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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Crawford v. Kemp (07/14/2006) sp-6022

Crawford v. Kemp (07/14/2006) sp-6022, 139 P3d 1214

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

KEANE-ALEXANDER )
CRAWFORD, ) Supreme Court No. S- 11356
)
Appellant, ) Superior Court No.
) 4FA-02-00183 Civil
v. )
) O P I N I O N
KEVIN E. KEMP and STATE OF )
ALASKA, ) No. 6022 - July 14, 2006
)
Appellees. )
)


          Appeal  from the Superior Court of the  State
          of   Alaska,   Fourth    Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:   Keane-Alexander Crawford,  pro
          se, Fairbanks, Appellant.  Gene L. Gustafson,
          Assistant  Attorney General,  Fairbanks,  and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.

I.   INTRODUCTION
          Alaska   State  Trooper  Kevin  Kemp  arrested   Keane-
Alexander Crawford  for disorderly conduct and performed a search
of  Crawfords  bag  incident  to the  arrest.   Criminal  charges
against  Crawford were dismissed, and Crawford filed suit against
the  State of Alaska and Kemp alleging state law tort claims  and
42  U.S.C.   1983 constitutional claims including  false  arrest,
false  imprisonment, unreasonable search and  seizure,  malicious
prosecution,  and violation of free speech.  The  superior  court
granted  summary  judgment  in  favor  of  the  State  and  Kemp.
Crawford does not challenge the States argument that it is immune
from  suit  under state and federal law and limits his appeal  to
claims  against  Kemp.  We reverse the superior  courts  decision
granting  summary  judgment in favor of Kemp  because  there  are
genuine  issues of material fact as to whether there was probable
cause for Crawfords subsequent arrest and search and whether Kemp
is entitled to immunity.
II.  FACTS AND PROCEEDINGS
     A.   Factual History1
          On  December  7,  2001,  Keane-Alexander  Crawford  was
sitting  in  the  clerks office of the Rabinowitz  courthouse  in
Fairbanks,  drafting a motion for his divorce case. Alaska  State
Trooper Kevin Kemp went to the clerks office in search of  a  man
named   Rodney   who  had  just  violated  a  domestic   violence
restraining  order  by  calling his  wife.   Rodneys  phone  call
originated from the courthouse, and Kemp was told that he  should
be  able  to  find Rodney filing paperwork at the clerks  office.
When  Kemp  arrived at the clerks office, he approached  Crawford
and  asked  his name.  Crawford replied that he did not  want  to
tell Kemp his name and asked if Kemp was trying to arrest him.
          Crawford also inquired if Kemp had a tape recorder  and
was  recording their conversation.  When Kemp asked  if  Crawford
would  like him to turn on his tape recorder, Crawford  responded
that he would rather just be left alone.  Kemp explained that  if
Crawford  would  tell  him  his name, then  he  could  verify  if
Crawford was the person he was looking for.  Crawford refused, so
Kemp  asked a clerk if she knew Crawford.  Kemp then returned  to
where Crawford was sitting and looked over Crawfords shoulder  to
see  if  he could read Crawfords name on the form he was  filling
out.   As  Kemp  was  walking  away, Crawford  raised  his  voice
slightly  and  said to Kemp that he should feel proud  for  being
able  to  read over someones shoulder.  Crawford states he  wasnt
shouting but concedes that he said it loud[ly] because he  wanted
others  in  the  immediate vicinity to know what Kemp  had  done.
Crawford  asserts  that Kemp then turned, leaned  down  close  to
Crawfords  face,  and told Crawford he would be  arrested  if  he
continued  to  speak  in  a  disorderly  manner.   According   to
Crawford, [i]n a voice that [Kemp] would be able to hear, but not
loud enough that it would carry unnecessarily far, Crawford asked
Kemp  for  his  name and the name of his supervisor.   Kemp  gave
Crawford  his  name;  Crawford then left the  clerks  office  and
obtained the name of Kemps supervisor from Judicial Services.
          Crawford  returned to the clerks office and  told  Kemp
that he had the name of his supervisor and that he also knew  how
to write reports.  Kemp responded that he had a tape recorder and
that  he  was  taping their conversation.  At  this  point,  Adam
Bijan,  a  friend  of Crawfords, returned to the  clerks  office.
Crawford  told  Bijan, in a voice that was not exceedingly  loud,
that  Kemp  was bothering him.  Crawford returned  to  the  table
where  he  was  working and from his seated position  turned  and
asked  Kemp  to  make sure no harm came to the tape.   Kemp  then
          approached Crawford, who remained sitting, leaned very close to
him,  and  told Crawford that he had been repeatedly  warned  his
speech was disorderly and Crawford would be arrested if he  spoke
