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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
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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