]

protects an individual’s interest in preventing disclosure by the government of

personal matters” goes back at least to Whalen v. Roe, 429 U.S. 589, 599 & n.24

(1977).

      Psychiatric records have been afforded even greater protection. The

Supreme Court has held that an evidentiary privilege exists to protect the

“confidential communications between a licensed psychotherapist and her patients

in the course of diagnosis or treatment” under Fed. R. Evid. 501. Jaffee v.

                                         -18-
Redmond, 518 U.S. 1, 15 (1996). Two years after that, we vacated a criminal

conviction that had been based on statements made by the defendant to his

psychiatrist, holding that the district court had failed to determine whether the

privilege could have been overcome in the circumstances. United States v. Glass,

133 F.3d 1356 (10th Cir. 1998).

      The Supreme Court has taught that the “reasonable expectation of privacy

enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the

results of those tests will not be shared with nonmedical personnel without her

consent.” Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001). Long before

Ferguson, this court had recognized the fundamental principle that medical

records contain very personal and private information and are entitled to

constitutional protection. See, e.g., Lankford v. City of Hobart, 27 F.3d 477 (10th

Cir. 1994).

      Here, however, Sheriff White obtained Jason Kerns’s very private medical

records without any recognition that those materials were constitutionally

protected. If law enforcement may obtain medical records as easily as they can

request publicly available information, as was done here, then the special privacy

protection extended to our medical records by the Constitution is rendered

meaningless. I therefore disagree with the majority’s dismaying conclusion, see

Maj. op. at 18-25, that Mr. Kerns did not enjoy a clearly established right to have

his VA medical records kept private from law enforcement authorities who were

                                         -19-
acting without a warrant, without consent, without probable cause – indeed,

acting only on mere suspicion that a crime possibly may have been committed,

and in the absence of any exigent circumstances.

      In considering whether Sheriff White’s conduct violated clearly established

law, we must not engage in a “scavenger hunt for prior cases with precisely the

same facts” but should instead focus on “the more relevant inquiry,” whether the

existing law gave Sheriff White “fair notice” that his conduct was

unconstitutional. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

“[T]here need not be precise factual correspondence between earlier cases and the

case at hand, because ‘general statements of the law are not inherently incapable

of giving fair and clear warning . . . .’” Anderson v. Blake, 469 F.3d 910, 913-14

(10th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

      Yet the majority goes on to highlight factual distinctions from prior cases

as it defends its holding that Plaintiff’s rights were not so clearly established that

a reasonable law enforcement officer would have known that his conduct violated

those rights. I would adhere to the patently clear principle that individuals have a

constitutional right to have their medical records kept private from law

enforcement officers pursuing general investigative ends and acting in the

absence of any authority to breach that privacy. See Ferguson v. City of

Charleston, 532 U.S. 67 (2001); Lankford v. City of Hobart, 27 F.3d 477 (10th

Cir. 1994); A.L.A. v. West Valley City, 26 F.3d 989 (10th Cir. 1994).

                                          -20-
      Like the district judge in this case, I believe our cases gave more than “fair

notice” that the constitutional protections afforded private medical records require

law enforcement to show more than that the records could possibly include

evidence of a crime. A reasonably competent law enforcement official must be

held to know that it means something that medical information has for years been

afforded privacy protection under the Constitution.

      In Lankford v. City of Hobart, 27 F.3d 477 (10th Cir. 1994), the court

considered the section 1983 claims of two dispatchers of the Hobart Police

Department. One of these women, Ms. Calvary, had alleged that the former

police chief, Mr. Medrano, had “used his authority as chief of police to obtain

Ms. Calvary’s private medical records without her consent from a local hospital

in an attempt to discredit her or to prove his statements that she was a lesbian.”

27 F.3d at 478. We held that the district court had correctly ruled that Ms.

Calvary had pleaded the violation of her well established right to privacy in her

medical records, reasoning that “there is no question that an employee’s medical

records, which may contain intimate facts of a personal nature, are well within

the ambit of materials entitled to privacy protection.” Id. (emphasis added;

citations and internal quotation marks omitted). And in a second case decided

over seventeen years ago we recognized that “[t]here is no dispute that

confidential medical information is entitled to constitutional privacy protection.”

A.L.A. v. West Valley City, 26 F.3d 989, 990 (10th Cir. 1994) (emphasis added).

                                        -21-
      Thus, at least eleven years before Sheriff White obtained Plaintiff Jason

Kerns’s medical records, we had held that similar conduct violated well

established rights. The majority, however, is unpersuaded that cases like

Lankford are sufficient to satisfy the second prong of the qualified immunity test.