again.  As Kemp was warning Crawford not to speak, a small amount
of  spittle from Kemps mouth landed on Crawfords face.   Crawford
responded  by  asking Kemp to stop spitting in  his  face.   Kemp
warned  Crawford again to stop speaking or he would  be  arrested
for  disorderly conduct.  Despite this warning, Crawford repeated
his  earlier request that Kemp stop spitting in his  face.   Kemp
then  told  Crawford  that  he was under  arrest  for  disorderly
conduct,  handcuffed Crawford, and proceeded to search  Crawfords
clothing.  Kemp also searched Crawfords bag, located a wallet and
two  drivers  licenses,  and  proceeded  to  search  through  the
remainder  of  the  bag.  During this process, Crawford  asked  a
member  of  the  clerks office to retain a copy of  the  security
videotape and asked Kemp if the tape recorder was still running.
          Several  clerks  witnessed  this  incident  and   three
different clerks testified that Crawford was loud and disruptive,
that  Crawfords  voice was loud enough to get my  attention,  and
that  Crawford was repeatedly asked to calm down.  But  Crawfords
friend,  Bijan, was also a witness to the event.   His  affidavit
supports  Crawfords version of events, stating that the  complete
incident  between  Kemp  and Crawford  lasted  approximately  ten
minutes;  that both Kemp and Crawford spoke in a normal  tone  of
voice;  and  that  no one present in the clerks office  indicated
that  the  incident bothered them or asked Crawford to lower  his
voice.
          Kemp  placed  Crawford in a cell at the courthouse  for
approximately  an  hour.  Crawford was then  transported  to  the
Fairbanks   Correctional  Center  where  he  was   searched   and
fingerprinted.  Crawford was released on bail at  1:00  a.m.  the
following  day.   On  December 9, 2001, Kemp filed  a  complaint,
alleging  that Crawford was arrested because he made unreasonably
loud  noise  in a public place and created a hazardous  condition
for  others.   On  December 27, 2001, prosecutors  dismissed  the
criminal charges against Crawford.
     B.   Procedural History
          On January 18, 2002, Crawford filed a complaint against
the  State  of  Alaska and Kemp, and, after  amending  it  twice,
Crawfords  final  complaint alleged claims of  violation  of  his
right  to  free speech, unreasonable search and seizure, unlawful
imprisonment, malicious prosecution, and failure by the State  to
adequately train and supervise Kemp. Crawford claimed damages for
long-term loss of earning potential, physical and mental pain and
suffering,  and punitive damages, and also requested  expungement
of  his  arrest record.  On January 9, 2003, Kemp filed a  motion
for  summary judgment, arguing that his actions were  lawful  and
that both he and the State are immune from suit.
          On  January 28, 2003, Crawford filed a notice with  the
superior  court stating that he dismissed all claims against  the
State.   The superior court treated Crawfords notice as a  motion
for  voluntary  dismissal under Alaska Civil Rule 41(a)(1).   The
State opposed this motion for voluntary dismissal and argued that
summary judgment should be granted with prejudice.
          On  November 14, 2003, Superior Court Judge Richard  D.
Savell issued an order granting summary judgment to Kemp and  the
State.  Judge Savell found that (1) there was sufficient probable
cause  to  arrest Crawford for disorderly conduct and  perform  a
search incident to arrest; (2) the State of Alaska is immune from
suit  under  both state and federal law; (3) Kemp  has  qualified
immunity  under  state  law as a public official;  (4)  Kemp  has
immunity  under  federal law for the civil rights claims  brought
under   1983  and  the constitutional claims; and  (5)  Crawfords
constitutional  rights were not violated.  Crawford  appeals  the
superior  courts decision granting summary judgment in  favor  of
Kemp.
III. DISCUSSION
     A.   Standard of Review
          Orders granting summary judgment are reviewed de  novo,
viewing  all facts and drawing all reasonable inferences  in  the
light  most  favorable  to the party against  whom  judgment  was
entered.2   It is well established that the evidentiary threshold
necessary to preclude the entry of summary judgment is low. 3
     B.   Lawfulness of Arrest and Search
          Crawford  contends that he was unlawfully arrested  for
disorderly  conduct  and that the arrest and search  incident  to
arrest violated his constitutional rights.  We first examine  the
superior  courts  determination that Crawfords claims  should  be
dismissed  because the arrest and search were lawful.  Disorderly
conduct  is  a  misdemeanor  under AS  11.61.110.   The  relevant
sections of AS 11.61.110 provide:
               (a)   A  person  commits  the  crime  of
          disorderly conduct if,
          
               . . . .

