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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sheldon v. City of Ambler (03/14/2008) sp-6238

Sheldon v. City of Ambler (03/14/2008) sp-6238, 178 P3d 459

     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

RAMONA SHELDON, as Personal )
Representative of the Estate of) Supreme Court No. S- 12298
Albert Lee Sheldon, and RAMONA)
SHELDON and GEORGE SHELDON,) Superior Court No. 2KB-03- 0098 CI
individually, )
) O P I N I O N
Appellants,)
) No. 6238 March 14, 2008
v. )
)
CITY OF AMBLER and BRYAN)
JONES, )
)
Appellees.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Second   Judicial   District,
          Kotzebue, Michael I. Jeffery, Judge.

          Appearances:   C.R. Kennelly, Anchorage,  for
          Appellants.    Howard  S.  Trickey,   Matthew
          Singer,  Jermain  Dunnagan  &  Owens,   P.C.,
          Anchorage,   for   Appellees.     Mary    Ann
          Lundquist,   Assistant   Attorney    General,
          Fairbanks,   Talis   J.   Colberg,   Attorney
          General,  Juneau, for Amicus Curiae State  of
          Alaska.

          Before:   Matthews, Eastaugh, and  Carpeneti,
          Justices.  [Fabe, Chief Justice, and  Bryner,
          Justice, not participating.]

          MATTHEWS, Justice.

I.   INTRODUCTION
This   case   arises  out  of  the  actions  taken   by   Village
Police Officer Bryan Jones on the night of June 24, 2002,  in  an
effort to restrain Albert Sheldon.  Jones had put Sheldon,  drunk
and  refusing  to obey Officer Joness orders, in a bear  hug  and
then,  performing  a  take down, shoved Sheldon  to  the  ground.
Sheldon fell, head-first, and died as a result of the injuries he
sustained during the fall.
             Sheldons  estate  and  Ramona  and  George   Sheldon
(hereinafter  Sheldon) sued Bryan Jones and the  City  of  Ambler
(hereinafter Jones), alleging that Jones used excessive force  in
attempting  to  arrest Sheldon, violating Alaska  statutes.   The
court  below  granted Joness motion for summary judgment,  ruling
that  Jones had qualified immunity for his actions.  In  reaching
its  decision,  the  superior court heavily relied  on  a  recent
United  States Supreme Court decision, Saucier v.  Katz.1   Using
Saucier, the court found that Jones did not have fair notice that
a bear hug and take down were excessive uses of force.
          We affirm the superior courts grant of summary judgment
to  Jones.   We also use this opportunity to clarify this  courts
standard  for qualified immunity, bringing it more explicitly  in
line with current federal case law.
II.  FACTS AND PROCEEDINGS
          The  events  leading  to Sheldons death  are  generally
undisputed  by  the  parties.  Here  we  reproduce  in  full  the
superior courts description of the facts, keeping in mind that in
considering a motion for summary judgment, our obligation  is  to
interpret the facts in the light most favorable to the non-moving
party.2
               During  the  night and early morning  of
          June  24-25,  2002, Albert  Sheldon  and  his
          girlfriend Dora Williams attended a party  in
          Ambler, Alaska and consumed alcohol that  had
          been  brought into Ambler by two bootleggers.
          Sheldon and Williams were fighting with  each
          other  throughout this period of time.   They
          left  the party early on June 25th and walked
          around the village.  They were continuing  to
          fight   and   yell  at  each   other.    They
          encountered Pauline Cleveland and Aggie  Wood
          riding  a four-wheeler.  Despite the fighting
          and   yelling,  Cleveland  and  Wood  allowed
          Sheldon  and  Williams to get  on  the  four-
          wheeler  with them and they rode around  town
          for  about 15 minutes.  Sheldon continued  to
          yell and to push Williams.
          
               Cleveland and Wood then stopped the four-
          wheeler,  and Sheldon and Williams  got  off.
          Cleveland and Wood went to the nearby home of
          Amblers  Village Police Officer  (VPO)  Bryan
          Jones.   Cleveland asked him to go  cool  off
          Albert.  Hes drunk.  Wood informed VPO  Jones
          that  Sheldon was beating on Dora  [Williams]
          and we cant stop it.
          
