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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Olson v. City of Hooper Bay (4/15/2011) sp-6552

Olson v. City of Hooper Bay (4/15/2011) sp-6552, 251 P3d 1024

        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, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

THOMAS OLSON,                                     ) 
                                                  )    Supreme Court No. S-13455 
                       Appellant,                 ) 
                                                  )   Superior Court No. 4BE-07-00026 CI 
        v.                                        ) 
                                                  )    O P I N I O N 
CITY OF HOOPER BAY, OFFICER                       ) 
DIMITRI OAKS, OFFICER                             )    No. 6552 - April 15, 2011 
CHARLES SIMON, and OFFICER                        ) 
NATHAN JOSEPH,                                    ) 
                                                  ) 
                       Appellees.                 ) 
                                                  ) 

               Appeal   from     the  Superior   Court   of  the  State  of   Alaska, 
               Fourth Judicial District, Bethel, Leonard Devaney, Judge. 

               Appearances:      Michele   L.   Power,   Power   &   Brown,   LLC, 
               Bethel, for Appellant.      William H. Ingaldson and Maryanne 
               Boreen, Ingaldson, Maassen & Fitzgerald, P.C., Anchorage, 
                and   Myron   Angstman,   Angstman   Law   Office,   Bethel,   for 
               Appellees. 

               Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
                and Stowers, Justices. 

                CHRISTEN, Justice. 

I.      INTRODUCTION 

               Hooper Bay police responded to a request for a welfare check at the home 

of Thomas Olson, Suzanne Smith, and their young children.              The officers found Olson 

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asleep.  When they woke him, Olson became belligerent and the officers placed him in 

handcuffs to escort him out of the building.  In the process, Olson and two of the officers 

slipped and fell to the floor.   The situation escalated when the officers tried to get Olson 

onto his feet and remove him from the home.        In the ensuing scuffle, the officers used 

their tasers on Olson numerous times.      Olson filed a civil suit alleging excessive force, 

assault, and   battery. The superior court granted summary judgment in favor of the 

defendants on the grounds of qualified immunity, and Olson appeals.           We affirm the 

superior court's conclusion that existing case law and regulations did not provide notice 

to the officers that their use of tasers may have been excessive force.  But because it was 

error for the court not to consider whether the Hooper Bay Police Department's policy 

on taser use or the nature of the officers' actions, alone, provided notice that the force 

they used may have been excessive, we reverse the grant of summary judgment and 

remand for further consideration. 

II.    FACTS AND PROCEEDINGS 

       A.     Facts 

              Thomas Olson and Suzanne Smith live in Hooper Bay and have six children 

together.  On Christmas night in 2006, Smith left Olson with the youngest four of their 

children, ranging in age from one month to five years, and went to visit her mother. 

Olson admitted drinking "a couple [of] cups of homebrew" that evening with his brother 

Peter.  At 3:55 a.m. on December 26, Smith called the City of Hooper Bay Police and 

asked them to conduct a welfare check on the children because she was concerned that 

                                              2                                         6552
 

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Olson was intoxicated and alone with them.1             Officers Dimitri Oaks and Nathan Joseph 

responded to the request and arrived at the Olson home approximately 10 minutes later. 

                 The front door leading to the home's arctic entry was open despite an 

outside temperature of approximately five degrees Fahrenheit.  The officers entered the 

living   area,   a   large   space   with   no   internal   dividing   walls,   and   found   Olson   and   his 

brother   Peter.     Both   men   appeared   to   be   asleep   and   the   officers   noticed   an   odor   of 

alcohol in the room.       Olson admits to drinking that evening, but states that he "limited 

[his] drinking."       No objective tests were performed to determine whether Olson was 

intoxicated.     To   simplify   our   discussion   of   the   subsequent   events,   we   analyze   the 

sequence in four phases. 

                 1.      Phase One:   Verbal interaction between Olson and the officers. 

                 The officers woke Olson, and Joseph informed him that they were there to 
conduct a welfare check.2         They asked Olson to stand up for a "real quick test," and 

Olson responded   by   asking why the officers were trespassing in his house.                      Joseph 

continued to ask Olson to stand   up, apparently without a positive response, and the 

officers placed Olson in handcuffs.  Joseph explained to Olson that he was putting on the 

handcuffs "for safety reasons" and that "once we're done here we'll take the handcuffs 

off." Hooper Bay Police Department and the individual police officers assert that Joseph 

        1        The   welfare   check   took   place   pursuant   to   AS   11.51.110(a)(2),   which 

provides:    "A person commits the offense of endangering the welfare of a child in the 
second   degree   if   the   person,   while   caring   for   a   child   under   10   years   of   age,   .   .   .   is 
impaired by an intoxicant . . . and there is no third person who is at least 12 years of age 
and not impaired by an intoxicant present to care for the child." 

        2        Olson testified by affidavit that "a flashlight in [his] face" woke him, but 

Joseph testified that he shook Olson and called his name to wake him.  The arrest audio 
recorded Joseph quietly calling Olson by his nickname, "Boya," and apparently tapping 
or shaking him. 

                                                     3                                               6552
 

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and    Oaks    were   concerned     about   safety   because    they   were   familiar   with   Olson's 
"combative" history with the police.3         Olson affied that he knew that the officers had a 

bad reputation for violent and unnecessary behavior. 

                Olson stood up after he was handcuffed and began to yell and swear at 

Joseph and Oaks about their presence in his house.              When Peter woke up, the officers 

placed him in handcuffs and told him that the handcuffs would be removed when they 

were done.      Olson and Peter continued to express their shared opinion that the officers 

were trespassing, becoming increasingly vocal and angry.  Joseph radioed headquarters 

to ask that another officer come to the scene. 

                After a brief period of relative calm, Olson resumed yelling and swearing 

and stated, "You can get shot for trespassing."  Joseph asked, "Is that a threat?  Are you 

threatening     me?"    Olson     responded,   "No,     I'm   telling  you."   Throughout   Olson's 

interaction with the officers, Peter called out support and encouragement to his brother. 

About three to five minutes after Joseph radioed for assistance, Officer Simon entered 

the house. 

                2.      Phase Two:       The initial use of the taser. 

                Simon and Oaks began to escort Olson out of the home, but in the process 
of doing so, the three men fell to the floor.4      Olson affied that he did not struggle with the 

officers,   that   he   did   not   know   what   was   going   on,   and   that   he   tried   to   get   his   feet 

        3       Both Joseph and Oaks had previously arrested Olson; Joseph in 1998 for 

furnishing alcohol to minors, and Oaks in 2006 for disorderly conduct.  Joseph testified 
that he knew Olson to be "assaultive, uncooperative and combative with police officers." 

        4       Olson affied that the fall occurred when Oaks slipped on a trash bag and 

pulled the group down.   There is some question in the officers' testimony about whether 
the group got back up and then fell for a second time.  For the sake of our analysis, it is 
relevant only that the group was on the floor at the time that the officers' conflict with 
Olson escalated. 

                                                   4                                              6552
 

----------------------- Page 5-----------------------

underneath him and stand up again. But Joseph testified that after Oaks and Simon stood 

up, Olson began "kicking at" both officers.           Oaks and Simon testified that Olson also 

attempted to bite Simon, a fact which Olson does not dispute. The arrest audio recorded 

the sounds of a scuffle, Joseph saying, "Get him out of here," and Olson continuing to 

scream   and   swear.    Olson's   hands   remained   handcuffed   behind   him   throughout   the 

interaction. 

