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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Russell v. Virg-In (7/22/2011) sp-6580

Russell v. Virg-In (7/22/2011) sp-6580, 258 P3d 795

        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 

SANDRA RUSSELL, for and on) 
behalf of J.N., a Minor Child,                   )       Supreme Court No. S-13537 
                                                 ) 
                        Appellant,               )       Superior Court No. 2KB-05-00023 CI 
                                                 ) 
        v.                                       )       O P I N I O N 
                                                 ) 
CORPORAL LEE VIRG-IN and                         )       No. 6580 - July 22, 2011 
THE CITY OF KOTZEBUE,                            ) 
                                                 ) 
                        Appellees.               ) 
                                                 ) 

                Appeal   from   the   Superior   Court   of   the   State   of   Alaska, 
                Second Judicial District, Kotzebue, Michael I. Jeffery, Judge. 

                Appearances: Ted Stepovich, Law Office of Ted Stepovich, 
                Anchorage, for Appellant.  Joseph W. Evans, Law Offices of 
                Joseph W. Evans, Bremerton, Washington, for Appellees. 

                Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, 
                Justices.   [Christen, Justice, not participating.] 

                FABE, Justice. 

I.      INTRODUCTION 

                In July 2003 Officer Lee Virg-In used a taser two times on J.N., an 11-year- 

old girl.   J.N. had been driving an ATV through the streets of Kotzebue with another 

young passenger. J.N. ran several stop signs and was otherwise driving dangerously, and 

----------------------- Page 2-----------------------

Officer Virg-In used overhead lights and a siren to signal to J.N. to stop.  J.N. refused to 

stop, first trying to escape on the ATV and later fleeing on foot.  Officer Virg-In chased 

J.N. on foot and caught up with her.     According to J.N., she    was never aggressive or 

threatening towards Officer Virg-In, and she had already stopped running and was no 

longer attempting to flee when Officer Virg-In deployed his taser.         He first shot the 

probes and caught them on J.N.'s jacket and then grabbed J.N. by the elbow and shocked 

J.N. on the shoulder with the taser as he held onto her elbow.        Officer Virg-In then 

handcuffed J.N. and took her to the police station. 

              J.N., through her mother Sandra Russell, filed a complaint against Officer 

Virg-In, alleging that his use of the taser constituted excessive force.  J.N. also sued the 

City of Kotzebue, claiming improper and negligent supervision or training.           Officer 

Virg-In defended the reasonableness of his actions and argued that he was immune from 

suit.   On summary judgment, the superior court found that Officer Virg-In was entitled 

to qualified immunity because a reasonable officer might not have known that the use of 

a taser under the circumstances would be an excessive use of force.  The superior court 

also dismissed J.N.'s claims against the City based on Officer Virg-In's entitlement to 

qualified immunity.    Finally, the superior court awarded attorney's fees and costs to 

Officer Virg-In and the City, assessing the fees and costs against Russell. 

              We conclude that it was error to grant Officer Virg-In qualified immunity 

on summary judgment because if a police officer used a taser multiple times on an 

11-year-old girl who was suspected of traffic violations, was compliant, and was not 

posing a threat to the officer or others, that conduct could be so egregious that any 

reasonable officer would have known that the conduct was an excessive use of force. We 

also reverse the grant of summary judgment dismissing J.N.'s improper and negligent 

training or supervision claims against the City of Kotzebue. 

                                             -2-                                       6580
 

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II.     FACTS AND PROCEEDINGS 
        A.      Factual History1 

                On   the   night   of   July   29,   2003,2  Kotzebue   police   officer   Corporal   Lee 

Virg-In used an Advanced Taser (taser) while arresting 11-year-old J.N.                   The incident 

began earlier in the evening when, while driving in a marked police department vehicle, 

Officer   Virg-In   and   his   partner   Officer  Eric   Swisher   saw   J.N.   driving   an   ATV   at 

approximately   30-35   m.p.h.   through   the   streets   of   Kotzebue   with   a   young   female 

passenger. Officer Virg-In's incident report states that J.N. was five feet tall and weighed 

100 pounds, which the report describes as a "slender" build.  The officers saw J.N. run 

a stop sign and turned on their overhead lights and siren to signal to J.N. to stop. J.N.'s 

passenger turned and saw the police vehicle, but J.N. drove off, eluding the officers. 

About an hour later, the officers again spotted J.N. on the ATV, saw her go through a 

stop sign, and turned on their overhead lights and siren.  J.N. again drove away from the 

officers, going an estimated 35-40 m.p.h. and failing to stop at two more stop signs. J.N. 

then drove the ATV off the street and through a field, emerging from behind a building 

and nearly hitting the officers' police vehicle head on - both vehicles veered around 

each other to prevent a collision.  J.N. drove back onto the street, but her ATV stalled. 