               VPO  Jones responded about five  minutes
          later  at  6:15  a.m., wearing  his  uniform,
          badge  and  his normal police equipment.   He
          recorded  his entire encounter with  Sheldon.
          He  could hear shouting nearby and he quickly
          found  Sheldon and Williams.  He saw  Sheldon
          apparently assaulting Williams in the street.
          Williams said she wanted to go home  and  did
          not  want  Sheldon to follow her.   Wood  and
          Cleveland  arrived  on the  four-wheeler  and
          Williams requested a ride home.  Sheldon  was
          clearly  intoxicated at  the  time.   He  was
          screaming, belligerent, and would not respond
          to  any  of  VPO Jones[s] orders or commands.
          When  he  saw  Williams  back  on  the  four-
          wheeler,  Sheldon pushed VPO Jones  aside  to
          grab  hold  of  the handlebars of  the  four-
          wheeler.   He  would  not  let  go   of   the
          handlebars despite VPO Jones[s] commands that
          he do so.  Sheldon tried to grab Woods key to
          the  four-wheeler and threatened her when she
          moved his hand away.  At this point VPO Jones
          used  pepper  spray on Sheldon, which  caused
          Sheldon to scream louder.  But he did not let
          go  of  the  handlebars or follow  any  other
          commands of the officer.
          
               VPO Jones then used his police baton  to
          strike  Sheldon on his hands and the back  of
          his  knees.   When [Sheldon]  still  did  not
          respond, VPO Jones struck him on the back and
          the  back  of his head with the  baton.   The
          plaintiffs medical expert, William  F.  Kinn,
          Jr.,  MD, found, assuming that VPO Jones  had
          hit  Sheldon on the head with the baton, that
          the  blow  could  not have caused  the  death
          since  there  was  no  external  evidence  of
          direct  trauma  to the neck  or  scalp  which
          would have been expected if the blow had been
          severe enough to be fatal.
          
               When  Sheldon would still not let go  of
          the  handlebars, VPO Jones put him in a  bear
          hug.   He wrapped his arms over Sheldons arms
          and  shoved him.  Sheldon still did  not  let
          go, so VPO Jones shoved him again, performing
          a  take down.  The two men fell.  Sheldon was
          unable  to  use his arms, and he  struck  his
          head  on the ground when he landed underneath
          VPO   Jones.    VPO  Jones  then   handcuffed
          Sheldon,    who   continued    yelling    and
          struggling,  and  took him  to  the  villages
          jail.   Along the way, Sheldon collapsed  and
          VPO Jones dragged him the rest of the way and
          put him in a cell by about 6:33 a.m.
          
               VPO  Jones then called the village Heath
          Aide  to  examine Sheldon.  The  Health  Aide
          came to the station, briefly examined Sheldon
          and  then left for a short time.  By the time
          the  Health  Aide  returned,  VPO  Jones  had
          noticed that Sheldon was not breathing.   VPO
          Jones  and  the Health Aide tried  to  revive
          Sheldon  with  CPR for about 30 minutes,  but
          they   were  unsuccessful.   Other  villagers
          arrived  to  help  with CPR, which  continued
          another  10 minutes.  Upon instructions  from
          the  doctor in Kotzebue to cease the CPR, the
          efforts  ended and Sheldon was declared  dead
          about  7:55  a.m.   Viewing  the  facts  most
          favorably to Sheldon for purposes of deciding
          the pending motion, the blow to his head from
          hitting the ground while in VPO Jones[s] bear
          hug and take down caused Sheldons death.
          
          The  superior court granted Joness motion  for  summary
judgment.   In  finding  for Jones, the superior  court  did  not
primarily  rely on this courts decision in Samaniego v.  City  of
Kodiak.3   In that case, we announced the standard for  qualified
immunity  based  on  our  interpretation  of  AS  11.81.370   and
12.25.070.4   Instead,  the superior court  used  a  2001  United
States  Supreme Court decision, Saucier v. Katz.5   The  superior
court reasoned that
          [w]hen   the  Alaska  Supreme  Court  decided
          Samaniego  [in  2000], it did  not  have  the
          benefit  of the United States Supreme  Courts
          analysis in Saucier.  Given the deference the
          Alaska Supreme Court has given to federal law
          in the excessive force area, it is reasonable
          to expect that the Alaska Supreme Court would
          adopt the Saucier analysis on this issue.
          