                At some point while on the floor, Olson wrapped his legs around a vertical 

support pole in the living area; the arrest audio recorded one of the officers telling Olson 

to "stand up" several times, and Simon stating, "Boya, if you don't comply I am going 

to drive stun you; let go of the pole."   In response, Joseph, who was standing apart from 

the group, deployed his taser two times from across the room.  The taser prongs did not 

make a complete circuit and Olson responded by saying, "It feels like a vibrator."  The 

officers continued to tell Olson to stand up, stop resisting, and comply with their efforts 

to remove him from the home.  Olson responded with a string of protests and profanity. 
The officers then began to deploy their tasers in drive-stun mode.5 

                3.      Phase Three:       The officers repeatedly tase Olson. 

                 The officers tased Olson numerous times in rapid succession.  The arrest 

audio   recorded   use   of   the   tasers   in   drive-stun   mode   repeatedly   over   the   course   of 

approximately 50 seconds.  Olson affied that Simon began tasing him on his back, then 

reached around to tase him between his legs.   Simon testified that he first tried two two- 

second stuns on Olson's back, followed by three two-second deployments on Olson's 

        5       As    explained     in  the   deposition     of  the   appellant's    expert   witness, 

Dr. Michael D. Lyman, there are two ways to deploy a taser:  (1) by shooting a cartridge 
that attaches the prongs of the taser to the subject's   clothing via a wire, and (2) by 
placing the weapon itself in contact with the subject.             The latter method is known as 
"drive-stun" mode. 

                                                   5                                              6552
 

----------------------- Page 6-----------------------

collarbone,   and   then   two   two-second   deployments   on   Olson's   inner-thigh.6      Joseph 

testified to deploying his taser in drive-stun mode approximately five or six times.  Oaks 

was not armed with a taser and did not deploy one during the incident.  Olson affied that, 

out of fear, he wrapped his legs around the support pole after the tasing began, and that 

his   leg   muscles   "reacted"   each   time   he   was   tased. His   hands   remained   handcuffed 

behind him.    The officers stated that Olson's actions appeared to be further attempts to 

kick them and to resist arrest. 

                4.      Phase Four:  The officers tase Olson while he is on his stomach. 

                The officers eventually rolled Olson onto his stomach and used their tasers 

in drive-stun mode at least twice as he lay in that position.            They then repeated their 

request that Olson "stand up."         Olson eventually complied and was escorted by the 

officers to police headquarters. 

                On   January   26,   2007,   Olson   was   examined   by   a   physician   at   Yukon- 

Kuskokwim Health Corporation.   The medical record   from the examination appears to 
identify    approximately     25  taser  burns,7   but   the  superior  court   relied  on  estimates 

presented by Olson and Olson's expert witness, and found that "[v]iewing facts in the 

light most favorable to [Olson], [Olson] was [t]ased fifteen to eighteen times." 

        B.      Proceedings 

                Olson filed suit against the City of Hooper Bay and officers Oaks, Simon, 

and Joseph (collectively, "Hooper Bay") alleging excessive force, assault, and battery. 

        6       Olson's expert conceded that tasing on the inner thighs is a recommended 

practice for disabling a subject. 

        7       The medical report includes a body diagram with small circles representing 

the location of the taser burns on Olson's torso and legs. 

                                                  6                                               6552 

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He requested compensatory and punitive damages.8                Hooper Bay denied the allegations 

and asserted affirmative defenses including qualified immunity.  Hooper Bay then filed 
a   motion   for   summary   judgment   on   qualified   immunity.9       The   superior   court   heard 

argument on the motion, entered a written order granting it, and dismissed the case.  The 

court found the initial taser deployments "objectively reasonable" because the officers 

"were faced with an immediate threat of bodily harm from [Olson] kicking and biting 

them in a rapidly deteriorating situation in the home."             The court wrote that "[t]he use 

of the taser to   subdue   a   suspect who repeatedly ignores police instructions and acts 

belligerently towards police is not excessive force."            But the court also concluded that 

a   genuine   issue   of   material   fact   existed   as   to  the   objective   reasonableness   of   the 

subsequent      taser   deployments.      Thus,     consistent    with  our   case   law   on  qualified 

immunity, the court considered whether the officers "might have reasonably believed 
their actions were reasonable."10         The superior court concluded that "the contours of 

Fourth Amendment jurisprudence on the claims of excessive force involving [t]asers was 

not sufficiently clear such that a reasonable law enforcement officer in the officers' 

position   under   these   circumstances   would   have   known   that   the   multiple   tasings   of 

[Olson] violated his Fourth Amendment right to be free of excessive use of force."  Final 

judgment was entered in favor of City of Hooper Bay, Oaks, Simon, and Joseph on 

September 9, 2008, and re-entered in conjunction with an award of attorney's fees on 

March 8, 2009. 

        8       Olson was charged with five counts of reckless endangerment, three counts 

of   assault   of   a   police   officer,   and   resisting   arrest. The   criminal   charges   were   later 
dismissed. 

        9       Oaks separately moved for summary judgment on the grounds that he did 

not deploy a taser as alleged in the complaint.          The court granted his motion. 

        10      See Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008). 

                                                    7                                              6552
 

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              Olson appeals the order granting summary judgment.11 

III.   STANDARD OF REVIEW 

              We review a grant of summary judgment "de novo, affirming if the record 

presents no genuine issue of material fact and if the movant is entitled to judgment as a 
matter of law."12   We "view the facts in the light most favorable to the non-moving 

party"13 and thus draw "all reasonable . . . inferences" in Olson's favor.14   Because this 

case raises the question of entitlement to qualified immunity, we  "focus on the officers' 

perspectives and perceptions, as it is what reasonable officers in their position could have 
thought that is dispositive of this issue."15 We rely largely on the statement of facts of 

the superior court but also independently review the admissible evidence, including the 

audio recording of the arrest. 

       11     Olson's briefing does not address the grant of summary judgment in favor 

of Oaks but names Oaks as a party to the appeal.       At oral argument before our court, 
Olson's attorney conceded that he was only appealing the separate grant of summary 
judgment in favor of City of Hooper Bay, Simon, and Joseph. 

       12     Beegan v. State, Dep't of Transp. & Pub. Facilities, 195 P.3d 134, 138 

(Alaska 2008) (citing Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 152 P.3d 460, 465 
(Alaska 2007)). 

       13     McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011 (Alaska 2002) (citing 

Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997)). 

       14     Id.  at 1013.  We emphasize that while we construe the facts in Olson's 

favor, we do so only within the boundaries of reasonable fact-finding.      In this case, the 
entire arrest was recorded by the officers. Where the facts are disputed, we rely upon the 
audio recording as the most neutral and accurate record of events. 

       15     Samaniego v. City of Kodiak, 2 P.3d 78, 80 (Alaska 2000) (emphasis in the 

original) (overruled in part by Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008)). 

                                              8                                        6552
 

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                We review questions of law using the de novo standard, "apply[ing] our 

independent judgment to questions of law, adopting 'the rule of law most persuasive in 
light of precedent, reason, and policy.' "16 

IV.     DISCUSSION 

        A.      The Law Of Qualified Immunity And Excessive Force In Alaska 

                In Alaska, questions concerning qualified immunity for claims of excessive 
force    are  governed    both   by   the  Fourth   Amendment17       and   by  state  statute.18   We 

considered      the  question   of  qualified   immunity     for  a  claim   of  excessive    force   in 

        16      Jacob v. State, Dep't of Health & Social Servs., Office of Children's Servs., 

177 P.3d 1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 
(Alaska 1979)). 

        17      In its order granting summary judgment the superior court acknowledged 

that   there is not a consensus among   federal circuit courts about whether the   Fourth 
Amendment sets the standard for excessive force after an arrestee is in police custody. 
The United States Supreme Court has not conclusively decided this issue.                  Graham v. 
Connor, 490 U.S. 386, 395 n.10 (1989).  The Ninth Circuit Court of Appeals, however, 
has affirmatively held that the Fourth Amendment "continues to apply after an arrestee 
is in the custody of the arresting officers."       Fontana v. Haskin, 262 F.3d 871, 879 (9th 
Cir. 2001).    Both parties briefed this case under a Fourth Amendment analysis and did 
not ask us to consider any other standard.  We thus assume that the Fourth Amendment 
offers the relevant standard here. 

