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Kerns v. Board of Commissioners of Bernalillo County

March 31, 2010

JASON KERNS, ARCHIE KERNS, AND MARY ANN KERNS, PLAINTIFFS,
v.
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 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, 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.



MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Plaintiffs' Motion for Leave to File Supplemental Exhibit to Their Reply Brief & Motion for Leave to Disclose a New Expert Witness and Disclose an Amended Expert Report, filed September 15, 2009 (Doc. 240). The Court held a hearing on October 27, 2009. The primary issues are: (i) whether the Court should allow Plaintiffs Jason Kerns, Archie Kerns, and Mary Ann Kerns to supplement their Plaintiffs' Reply to the County Defendants' Response to the Motion for Summary Judgment as to Liability on Counts II, IV & V of the First Amended Complaint, filed August 24, 2009 (Doc. 215) to add the Declaration of Nelson E. Welch as an additional exhibit; (ii) whether the Court should grant the Plaintiffs leave to disclose Dietrich Evans as a potential expert witness in this case, notwithstanding the fact that the deadline for identifying expert witnesses has passed; and (iii) whether the Court should grant the Plaintiffs leave to file an amended expert report by Nelson Welch. Because the Court finds that the Plaintiffs have demonstrated good cause and excusable neglect for the delay, the Court will grant the motion.

FACTUAL BACKGROUND

This case involves the investigation into the August 6, 2005 shooting of the Bernalillo County Sheriff Department's helicopter, Metro One, which crashed into the backyard of a residence near the intersection of Golf Course Road and Paradise Boulevard in Albuquerque, New Mexico. The Bernalillo County Sheriff's Department arrested J. Kerns on August 15, 2009, and a grand jury indicted him on federal charges. On May 10, 2006, the federal charges against J. Kerns were dismissed. J. Kerns, A. Kerns, and M. Kerns brought this federal suit against those involved in the investigation, arrest, and prosecution.

The facts relevant to this motion pertain to Defendant Bernalillo County Sheriff's Detective Brian Lindley's and Defendant Bernalillo County Sheriff's Deputy Lawrence Koren's findings regarding the trajectory angle of the bullet that shot down Metro One. The Plaintiffs assert that "[t]he trajectory information provided by Koren to Lindley for use in his affidavit for Jason Kerns' arrest was . . . demonstrably and recklessly false," and "[t]he true trajectory information would have been known to any person with a basic understanding of mathematics, and the failure to disclose the true distance of the shooter in the arrest warrant shows a reckless disregard for the truth." Amended Complaint ¶¶ 113 & 119, at 14. The Plaintiffs are seeking summary judgment on their 42 U.S.C. § 1983 claims for false arrest and imprisonment, and for malicious prosecution, based on Lindley's and Koren's alleged reckless disregard for the truth when including their trajectory analysis in the arrest-warrant affidavit. See Plaintiffs' Motion for Summary Judgment as to Liability on Counts II, IV & V of the First Amended Complaint, filed July 27, 2009 (Doc. 189).

In filling out the affidavit for an arrest warrant for J. Kerns, Lindley relied on trajectory data that Koren provided, and a distance calculation of how far the shooter was from Metro One when it was shot, which Lindley and Koren found using another Bernalillo County Sheriff's Department helicopter, Metro Two. See Arrest Warrant Affidavit Criminal Complaint (dated August 15, 2005) at 5, filed July 17, 2009 (Doc. 182-5). That data indicated that the bullet that shot down Metro One entered the nose of the helicopter at an angle approximately sixteen-degrees from parallel to the earth's surface. See id. That angle is relevant because, based on the estimated height at which the helicopter was flying and the angle at which it was hovering, a shot from ground-level that entered the helicopter at a sixteen degree angle would have to come from approximately one-thousand-thirty feet away. See id. The Plaintiffs' residence was approximately one-thousand-seventy feet from the site of the shooting, and J. Kerns represented to the officers during the investigation that he was about forty feet away from the Plaintiffs' residence at the time that the shot was fired. See id. Combined with Lindley's belief that the shot came from the general direction of the Plaintiffs' residence, this trajectory data appeared to implicate J. Kerns as the shooter. Lindley included these purported facts and inferences in his seven-page Arrest Warrant Affidavit:

On August 11, 2005 Deputy L. Koren contacted Affiant. Deputy L. Koren is the Bernalillo County Sheriff's Department Helicopter mechanic. Deputy L. Koren stated that he was able to retrieve data from the helicopter GPS navigational system. Deputy L. Koren stated that from the data collected he learned the helicopter's heading (direction the helicopter was facing) prior to the crash and the altitude of the helicopter prior to the crash. From this data, combined with the statements of the pilot and co-pilot, as well as an analysis of the bullet's trajectory through the helicopter's cockpit, Deputy L. Koran was able to obtain an approximate distance at which the rifle, which shot down the helicopter, was fired. This distance was approximately 1630 feet. This distance is well within the range of a 30-06 caliber rifle.

On August 12, 2005 Deputy L. Koren and Affiant flew over the crash site and positioned the helicopter (Metro 2) at the precise GPS coordinates obtained from the Metro 1 helicopter's GPS at the time that Metro 1 was shot down. Detectives located on the ground in several locations measured, with a laser-measuring device, the distance from these locations to the location of the helicopter (Metro 2) while hovering at that precise location. The distance from Jason Kern's residence to the same location that the helicopter was hovering at the time it was shot down was approximately 1670 feet (556 yrds), within the distance that the Marine Corps stated that Jason Kerns was trained to shoot man sized targets.

Id.

Welch, the Plaintiffs' expert, conducted his own analysis and formed a theory on the trajectory of the bullet that hit Metro One. According to Welch's original assessment, the measured trajectory angle was between thirty degrees and thirty-five degrees, which he stated could not be achieved from the Plaintiffs' residence one-thousand-sixty-three feet away. See Letter from Nelson Welch to Marc Lowry at 2 (dated November 6, 2008), filed October 1, 2009 (Doc. 243-2). He concluded that "[t]he arrest affidavit about the trajectory is therefore also clearly in error." Letter from Nelson Welch to Marc Lowry at 2. In his initial report, Welch states: "The data of heading, pitch and roll angle of the helicopter is still unknown as no data has been supplied and could change this condition." Id. at 2.*fn1 Welch supplemented his report on December 3, 2008. See Reply Exhibit 2, Welch's Supplement at 3 (dated Dec. 3, 2008), filed October 1, 2009 (Doc. 243-3). In his supplemental report, he states:

While I have yet to determine the precise location of the helicopter when it was struck by the bullet, as I have not yet reviewed the GPS*fn2 data collected from the helicopter, I do not believe that this trajectory angle can be achieved from the Kerns residence as their home is too far away from the helicopter. Again, the arrest warrant affidavit was drafted in such a manner as to suggest that the shot that hit the helicopter came from within forty (40) feet from the Kerns home. This was simply not possible.

I reserve the right to modify my opinion on the trajectory analysis once I have reviewed the GPS data to determine the heading, pitch, and roll angle of the helicopter, in addition to its precise location when it was shot, to opine more precisely on the trajectory analysis.

Welch's Supplement at 3 (footnote added).

PROCEDURAL BACKGROUND

The Plaintiffs and the County Defendants*fn3 each filed motions for summary judgment on the issue whether Lindley and Koren should be held liable for including what the Plaintiffs allege is a recklessly false estimate of the distance a shooter would have been standing away from the helicopter when the helicopter was shot. The Court will decide whether a material factual issue exists in this case whether Lindley and Koren were recklessly indifferent to the truth when estimating the distance that the shooter was standing relative to the helicopter when Metro One was shot and when including that estimate in Lindley's arrest-warrant affidavit. While the County Defendants contend in their summary judgment motion that the information in Lindley's arrest affidavit was not recklessly false, see Doc. 182 at 26, the Plaintiffs argue that, using photographs to make an angle measurement, Defendant Mike Haag ...


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