          Using  the  Saucier analysis, the superior  court  held
that  Jones  and the City of Ambler were protected  by  qualified
immunity  because [t]here was no clearly established law  .  .  .
that  would  have  given  a reasonable officer  notice  that  the
conduct  in  question, the use of a bear hug and take  down,  was
unlawful or otherwise prohibited. The superior court mentioned  a
1992  decision from a federal court in Idaho that found that  the
use  of  a  bear hug in an attempt to contain and control  rather
than to abuse or dominate was not excessive force.6
          Even  though  the superior court found  that  qualified
immunity  protected  the  defendants, it conducted  an  excessive
force analysis to provide a complete record.  The court concluded
that  there  was a genuine issue of material fact as  to  whether
Jones  used excessive force.  The superior court did not  discuss
the negligent training claim made by Sheldons estate.
          Sheldons estate appeals on the ground that immunity was
improperly  granted to Jones.  Sheldons estate  argues  that  the
          superior court erred in adopting Saucier and that summary
judgment  would not have been warranted under the  standard  this
court  adopted  in Samaniego.  The estate also suggests,  in  its
reply  brief, that a genuine issue of material fact still remains
as  to  whether  Sheldons death was the result  of  the  City  of
Amblers negligent training of VPO Jones.  The State of Alaska has
filed an amicus brief in support of the superior courts decision,
urging  us  to  overrule Samaniego since it applies an  abandoned
doctrine and more good than harm will result from its demise.
III. DISCUSSION
     A.   The Standard for Qualified Immunity
          This  case,  and  the  superior  courts  ruling  below,
require  us  to  reexamine our previous  decisions  on  qualified
immunity  and  to clarify the standard for granting  immunity  to
police officers.  On the one hand, the appellees implicitly,  and
the  state  explicitly,  urge us to depart  from  our  ruling  in
Samaniego and instead adopt the Supreme Courts standard announced
in  Saucier.  On the other hand, the appellants contend  that  we
should adhere to the Samaniego standard.  Appellees and the state
are  correct that this court usually follows federal case law  in
the  area of qualified immunity;7 their suggestion that we depart
from  Samaniego is bolstered by the fact that the  Ninth  Circuit
decision on which Samaniego partially relied8 was reversed by the
United States Supreme Court in Saucier.9  But appellants are also
correct  that we are not bound to follow federal law in designing
our  own  judicial  standard for excessive force.   We  are  here
dealing  with the interpretation of Alaska statutes, not  federal
law,  and  have no obligation to follow federal case  law.   Both
sides make credible arguments.
          Unlike the appellees and the state, we do not find that
Samaniego  is clearly contradicted by Saucier.  Rather,  we  find
Samaniegos  standard to be ambiguous, at points seeming  to  vary
from  the  later  adopted Saucier standard, and at  other  points
describing  a  standard  that  is in  principle  much  closer  to
Saucier.   Nonetheless, unlike the appellants, we  are  persuaded
that Samaniego should be read in a way that more closely conforms
to  the  standard  developed in Saucier.  We therefore  take  the
opportunity provided by this case, not to overturn Samaniego, but
rather  to  clarify its holding.  In the words  of  the  superior
court,  we  choose  to follow Samaniego as modified  by  Saucier,
rather than abandon it.
          In  Saucier, the United States Supreme Court emphasized
that  in  deciding whether an officer is eligible  for  qualified
immunity one must not merely look to whether an officers  actions
were  objectively  reasonable, but also to  whether  the  officer
might have reasonably believed that his actions were reasonable.10
Would  a reasonable officer, in other words, have been on  notice
that his particular use of force would be unlawful?11  Or could he
have reasonably believed that his actions were legal?
          This test recognizes that there may be behavior that is
objectively  unreasonable but that nonetheless an  officer  might
have  reasonably believed was reasonable.  If this is  the  case,
then the officer should be entitled to qualified immunity for his
behavior.   As  the  Supreme Court wrote, [t]he  concern  of  the
          immunity inquiry is to acknowledge that reasonable mistakes can
be  made  as  to  the  legal  constraints  on  particular  police
conduct  .  .  . .  If the officers mistake as to  what  the  law
requires  is  reasonable . . . the officer  is  entitled  to  the
immunity  defense.12  In other words, a reasonable  but  mistaken
belief  can confer immunity on an officer even after it has  been
established that the officer violated a constitutional  right  by
behaving  unreasonably.   We find that this  concern  to  protect
officers  who  reasonably believe that their actions  are  lawful
furthers  the  rationale we announced in Samaniego: to  recognize
the  reality that police officers, in pursuit of their  dangerous
and  important jobs, are often forced to make difficult decisions
regarding the use of force.13
          Saucier overturned the Ninth Circuits decision in Katz,
a  decision  which  Samaniego cited twice in  its  discussion  of
qualified immunity.14  What Katz denied, and Saucier asserted, was
that  an  officers  mistaken  but  reasonable  belief  about  the
legality  of  his  actions could secure  that  officer  qualified
immunity.  The problem with Katz was that it turned the qualified
immunity analysis solely into the question of whether the actions
of an officer were objectively reasonable.15  It did not allow the
possibility  that  an  officer  might  act  in  a  way  that  was
objectively unreasonable and still be immune from suit because he
reasonably but mistakenly believed that his actions were lawful.