Both girls left the ATV and started running away from Officer Virg-In on foot. Officer 

Virg-In got out of his vehicle, began chasing the girls, and yelled for them to stop.  J.N. 

continued to run, and Officer Virg-In continued to chase her and yell for her to stop. 

        1       We interpret the facts in the light most favorable to J.N. as the non-moving 

party and draw all reasonable inferences in her favor.  See Sheldon v. City of Ambler, 178 
P.3d 459, 461 (Alaska 2008) (citing Samaniego v. City of Kodiak, 2 P.3d 78, 82-83 
(Alaska 2000)). 

        2       Appellant's brief and the superior court opinion state that the date of the 

taser incident was July 29, 2005, but the incident actually occurred on July 29, 2003. 
J.N. filed her complaint in February 2005. 

                                                  -3-                                             6580
 

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              According to J.N., she ran between three female teenagers on the street and 

was stopped by one of them.  She testified that she "stopped right away" and was "face 

to face" with Officer Virg-In, "wait[ing] for him" as he came within two or three feet of 
her and deployed the taser's probes.3   J.N. described the incident: 

              I went around [the senior center buildings] and. . . [another 
              girl] grabbed me.    I stopped.   I was tired.  Virg-In was right 
              behind me.  I turned around and I saw him.  He pulled out his 
              gun, and a whole - a couple of wires came out, you know, 
              a couple strings.   One caught my coat.  The other - the other 
              one caught my chest.     I asked him what he did that for and 
              then he shocked me.  The first one happened so fast, but then 
              the second time he put it to my shoulder. 

              J.N.'s passenger confirmed in an affidavit that she saw Officer Virg-In 

"shoot" J.N. with the taser and then "walk up to [J.N.] and touch [t]aser [J.N.] again and 

she fell to the ground."  The passenger agreed with J.N.'s testimony that J.N. was "not 

running away at the time that Officer Virg-In used the [t]aser on [J.N.]."  Officer Virg-In 

acknowledged that when he used the taser the second time he was holding onto J.N.'s 

elbow and was also shocked by the current when he touch-tasered J.N. 

              Officer Virg-In then handcuffed J.N. and took her to the Kotzebue police 

station.   Another officer examined J.N. and noted that her coat had one taser probe still 

embedded in it and that there was a small red mark on J.N.'s upper right chest.  J.N. was 

       3      Variously referred to as "probes," "darts," "wires," or "harpoons," these are 

"two metal probes [that] are propelled . . . from a replaceable cartridge"; they "have the 
appearance of small, straightened fish-hooks . . . [and are] connected to the weapon by 
a fine insulated wire."  Operationally, "[w]hen both probes contact the target, the device 
automatically delivers several seconds of electric current . . . designed to affect the motor 
nervous system and muscles, causing physical incapacitation."  Deploying these probes 
is an alternative to using a taser in the "direct contact stun mode," which is a pain 
compliance technique. 

                                             -4-                                        6580
 

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

later adjudicated a delinquent minor for the misdemeanor offense of "failure to stop at 

the direction of a peace officer in the second degree." 

              As to her injuries, J.N. testified that when the taser probes hit her she "got 

really stiff" and when Officer Virg-In touched her with the taser, she "collapsed."     She 

stated that she was shocked with the taser "for a good minute . . . you could feel it . . . 

pulsing."   J.N. described that after she was touched with the taser, "[i]t burned at first" 

and then she "could see [her] vein come out. It was darker." She elaborated that she hurt 

for a "couple of days" and that she had trouble sleeping on the night of the incident 

because she woke up with nightmares.      J.N. admitted that after a "couple" of days she 

was "okay" and that the pain "slowed down" and was gone after three or four days.  But 

J.N. still had nightmares and trouble sleeping that occurred "once in a while" over the 

next three years.   In these nightmares, J.N. testified, she would see "a guy in a uniform" 

who would chase her as she ran from him; sometimes the figure in the dream would 

handcuff her and leave her on the ground and once she dreamed that she was taken to jail. 

J.N. never took any medication for her sleeping issues and never saw a counselor or 
doctor for the problem.4 

              J.N. maintained that Officer Virg-In knew who she was and knew where she 

lived and thus "could have easily avoided the use of force by waiting and picking her up 

at home."  She noted that "Kotzebue is a very small place, it is isolated."  Moreover, J.N. 

argued that she was not "wanted because of a serious or violent felony crime." 

       4      The connection between the taser incident and J.N.'s emotional and mental 

injuries was highly contested in the superior court. For purposes of a summary judgment 
review, however, we view the facts relating to J.N.'s alleged injuries in the light most 
favorable to J.N.  See supra note 1. 