               (2)   in  a public place . . . and  with
          intent  to  disturb the peace and privacy  of
          another  or with reckless disregard that  the
          conduct  is  having that effect  after  being
          informed  that it is having that effect,  the
          person makes unreasonably loud noise; [or]
          
               . . . .

               (6)   the  person recklessly  creates  a
          hazardous  condition for  others  by  an  act
          which has no legal justification or excuse[.]
          
          The misdemeanor complaint against Crawford charged that
he  committed  disorderly conduct by making an unreasonably  loud
noise and by recklessly creating a hazardous condition.  Crawford
maintains  that  his voice was not unreasonably  loud  given  the
totality  of  the  circumstances and that he  did  not  create  a
hazardous  condition.   Kemp responds that Crawfords  arrest  was
lawful  because  it  was supported by probable  cause.   Probable
cause to arrest exists if the facts and circumstances known to an
officer  would  support a reasonable belief that an  offense  has
been  or  is being committed by the suspect.4  Probable cause  is
determined  objectively and requires only a fair  probability  or
          substantial chance of criminal activity, not an actual showing
that  such  activity occurred.5   Kemp argues that because  there
was a fair probability that Crawford was being unreasonably loud,
there was probable cause to arrest Crawford.
          The  focus  of our inquiry is on the reasonableness  of
Kemps  belief  that  Crawfords words were  unreasonably  loud  or
created a hazardous condition.  Although all facts must be viewed
in  a light most favorable to Crawford, the reasonableness of  an
officers  actions is to be assessed in light of all the  relevant
circumstances of the case at hand.6  Alaska Statute  11.61.110(b)
defines noise as unreasonably loud if, considering the nature and
purpose of the defendants conduct and the circumstances known  to
the  defendant, including the nature of the location and the time
of  day or night, the conduct involves a gross deviation from the
standard of conduct that a reasonable person would follow in  the
same  situation.  This provision goes on to clarify:   Noise does
not include speech that is constitutionally protected.7
          The   superior  court  concluded  that  probable  cause
existed  to  arrest Crawford for making unreasonably  loud  noise
because  [r]easonable behavior in the lobby of the clerks office,
where  members  of  the  public gather to do  research  and  file
papers,  means using a normal speaking voice.  But  this  finding
seems  to  improperly  discount  Crawfords  argument  that   Kemp
arrested  him  because Crawford continued  to  speak  after  Kemp
repeatedly  warned  him that he would be arrested  if  he  simply
spoke  any  further.  In  his complaint, Crawford  described  the
sequence of events directly before the arrest:
               57.   I turned in my chair to face  Kemp
          and  in  a normal speaking tone said  that  I
          would  like him to make sure no harm came  to
          the tape because I would be requesting a copy
          of it.
          
               58.   Kemp then approached me, this time
          on my right side.
          
               59.  He came right to my side and leaned
          down  close to my face, placing his left hand
          on the back of my chair, behind me.
          
               60.  Kemp was now between me and A.B.
          
               61.   Kemp  said that he had  repeatedly
          warned me that my speech was disorderly,  and
          that  he  would  arrest me  if  I  spoke  any
          further.
          
               62.  I said that I was still sitting and
          that he had approached me.
          
               63.   I said that it was him who had his
          hand  on my chair and I didnt think that made
          me disorderly at all.
          
               64.  He then said that he wasnt going to
          warn  me  anymore and that if I spoke anymore
               he would arrest me for disorderly conduct.
          
               65.  As he had been speaking he was also
          getting increasingly close to my face.  After
          one of his warnings to cease speaking a small
          amount  of spittle came out of his mouth  and
          landed on my face.
          
               66.   I said to him that he had spit  on
          my  face, I asked him to please stop spitting
          on my face.
          
               67.   He did not back up and he said  to
          stop  speaking  or  he would  arrest  me  for
          disorderly conduct.
          