          The state, in its brief, argues that Samaniego errs  in
the same way in which Katz did, by focusing solely on whether the
officers  behavior was objectively reasonable.  Indeed, Samaniego
cited  Katz  at  two  key  points.16  The emphasis  on  objective
reasonableness  is  also  seemingly  in  evidence  in  Samaniegos
concluding  paragraphs.  The opinion concluded  that  the  proper
analysis  of  defendant  officers claims of  privilege  to  rebut
excessive-force  allegations . . . is to  examine  the  objective
reasonableness of the officers use of force in making an  arrest.
It  was  error to apply, the Samaniego opinion ended, an immunity
analysis  driven  by the officers subjective beliefs  as  to  the
reasonableness of the force used.17
          Because  it relied on Katz, the state asks  us  now  to
overturn  Samaniego  based  on  the  changed  circumstances  that
include  the  United States Supreme Courts decision  in  Saucier.
[B]y continuing to follow Katz, the state argues, this Court  has
diverged  from  the very federal precedent that  it  intended  to
follow.  Accordingly, the state asks us to declare that Samaniego
is no longer good law.
          We  agree  that Samaniego attempted to be  faithful  to
federal  precedent, but we disagree as to the extent it  diverges
from  that  precedent even now, after Saucier.  In beginning  its
analysis of qualified immunity, our court in Samaniego noted that
it  had,  in  a prior case, adopted the federal . .  .  test  for
official  immunity.18  It then proceeded to cite and  quote  from
Mathis  v.  Sauser, an Alaska Supreme Court decision that  relied
directly on the United States Supreme Courts decision in Anderson
v.  Creighton.19   Under the federal standard, we  emphasized  in
Samaniego, the relevant inquiry is whether a reasonable  official
could have believed the challenged conduct was lawful in light of
          clearly established law and the facts of the case.20
          Here  is  what  Saucier  would later  identify  as  the
reasonable,  but  mistaken,  beliefs  aspect  of  the   qualified
immunity inquiry.21  That is, qualified immunity can be conferred
when  an  officer could have reasonably believed that his conduct
was lawful (even if it was not).  By invoking Anderson, a case on
which  Saucier  explicitly  relied,22  this  court  signaled  its
recognition that the beliefs of the officer, supposing that  they
are   reasonable, were relevant to a qualified immunity  inquiry.
If  Samaniego had stopped there, there would be no doubt that, in
Alaska, an officer would be entitled to qualified immunity if  he
reasonably  believed that his conduct was lawful,  even  if  that
conduct was objectively excessive.
          Unfortunately, the Samaniego court subsequently muddied
its  clear  statement  by writing, in the  immediately  following
sentence,  that  [i]n  other  words, [w]hether  an  official  may
prevail  in  his  qualified  immunity defense  depends  upon  the
objective reasonableness of [his] conduct. 23  The use of in other
words   suggested   that   the   inquiry   into   the   objective
reasonableness  of an officers conduct was the only  inquiry,  of
which  an inquiry into the reasonableness of an officers  beliefs
was  simply a part.  This suggestion goes against the holding  in
Saucier   which  says  that  finding  the  absence  of  objective
reasonableness  here excessive force  is only the first step; the
court must then go on to determine whether the officer could have
had a reasonable belief that his conduct was lawful.  This is the
reasonable  but  mistaken belief prong of the qualified  immunity
analysis which Saucier elaborated.
          In  context,  however,  it  becomes  clearer  what  the
Samaniego  court  meant  to emphasize.  In emphasizing  objective
reasonableness, the opinion did not, or did not necessarily, mean
to  apply  only  the  single standard of  Katz,  but  instead  to
distinguish objective reasonableness from the (merely) subjective
beliefs of police officers.  The court had made clear, earlier in
its  opinion,  that a focus on an officers beliefs was  relevant.
This  inquiry  is not merely into what he happened  to  feel  was
right,  but  whether  he  was reasonable in  believing  that  his
conduct was legal.  Hence, early in the opinion, the court  wrote
that [i]t must be borne in mind, though, that when we analyze the
issue  of reasonableness of the use of force, we focus on .  .  .
what reasonable officers in their position could have thought.24
          Thus, as the court emphasized later in the opinion, and
immediately  after it seemed to endorse objective  reasonableness
as the only relevant standard, [b]ecause objective reasonableness
is  required, officers do not enjoy immunity on account of  their
subjective  good faith alone.25  But such a sentiment  forbidding
immunity on the basis of subjective good faith is compatible with
allowing immunity based on reasonable mistake.  A police  officer
might  make a good faith mistake in believing that his action  is
legal;  this  does  not, however, prevent that same  belief  from
being unreasonable for that officer to hold.26  The conclusion of
Samaniego, which stresses that the subjective beliefs of officers
should  not be relevant to the qualified immunity inquiry  should
also  be  read  in  this light: merely subjective  beliefs  about
          reasonableness are not enough; the beliefs must also be ones a
reasonable  officer  could have had about  the  legality  of  his
actions.   As  the court notes in a footnote, citing  a  previous
case, even a good faith defense must have an objective component,27
even  though  it examines the beliefs and not the actions  of  an
officer.
          We  also  read  Samaniegos summation of  the  qualified
immunity analysis, that the reasonableness of an officers actions
is  to be assessed in light of all the relevant circumstances  of
the  case  at  hand,28 to implicitly include the  reasonable  but