                                            -5-                                         6580 

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       B.     Proceedings 

              On February 17, 2005, J.N.'s mother Sandra Russell filed a complaint "by 

and for" J.N. as a minor child.  The complaint alleged that Officer Virg-In "apprehended 

and arrested [J.N.] using excessive unnecessary force, stunning [J.N.] twice with a stun 

gun with no justification for the use of such excessive force . . . causing her injury and 
great pain."5  J.N. also alleged that the City "improperly and negligently supervised or 

trained" Officer Virg-In in the appropriate use of force.     J.N. sought damages against 

Officer Virg-In and the City, "jointly and severally for the same injury" plus costs, 

interest, and attorney's fees, and requested punitive damages against Officer Virg-In. 

Officer Virg-In and the City answered J.N.'s complaint, denying J.N.'s allegations and 

raising several defenses.   Among other assertions, Officer Virg-In claimed that he had 

"a qualified privilege to use reasonable force in making an arrest . . . [and] immunity 

based upon objective reasonableness." 

              On August 27, 2008, Officer Virg-In and the City moved to dismiss all of 
J.N.'s claims on summary judgment.6      Citing post-2003 case law, Officer Virg-In argued 

that "[t]he use of a [t]aser to subdue an unruly, fleeing juvenile is a proper use of force 

       5      It is unclear whether J.N. intended to raise federal constitutional torts under 

42 U.S.C.  1983 along with state law tort claims.  Like most courts, we do not require 
litigants to specify that they are suing under  1983.  See Fairbanks Corr. Ctr. Inmates 
v. Williamson, 600 P.2d 743, 747 (Alaska 1979) (concluding that a complaint stated a 
cause of action under  1983 based on "[c]ombining the broad purposes of 42 U.S.C. 
 1983 to provide a cause of action upon allegations of facts constituting deprivation 
under color of state authority of federal constitutional rights with the liberal pleading 
provisions of Alaska Rule of Civil Procedure 8").       See generally SWORD AND SHIELD 
REVISITED: A PRACTICAL APPROACH TO SECTION  1983 122 (Mary Massaron Ross ed. 
1998).   At oral argument, counsel for J.N. stated the he did not believe that any  1983 
claims had originally been alleged, but added that he was not waiving such claims. 

       6      Before the motion for summary judgment was filed, the case had been 

substantially delayed due to the death of J.N.'s attorney in June 2006. 

                                             -6-                                        6580
 

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and does not constitute excessive force."  In addition, Officer Virg-In contended that he 

was entitled to qualified immunity because "no cognizable legal precedent" would have 

put him "on notice that the use of a [t]aser in this situation was prohibited, unlawful 

conduct for a police officer."       Officer Virg-In and the City also maintained that J.N.'s 

claim against the City should be dismissed based on Officer Virg-In's entitlement to 

qualified immunity and on the merits. 

                J.N. opposed the summary judgment motion on September 29, 2008.                     She 

responded that "there is no requirement that there be a specific case on point that would 

have led Officer Virg-In to believe that use of a [t]aser in this situation was excessive." 

J.N. maintained that the law "was clearly established in July 2003" that "it would be [] 

excessive use of force to use a [t]aser on a juvenile that posed little or no threat to the 

Officer or third parties."       J.N. also argued that there were issues of fact precluding 

summary judgment as to "whether the City failed to properly train Virg-In by having a 

written policy governing [t]aser use and reviewing that written policy with its officers" 

and also regarding "whether Virg-In violated plaintiff's constitutional right to be free 

from the unlawful use of excessive force."           The superior court heard oral argument on 

December 5, 2008. 

                On   April   9,   2009,   the   superior   court   issued   an   order   granting   Officer 

Virg-In's and the City's motions for summary judgment.  The superior court concluded 

that it was "undisputed that Officer Virg-In's effort to stop [J.N.] was within the scope 

of    his  discretionary     authority."    The   court     then   considered:     (1)  the   objective 

reasonableness of Officer Virg-In's actions; and (2) "whether 'clearly established' law 

existed to inform him of applicable constitutional standards for this situation."                   The 

superior court described the relevant circumstances, viewing the facts in J.N.'s favor: 

Officer Virg-In used a taser twice on an 11-year-old girl who had already stopped; who 

had ceased her attempt to escape; and who had not used any aggressive or threatening 

                                                  -7-                                             6580
 

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behavior to escape arrest. In these circumstances, the superior court found "triable issues 

of fact as to the objective reasonableness of the officer's actions" and denied summary 

judgment on this point. 

                 Nonetheless, the superior court ultimately determined that Officer Virg-In 

was entitled to qualified immunity because no clearly established law in July 2003 would 

have   put   him   on   notice   that   his   conduct   was   unlawful.     The   superior   court   first 

determined that the two Alaska statutes related to use of force were insufficient to notify 
Officer Virg-In that the use of a taser to arrest an 11-year-old suspect was unlawful.7 

Looking to case law, the superior court found that the cases presented by J.N. were "quite 

distinguishable" and that it was " 'telling' that neither party could provide authority prior 

to July 2003 as to the use of [t]asers on young people."  Taking note of J.N.'s "reckless[] 

behavior which resulted in hazards to the community" and her "previous determined 

efforts to escape," the superior court found that J.N. had "not shown that the law was 

clearly established that Officer Virg-In should have known that his two uses of the [t]aser 

during the incident would violate [J.N.'s] constitutional rights." 