               68.  I asked him to please stop spitting
          in my face.
          
               69.   He  stayed there in  front  of  me
          leaning  towards me without  backing  up  and
          said  he had warned me already that my speech
          was  having  a disorderly effect on  him  and
          that if I didnt stop speaking he would arrest
          me for disorderly conduct.
          
               70.   I said to please stop spitting  in
          my face.
          
               71.   He said thats it, stand up,  youre
          under arrest.
          
          Crawfords  recitation of events in  his  complaint  was
supported by his deposition testimony, in which he recounted that
Kemp  told him that he would be arrested if he continued to speak
to  Kemp:  Hes saying I cannot speak to him because if I speak to
him  at  all thats disorderly conduct and I -- I probably wouldnt
have  been arrested if I had just shut up right then and I  didnt
say anything but I knew that I wasnt required by law to just shut
up  like he wanted me to.  When asked if Kemp had instructed  him
to  calm down or keep his voice down, Crawford responded, No.  He
didnt.  . . .  He said dont talk to me.  Crawford testified  that
every  time [Kemp] says cease speaking -- I remember that  --  he
said stop talking, stop talking, thats disorderly conduct and Ill
arrest  you and I said no its not.  Crawford maintains that  Kemp
never said dont be loud or dont annoy other people.
          The  superior courts probable cause determination  also
failed to give any weight to Bijans affidavit, which stated  that
throughout the ten-minute incident, both Crawford and Kemp  spoke
to  each  other at about the same level of voice volume,  a  very
formal and normal tone of . . . voice.  Bijan also recounts  that
[n]o  one  indicated  .  .  . that this incident  bothered  them.
During  this incident, no one (in the lobby of the clerk  of  the
court) asked anyone to lower their voices.
          Crawfords  version of events, set out in his  complaint
and  his  deposition,  and the affidavit of  his  friend,  Bijan,
raises  a genuine issue of material fact as to whether the  facts
and circumstances known to Kemp would support a reasonable belief
that  Crawfords  words  were  unreasonably  loud  or  created   a
hazardous  condition.  We therefore conclude  that  the  superior
court  could  not  determine as a matter of law that  Kemp  acted
reasonably  or  that a jury would inevitably find that  Kemp  was
reasonable  in  believing  that Crawfords  actions  justified  an
arrest  for disorderly conduct.  Viewing the facts in  the  light
most  favorable to Crawford,8 we conclude that there is a genuine
issue of fact as to the lawfulness of Kemps arrest of Crawford.9
     C.   Immunity
          Crawford alleges that his federal constitutional  right
to  free  speech and his right to be free from search and seizure
and  malicious prosecution were violated and that Kemp should  be
subject  to  personal civil liability under  42  U.S.C.   1983.10
Crawford  also  makes a number of state law tort  claims  against
Kemp  stemming from his arrest for disorderly conduct.  He claims
that Kemp is not entitled to qualified immunity from these claims
because  Kemp acted with malice,11 and no reasonable  officer  in
Kemps  position could have believed his actions warranted  arrest
for disorderly conduct.
          With respect to Crawfords constitutional claims, a  law
enforcement  officer  is entitled to qualified  immunity  if,  in
light of clearly established law and the information available to
the officer at the time, a reasonable officer could have believed
the  arrest was lawful.12  The law is clearly established if  the
contours  of  the right are sufficiently clear that a  reasonable
official  would understand that his actions violate that right.13
The  United  States Supreme Court has interpreted  the  reach  of
qualified  immunity broadly and has explained that  [o]nly  where
the  [arrest]  warrant application is so lacking  in  indicia  of
probable  cause  as to render official belief  in  its  existence
unreasonable, will the shield of immunity be lost.14  The Supreme
Court  acknowledged  that  [o]fficers can  have  reasonable,  but
mistaken,  beliefs as to the facts establishing the existence  of
probable  cause  and clarified that officers  should  be  granted
immunity  for  reasonable mistakes as to the  legality  of  their
actions.15  If the law did not put the officer on notice that his
conduct  would  be  clearly unlawful, summary judgment  based  on
qualified immunity is appropriate.16  In explaining our  decision
to  craft  an  objective standard for qualified  immunity  claims
under Alaska law for alleged violations of statutes or the Alaska
Constitution,  we  declared  that [p]rotecting  the  exercise  of
judgment of local officials from the undue interference caused by
the  threat  of  litigation is necessary to  promote  the  public
interest.17
          Although  we recognize the policy in favor of  deciding