mistaken  belief element of the Saucier test.  Both the objective
reasonableness  of  the  conduct and the  reasonableness  of  the
officers  belief in the legality of his conduct are part  of  the
relevant  circumstances  that  must  be  assessed  in  order   to
determine  whether  an officer is entitled to qualified  immunity
for  his  actions.  Read in this light, our decision in Samaniego
comports  in  all  essential respects  with  the  Supreme  Courts
decision  in Saucier, especially in its concern to grant immunity
in cases where an officer might have reasonably believed that his
conduct  was lawful.  Insofar as our decision today may be  taken
to  modify  Samaniego,  it  is  this  modification  that  is  now
controlling.29
     B.   Application of the Standard
          Given the standard for qualified immunity, the question
that  we  are  required to ask and answer in  this  case  becomes
straightforward:   could  Village  Police  Officer   Jones   have
reasonably believed that his actions were lawful, that is to say,
not  excessive?  If he did have fair notice that a bear  hug  and
take  down  were unlawful, and if there is a factual disagreement
over whether he used excessive force, then the case should go  to
trial.  In their brief, the appellants contend that Jones was  on
notice  that  his conduct was excessive because AS 11.81.370  and
12.25.070  gave  him that notice.  But these  statutes  are  only
general  statutes which set out when deadly force is appropriate,
the latter indicating only that a police officer making an arrest
may  not  use any restraint that is not necessary and proper  for
the  arrest  or  detention  of a person.   Such  statutes  cannot
purport to give notice to officers that specific actions taken in
specific circumstances may or may not be reasonable.30  Of course,
courts  can  also run the risk of error in going too far  in  the
other direction  that each situation, in its particularity, could
not have been anticipated by any law or regulation, so an officer
could  never be on notice that this use of force in this  set  of
circumstances  could be unlawful.  Courts must strike  a  balance
between these two extremes.
          One  way  in  which  they have  tried  to  strike  this
balance,  and the approach we adopt here, is to look to  our  own
jurisdiction  and  other jurisdictions to see if  there  are  any
cases, laws, or regulations which would suggest that the type  of
action  taken  by  the  officer is  considered  unlawful.31   The
existence  of such laws or cases would demonstrate, or  at  least
serve  as probative evidence, that there was some kind of  notice
that  the  officer  could  have had about  the  legality  of  his
actions.   In  this  instance, the lack of  evidence  from  other
          jurisdictions that a bear hug and a take down would be unlawful
is  telling.   The  nearest case that either  side  was  able  to
discover is one from a district court in Idaho, Franklin v.  City
of Boise.32  In that case the court found that police actions that
included  a  bear hug in an effort to effect an  arrest  did  not
constitute  uses  of excessive force.33  Although  the  facts  of
Franklin are not on all fours with the case before us,34 we  find
this  case  good, though slight, evidence that Jones  might  have
reasonably  believed  that  his actions  were  lawful.   But  the
silence speaks even louder in this case.  Even supposing that the
hypothetical reasonable Alaska police officer should be  informed
about  district  court  cases  from  Idaho,  we  find  much  more
persuasive  the  fact  that there is no  clear  case  or  law  or
regulation from Alaska, or from anywhere else, that says  that  a
bear hug and a take down are excessive uses of force when applied
to an intoxicated and assaultive arrestee.
          But there is still one argument left to the appellants,
and  this  argument  is that Joness use of  a  bear  hug  was  so
egregious,  so  excessive,  that he  should  have  known  it  was
unlawful, that the nature of the act gave sufficient warning that
a  bear  hug  and  a take down were excessive means  to  restrain
someone.35  One should not let the lack of explicit law in an area
be  a  substitute  for  the  reasonable  officers  common  sense.
Although  the series of events in this case resulted in  tragedy,
Joness  conduct was not shocking.  He did not do anything we  can
now, on reflection, say that he should have known at the time was
excessive  and unlawful.  Cognizant of the reality that  officers
must  often  make quick judgments which might have  unanticipated
consequences,  we  must  resist the urge to  second  guess  those
actions when things turn out badly.36  We decline to do so  today
and  confirm  that  Jones,  in  acting  as  he  did,  could  have
reasonably  believed that his actions were not excessive.   Under
our reading of Samaniego, Jones is entitled to immunity.
IV.  CONCLUSION
          The  superior  court,  in the  interests  of  having  a
complete  record on this case, went on to examine  whether  Jones
had  used excessive force.  It concluded that there was a genuine
issue  of  material  fact  as to whether  the  officer  had  used
excessive  force  in apprehending Albert Sheldon.   If  objective
reasonableness were the only test, then this conclusion would  be
the  end  of the matter:  Sheldons case should go to trial.   But
since  Jones could have reasonably believed that his use of force
was  lawful  and not excessive, and is immune on this ground,  we
need not reach the further question of whether there is a genuine
issue  of material fact over whether his behavior was objectively
reasonable.37  Nor do we reach the appellants claim that the City
of  Ambler failed to train Jones adequately.  This issue we  find
to  be  waived because it was only raised in the appellants reply
brief.38
          We therefore AFFIRM the superior courts ruling.
_______________________________
     1    533 U.S. 194 (2001).