                 The   superior   court   then   explained   that   even   in   the   absence   of   clearly 

established law, "[i]f an officer's conduct is so extreme that any reasonable officer would 

know      the  force   used   was    excessive,    the  officer   cannot    be   shielded    by  qualified 

immunity."      The superior court concluded, however, that Officer Virg-In's conduct in 

response to J.N.'s "reckless behavior" and previous "determined efforts to escape" was 

         7       See   AS   11.81.370(a)   ("In   addition   to  using   force   justified   under   other 

sections of this chapter, a peace 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 12.25.070 ("A peace officer or private person may not subject a person 
arrested to greater restraint than is necessary and proper for the arrest and detention of 
the person."). 

                                                    -8-                                              6580
 

----------------------- Page 9-----------------------

"not   so   egregious   or   lacking   in   common   sense   that   he   would   have   known   [it   was] 

excessive even without the guidance of prior law."  Summary judgment was granted to 

Officer Virg-In. 

                 Turning to J.N.'s negligent training or supervision claim, the superior court 

concluded that "there would be a triable issue of fact as to the adequacy of training and 

supervision   of   Kotzebue   police   officers   as   to   the   use   of   [t]asers. But   for   qualified 

immunity,   this   issue   would   result   in   denial   of   the   defendants'   motion   for   summary 

judgment   on   these   claims."      But   the   superior   court   granted   the   City's   motion   for 

summary   judgment   on   J.N.'s   negligent   training   or   supervision   claim   "based   on   the 

qualified immunity of the officer."  Final judgment was entered on April 29, 2009. 

                 On June 4, 2009, Officer Virg-In and the City moved for attorney's fees 

under Alaska Civil Rule 82.   J.N. opposed the fees motion, contending that the amount 

of fees should be modified for equitable factors under Rule 82(b)(3) and that Russell 

could     not  be   personally    liable   for  fees   because    she   brought    the  claim    as  J.N.'s 

representative.   The superior court held a hearing on attorney's fees on October 8, 2009, 

and requested additional briefing on certain issues.              On January 8, 2010, the superior 

court ordered that the claimed fees and costs were reasonable and that Russell was 

personally liable for the fees and costs awarded in the amount of $43,144.32. 

                 J.N.   appeals   both   the   superior   court's   final   judgment   granting   Officer 

Virg-In and the City's motions for summary judgment and the award of attorney's fees 

and costs. 

III.     STANDARD OF REVIEW 

                 "We review [a] grant of summary judgment de novo, reading the record in 

the light most favorable to the non-moving party and making all reasonable inferences 

                                                    -9-                                              6580
 

----------------------- Page 10-----------------------

in its favor."8  We "will affirm a grant of summary judgment when there are no genuine 

issues of material fact and the moving party is entitled to judgment as a matter of law."9 

                "The applicability of both state and federal immunity are questions of law 
that are . . . subject to de novo review."10    Under the de novo standard of review, we will 

"apply our independent judgment to questions of law, adopting the rule of law most 
persuasive in light of precedent, reason, and policy."11 

IV.     DISCUSSION 

        A.      Qualified Immunity And Claims Of Excessive Force 

                Qualified immunity shields public officials from civil liability "insofar as 

their conduct does not violate clearly established statutory or constitutional rights of 
which a reasonable person would have known."12            The purpose of qualified immunity is 

to "balance[] two important interests - the need to hold public officials accountable 

when they exercise power irresponsibly and the need to shield officials from harassment, 
distraction, and liability when they perform their duties reasonably."13  Whether officials 

        8       Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010) (internal quotation 

marks omitted). 

        9       Id. 

        10      Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008). 

        11      Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

177 P.3d 1181, 1184 (Alaska 2008) (internal quotation marks omitted). 

        12      Pearson   v.   Callahan,   129   S.   Ct.   808,   815   (2009)   (quoting Harlow   v. 

Fitzgerald, 457 U.S. 800, 818 (1982)); see also Brosseau v. Haugen, 543 U.S. 194, 198 
(2004) ("Qualified immunity shields an officer from suit when she makes a decision that, 
even   if   constitutionally   deficient,   reasonably   misapprehends   the   law   governing   the 
circumstances she confronted."). 