immunity issues prior to trial in order to insulate officers from
claims based on reasonable mistakes, the objective reasonableness
of  Kemps decision to arrest in this case presents a question  of
fact  that  requires  resolution by a jury.  The  superior  court
found  that  Kemps belief that Crawford had committed  disorderly
conduct  was  well-grounded, and that a person in Kemps  position
would  entertain probable cause to believe that Crawfords conduct
was  disorderly.   But  Crawfords  version  of  events  raises  a
          material question of fact about whether Kemps belief was so well-
grounded.
          First,  Crawford has raised a genuine issue of material
fact  as to whether he was making unreasonably loud noise,  which
by definition factors in the nature and purpose of the defendants
conduct  and circumstances known to the defendant, including  the
nature of the location and the time of day or night.18  Given the
context,  the conduct must involve a a gross deviation  from  the
standard of conduct that a reasonable person would follow in  the
same   situation   and   does  not   include   speech   that   is
constitutionally protected.19
          It   is   undisputed  that  the  confrontation  between
Crawford  and  Kemp  began when Kemp asked Crawford  to  identify
himself  and Crawford refused.  It is well-established, and  Kemp
acknowledged in his deposition testimony, that Crawford  was  not
under  a  legal  obligation to tell Kemp his  name  and  was  not
required  by law to produce identification for Kemp.20   Crawford
became  agitated when, after Crawford refused to  give  Kemp  his
name, Kemp proceeded to look over his shoulder and read Crawfords
name  anyway.   Perceiving  that Kemp  was  invading  [Crawfords]
personal  space, Crawford testified that he raised his voice  and
told Kemp that you ought to feel proud of yourself for being able
to  read over someones shoulder.  And I wanted everybody to  know
that  that  [was]  exactly what he did . . . .  Crawford  further
explained  that he hadnt done anything wrong and  that  he  hadnt
broken any law and then Kemp came back and snuck up behind  [him]
and read over [his] shoulder.  When Crawford verbally objected to
Kemps  behavior, according to Crawford, Kemp repeatedly told  him
to  stop  talking or he would be arrested for disorderly conduct.
Crawford  protested and responded that merely  speaking  was  not
disorderly  conduct.  Crawford also claims that  the  event  that
culminated  in his arrest was when, after Kemp told him  to  stop
speaking  and  spittle landed on his face, Crawford  said  please
stop spitting in my face.
          Drawing  all inferences in favor of Crawford, Crawfords
response  could  be viewed as constitutionally  protected  verbal
opposition  to  what he perceived as over-reaching  by  a  police
officer.   Kemp  concedes that there was strictly verbal  contact
between  himself  and Crawford.  Kemp also admits  that  Crawford
never  approached him and never used foul language.   While  Kemp
states  in  his deposition that Crawford shoved [his] chair  back
and   took  a  defensive position or aggressive position scooting
back like he was getting ready to stand up out of [his] seat,  he
did  not  state  in  his affidavit in support  of  the  complaint
against   Crawford  that  Crawford  engaged  in  any  threatening
behavior.   Therefore, under the facts as presented by  Crawford,
and  to  some  degree  corroborated by Kemp,  Crawford  was  only
engaged  in communicative utterances directed at a police officer
which  under  both United States and Alaska law are  entitled  to
constitutional protection.
          It  is  well-settled  that [u]sually,  arguing  with  a
police officer, even when using profane and insulting words  will
not  be enough to constitute disorderly conduct unless the  words
are  coupled  with threatening behavior.21  As the United  States
          Supreme Court observed in City of Houston, Texas v. Hill in a
plurality  opinion  striking down an  ordinance  that  prohibited
speech  that  in  any manner . . . interrupt[s] an  officer,  the
freedom  of  individuals verbally to oppose or  challenge  police
action  without  thereby risking arrest is one of  the  principal
characteristics  by  which we distinguish a free  nation  from  a
police state,22 and it is therefore constitutionally protected.
          In   our   decision  in  Anniskette  v.   State,23   we
acknowledged  that police officers, even when faced  with  verbal
communications that could be described as fighting  words   words
that  provoke  in  the  average  listener  an  immediate  violent
response   should  exercise  more  restraint  than  the   private
citizen.   We  cited  favorably language from  the  American  Law
Institute, which noted:
          Insofar  as the theory of disorderly  conduct
          rests  on the tendency of the actors behavior
          to  provoke  violence  in  others,  one  must
          suppose  that policemen, employed and trained
          to  maintain order, would be least likely  to
          be provoked by disorderly responses.[24]
          