This is because, we are told, “most” of the cases cited by Plaintiff Jason Kerns

involved police publicly disclosing the private information rather than obtaining it

for law enforcement efforts. Maj. op. at 24.

      The majority errs by relying on this claimed distinction. In Lankford, for

example, we determined that the thrust of Ms. Lankford’s claim was that the

defendant had “seized and reviewed her private medical records.” 27 F.3d at 479

(emphasis added). That the cases protect the individual from having his private

medical records “seized and reviewed” – and not just from having those records

publicly disclosed – is only reasonable because, after all, what is at stake here is

intimately personal information. I think most Americans would not be comforted

to think that the police could freely peruse their most private medical files so long

as they did not pass the information along to the general public. Thus, I think the

majority is quite wrong to attempt to distinguish Lankford and similar precedents

on this basis.

      Nor am I convinced that the qualified immunity defense should prevail here

on the ground that Sheriff White sought the information for law enforcement

purposes. An objectively reasonable law enforcement officer must know that not

                                         -22-
all methods are open to him in pursuing his legitimate law enforcement interests.

Sheriff White had fair notice that constitutional protections afforded to

individuals’ private medical records restrict the ambit of police actions.

Nonetheless, Sheriff White proceeded as if Jason Kerns’s medical records were

entirely unprotected.

      As noted, Plaintiff Jason Kerns bases his section 1983 claim against Sheriff

White on both the Fourth and the Fourteenth Amendments to the Constitution.

Because Jason Kerns enjoyed a due process right to the non-disclosure of his

personal medical information, the infringement of that right implicates the Fourth

Amendment. See, e.g., Douglas v. Dobbs, 419 F.3d 1097, 1103-04 (10th Cir.

2005) (Tymkovich, J., concurring). In the Fourth Amendment context, Plaintiff

relies heavily on Ferguson v. City of Charleston, 532 U.S. 67 (2001). The

majority attempts to confine Ferguson to very narrow contours, and its

characterization of Ferguson is unduly limiting. Ferguson did note that in some

circumstances statutes may require medical providers to release information from

their patients’ files. Neither the majority nor Sheriff White identifies any such

statute which applies in this case. The district court nevertheless considered

whether the VA hospital might have been authorized to release Plaintiff’s records

under the law enforcement exception to the Health Insurance Portability and

Accountability Act, Pub. L. 104-191 (HIPAA). The district judge concluded that

the law enforcement exception did not apply to the Sheriff’s request, 707

                                         -23-
F.Supp.2d at 1259, and I agree. The absence of statutory authority in this case

leaves Jason Kerns’s privacy expectation undiminished and underscores the

unlawfulness of Sheriff White’s conduct.

      Thus the majority’s treatment of Ferguson does not withstand scrutiny.

Ferguson reinforced the principle that the Fourth Amendment does protect patient

records from warrantless searches without probable cause or other justification.

Ferguson simply added to the existing body of law which constitutes fair warning

that a law enforcement officer seeking to obtain constitutionally protected

medical records must comply with the Fourth Amendment. “[A] general

constitutional rule that has already been established can ‘apply with obvious

clarity to the specific conduct in question, even though the very action in question

has [not] previously been held unlawful.’” Anderson v. Blake, 469 F.3d 910, 917

(10th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. at 741).

      Sheriff White points out that he asked the VA to provide the records to

him, presumably instead of going into the VA’s files and taking the records

himself. This is a distinction without a difference. The Supreme Court long ago

established that the police cannot breach one’s constitutional rights simply by

asking another person to do it for them. Stoner v. California, 376 U.S. 483

(1964). On the record before us, the VA hospital lacked any authority —

apparent, express, or implied — to waive Mr. Kerns’s constitutional right to

privacy in his medical records. Sheriff White’s liability is not absolved by asking

                                        -24-
an unauthorized individual to disclose the protected records instead of procuring

the records himself. Sheriff White was on notice that medical records are private

and that the Constitution constrains law enforcement efforts to acquire such

information. As Thomas Jefferson asserted long ago: “In questions of power,

then, let no more be said of confidence in man, but bind him down from mischief

by the chains of the Constitution.” 17

      In sum, Sheriff White is not entitled to immunity from responsibility for his

actions. I respectfully but most emphatically dissent from the majority’s reversal

of the district court’s proper denial of Sheriff White’s motion for summary

judgment.