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

     3    Id.

     4    Id. at 80.

     5    533 U.S. 194 (2001).

     6     Franklin v. City of Boise, 806 F. Supp. 879,  886  (D.
Idaho 1992).

     7    In Breck v. Ulmer we wrote that this court choose[s] to
follow federal precedent in the area of qualified immunity.   745
P.2d 66, 71-72 (Alaska 1987).

     8     Katz  v. United States, 194 F.3d 962 (9th Cir.  1999),
revd  sub  nom.  Saucier  v.  Katz, 533  U.S.  194  (2001).   For
Samaniegos citations of Katz, see Samaniego, 2 P.3d at 84  nn.19-
20.

     9    Saucier, 533 U.S. at 209.

     10    Id. at 205.

     11     If the law d[oes] not put the officer on notice  that
his conduct would be clearly unlawful, summary judgment based  on
qualified immunity is appropriate.  Id. at 202.

     12    Id. at 205.

     13    Samaniego, 2 P.3d at 88.

     14     Saucier v. Katz, 533 U.S. 194 (2001).  For Samaniegos
citations of Katz, see Samaniego, 2 P.3d at 84 nn.19-20.

     15     See  Saucier,  533 U.S. at 205 (a qualified  immunity
inquiry  has  a  further dimension, the  point  of  which  is  to
acknowledge that reasonable mistakes can be made as to the  legal
constraints on particular police conduct).