        13      Pearson, 129 S. Ct. at 815. 

                                                -10-                                            6580
 

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perform their duties reasonably "is judged against the backdrop of the law at the time of 

the conduct" because "the focus is on whether the officer had fair notice that her conduct 
was    unlawful."14     Qualified     immunity     is  intended    to  protect  "all  but   the  plainly 

incompetent or those who knowingly violate the law."15 

                Alaska statutes provide 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"16 and allows an officer to "use nondeadly force and [] 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."17  The use of excessive force is thus a statutory violation and may also run afoul 

of the Fourth Amendment to the United States Constitution and article I, section 14 of 

the   Alaska   Constitution,   both   of   which   grant   citizens   a   right   "to   be   secure   in   their 

persons" and protect against "unreasonable searches and seizures."   Pursuant to federal 

law, whether a police officer uses excessive force in making an arrest depends on the 

gravity of the intrusion (the type and amount of force inflicted) balanced against the 

government's need for that intrusion (as measured by the severity of the crime, whether 

the suspect posed an immediate threat to the officer's or the public's safety, and whether 
the suspect was resisting arrest or attempting to escape).18   The standard for excessive 

        14      Brosseau, 543 U.S. at 198. 

        15      Malley v. Briggs, 475 U.S. 335, 341 (1986). 

        16      AS 12.25.070. 

        17      AS 11.81.370(a). 

        18      See, e.g., Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 

(9th Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)) (other internal 
citations omitted). 

                                                  -11-                                            6580
 

----------------------- Page 12-----------------------

force in Alaska is nearly identical - the three considerations that frame the excessive 

force inquiry are the severity of the crime, whether the suspect immediately threatens the 

safety of the police or others, and whether the suspect is actively resisting or fleeing 
arrest.19 

                Police   officers,   like   other   public   officials,   are   protected   by   qualified 
immunity when they exercise discretionary functions.20                 Alaska Statute 09.65.070(d) 

provides for statutory immunity: 

                An     action   for  damages      may    not  be   brought    against    a 
                municipality or any of its agents, officers, or employees if the 
                claim . . . (2) is based upon the exercise or performance or the 
                failure to exercise or perform a discretionary function or duty 
                by a municipality or its agents, officers, or employees. 

We have added that Alaska "usually follows federal case law in the area of qualified 
immunity."21 

                In 2001 the United States Supreme Court in Saucier v. Katz announced a 
new   federal   qualified   immunity  standard.22        The   Court   clarified   that   a   decision   on 

        19      Samaniego v. City of Kodiak, 2 P.3d 78, 86 (Alaska 2000) (concluding that 

the federal framework from Graham is "persuasive" and "adopt[ing] it as an elaboration 
of [Alaska's] common-law standard of reasonable force"), overruled in part by Sheldon 
v. City of Ambler, 178 P.3d 459 (Alaska 2008); see also Wasserman v. Bartholomew, 38 
P.3d 1162, 1169-70 (Alaska 2002) (approving a trial court's use of Graham's "objective 
reasonableness" test in an excessive force case brought under state law). 

        20      Samaniego, 2 P.3d at 83 (defining "discretionary" actions as "those that 

require personal deliberation, decision and judgment"); accord Saucier v. Katz, 533 U.S. 
194, 203 (2001) (noting that "qualified immunity applie[s] in the Fourth Amendment 
context just as it would for any other claim of official misconduct"), overruled in part 
by Pearson v. Callahan, 129 S. Ct. 808 (2009). 

        21      Sheldon, 178 P.3d at 463. 

        22      533 U.S. 194 (2001). 

                                                  -12-                                             6580
 

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

qualified   immunity   "should   be   made   early   in   the   proceedings"23      because   it   is   "an 

entitlement not to stand trial or face the other burdens of litigation."24  Saucier set out a 

two-part test for determining entitlement to qualified immunity: (1) whether the facts 

alleged show that the officer's conduct violated a constitutional right; and (2) whether 

the right was "clearly established," meaning that "it would be clear to a reasonable 
officer that his conduct was unlawful in the situation he confronted."25   A later United 

States Supreme Court decision held that courts have the discretion to address either of 
the Saucier prongs first.26 

                In 2008, partially in response to Saucier, we "reexamine[d] our previous 

decisions on qualified immunity and [] clarif[ied] the standard for granting immunity to 
police officers" accused of using excessive force.27          We held that an officer is entitled to 

qualified immunity if the officer's conduct was an objectively reasonable use of force or 
the officer reasonably believed that the conduct was lawful.28   We have explained that 

        23      Id. at 200. 

        24      Id. at 200 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). 

        25      Id.  at   201-02;   see    also   id.  at  205   (describing    the  inquiries    as  the 

"reasonableness of the officer's belief as to the appropriate level of force" and whether 
the officer made a "reasonable mistake[] . . . as to the legal constraints on particular 
police conduct"). 

        26      Pearson, 129 S. Ct. at 818. 

        27      Sheldon, 178 P.3d at 463. 

        28      Id. at 463-64 ("[T]he United States  Supreme Court emphasized that in 

deciding whether an officer is eligible for qualified immunity one must not merely look 
to whether an officer's actions were objectively reasonable, but also to whether the 
officer   might   have  reasonably   believed   that   his   actions   were   reasonable.")   (citing 
Saucier, 533 U.S. at 205); see also Olson v. City of Hooper Bay, 251 P.3d 1024, 1031 
                                                                                         (continued...) 