                                          C

      Deputies Lindley and Koren are appellants in No. 10-2103 along with

Sheriff White. The issues raised by them, and the factual background for those

issues, have almost nothing in common with the issues raised by Sheriff White.

Instead, Deputies Lindley and Koren, like the appellant in No. 10-2106, Mr.

Haag, are sued for false arrest and false imprisonment based on their participation

in the investigation that culminated in the arrest of Jason Kerns and his detention

for almost nine months before the charges against him were dropped because of

      17
        4 Debates in the Several State Conventions, on the Adoption of the
Federal Constitution, as Recommended by the General Convention at
Philadelphia, in 1787 540, 543 (Jonathan Elliot, 2d ed. 1891) (reprinting the
Kentucky Resolutions of 1798 and listing Thomas Jefferson as author of the draft
resolutions).

                                         -25-
insufficient evidence. For convenience, I will address the appeal of Deputies

Lindley and Koren in the next section, along with the appeal by Mr. Haag.

                              III. Appeal No. 10-2106

      This appeal is brought by Mr. Michael Haag, a ballistics expert who

participated in the investigation and testified before the federal grand jury that

indicted Plaintiff Jason Kerns. As just noted, I will also discuss here the appeal

by Deputies Lindley and Koren, who are actually appellants in No. 10-2103.

                                          A

      As to Deputies Lindley and Koren, the majority opinion provides a sketch

of some of the relevant facts.18 I will mention some of the other evidence that

was presented to the district court and relied upon to support that court’s rulings.

      As to Deputy Koren, his role in the investigation included trying to

determine the location of the shooter when the helicopter went down. To do that,

Deputy Koren tried to determine the altitude of the helicopter at the time it had

been hit and the direction that the helicopter had been facing. Then he attempted

to ascertain the trajectory of the bullet. Koren attempted to determine the

trajectory by drawing a line between the point where the bullet entered the

helicopter and one of the aircraft’s foot pedals, which had also been hit by the

bullet. Koren did not, however, know how the pedals had been positioned at the

      18
        As with every other aspect of these appeals, the facts are set out in much
greater detail in the district judge’s very thorough opinion published at 707 F.
Supp.2d 1190.

                                         -26-
time. It appears that the pilot was unavailable to assist in the first stages of the

investigation, presumably as a result of his hospitalization for treatment of

injuries he sustained from bullet fragments and from the crash landing. In any

event, Koren simply assumed, or guessed, that the pedals had been in the

“neutral” position and based his trajectory analysis on that guess, which turned

out to be wrong. Koren’s conclusion was that the rifle shot had come from

approximately 1630 feet, as measured on the ground. Later analysis by Mr.

Welch, an expert retained by Jason Kerns, used information from the pilot as the

basis for the position of the foot pedals at the time the helicopter was shot and led

to the conclusion that the shot had come from a distance of about 939 feet. The

district judge held that a jury could find that Koren had been reckless in his

trajectory analysis.

      Jason Kerns also submitted evidence to show that the GPS data recovered

from the crashed helicopter showed that it had not been facing the Kerns’s

residence at the time it was shot down, a fact that he alleged had been recklessly

omitted from the affidavit in support of the arrest warrant. This fact is significant

because the rifle shot entered the helicopter from the front, and almost directly

from the front it appears. If the helicopter were not facing the Kerns’s property,

then the information in the affidavit that tended to incriminate Jason Kerns based

on the trajectory analysis added nothing to the probable cause analysis.




                                          -27-
      Deputy Lindley was responsible for gathering information from others

involved in the investigation and for drafting the affidavit in support of the

application for an arrest warrant. The district judge held that a jury could find

that Lindley had been reckless in his “adoption of the most favorable of Haag’s

conclusions” (which are discussed below), based on the fact that Lindley had

omitted statements by Haag that would have limited the conclusions Haag had

reached. For example, in relating Haag’s (erroneous) conclusion that the bullet

fragments recovered from the helicopter could have been fired from one of Jason

Kerns’s rifles, Lindley omitted Haag’s statement that the bullet could also have

come from any of a number of other makes of rifles available on the market.

Moreover, as discussed infra, Haag’s analysis was shown to have been

unreasonable, and Haag himself withdrew his opinion upon reviewing the

opinions of Plaintiff Jason Kerns’s expert, Mr. Welch.