        18      AS 12.25.070 states that a police officer "may not subject a person arrested 

to   greater   restraint   than   is   necessary   and   proper   for   the   arrest   and   detention   of   the 
person." AS 11.81.370(a) allows that a police officer "may use nondeadly force and may 
threaten to use deadly force when and to the extent the officer reasonably believes it 
necessary to make an arrest, to terminate an escape or attempted escape from custody, 
or to make a lawful stop." AS 09.65.070(d)(2) provides immunity from suit for damages 
for   agents,   officers,   and   employees   of   a   municipality   if   the   suit   is   based   upon   "the 
exercise or performance or the failure to exercise or perform a discretionary function or 
duty." 

                                                   9                                             6552
 

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Samaniego v. City of Kodiak,19 where we concluded that "[r]egardless of whether the 

individual officer actually believed that his use of force was reasonable - and regardless 

of the reasonableness of that belief - the officer is not privileged to use an objectively 
unreasonable level of force in making an arrest."20           Samaniego relied upon the federal 

test for qualified immunity first adopted by Breck v. Ulmer.21              But in 2001 the United 

States Supreme Court created a new federal standard for qualified immunity when it 
decided Saucier v. Katz.22      Saucier held that a ruling on qualified immunity is a question 

entirely distinct from whether or not excessive force was used in an arrest, and that "a 

ruling on [qualified immunity] should be made early in the proceedings so that the costs 
and expenses of trial are avoided where the defense is dispositive."23                The Court also 

characterized qualified immunity as "an entitlement not to stand trial or face the other 

burdens of litigation" and held that "[t]he privilege is 'an immunity from suit rather than 

a mere defense to liability; and like an absolute immunity, [the privilege] is effectively 
lost if a case is erroneously permitted to go to a trial.' "24 

        19      2 P.3d 78 (Alaska 2000) (overruled in part by Sheldon v. City of Ambler, 

178 P.3d 459 (Alaska 2008)). 

        20      Id. at 83. 

        21        745   P.2d   66,   71-72   (Alaska   1987)   (noting   that   Alaska   "choose[s]   to 

follow" federal precedent in the area of qualified immunity). 

        22      533 U.S. 194 (2001). 

        23      Id. at 200. 

        24      Id. at 200-01 (internal citations omitted). This is not to say that a defendant 

may not be deemed immune at the conclusion of trial.  At that stage, however, immunity 
serves as a "mere defense to liability," see, e.g., Acevedo-Garcia v. Monroig , 351 F.3d 
547, 562 n.6 (1st Cir. 2003) ("Where defendants continue to assert qualified immunity 
after undergoing trial . . . a post-trial grant of qualified immunity would still confer a 
                                                                                        (continued...) 

                                                   10                                             6552
 

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                 Saucier   set   out   a   two-part   test   for   determining   entitlement   to   qualified 

immunity.      The "initial inquiry" is:        "Taken in the light most   favorable to the party 

asserting     the   injury,   do  the   facts   alleged   show     the  officer's   conduct     violated    a 
constitutional right?"25      The second inquiry, necessary only if the first query is answered 

in the affirmative, is "whether the right was clearly established."26             In other words, "[t]he 

contours      of  the  right   must   be   sufficiently    clear   that  a  reasonable     official  would 
understand that what he is doing violates that right."27            "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."28          The Supreme Court also emphasized the order of 

the excessive force analysis, concluding that the violation of a constitutional right must 

be established as the threshold question before a court moves on to consider whether it 
was "clear to a reasonable officer that his conduct was unlawful."29 

         24(...continued) 

benefit   by   shielding   them   from   any   liability   for   monetary   damages   awarded   by   the 
jury.").    The   defendant   does   not   enjoy   the   central   privilege   afforded   by   qualified 
immunity, namely the "entitlement not to stand trial." 

         25      Id. at 201.  In excessive force claims, this inquiry equates to consideration 

of    whether     the   force   used    comports     with    the  Fourth     Amendment's        "objective 
reasonableness standard."         Id. at 204. 

         26      Id. at 201. 

         27      Id. at 202 (internal citations and quotation marks omitted). 

         28      Id. 

         29       Id. 

                                                     11                                               6552
 

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                 Seven years later, in Sheldon v. City of Ambler, our court again addressed 
qualified immunity as a defense to an excessive force claim under Alaska law.30                        We 

noted in  Sheldon that we "usually follow[] federal case law in the area of qualified 

immunity" but also that "we are not bound to follow federal law in designing our own 
judicial standard for excessive force."31          Sheldon did not entirely overrule Samaniego, 

but it recognized a revised test for qualified immunity in Alaska: Samaniego as modified 

by the two-part analysis of Saucier.  Under the rule that emerged from Sheldon, a police 

officer   in   Alaska   is   entitled   to   qualified   immunity   in   an   excessive   force   case   if   the 

officer's conduct was objectively reasonable or the officer reasonably believed that the 
conduct was lawful, even if it was not.32          On the latter prong of the test we stressed that 

"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 [or her] actions."33 

                 Sheldon rejected the idea that AS 11.81.370 and AS 12.25.070 provide 
sufficient notice to an officer of the legality or illegality of the officer's actions.34              We 

stated    that  courts   inquiring    into  the   presence    of  notice   should    "look   to  our   own 

jurisdiction and other jurisdictions to see if there are any cases, laws, or regulations 

        30       178 P.3d 459 (Alaska 2008). 

        31       Id. at 463.  Sheldon explains, "We are here dealing with the interpretation 

of Alaska statutes, not federal law, and have no obligation to follow federal case law." 

        32       Id.   at  463  ("This    test  recognizes    that   there  may    be   behavior    that  is 

objectively unreasonable but that nonetheless an officer might have reasonably believed 
was reasonable."). 

        33       Id. at 465. 

        34       Id. at 466.   AS 11.81.370 generally limits when a peace officer may use 

deadly   or   nondeadly   force;   AS   12.25.070   generally   restricts   the   use   of   unnecessary 
restraint by a police officer during arrest and detention. 

                                                    12                                               6552
 

----------------------- Page 13-----------------------

which     would    suggest   that  the  type   of  action   taken   by  the  officer   is  considered 
unlawful."35    Notice can be imputed from the presence of relevant laws or regulations, 

as can lack of notice from a dearth of relevant authority.36        Alternatively, notice can also 

be assumed if the officer's conduct is "so egregious, so excessive, that he [or she] should 

have known it was unlawful, that the nature of the act gave sufficient warning that [the 

actions taken] were excessive means to restrain someone.  One should not let the lack of 
explicit law   in   an   area be a substitute for the reasonable officer's common sense."37 

                Saucier established an ordered two-step analysis on questions of excessive 

force in which consideration of whether a constitutional right was violated necessarily 

preceded the question of whether or not it would have been clear to a reasonable officer 
that   the  conduct   at   issue  was   unlawful.38   But   we    have   never   required  Saucier's 

sequential analysis of excessive force in Alaska.  In fact, in Sheldon, we deferred to the 

superior court's finding that a genuine issue of material fact persisted as to whether the 

officer's use of force was excessive, but affirmed its grant of qualified immunity at the 

summary judgment level on the grounds that the officer could have reasonably believed 
his use of a "bear hug" to subdue a citizen was lawful.39 

        35      Id. at 466. 

        36      Id. 

        37      Id. at 467. 

        38      Saucier v. Katz, 533 U.S. 194, 201-02 (2001). 

        39      Sheldon, 178 P.3d at 462, 467.        Saucier's mandatory order of analysis is 

also no longer required under federal law.          In Pearson v. Callahan, the United States 
Supreme Court observed   that   "Saucier's two-step protocol disserves the purpose of 
qualified immunity when it forces the parties to endure additional burdens of suit . . . 
when the suit otherwise could be disposed of more readily," and held that, as in Alaska, 
                                                                                      (continued...) 