                                                  -13-                                               6580 

----------------------- Page 14-----------------------

"[t]his test recognizes that there may bebehavior 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."29  Under the 

second part of the inquiry, the reasonableness of an officer's belief that his conduct was 

lawful depends on whether a reasonable officer would have been "on notice" that his 
particular   use   of   force   would   be   unlawful.30    An   officer   may   be   on   notice   that   his 

particular use of force was unlawful either because closely analogous cases, laws, or 

regulations suggest that the conduct is unlawful, or because the conduct was so egregious 
that any reasonable officer would have known that it was unlawful.31 

                 In considering whether an officer could have reasonably believed that his 

conduct was lawful because he was not on notice that his particular use of force was 

excessive,   we   have   directed   trial   courts   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."32  We   explained   in 

Sheldon that these cases, laws, and regulations must be relevant to "specific actions taken 
in specific circumstances,"33 following the United States Supreme Court's direction in 

Saucier that the question whether a reasonable officer would have been on notice that his 

conduct was unlawful "must be undertaken in light of the specific context of the case, not 

        28       (...continued) 

(Alaska 2011). 

        29       Sheldon, 178 P.3d at 463. 

        30       Id. at 463 (citing Saucier, 533 U.S. at 202). 

        31       See id. at 463, 465-67. 

        32       Id. at 466. 

        33       Id. at 466 (citing Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004)). 

                                                    -14-                                              6580
 

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

as   a   broad   general   proposition."34    But   we   cautioned   in  Sheldon   against   extremes, 

directing that trial courts should neither rely solely on the broad, general use of force 

statutes nor require that prior case law, statutes, or regulations discuss the appropriate use 
of force in an identical factual scenario.35         We recognized that trial courts should not 

"go[] too far" by determining 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."36 

                We added in Sheldon that some conduct is "so egregious, so excessive" that 

any reasonable officer would have known that it was unlawful even in the absence of 
closely analogous case law.37        Cautioning that "[o]ne should not let the lack of explicit 

law in an area be a substitute for the reasonable officer's common sense," we explained 

that some conduct is so "shocking" that "the nature of the act [gives] sufficient warning 

        34      Saucier, 533 U.S. at 201; see also Ashcroft v. Al-Kidd, No. 10-98 __ S. Ct. 

____, 2011 WL 2119110, at *7-9 (May 31, 2011)  (describing the required case law 
necessary to put a government official on notice that particular conduct is unlawful as 
either "controlling authority" or "a robust consensus of cases of persuasive authority") 
(internal quotation marks omitted). 

        35      Sheldon, 178 P.3d at 466; see also Olson v. City of Hooper Bay, 251 P.3d 

1024, 1037 (Alaska 2011) ("General excessive force statutes are insufficient to provide 
this   notice;   cases   that   deal   with   the   specific   actions   taken   by   police   officers   are 
persuasive."). 

        36      Sheldon, 178 P.3d at 466; see also Hope v. Pelzer, 536 U.S. 730, 739-41, 

743-44 (2002) (explaining that officials may be on notice that their conduct violates 
established law even in novel factual circumstances and that a relevant prior decision 
may provide adequate notice not only with its holding, but also by its reasoning, or when 
the "premise" of the case "has clear applicability" to a subsequent set of facts). 

        37      Sheldon, 178 P.3d at 467; see also Olson, 251 P.3d at 1040-41 (concluding 

that it was plain error for a superior court not to address "whether the nature of the 
officers' actions, alone, provides notice that the force they used became excessive at 
some point in the sequence of events"). 

                                                  -15-                                             6580
 

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

that [the conduct is] excessive."38      Federal courts have agreed that certain conduct is "so 

egregious that any reasonable person would have recognized a constitutional violation"39 

and that "even if there is no closely analogous case law, a right can be clearly established 
on the basis of common sense."40          As stated by the Seventh Circuit Court of Appeals, 

qualified immunity should be denied even "without identifying a closely analogous case 

if . . . the force used was so plainly excessive that the police officers should have been 

on notice that they were violating the Fourth Amendment" because "police officers 

should not be shielded from liability just because their excessive use of force happens to 
be original."41 

        B.	     Officer Virg-In Is Not Entitled To Qualified Immunity On Summary 
                Judgment. 

                J.N.'s primary argument on appeal is that the superior court erroneously 

granted qualified immunity to Officer Virg-In on summary judgment.  J.N. emphasizes 

that the superior court found triable issues of fact that would preclude summary judgment 

on the question whether Officer Virg-In acted reasonably during the taser incident.  She 

contends   that   it   was   error   for   the   superior   court   to   grant   Officer   Virg-In   qualified 

immunity both because existing law would have put Officer Virg-In on notice that his 

use of force was excessive and because his conduct was "so egregious that it would 

eliminate the need for clearly established law."            Officer Virg-In defends the superior 

court's grant of qualified immunity, citing the "silence" in the case law prior to July 2003 

        38      Sheldon, 178 P.3d at 467. 

        39      Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir. 1985). 