          According  to Crawford, when Crawford was seated,  Kemp
bent  over  Crawford  and  told  him  that  he  was  engaging  in
disorderly conduct because Crawford was trying to annoy Kemp  and
was  trying to make him feel disorderly.  The affidavit filed  by
Kemp  in  support  of  his  complaint  against  Crawford  further
indicates  that Kemp made the arrest at least in part because  he
was  annoyed by Crawfords behavior.  Kemp reported that  Crawford
was  .  .  .  repeatedly advised that he would  be  arrested  for
disorderly conduct if he continued to (harass and annoy) initiate
contact (3-4 times) with Sgt. Kemp.
          As  we  noted  in  Anniskette, [t]hat the  officer  was
personally offended . . . does not render the defendants  conduct
a  crime.  That would be to make the terms of the statute and the
content  of  the  First Amendment shift with  the  mentation  and
emotional  status of the recipient of the verbal  communications.
Under  an  objective  standard it  is  not  permissible  to  make
criminality  hinge  upon  the  ideological  vicissitudes  of  the
listener.25   Under  the  facts as described  by  Crawford,  Kemp
warned Crawford that his speech was having a disorderly effect on
Kemp,  and  that Crawford would be arrested if he spoke  anymore.
From the fact that Kemp was irritated with Crawford does not flow
the  inevitable  conclusion that Crawford was  grossly  deviating
from  the standard of conduct that a person would follow  in  the
same situation.  Nor does it follow that a reasonable officer  in
Kemps  position  would similarly be provoked to make  an  arrest.
The  constitutional protection of verbal communications  directed
at  police  officers  was  well-established  when  Kemp  arrested
Crawford,  and therefore a fact finder might find that  Crawfords
version  of  events  was credible and that he  was  arrested  for
conduct  which  was  entitled  to constitutional  protection  and
therefore  did  not constitute noise within the  meaning  of  the
disorderly conduct statute.26
          Even if Crawford did not raise a material issue of fact
          as to whether his constitutional rights to free speech were
violated,  he did raise a genuine issue of material  fact  as  to
whether  there was probable cause to believe that the  volume  of
his  voice was unreasonably loud and therefore whether there  was
probable  cause to believe that his arrest was lawful.  According
to Bijan, Crawford and Kemp spoke to each other at about the same
level  of voice volume, a very formal and normal tone of  .  .  .
voice.  Bijan also offered evidence that [n]o one indicated  that
this  incident  bothered them and no one . . .  asked  anyone  to
lower their voices.  While Crawford himself admitted that he  was
at times loud, he qualified his admission with statements such as
he  wasnt shouting, and was not exceedingly loud.  Kemp testified
that Crawford was at his loudest when Crawford was asking Kemp to
stop  spitting  in  his  face.   We have  acknowledged  that  the
disorderly  conduct statute limits not the content of speech  but
the  time,  place, and manner of speech to avoid excess  noise.27
And  we  agree  with  the superior court that  weight  should  be
accorded  to the fact that Crawfords admittedly loud speech  took
place  in the clerks office of the courthouse, where a reasonable
speaking  volume should be used.  But considering the  nature  of
the confrontation, as required by the disorderly conduct statute,
it  is  not clear that as a matter of law Kemp had probable cause
to believe that Crawfords conduct involved a gross deviation from
the standard of conduct that a reasonable person would follow  in
the  same  situation.28  Whether a reasonable officer could  have
believed that the arrest was lawful depends on the resolution  of
factual disputes as to what transpired.
          Crawford  further  raises a  question  of  fact  as  to
whether  a  reasonable officer could believe  that  Crawford  was
recklessly creating a hazardous condition for others.   According
to  both  Crawford  and Kemp, for much of the  encounter  between
Crawford and Kemp, including the events immediately leading up to
Crawfords arrest, Crawford was seated and Kemp was standing above
him.   While Kemp testified that he was concerned that Bijan  and
Crawford would join together to resist Crawfords arrest, Crawford
testified  that  when  he was arrested, he  couldnt  see  [Bijan]
because  [Bijan] was on the other side of [Kemp] and  [Kemp]  was
right there.  Given Kemps physically dominant position, it is not
clear  that  as a matter of law a reasonable officer  could  find
that Crawford was creating a hazardous condition for others.
          We  therefore  conclude  that  Crawford  has  raised  a
genuine issue of material fact as to whether a reasonable officer
in  Kemps  position, when faced with the factual scenario  viewed
most  favorably to Crawford, could have believed that the  arrest
for disorderly conduct was lawful.
          Even  if  the superior court were to determine  that  a
reasonable officer in Kemps position could have believed that the
arrest  was lawful, and that Kemp is therefore immune  from  suit
with respect to Crawfords constitutional claims, the inquiry does
not end there.  When considering whether Kemp is immune from suit
on  Crawfords state law tort claims, a subjective test comes into
play.  Kemps motive becomes relevant because a public official is
shielded  from liability only when discretionary acts within  the
scope  of the officials authority are done in good faith and  are
          not malicious or corrupt.29  When viewing the facts in the light
most  favorable to Crawford, an issue of material fact  has  been
raised  about whether Kemps decision to arrest Crawford was  made
because he was annoyed with Crawford rather than because he had a
good  faith  belief  that the law had been violated.   Because  a
factual issue has been raised as to whether Kemps arrest was made
for  an  impermissible  or  pretextual purpose,  we  reverse  the
superior courts grant of summary judgment on Crawfords state  law
tort claims.
          As  a  final  matter, we note that  Crawford  does  not
challenge  or dispute the States argument that it is immune  from
suit  under both state and federal law.  Claims for false  arrest
and false imprisonment against the State are not actionable under
state law.30  The State is statutorily immune for state tort  law
claims  under Alaskas Tort Claims Act, AS 09.50.250.31   Crawford
also  originally filed claims against the State for violation  of
federal law, specifically the Civil Rights Act of 1871, 42 U.S.C.
1983.   Section 1983 permits a cause of action against  a  public
official  in  his personal capacity for money damages  when  that
official  violates a persons constitutionally protected rights.32
But  the  United States Supreme Court has specifically held  that
neither  a  State  nor  its officials acting  in  their  official
capacities  are persons under  1983.33  The superior  court  thus
correctly  found that all  1983 claims must be dismissed  to  the
extent that they seek money damages from the State, and we  leave
this decision undisturbed.
 IV.      CONCLUSION
          For  the  foregoing  reasons, we REVERSE  the  superior
courts grant of summary judgment in favor of Kemp and REMAND this
case for further proceedings consistent with this opinion.
_______________________________
     1     Because factual inferences must be drawn in  favor  of
the  non-moving party, we focus on Crawfords version of the facts
as  articulated in his complaint, deposition, and  opposition  to
summary judgment.