                                                  13                                            6552
 

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                We have reached   no   substantive conclusions on when use of a taser is 

excessive force in the context of an arrest.          But multiple federal courts have reached 

conclusions about taser usage and excessive force, and we refer to those decisions for 

guidance in our discussion below. 

        B.      It Was Error To Grant Summary Judgment On The  Issue Of Notice. 

                On appeal, Olson asserts that the superior court (1) erred "in finding that 

Alaska law in the field of qualified immunity is identical to federal law as codified in 

Saucier and its progeny," (2) "clearly failed" to interpret conflicting factual evidence in 

his favor, (3) erred in failing to find that any use of the taser by the officers constituted 

excessive force, and (4) erred in concluding that the officers were not on notice from 

existing case law and regulations that their use of force was excessive.                We review a 
grant of summary judgment de novo40 and "view the facts in the light most favorable to 

the   non-moving   party."41     We   rely   largely   on   the   undisputed   facts   identified   by   the 

superior court, but because the record includes an audio recording of the actual events, 

we also rely upon our independent review of the audio recording and the superior court's 

written record. 

        39(...continued) 

"the sequence set forth [in Saucier] . . . should no longer be regarded as mandatory." 
555 U.S. 223, 129 S.Ct. 803, 811, 818 (2009) (internal citations and quotation marks 
omitted). 

        40      Beegan v. State, Dep't of Transp. & Pub. Facilities, 195 P.3d 134, 138 

(Alaska 2008) (citing Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 152 P.3d 460, 465 
(Alaska 2007)). 

        41      McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011 (Alaska 2002) (citing 

Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997)). 

                                                  14                                             6552
 

----------------------- Page 15-----------------------

                 1.	     Olson     failed    to  adequately       brief   his   argument       about    the 
                         differences   between   state   and   federal   law;   this   argument   is 
                         waived on appeal. 

                 In   his   "issues   presented   for  review"   Olson     unambiguously   raises   the 

argument that Alaska law on qualified immunity differs from federal law on qualified 

immunity.     And his brief outlines the Sheldon test in detail.   But Olson's brief does not 

present any substantive argument to the effect that the superior court conflated state and 
federal law on qualified immunity.  Thus, we consider Olson's first  argument waived.42 

                 2.	     The superior court did not fail to interpret conflicting evidence 
                         in Olson's favor. 

                 Olson's second argument is that the superior court failed to construe the 

facts in his favor as required on a motion for summary judgment.                    Specifically, Olson 

sets out a series of factual findings he argues the superior court should have reached.43 

                 We agree with Olson that in ruling on a motion for summary judgment, the 

        42       See   Petersen   v.   Mutual   Life   Ins.   Co.   of   New   York,   803   P.2d   406,   410 

(Alaska   1990)   ("Where   a   point   is   not   given   more   than   a   cursory   statement   in   the 
argument portion of a brief, the point will not be considered on appeal."). 

        43       Olson asserts that the superior court should have found that:                (1) he was 

tased fifteen to eighteen times, all while handcuffed and sitting or lying on the ground, 
(2) his "kicks" were in fact unintentional muscular contractions caused by the taser, (3) 
even if he did kick at the officers, they could have safely moved away from him or 
restrained him through a less forceful means, (4) his "kicks at Officer Simon came no 
where   close   to causing substantial bodily injury," (5) the officers tased him to gain 
compliance, not to "control a dangerous person," (6) he was tased "at least twice" while 
handcuffed and lying on his stomach, (7) the officers tased him when they were "not in 
danger   of   suffering   any   bodily   harm,"   and   that   (8)   the   officers   in   fact   did   not   have 
knowledge of his "aggressive past history with police."                 Argument (5) addresses the 
court's legal conclusion rather than a finding of fact, and will be addressed in section B.3 
of this opinion, below.   Argument (4) is irrelevant:  no part of federal or state law on the 
use of force requires that an officer come close to or sustain substantial bodily injury 
before using non-deadly force on an arrestee. 

                                                    15	                                              6552
 

----------------------- Page 16-----------------------

superior court must "draw all reasonable inferences in favor of" the non-moving party.44 

But this case is unlike many others because an audio recording exists that captured the 

events.  Having reviewed the audio recording and the rest of the superior court's written 

record, we conclude that the superior court did not fail to construe contested facts in 

Olson's favor. 

                 We first observe that several of Olson's assertions regarding the superior 

court's factual conclusions are not supported by the record.  For example,  Olson argues 

that the superior court should have determined that he was tased fifteen to eighteen times, 

all   while   handcuffed   and   sitting   or   lying   on   the   ground.   But   the   court   in   fact   did 

conclude that "[Olson] was [t]ased fifteen to eighteen times," all while he was either 

"seated" or "prone on the ground on his stomach," and that "at least some" of the tasings 

took place while he was in the latter position.   Olson also asserts that the superior court 

erroneously determined that the officers knew of Olson's history with the police.  But 

the court found only that the "officers stated in their deposition testimony that they knew 

the   plaintiff's   aggressive   past   history   with   police,"   (emphasis   added)   not   that   they 

unequivocally knew of such a history.   The court cited to passages in the officers' sworn 

depositions in which such statements are indeed made. 

                 Olson's remaining arguments are, essentially, variations on a challenge to 

the   superior   court's   findings   that   he:  (1)   "actively   resisted   arrest";   (2)   "refused   to 

comply with numerous verbal commands and remained belligerent throughout the initial 

encounter, before any force was applied"; and (3)"kicked at and attempted to bite the 

officers while on the floor, prior to the [t]aser deployment."   The superior court cited to 

admissible testimony and portions of the audio recording that clearly support all of these 

        44       Valdez Fisheries Dev. Ass'n, Inc. v. Alyeska Pipeline Serv. Co., 45 P.3d 

657, 664 (Alaska 2002). 

                                                     16                                                 6552 

----------------------- Page 17-----------------------

findings.    Even construing all reasonable facts in Olson's favor, the record does not 

support his assertion that he only began moving his legs in a kicking motion after being 

tased; the audio recording reflects one of the officers telling Olson to stop kicking before 

he was tased.      It is also uncontested that he attempted to bite the officers before they 

deployed   their   tasers.    We   conclude   that   the   superior   court   did   not   fail   to   construe 

contested facts in Olson's favor when it ruled on the subject summary judgment motion. 

                 3.	     The superior court correctly concluded that some taser use was 
                         permissible in this case. 

                 Olson's third argument is that any use of the tasers was excessive force 

because "the officers used their tasers to gain compliance from a restrained, seated, and 

later prone arrestee, and not to neutralize a threat to their safety."               Olson specifically 

argues that:     (1) his actions did not amount to resisting arrest, or that if they did, his 

resistance   was   not   dangerous   to   the   officers;   and   (2)   the   officers   tased   him   to   gain 

compliance or to punish him, and that the use of a taser, even a single time, on a subject 

solely to gain compliance or for a punitive purpose constitutes excessive force.                     Olson 

contends that the officers wrongfully "interpret[ed] his confusion as non-compliance 

inviting an electric shock," that his perceived kicking was an involuntary reaction to the 

taser, that because of his position and restraints he was not a threat to the officers, and 

that the officers tased him because they were frustrated and   wanted to force him to 

comply with their orders, not because they were concerned for their safety. 