     16     Samaniego,  2  P.3d at 84 nn.19-20 (quoting  Katz  v.
United States, 194 F.3d 962, 968 (9th Cir. 1999)).

     17    Id. at 88.

     18     Id. at 84 (citing Breck v. Ulmer, 745 P.2d 66,  71-72
(Alaska 1987)).

     19     Id. (quoting Mathis v. Sauser, 942 P.2d 1117, 1124-25
(Alaska  1997) (citing Anderson v. Creighton, 483 U.S.  635,  639
(1987))).

     20      Id.   (quoting  Mathis,  942  P.2d  at  1124);   see
also  Crawford  v.  Kemp, 139 P.3d 1249,  1255-56  (Alaska  2006)
(citing Saucier, 533 U.S. at 202, 206).

     21    Saucier, 533 U.S. at 206.

     22    See Saucier, 533 U.S. at 200 (stating that the decision
by the Ninth Circuit in Katz cannot be reconciled with Anderson).

     23    Samaniego, 2 P.3d at 84 (quoting Davis v. Scherer, 468
U.S. 183, 191 (1984) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982))).

     24    Id. at 80 (emphasis in original).

     25    Id. at 84.

     26    Id. at 85 (stating that the officers subjective belief
was  not the same as establishing . . . that a reasonable officer
. . . could have believed that his or her safety was endangered).

     27    Id. at 84 n.18 (citing City of Nome v. Ailak, 570 P.2d
162, 171-72 (Alaska 1977)).

     28    Id. at 84.

     29    To the extent that Samaniegos brief discussion of Katz
contradicts this analysis, we overrule that part of the  opinion.
See Samaniego, 2 P.3d at 84 nn.19-20 and accompanying text.

     30     See  Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004)
(noting  that  standards  for notice  must  be  relevant  to  the
particular circumstances in which the officer acts).

     31     See  id. at 199-201 (analyzing cases to determine  if
officer  was  given fair warning that shooting a fleeing  suspect
who presents a risk to others was a use of excessive force).

     32    806 F. Supp. 879 (D. Idaho 1992).

     33    Id. at 886.

     34     Franklin  made repeated attempts to  escape  and  the
actual  take  down occurred in a pond and resulted  in  Franklins
death  by  drowning.  Id.  Sheldon was not in the act of escaping
or  even  attempting to escape.  Sheldon, however, was disobeying
Joness commands, and we believe that the facts also clearly  show
him to be an immediate threat to those around him.

     35     Hope  v.  Pelzer, 536 U.S. 730, 745  (2002)  (obvious
cruelty  of  practice of tying prisoner to  a  post  should  have
provided  respondents with some notice that  the  conduct  was  a
violation of Constitutional rights).

     36    See Samaniego v. City of Kodiak, 2 P.3d 78, 88 (Alaska
2000) (defending the rationale of immunity in these terms).

     37     Saucier requires that the liability question  viewing
the  facts most favorably to the plaintiff  be determined by  the
trial  court  before  the  immunity  question.   Requiring   this
sequencing  has been controversial.  See Brosseau v. Haugen,  543
U.S.  194, 201 (2004) (Breyer, J., concurring, joined by Ginsberg
&  Scalia, JJ.) (noting the concern that the Saucier rule rigidly
requires  courts unnecessarily to decide difficult constitutional
questions  when  there  is  available an  easier  basis  for  the
decision  (e.g.,  qualified immunity)  that  will  satisfactorily
resolve  the case before the court); Lyons v. City of Xenia,  417
F.3d  565,  580-84  (6th  Cir.  2005)  (Sutton,  J.,  concurring)
(questioning  the sequencing requirement of Saucier);  Pierre  N.
Leval,  Judging  Under the Constitution: Dicta  about  Dicta,  81
N.Y.U.   L.  Rev.  1249,  1275  (2006)  (calling  the  sequencing
requirement  a  puzzling misadventure in constitutional  dictum).
In the present case the order in which the relevant issues should
be  decided is not in question.  We therefore have no occasion to
decide whether to adopt this aspect of the Saucier opinion.

     38     See Alaska R. App. P. 212(c)(3) (a partys reply brief
may  raise  no  contentions not previously raised in  either  the
appellants or the appellees briefs).

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