        40      Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001) (internal quotation 

marks omitted). 

        41      Rice   v.   Burks,   999   F.2d   1172,   1174   (7th   Cir.   1993)   (internal   citations 

omitted). 

                                                  -16-	                                           6580
 

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

and maintaining that "no cognizable legal precedent prior to July 29, 2003 [] would have 

put [him] on notice that the use of a [t]aser in this situation was prohibited, unlawful 

conduct for a police officer." 

               We have recognized the desirability of determining an officer's entitlement 
to qualified immunity early in a case, such as on summary judgment.42            In some cases, 

however, disputed material facts will prevent summary judgment on qualified immunity 
grounds because a fact-finder must resolve these disputed facts.43  We conclude that this 

is such a case.   The superior court's summary grant of qualified immunity cannot stand 

because an officer's multiple uses of a taser on a non-threatening, compliant, 11-year-old 

girl suspected of traffic violations could be so egregious, such an obvious violation, that 

        42     Crawford v. Kemp, 139 P.3d 1249, 1255 n.11 (Alaska 2006) (stating that 

"ordinarily immunity questions should be decided long before trial" because "[o]fficial 
immunity shelters the state and government officials from all aspects of a lawsuit . . . ; 
it is not solely a shelter from liability"). 

               We have explained, however, that a defendant may "be deemed immune at 
the conclusion of trial" even where the defendant is not entitled to qualified immunity 
in a preliminary proceeding; at the trial immunity serves as a "mere defense to liability." 
Olson, 251 P.3d at 1031 n.24 (citing Acevedo-Garcia v. Monroig, 351 F.3d 547, 562 n.6 
(1st Cir. 2003)); see also  Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011) ("A qualified 
immunity defense, of course, does not vanish when a [] court declines to rule on the plea 
summarily.     The plea remains available to the defending officials at trial; but at that 
stage, the defense must be evaluated in light of the character and quality of the evidence 
received in court."). 

        43     See Crawford, 139 P.3d at 1256, 1258 ("Although we recognize the policy 

in favor of deciding immunity issues prior to trial in order to insulate officers from claims 
based on reasonable mistakes. . . . [w]hether a reasonable officer could have believed that 
the   arrest  was   lawful  depends    on   the  resolution  of  factual   disputes  as  to  what 
transpired."); see also Curley v. Klem, 499 F.3d 199, 208 (3d Cir. 2007) (acknowledging 
that "the Supreme Court has instructed that immunity ordinarily should be decided by the 
court long before trial" and agreeing "[t]hat is well and good when there are no factual 
issues in a case" but explaining that "often the facts are intensely disputed, and . . . such 
disputes must be resolved by a jury after a trial"). 

                                              -17-                                          6580
 

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

any reasonable officer would have known that the conduct was unlawful.44  Here, there 

is   a   factual   dispute   whether,   among   other   things,   J.N.   was   fully   compliant   and   had 

completely ceased her efforts to flee.          This, and perhaps other disputed material facts, 

must be resolved at trial before the egregiousness of Officer Virg-In's conduct and his 

entitlement to qualified immunity can be determined. 

                 1.	     As of July 2003, there was no law specifically governing the use 
                         of tasers in these circumstances that was sufficient to put Officer 
                         Virg-In on notice that his conduct was unlawful. 

                 J.N. urges that the lawful use of tasers was clearly established by July 2003 

such that Officer Virg-In reasonably should have known that his conduct was unlawful. 

J.N. asserts that pre-2003 case law from other jurisdictions, although not specifically 

addressing tasers, established that "it was unlawful to use force on an individual who was 
being compliant and no longer resisting the officer."45 

                 We conclude that as of July 2003 there was no closely analogous case law 

specifically regarding the use of tasers under these circumstances that was sufficient to 

put Officer Virg-In on notice that his conduct was unlawful.                 Here, as in Sheldon, "the 

lack   of   evidence   from   other   jurisdictions   that   [the   type   of   force   at   issue]   would   be 
unlawful is telling."46     As the Ninth Circuit Court of Appeals recently observed, "[t]he 

        44       Our decision does not preclude the availability of qualified immunity at 

some later stage in this litigation.  See supra note 42. 

        45       In her opposition to summary judgment, J.N. brought to the attention of the 

superior court only one pre-2003 case related to the use of tasers.  See Russo v. City of 
Cincinnati, 953 F.2d 1036, 1044-45 (6th Cir. 1992) (finding that the use of a taser on a 
person holding knives and threatening to kill himself and officers was reasonable). 