      As the majority correctly notes, when false statements have been included

in an arrest warrant affidavit due to recklessness or malice, our task is to

determine whether the remaining facts in the affidavit are sufficient to establish

probable cause. Maj. op. at 28. And when facts have been improperly omitted

from an arrest warrant affidavit, we include those omitted facts in making the

probable cause determination. Id. The district court recognized these principles

in its analysis, and in my view reached the correct conclusion that probable cause

was not established for the arrest of Jason Kerns.

                                         -28-
      The arrest warrant affidavit is based on the theory that Jason Kerns shot

down the helicopter from a location within a few feet of his parents’ property

line. There is simply no other reason for including the flawed analysis which

estimated that the shot had been fired from about 1630 feet away, while the

helicopter at the time had been about 1670 feet from the Kerns’s home. But if the

affidavit had said that the helicopter had been facing away from the Kerns’s home

when it was hit in the front, the distance from the Kerns’s home would have been

irrelevant. And if the affidavit had disclosed that the trajectory analysis had been

based merely on Koren’s guess as to the position of the foot pedals at the time the

bullet entered the aircraft, that analysis would lack probative value as well.

      Thus the hypothetical affidavit that results from our omitting wrongfully

included information and including wrongfully omitted information is self-

contradictory. I would hold that such a hypothetical affidavit would be

insufficient to establish probable cause.

      Even the incident in which Jason Kerns tried to elude surveillance, while

probative, deserves little weight in light of the fact that the affidavit reflects that

the officers were in an unmarked vehicle. Trying to evade an unmarked police

car is not, I think, as indicative of guilt as trying to avoid a uniformed officer or a

marked car. 19

      19
        Our analysis must be limited to the facts recited in the affidavit for the
arrest warrant, as the majority apparently recognizes in its general description of
                                                                       (continued...)

                                            -29-
      Further, as we consider Deputy Lindley’s role, we must consider additional

information that was wrongly omitted from the affidavit. 20 This includes the fact

that Mr. Haag’s ballistic analysis, flawed as it was, had concluded that the bullet

fragments recovered from the helicopter could have been fired from one of Jason

Kerns’s rifles or from any of a number of other rifles readily available on the

market.21 Because I conclude (in considering Deputy Koren’s appeal) that

probable cause is not shown even before adding this omitted information, I

certainly would hold that Deputy Lindley cannot show that probable cause was

established in spite of his errors, including the omission of Mr. Haag’s statement

about the number of rifles on the market that could have fired the shot.




      19
        (...continued)
its approach on appeal. Maj. op. at 26. The majority thus errs by relying on
Jason Kerns’s later admission that he believed the car following him was probably
a police car, a fact that was disclosed in discovery in this case and was not
mentioned in the affidavit.
      20
        Throughout this discussion I refer to wrongly included or wrongfully
excluded information. A jury could determine, as the district judge correctly
noted, that the errors of Lindley and Koren were due to mere negligence, not to
recklessness or intent to deceive. For our purposes, however, we consider only
the legal consequences of a possible jury determination that the deputies’ conduct
was reckless or worse.
      21
        I believe that Deputy Lindley was entitled to rely on Mr. Haag’s analysis,
although of course he was not entitled to distort it. Thus although as explained
infra we must, in considering Mr. Haag’s appeal, assume that Jason Kerns’s rifle
had been conclusively excluded, the reasons for that treatment do not apply to
Deputy Lindley.

                                        -30-
            Therefore, I would affirm the district court’s denial of qualified immunity

to Deputy Lindley and Deputy Koren.

                                              B

            Mr. Haag is a civilian employee of the City of Albuquerque who works in

the firearm and toolmark unit of the city’s forensic science center. Mr. Haag is a

respected member of a national professional group, the Association of Firearms

and Toolmark Examiners (AFTE). Under the group’s standards for ballistics

examinations, there are four conclusions that can be reached: (1) identification,

(2) inconclusive, (3) elimination, and (4) unsuitable. “Identification” is a

conclusion that the tested bullet fragment, for example, matches the

characteristics of the weapon under consideration. In this case, Mr Haag

concluded that the shell casing wrapped in tape that had been found in the trash at

the Kerns’s residence was identified as having come from Jason Kerns’s FN

rifle. 22

            “Inconclusive” means that the examiner can neither identify the fragment as

being from the subject gun nor can he exclude the possibility that it was. Mr.

Haag concluded that the fragments he examined that had been taken from the

helicopter and from the pilot’s leg could neither be identified nor excluded as

        22
        Mr. Haag had determined from trace evidence he observed in the
helicopter that only a high-powered rifle could have fired the shot. In the search
of the Kerns’s residence, officers had recovered three high-powered rifles. Mr.
Haag quickly eliminated two of them and thereafter focused on the rifle that is
referred to herein as the FN rifle.