                 The   superior   court   concluded   that   the   initial   deployments   of   the   taser, 

during Phase Two, were objectively reasonable because the officers "were faced with an 

immediate   threat   of   bodily   harm   from   [Olson]   kicking   and   biting   them   in   a   rapidly 

deteriorating situation in the home."          This conclusion comports with federal law on the 

                                                     17	                                              6552
 

----------------------- Page 18-----------------------

use of tasers during an arrest.45    Construing the facts in Olson's favor, we conclude that 

the superior court did not err when it determined that Olson was resisting arrest and that 

his behavior represented "an immediate threat of bodily harm" to officers Oaks, Simon, 

and Joseph, at least through Phase Two. 

                The audio recording of the arrest provides imperfect insight into the events 

of the evening, but it makes objectively clear that there was "a rapidly deteriorating 

situation in the home."     The recording supports the consistent testimony of the officers 

that Olson appeared to attempt to both kick and bite the police before the tasers were 

deployed.    Olson never denied trying to bite the officers during this phase, and at oral 

argument before the superior court Olson's counsel seemed to acknowledge that Olson 
may have been resisting by biting and kicking while the officers were on the ground.46 

An   objectively   reasonable   officer   could   have   construed   Olson's   actions   as   violent 

physical resistance to their attempts to arrest him.  In fact, Olson's counsel conceded at 

oral argument on the motion for summary judgment before the trial court that "[p]erhaps 

the first few [taser deployments], under Sheldon, arguably, may have been permitted." 

                It is admittedly troubling that Olson was handcuffed and seated at the time 

the police allege he was a threat to their safety. However, as courts in other jurisdictions 

have concluded, Olson's position - even handcuffed and sitting on the floor - did not 

        45      Federal case law stresses that factors including "the severity of the crime 

at issue, whether the suspect poses an immediate threat to the safety of the officers or 
others, and whether he is actively resisting arrest or attempting to evade arrest by flight" 
may be considered in evaluating taser use, but that the most important issue is whether 
the subject was an "immediate threat to the safety of the officers or others."             Bryan v. 
MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (internal citations and quotation marks 
omitted). 

        46      Olson's counsel stated:  "In the first few moments [of escorting Olson out 

of the house], the officers are down.        Officer Joseph says that maybe there was some 
kicking, maybe there was an attempt at biting." 

                                                 18                                            6552
 

----------------------- Page 19-----------------------

necessarily mean he was not a threat.47         Olson was actively struggling with the officers 

in   Phase   Two   in   a   deteriorating   situation. The   superior   court's   conclusion   that   he 

presented a danger to the arresting officers and that the use of the taser was objectively 

reasonable is supported by the uncontested facts. 

                Olson also argues that the police officers' conduct constituted excessive 

force because the taser deployments were impermissibly motivated.                    Olson views the 
facts of his case as analogous to either  Orem v. Rephann,48 where the Fourth Circuit 

Court of Appeals found the use of a taser to constitute excessive force when used for the 
purpose of punishment, or to Hickey v. Reeder,49               where the Eighth Circuit Court of 

Appeals found a prison guard's use of a taser unlawful because the taser was executed 

to compel the prisoner to comply with an order to sweep his cell. 

                In Orem, a police officer used his taser multiple times on a woman who was 
handcuffed, in a foot restraint device, and locked in the back seat of a police car.50            Orem 

was alone in the company of three police officers; she weighed 100 pounds, and the 

        47      See, e.g., Zivojinovich v. Barner, 525 F.3d 1059, 1064-65, 1072-73 (11th 

Cir. 2008) (citing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) cert. denied, 
543 U.S. 988 (2004)) (holding that police use of tasers on a father and son in the process 
of an arrest was reasonable; the son was tased while seated in a stairwell after struggling 
with police attempting to handcuff him, and the father was tased twice while he was 
laying face-down after an officer punched him, and again multiple times while he was 
handcuffed and being escorted to a police vehicle.  The court concluded that both father 
and    son   were    "repeatedly     ignor[ing]    police   instructions    and   continu[ing]     to  act 
belligerently toward police," that police had probable cause to arrest both father and son 
for resisting arrest, and that this level of resistence merited the use of a taser by the police 
officers.). 

        48      523 F.3d 442 (4th Cir. 2008). 

        49       12 F.3d 754 (8th Cir. 1993). 

        50      523 F.3d at 444. 

                                                   19                                              6552
 

----------------------- Page 20-----------------------

officer who tased her weighed 280 pounds.51         Moreover, relying upon an audio and video 

recording of the interaction between Orem and the police officer,52 the court concluded 

that the officer's purpose  in deploying the taser was illegitimate.          The court concluded 

that the officer used the taser to "punish or intimidate" Orem, not to protect the officers 

or Orem herself from harm, stating:          "[V]iewed in a light most favorable to Orem, [the 

facts] evidence that [the officer's] use of the taser gun was wanton, sadistic, and not a 
good faith effort to restore discipline."53    The officers who arrested Olson may have been 

mistaken   about the degree of force that was permissible, but the evidence does   not 

support a conclusion that they were motivated by a wanton, sadistic, or punitive purpose. 

The audio tape convinces us that the facts of this case are not analogous to the facts in 

Orem. 

                Hickey v. Reeder involved a prisoner at the Pulaski County Jail who was 
awaiting transfer to the state penitentiary.54      A guard ordered the prisoner to sweep his 

cell, a part of the daily routine in that jail, but the prisoner refused.55      Additional guards 

were then called, one of whom shot Hickey with a stun gun.56               Hickey recovered from 

the stun and swept his cell,57 but he pursued a claim arising from the incident.                  The 

        51      Id. at 445. 

        52      Id. at 444-45 (noting that the officer told Orem to "stop it" when she swore 

at him, and then told her "you need to respect us."). 

        53      Id. at 449. 

        54      12 F.3d 754, 756 (8th Cir. 1993). 

        55      Id. 

        56      Id. 

        57      Id. 

                                                  20                                            6552
 

----------------------- Page 21-----------------------

Eighth Circuit held that "the use of a stun gun to enforce the order to sweep [the floor] 

was both an exaggerated   response to Hickey's misconduct and a summary corporal 

punishment   that   violated   Hickey's   Eighth   Amendment   right   to   be   free   of   cruel   and 
unusual punishment."58        The court relied upon the officers' testimony to conclude that 

they did not use the stun gun out of a concern for safety but, rather, as a consequence for 
Hickey's refusal to sweep his cell.59 

                Here, the officers tased Olson when he failed to comply with their orders, 

but the orders they gave were to "stop trying to kick, stop trying to bite and comply [with 

arrest]."  In other words, the officers directed Olson to (1) stop trying to harm them, and 

(2) stop resisting arrest. This is a fundamentally different situation than that of a prisoner 

locked in a cell who non-violently refuses to comply with an order to sweep the floor. 

The latter does not present a safety concern to any third party, nor does it present the 

need for an exigent response.         We conclude the superior court correctly decided that 

Hooper      Bay's   taser  use,   through   Phase    Two,   was    objectively    reasonable    and   not 

unlawfully punitive. 

                4.	     The superior court correctly considered the tasings in sequence 
                        and     concluded      under   Sheldon     that    it  was   not  required     to 
                        conclusively decide whether the total force used was excessive. 

                Olson argues that, even if the officers were justified in tasing him, the 

number of tasings requires that the total force applied be deemed undeniably excessive. 

                The superior court analyzed the progression of events during Olson's arrest 

and, relying on Beaver v. City of Federal Way, concluded that "the [excessive force] 

        58      Id. at 759. 

        59      Id. at 758. 

                                                   21                                                6552 

----------------------- Page 22-----------------------

issue becomes less clear with each application of the [t]aser."60            The court found that 

there was a genuine issue of material fact regarding whether the Phase Three and Phase 

Four tasings were objectively reasonable.          But rather than denying summary judgment 

due to unresolved issues of fact, the superior court considered whether the officers could 

have been reasonably mistaken about their use of force.                On appeal, Olson seems to 

argue that the superior court should have concluded that these tasings were excessive 

force as a matter of law:   "Whether or not the officers' first electric shocks to Mr. Olson 

were excessive, there simply can be no debate that their repeated tasings of Mr. Olson 

became excessive."       We disagree. 