2     Samaniego  v.  City  of Kodiak, 2 P.3d  78,  82-83  (Alaska
2000).

     3     Hammond  v. State, Dept of Transp. & Pub.  Facilities,
107  P.3d 871, 881 (Alaska 2005) (quoting Johns Heating Serv.  v.
Lamb, 46 P.3d 1024, 1032 (Alaska 2002)).

     4    State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).

5     Id.  at  1119  (quoting Van Sandt v. Brown, 944  P.2d  449,
452 (Alaska 1997)).

     6    Samaniego, 2 P.3d at 84.

     7    AS 11.61.110(b).

8     See  Samaniego, 2 P.3d at 84-85; see also  Van  Sandt,  944
P.2d at 451-53 (holding that the issue of whether a trooper could
have reasonably believed that probable cause existed to search  a
house was a question for the jury).

     9     Because  we  have determined that there is  a  genuine
issue of material fact as to whether Crawfords arrest was lawful,
we remand to the trial court the question whether Kemps search of
Crawford and his bag incident to his arrest was lawful.

     10    To  sustain an action under 42 U.S.C.  1983,  Crawford
must show:  (1) that the conduct complained of was committed by a
person  acting under color of state law and (2) that the  conduct
deprived  the  plaintiff of a constitutional right.   See,  e.g.,
Balistreri v. Pacifica Police Dept, 901 F.2d 696, 699  (9th  Cir.
1990).    It  is undisputed that Kemp was acting under  color  of
state  law  at  the  time he arrested Crawford and  searched  his
person and bag.

     11    We  note that ordinarily immunity questions should  be
decided  long  before  trial.  Van Sandt, 944  P.2d  at  451  n.4
(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).  Official
immunity  shelters  the state and government officials  from  all
aspects  of a lawsuit, including pre-trial discovery; it  is  not
solely a shelter from liability.  Hunter v. Bryant, 502 U.S. 224,
227  (1991); Karen L. v. Dept of Health & Soc. Servs.,  953  P.2d
871, 879 (Alaska 1998).