                                             -31-
having come from the FN rifle. His conclusion was, therefore, “inconclusive.”

Mr. Haag advised Deputy Lindley of this conclusion and also testified to the

grand jury about it. Mr. Haag opined in his report and his grand jury testimony

that the bullet fragments could have come from the FN rifle as well as from many

other firearms available on the market.

      Plaintiff Jason Kerns retained his own ballistics expert, Mr. Welch. Mr.

Welch testified that, upon using a microscope to compare the first bullet fragment

to a bullet that had been test-fired from Plaintiff’s FN rifle, the first step of his

analysis, it took him only five seconds to conclude that the FN rifle should have

been eliminated as the source of the fragments that had been recovered from the

crash. Mr. Welch testified that Mr. Haag was recognized in the field as a

competent examiner and that he, Welch, personally had reviewed some of Mr.

Haag’s work before and had never disagreed before with one of Mr. Haag’s

conclusions. In this case, however, Mr. Welch testified that he could not

comprehend how Haag had reached a different conclusion: “It just boggles my

mind.” The two examined projectiles were “grossly different.” Welch opined

that it was “reckless disregard of the facts” for Haag to disregard the gross

discrepancies between the fragments recovered from the helicopter and the bullet

that had been test-fired from the FN rifle.

      The district judge, taking the evidence in the light most favorable to Jason

Kerns as the non-movant, held that a reasonable jury could find that Mr. Haag’s

                                           -32-
decision not to exclude the FN rifle “rose to the level of reckless disregard.” 707

F. Supp.2d at 1279. The judge further held that a reasonable jury could also find

“intent.” Id.

      Before proceeding to the probable cause analysis that we must undertake on

the assumption that the affidavit should have declared that the FN rifle had been

eliminated, I mention one further point on which I disagree with the majority.

This has to do with the tape-wrapped shell casing that had been found in the

Kerns’s trash. Mr. Haag had concluded that this shell casing had been fired from

the FN rifle, and that conclusion has never been questioned. The majority says

that this bit of evidence helps to support a determination of probable cause – even

when considered with the fact that the affidavit should have reflected that the FN

rifle had been excluded – because it supposedly showed that Jason Kerns had

something to hide. This is singularly unpersuasive to me. No motive for hiding

an object that could not have been incriminating is suggested.

      What is left in the arrest affidavit after omitting the faulty ballistics

analysis is, in my view, inadequate to establish probable cause even if sufficient

to have aroused the officers’ suspicion. The affidavit for arrest warrant reflects

that Jason Kerns rushed to the scene of the crash and offered his observations.

The affidavit reflects that several other witnesses also said that they had heard a

gunshot, and a fair inference is that their information, like Mr. Kerns’s, was not

sufficiently accurate to permit the investigators to determine the location of the

                                         -33-
shooter. Even the incident in which Kerns tried to elude surveillance, while

probative, is not of much weight, as I have noted supra. Therefore, I believe that

the majority errs when it concludes that it would not have made a difference if

Mr. Haag had excluded the FN rifle. I acknowledge that the affidavit contains

some inculpatory material and those facts would have justified further

investigation of Jason Kerns. But I do not agree that such material established

probable cause for his arrest.

      A law enforcement expert may not take reckless liberties with the truth or

lie intentionally and be immune from the consequences. Pierce v. Gilchrist, 359

F.3d 1279 (10th Cir. 2004). Qualified immunity does not protect the dishonest

state actor. Malley v. Briggs, 475 U.S. 335, 341 (1986) (“[T]he qualified

immunity defense . . . provides ample protection to all but the plainly incompetent

or those who knowingly violate the law.”).

      In sum, then, I conclude that the arrest and prosecution of Jason Kerns

would not have been supported by probable cause absent the faulty analysis by

Mr. Haag. We lack jurisdiction to review the district court’s holding that a

reasonable jury could find that Mr. Haag’s errors were the result of reckless

disregard for the truth. If a jury were to make that finding, it would be justified

under Pierce v. Gilchrist in holding Mr. Haag liable for his conduct. Therefore, I

would affirm the district court’s denial of immunity to Mr. Haag.




                                         -34-
                                     Conclusion

      Accordingly, I respectfully dissent. 23




      23
       A number of issues raised by the parties were not reached in the majority
opinion because the majority’s disposition effectively mooted them. I have not
attempted in this dissent to reach every such issue.

                                         -35-