                Where the question of excessive force turns on the number of times non- 

deadly force is applied, a trial court should consider each sequential application of force, 
to the extent the evidence permits such analysis.61          And where issues of fact prevent a 

trial court from deciding as a matter of law whether each successive application of force 

was permissible, the court should still reach the question of qualified immunity.  Failure 

to establish entitlement to qualified immunity in the pre-trial phase of a case defeats a 

primary   purpose   of   the   claim   -   to   avoid   trial. But   another   primary   purpose   - 

immunity from damages   -   remains attainable if the claim of qualified immunity is 
established at trial.62 

        60      507 F.Supp.2d 1137, 1144-45 (W.D. Wash. 2007). 

        61      See   id.;  see   also   Neal-Lomax   v.   Las   Vegas   Metro.   Police   Dep't,   574 

F.Supp.2d 1170, 1185-88 (D. Nev. 2008). 

        62      Viewed in isolation, two footnotes in Aspen Exploration Corp. v. Sheffield , 

739 P.2d 150, 157-60 (Alaska 1987), could cause confusion on this point.                   There, we 
stated that absolute immunity provides the right to be free from suit, while qualified 
immunity provides the right to be free from damages, not suit.  Compare id. at 158 n.17 
(describing absolute immunity), with id. at 158 n.19 (describing qualified immunity). 
                                                                                      (continued...) 

                                                  22                                            6552
 

----------------------- Page 23-----------------------

               In Sheldon, we affirmed the superior court's decision to grant qualified 

immunity to a police officer without first conclusively determining whether excessive 
force was used.63   Here, the superior court correctly concluded that whether the officers' 

use of force became excessive at some point in Phase Three or Phase Four was a genuine 

issue of material fact, but it did not deny summary judgment on that basis.  Instead, the 

superior court moved on to consider whether the officers reasonably believed that the 

force they used was permissible, even if they were mistaken and actually used excessive 
force.64  This is consistent with the Saucier "reasonable but mistaken belief" element we 

adopted in Sheldon.  As we stated in Sheldon, an officer who reasonably believes that his 

or her use of force is lawful, and lacks warning that such conduct is in fact unlawful, is 
protected from suit by qualified immunity.65 

        62(...continued) 

To   clarify, a successful pre-trial motion establishing the right to qualified immunity 
operates in the same manner as a successful pre-trial motion establishing the right to 
absolute   immunity   -   dismissal   without   trial.   When   qualified   immunity   cannot   be 
established as a   matter of law because genuine issues of material fact bar summary 
judgment, qualified immunity may still be established at trial to shield against damages. 
See supra note 24. 

        63     Sheldon v. City of Ambler, 178 P.3d 459, 467 (Alaska 2008). 

        64     Here, the superior court determined the pertinent facts from affidavits and 

deposition testimony.      It also would have been within the court's discretion to hold a 
limited hearing, but only to determine whether there were genuine issues of material fact, 
not to make factual findings.  See, e.g., Thompson v. Mahre, 110 F.3d 716, 719-20 (9th 
Cir. 1997) (recognizing that a district court may "sparingly and with great care" take oral 
testimony from the parties on summary judgment but cautioning that such testimony 
cannot "lead to a finding on a genuinely disputed fact, but only a determination as to 
which facts are not genuinely disputed."). 

        65      178 P.3d at 465-66. 

                                                23                                           6552
 

----------------------- Page 24-----------------------

                 Having carefully reviewed the superior court's detailed order, we conclude 

the court correctly considered the tasings in sequence, and correctly concluded that it did 

not   need   to   decide   whether   the   total   force   used   was   excessive   before   reaching   the 

question of qualified immunity. 

                 5.	     The superior court correctly decided that existing case law did 
                         not   provide   the   officers   with   notice   that   the   force   used   was 
                         excessive. 

                 Olson's fourth argument is that the superior court erred in concluding that 

the officers did not have notice that their conduct was unlawful.                 The order granting 

summary judgment concluded that, as of December 2006, Fourth Amendment case law 

concerning   the   use   of   tasers   was   not   clear   enough   to   provide   notice   to   the   officers 

regarding the legality of their conduct.         But Olson argues that the officers should have 

been "on notice" that their actions were unlawful because of unpublished case law on the 

use of tasers and published case law on the use of other types of non-deadly force.  We 

agree with the superior court's conclusion that neither of these sources was sufficient, 

as of December 2006, to provide notice to the officers that their taser use may have been 

excessive. 

                         a.	     Unpublished case law 

                Under Sheldon, a court must consider if a reasonable officer, using force 

which may or may not have been objectively unreasonable, was "on notice" that his 
behavior was unreasonable.66          We said in Sheldon that to determine whether an officer 

was   reasonably      on   notice,   courts   should   "look   to  our  own    jurisdiction    and   other 

jurisdictions to see if there are any cases, laws, or regulations which would suggest that 

        66      Id. at 466. 

                                                    24	                                               6552 

----------------------- Page 25-----------------------

the type of action taken by the officer is considered unlawful."67        General excessive force 

statutes are insufficient to provide this notice; cases that deal with the specific actions 
taken by police officers are persuasive.68 

                Hooper Bay argues that an unpublished summary judgment order issued by 
the superior court in Kotzebue69 may have served as notice that the use of a taser on a 

handcuffed      but  resisting  arrestee   was   lawful.   Olson    argues,   in  turn,  that   several 

unreported cases from outside Alaska put the police officers on notice that their conduct 

was illegal.    The superior court "reject[ed] that unpublished orders from   the federal 

district courts in Washington and California would give notice to officers in Hooper Bay 

Alaska, of the unlawfulness of their conduct" and also rejected the argument that the 

unpublished superior court order would provide notice that the officers' conduct was 

legal.   Collectively, the court stated that "[n]one of these cases are examples of citable 

authority that give guidance to practitioners." 

                Olson     argues   on  appeal    that  the  superior   court's   refusal   to  include 

unpublished materials in its notice analysis "is contrary to persuasive federal precedent" 

and "makes little sense" if published cases are deemed to constitute notice.  Olson cites 

to numerous unreported cases in which the use of a taser or other police weapon was 

deemed objectively unreasonable because the subject was not an immediate threat to the 
police    or  to  others.70   He    cites  these   cases   as  support   for  the   proposition    that 

        67      Id. 

        68      Id. (looking specifically to case law where another officer used a "bear hug 

and take down" in order to determine if such a maneuver was excessive force). 

        69      Page   v.   City   of   Kotzebue,   Case   No.   2KB-07-00076   CI   (Alaska   Super. 

March 20, 2008). 

        70      These include Vaughn v. City of Lebanon,           No. 99-6670, 18 F.App'x 252 

                                                                                      (continued...) 