     12    Anderson v. Creighton, 483 U.S. 635, 639 (1987); Breck
v.  Ulmer,  745  P.2d 66, 71-72 (Alaska 1987)  (adopting  federal
precedent  as articulated in Harlow v. Fitzgerald, 457  U.S.  800
(1982),  to  determine  whether  qualified  immunity  should   be
conferred  for  alleged violations of a statute or constitutional
rights,  and  holding that officials were entitled  to  qualified
immunity  so  long  as  they did not violate clearly  established
law); see also Samaniego, 2 P.3d at 84 (applying the federal test
for official immunity to a claim for excessive force).

     13    Van Sandt, 944 P.2d at 452 (citing Anderson, 483  U.S.
at 640).

     14    Malley  v. Briggs, 475 U.S. 335, 344-45 &  n.6  (1986)
(citing  United  States  v.  Leon,  468  U.S.  897,  923  (1984))
(explaining  that  the same standard of objective  reasonableness
applied in the context of a suppression hearing defines qualified
immunity  and that any distinction between a search  warrant  and
arrest warrant does not affect the degree of immunity accorded to
an  officer); see also Saucier v. Katz, 533 U.S. 194, 206  (2001)
(explaining  that  the deference owed officers facing  suits  for
excessive force is not qualitatively different from the  probable
cause inquiry).

     15   Saucier, 533 U.S. at 206.

     16   Id. at 202.

     17   Breck, 745 P.2d at 71.

18   AS 11.61.110(b).

     19   Id.

     20   See, e.g., Richardson v. Bonds, 860 F.2d 1427, 1433 n.5
(7th  Cir. 1988) (citing Justice Whites concurrence in  Terry  v.
Ohio,  392  U.S.  1,  34 (1968), which first  approved  of  brief
noncustodial police interrogation based on reasonable  suspicion,
for  the  proposition that of course, the person stopped  is  not
obliged to answer, . . . and refusal to answer furnishes no basis
for  an arrest, although it may alert the officer to the need for
continued  observation, and citing multiple  circuits  that  have
recognized Justice Whites statement as authoritative).

     21   12 Am. Jur. 2d, Breach of Peace and Disorderly Conduct
33 (2005).

22   482 U.S. 451, 462-63 (1987).

     23   489 P.2d 1012 (1971).

     24    Anniskette, 489 P.2d at 1015 n.5 (citing  Model  Penal
Code  250.1, Comment at p.14 (Tent. Draft No. 13, 1961)).

     25   489 P.2d at 1015.

     26   While in Earley v. State the court of appeals upheld AS
11.61.110(a) and (b) as constitutional as applied to the facts of
that  case,  where an arrest was made when Earley  was  loud  and
belligerent  at a late hour, a citizen informant had  complained,
and  the  police had indications that Earley would have continued
to  disturb  the peace of his neighbors unless he was taken  into
custody,  the court of appeals expressly acknowledged  that  what
saved the statute from being unconstitutionally overbroad was the
fact  that  the  statute provides that  noise  does  not  include
speech that is constitutionally protected.  Earley v. State,  789
P.2d 374, 376 n.2 (Alaska App. 1990).

27   Id.

     28   AS 11.61.110(b).

     29   Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 158
(Alaska 1987).

     30   AS 09.50.250.

     31   AS 09.50.250(3) grants the State statutory immunity for
claims arising out of false imprisonment, false arrest, malicious
prosecution, [and] abuse of process.

     32    See  Kentucky v. Graham, 473 U.S. 159,  165-66  (1985)
(distinguishing  between personal-capacity and  official-capacity
suits and explaining that, while personal-capacity suits seek  to
impose  personal liability upon a government official for actions
he  takes under color of law . . . an official-capacity suit  is,
in  all respects other than name, to be treated as a suit against
the entity).

     33    Will v. Michigan Dept of State Police, 491 U.S. 58, 71
(1989);  see  also Brady v. State, 965 P.2d 1,  20  n.72  (Alaska
1998)  ([A] suit against a state official in his or her  official
capacity is not a suit against the official but rather is a  suit
against  the  officials office.); Robinson v. Francis,  777  P.2d
202,  203 (Alaska 1989) (finding no compelling reason to conclude
that states are persons under  1983).

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