                                                  25                                            6552
 

----------------------- Page 26-----------------------

"unpublished   decisions   of   district   courts   may   inform   [a   court's]   qualified   immunity 
analysis."71    We   decline   to   adopt   this   approach   and   instead   hold   that   unpublished 

decisions generally do not provide notice regarding appropriate levels of force.72 

        70(...continued) 

(6th Cir. Aug. 16, 2001) (use of pepper spray on subject who was not a threat was 
potentially excessive force); Rios v. City of Fresno, No. CV-F-05-644 OWW/ SMS, 2006 
WL 3300452 (E.D. Cal. Nov. 14, 2006) (denying summary judgment to police officers 
where taser was used on a petite subject arrested for a minor offense and there was 
conflicting testimony about resistance); Beaver v. City of Federal Way, No. CV05-1938 
MJP, 2006 WL 3203729 (W.D. Wash. Nov. 3, 2006) (seven tasings were illegal unless 
officers could show subject was fleeing or a threat to safety); Harris v. County of King, 
No.   C05-1121C,   2006   WL   2711769   (W.D.   Wash.   Sept.   21,   2006)   (use   of   taser   on 
compliant subject not threatening officer safety was excessive); Muro v. Simpson, No. 
1:03-CV-6619 OWW SMS, 2006 WL 2536609 (E.D. Cal. Aug. 31, 2006) (denying 
summary judgment on excessive force to officer who pepper sprayed a subject already 
immobilized by a previous taser deployment); LeBlanc v. City of Los Angeles, No. CV 
04-8250 SVW (VBKx), 2006 WL 4752614 (C.D. Cal. August 16, 2006) (jury could find 
use of taser excessive on a handcuffed, overdosing subject who did not pose a threat to 
officers); and Hudson v. City of San Jose, No. C-05-03015 RS, 2006 WL 1128038 (N.D. 
Cal.    Apr.   27,  2006)    (use  of  taser  and   baton   on   subject   who    was   "pretty   much 
incapacitated" was potentially excessive). 

        71      Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002) (citing Prison Legal 

News v. Cook, 238 F.3d 1145, 1152 (9th Cir. 2001)). 

        72      We note, but do not decide, that unpublished court of appeals or supreme 

court decisions from within Alaska might be considered to provide notice if it could be 
shown      that  a  defendant    was   actually   given   the  unpublished      decision(s).    In   the 
Washington and Oregon cases Olson cites, the appellate courts considered notice to arise 
from unpublished district court decisions for prison officials working in the same district, 
a distinction we find significant; unpublished decisions from other jurisdictions - as 
well as unpublished Alaska superior court orders - do not establish precedent, see, e.g., 
Coffman v. State, 172 P.3d 804, 811 (Alaska App. 2007), and therefore provide limited 
guidance regarding appropriate behavior. There is no evidence from which the superior 
court could have found that the officers in this case received the unpublished opinions 
                                                                                       (continued...) 

                                                  26                                             6552
 

----------------------- Page 27-----------------------

                        b.      Published excessive force cases 
                Olson cites to published excessive force cases not involving tasers,73 relying 

on Landis v. Cardoza, where a Michigan district court held that it is "appropriate to draw 

a parallel" between tasers and pepper spray because "[b]oth instruments temporarily 

incapacitate individuals by causing pain and are intended to permit law enforcement 

officers   to   take   resisting   individuals   into   custody   without   having   to   resort   to   lethal 
force."74   But Landis was decided in 2007, a year after Olson was arrested.               Olson also 

seems to suggest that Hickey v. Reeder may have provided notice.75                  As noted above,76 

that case does involve a taser, but the prisoner in Hickey was not resisting arrest; he was 
in jail and was tased for refusing to comply with an order to sweep his cell.77            The Eighth 

Circuit's holding on the distinguishable facts of Hickey provided no guidance to the 

officers attempting to arrest Olson. 

                Ultimately, both Olson and Hooper Bay acknowledge that there was a lack 

of   published     case   law   on   the  objective    reasonableness      of  taser   usage   prior   to 

        72(...continued) 

cited by Olson, nor were those opinions issued by Alaska appellate courts. 

        73      Smith v. City of Hemet, 394 F.3d 689, 701-02 (9th Cir. 2005); Champion 

v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004);               Greene v. Barber, 310 
F.3d 889, 898 (6th Cir. 2002); Headwaters Forest Def. v. County of Humboldt, 276 F.3d 
1125, 1130 (9th Cir. 2002); LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 
2000); Landis v. Cardoza, 515 F. Supp. 2d 809, 814 (E.D. Mich. 2007), aff'd by Landis 
v. Baker, 297 F. App'x 453 (6th Cir. 2008); Schumacher v. Halverson, 467 F. Supp. 2d 
939, 952 (D. Minn. 2006). 

        74      515 F. Supp. 2d at 814. 

        75      12 F.3d 754 (8th Cir. 1993). 

        76      See supra notes 54-59 and accompanying text. 

        77      12 F. 3d at 756. 

                                                   27                                             6552
 

----------------------- Page 28-----------------------

December 26, 2006.  We agree with the superior court that jurisprudence on "claims of 

excessive   force   involving   [t]asers"   was   either   unclear   or   nonexistent at the   time   of 
Olson's arrest.78 

                6.	     It was error to hold that Hooper Bay's policy on taser use was 
                        "irrelevant." 

                Olson also argues that both Hooper Bay Police Department regulations 

(found in the Hooper Bay Police Department General Order) and the guidelines for taser 

usage published in January of 2005 by the International Association of Chiefs of Police 
(IACP) provided notice to Simon and Joseph of the unlawfulness of their conduct.79  The 

superior   court   determined   that   the   IACP   guidelines   did   not   provide   notice   because 

"[Olson] has offered no evidence that this model policy has been adopted by any police 

agency within Alaska" and that, even if adopted, the policy "limits the use of [a] [t]aser 

to situations like the case at bar."  The superior court also found the Hooper Bay Police 

        78      In 2000, we decided Samaniego v. City of Kodiak, 2 P.3d 78 (Alaska 2000). 

There, appellant alleged that police officers had employed excessive force (including 
taser use) when they arrested her.        But our holding in that case was limited to the need 
to apply an objectively reasonable standard to the officers' conduct to determine whether 
they had qualified immunity.          We held that genuine issues of material fact precluded 
summary judgment.  Accordingly, we reversed and remanded for further analysis by the 
superior court.  The parties do not argue that Samaniego provided meaningful guidance 
regarding the objective reasonableness of taser usage. 

        79	     The IACP Guidelines provide: 

                The model policy prohibits [taser] use against anyone unless 
                the person demonstrates an overt intention to use violence or 
                force   against   the   officer   or   others   or   resists   detention   and 
                arrest   and   other   alternatives   for   controlling   them   are   not 
                reasonable or available under the circumstances. 

IACP National Model Policy Center, Electronic Control Weapons Concepts and Issues 
Paper 3 (January 2005). 

                                                   28	                                             6552
 

----------------------- Page 29-----------------------

Department General Order "irrelevant" to the notice question in its qualified immunity 

analysis, reasoning that reliance on internal police policies may have a perverse impact 

on the types of regulations adopted by police departments.                   The superior court also 

observed that Sheldon likely did not signal that "internal department regulations of the 

department being sued should be the piece of 'probative evidence that there was some 

kind of 'notice.' ' " 

                 We agree that the IACP guidelines did not provide notice to the officers that 

their use of force may have been excessive, but we disagree with the superior court's 

conclusion that the Hooper Bay Police Department General Order was irrelevant.  The 

General Order provides: 

                 The   Advanced   Taser   shall   not   be   used   on   a   restrained   or 
                 controlled subject unless the actions of the subject present an 
                 immediate threat of death or great bodily harm or substantial 
                physical struggle that could result in injury to themselves or 
                 any other person including the deploying police officer. 

                 The superior court's concern was that reliance on local police department 

policies in the notice component of a qualified immunity analysis could, if taken to the 

extreme, circumvent the authority of the Alaska and United States Constitutions and state 
statute.80  We acknowledge the superior court's concern, but the facts of this case do not 

        80       The superior court reasoned that: 

                police   departments   may,   out   of   self-interest   to   avoid   suit, 
                 elect   to   adopt   regulations     that  are   facially,   objectively 
                unreasonable   and   then   argue   that   officers   are      entitled   to 
                 qualified immunity for their reasonable reliance upon them. 
                 The converse could also be true - that a police officer who 
                 otherwise      would    be   entitled   to  qualified    immunity      for 
                 reasonable but mistaken beliefs as to the lawfulness of his or 
                 her   conduct    would     be  deprived    of  that   immunity     by   an 
                                                                                           (continued...) 

                                                    29                                               6552
 

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present   an   extreme   scenario.    The   Hooper   Bay   Police   Department's   General   Order 

established a standard that was uncontested - Olson did not dispute that taser usage is 

appropriate where an arrestee's conduct threatens immediate harm to police officers - 
and the policy was not shown to be inconsistent with federal guidelines for taser use.81 

We cannot agree with the superior court that concerns about possible misuse of police 

department policies in other cases prevented consideration of Hooper Bay's internal 

policies as a potential source of notice in this case. 

                We     held    in Sheldon      that  notice    can   arise   from    "cases,   laws,    or 
regulations."82    In Champion v. Outlook Nashville, Inc., the Sixth Circuit incorporated 

police training into its notice analysis where officers had been clearly, unequivocally 
instructed that the specific actions they later took were unlawful.83              Here, the General 

Order  established that tasers "shall not be used on a restrained . . . subject" except under 

specified circumstances.  The superior court's ruling that Olson's conduct during Phase 

Two   posed   a   threat   to   the   officers   and   justified   some   taser   use   is   supported   by   the 

uncontested facts.      But whether those circumstances were present in Phases Three and 

Four (i.e., whether Olson presented an immediate threat of harm or injury to himself or 

others) is a question of fact.       The superior court acknowledged as much by finding a 

genuine issue of material fact as to the reasonableness of the officers' conduct during 

Phases Three and Four - presumably because it could not determine as a matter of law 

        80(...continued) 

                internal department regulation that sets higher standards than 
                the Fourth Amendment baseline. 

        81      See supra note 45. 

        82      Sheldon v. City of Ambler, 178 P.3d 459, 466 (Alaska 2008). 

        83      380 F.3d 893, 903 (6th Cir. 2004). 

                                                   30                                              6552
 

----------------------- Page 31-----------------------

whether   Olson   was   resisting   in   a   potentially   dangerous   manner.84    This   outstanding 

question   of   fact   should   have   barred   entry   of   summary   judgment.    Accordingly,   we 

remand   for   consideration of whether the police department's General Order put the 
officers on notice that they were not permitted to tase Olson after handcuffing him.85 

        C.	     It Was Plain Error For The Superior Court Not To Consider Whether 
                The Nature Of The Officers' Actions Provided Notice That The Force 
                Used Was Excessive. 

                Olson's final argument is that the officers were on notice that their use of 

force was excessive because their   "conduct was so egregious that they should have 

known it was unlawful."  In Sheldon, we held that even if existing law does not provide 

notice   to   officers   that   their   conduct   is   unlawful,   "the   nature   of   the   act   [can  give] 
sufficient warning" if it is sufficiently egregious and excessive.86               On appeal, Olson 

        84      The superior court's order found that "the initial deployment" of tasers in 

Phase Two was reasonable because "[t]he officers were faced with an immediate threat 
of bodily harm from the Plaintiff kicking and biting them in a rapidly deteriorating 
situation;" in other words, the situation initially fell within an exception to the General 
Order's rule against tasing a restrained subject.          But the superior court did not make a 
similar finding with regard to Phases Three and Four.                Instead, it held that "there is a 
genuine   issue   of   material   fact   presented   as   to   the   objective   reasonableness   of   the 
subsequent uses of force."  The court also noted (but did not explicitly address) Olson's 
argument "that there is a genuine issue of material fact on the voluntariness of [Olson's] 
kicking     movements      by   virtue  of  the  [t]aser's   ability  to  cause   involuntary     muscle 
contractions." 

        85      Neither     party  argued    that   the  court   should   consider   guidance     on  the 

appropriate use of tasers that may be issued by taser manufacturers.  We observe, but do 
not decide, that this type of source may yield more probative guidance regarding the 
appropriate limits of taser use because the prospect of liability for misuse presumably 
motivates manufacturers to issue responsible warnings and instructions for the safe use 
of their products.     Because this argument was not presented, we do not reach it here. 

        86       178 P.3d at 467. 

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draws our attention to federal excessive force cases that reach the same conclusion,87 and 

argues   that   "the   officers'   own   common   sense   and   society's   common   standards   of 

decency      should   have   caused   the   officers   to   realize   their   application  of   force   was 

excessive."      Olson     was    tased   in  drive-stun    mode    fifteen   to  eighteen    times   in 

approximately       50  seconds.    Evidence      admitted    in  conjunction    with   the  summary 

judgment motion suggests that deployment of a taser in drive-stun mode can cause a 

subject to become immobilized and disoriented.              The record does not contain factual 

recitations addressing whether the taser temporarily interfered with Olson's ability to 

comply with the officers' orders, or whether the officers permitted enough time to elapse 

between tasings for Olson to respond and comply. 

                We     acknowledge      that   Olson   did   not  make     the  argument     expressly 

addressing the final prong of the Sheldon test in opposition to Hooper Bay's motion for 

summary judgment, and we do not consider arguments raised for the first time on appeal, 
absent   plain   error.88  But   Sheldon   unambiguously   explains   that   the   final   prong   of 

Alaska's     qualified immunity test requires the superior court to consider whether the 

nature of the officers' actions, alone, provided notice that the force they used became 

        87      Lee   v.   Ferraro,   284   F.3d   1188,   1198-99    (11th   Cir.   2002)   (notice   of 

unlawfulness   existed   for   qualified   immunity   purposes   when   an   officer   slammed   an 
arrestee's head against the trunk of her car after the arrestee was handcuffed); see also 
Hope v. Pelzer, 536 U.S. 730, 745 (2002) (notice of Eighth Amendment violation arose 
from action itself when prison inmate was handcuffed to a hitching post for seven hours 
without water or bathroom breaks); Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 
926 (11th Cir. 2000) (actions of police officer who either ordered or allowed his dog to 
attack a non-resisting arrestee provided notice that force was excessive). 

        88      Pitka v. Interior Regional Hous. Auth., 54 P.3d 785, 788 (Alaska 2002); 

Hagans, Brown & Gibbs v. First Nat'l Bank of Anchorage, 783 P.2d 1164, 1166 n.2 
(Alaska   1989);    Wettanen   v.   Cowper,   749   P.2d   362,   364   (Alaska   1988);  Zeman   v. 
Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). 

                                                  32                                             6552
 

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excessive at some point in the sequence of events.89          The superior court did not address 

this question, and we conclude the failure to do so was plain error. 

                We affirm the superior court's conclusion that the officers' actions during 

Phase One and Phase Two of their interaction with Olson were objectively reasonable. 

And we agree with the superior court that the situation became less clear with each 

successive use of the taser.  In Phase Three, when Olson was handcuffed and seated on 

the floor, and in Phase Four, when Olson was handcuffed and on his stomach, the need 

for force changed.     The officers tased Olson at least fifteen to eighteen times; some of 

these tases occurred after Olson was handcuffed, on his stomach, and under the control 

of the freely mobile police officers.   It is possible that the relatively rapid and continued 

application of the taser in Phase Three or Phase Four provided intrinsic notice that the 

force used was excessive, but the superior court's order does not address this final part 

of the Sheldon test.     Because we cannot say as a matter of law that the nature of the 

officers'   actions   did   not   put   them   on   notice   that   their   use   of   force   may   have   been 

excessive, we reverse the court's grant of summary judgment on the issue of qualified 

immunity.     On remand, the court should address the final prong of the Sheldon test. 

V.      CONCLUSION 

                We REVERSE the order granting summary judgment and REMAND for 

proceedings consistent with this decision. 

        89      178 P.3d at 467. 

                                                  33                                              6552 
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