        46       Sheldon v. City of Ambler, 178 P.3d 459, 466-67 (Alaska 2008) (finding it 

"persuasive"   that   "there   is   no   clear   case   or   law   or   regulation   from  Alaska,   or   from 
anywhere   else,"   saying   that   the   officer's   alleged   conduct   in   the   circumstances   was 
                                                                                           (continued...) 

                                                   -18-	                                                6580 

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

[t]aser is a relatively new implement of force, and case law related to the [t]aser is 
developing."47  In that case, the circuit court granted qualified immunity to an officer who 

used a taser to arrest a 21-year-old suspected of a seatbelt violation who was clearly 

unarmed, was not threatening, and did not attempt to flee, despite holding that the officer 
used unconstitutionally excessive force.48          Similarly, in Olson v. City of Hooper Bay, we 

recently affirmed the trial court's decision that existing case law addressing the use of 

tasers in December 2006 did not provide officers with notice that their multiple uses of 

a taser was excessive force, rejecting arguments that an unpublished summary judgment 

order, several unreported cases from outside of Alaska, or published case law on other 
types of force could provide the necessary notice.49 

                 We recognize that there was not a complete dearth of case law on the use 

of tasers as of July 2003.        As J.N. points out in her reply brief, our 2000 decision in 

Samaniego v. City of Kodiak involved an excessive force claim and the use of a "stun 

        46       (...continued) 

excessive force). 

        47      Bryan v. MacPherson, 630 F.3d 805, 833 (9th Cir. 2010) (quoting Brown 

v. City of Golden Valley, 574 F.3d 491, 498 n.5 (8th Cir. 2009) and adding that two other 
Ninth   Circuit   panels   have   recently   "concluded   that   the   law   regarding   tasers   is   not 
sufficiently clearly established to warrant denying officers qualified immunity"). 

        48      Id. at 832-33. 

        49       251 P.3d 1024, 1037-39 (Alaska 2011) (adding that both the plaintiff and 

the defendants "acknowledge that there was a lack of published case law on the objective 
reasonableness of taser usage prior to December 26, 2006" and agreeing with the superior 
court   that   "jurisprudence   on   claims   of   excessive   force   involving   [t]asers   was   either 
unclear   or   nonexistent   at   the   time   of   [plaintiff's]   arrest")   (internal   quotation   marks 
omitted). 

                                                   -19-                                              6580
 

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

gun."50   J.N. urges that as a result of this case, "the law in Alaska was clearly established 

as of July 2003."      In Samaniego, officers applied a "stun gun" five times to a female 

arrestee's neck after she had been at leastpartially handcuffed; the officers also threw her 

against a car, causing her to strike her head on it, and brought her to the ground and 
kneeled on her back and neck.51           We summarized that (1) the arrestee had committed 

only   minor   crimes   of   disorderly   conduct   and   resisting   arrest;   (2)   she   put   up   some 

resistance to arrest, but did not strike the officers or flee; and (3) there was no immediate 
threat   to   the   officer's safety.52   Under   these   circumstances,   we   determined   that   a 

reasonable jury could have found that the officer's use of force was excessive.53                      But 

because we evaluated the claim of excessive force as comprising the totality of the 

officer's   actions,   which   included   multiple   uses   of  other   force   besides   a   "stun   gun," 

Samaniego standing alone was insufficient to provide notice to Officer Virg-In that using 
a taser twice on J.N. was unlawful.54 

        50       2 P.3d 78 (Alaska 2000). 

        51      Id. at 81-82. 

        52      Id. at 86. 

        53      Id. at 86-87. 

        54       See Olson, 251 P.3d at 1039. 

                                                   -20-                                              6580
 

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

               2.	     Disputed      material    facts   preclude     a   summary       judgment 
                       determination       on   the   question    whether     Officer   Virg-In's 
                       conduct was so egregious that any reasonable officer would have 
                       known that it was an unlawful use of force. 

               In   some   situations   qualified   immunity   should   be   denied   because   the 

officer's particular use of force was so egregious, such an obvious violation, that any 

                                               -21-	                                         6580
 

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

reasonable officer would have known that the conduct was unlawful.55                    The superior 

court acknowledged this aspect of the qualified immunity analysis but found that Officer 

Virg-In's conduct was "not so egregious or lacking in common sense that he would have 

known [that it was] excessive even without the guidance of prior law."  As stated by the 

superior   court,   when   factual   inferences  are   made   in   J.N.'s   favor,   "Officer   Virg-In 

approached and used a [t]aser twice on an 11 year-old girl [] who had already been 

stopped . . . had ceased her earlier extensive efforts to escape . . . and [] had not used 

aggressive or threatening behavior in her attempt to escape arrest."  And it is undisputed 

that Officer Virg-In's second use of the taser in "direct contact stun mode" occurred 
when he had J.N. in hand - he was holding on to J.N.'s elbow as he tased her.56                 Based 

on these facts, J.N. counters that "no authority is required to show that the use of a [t]aser 

on a 1[1]-year-old girl who was no longer resisting, was excessive and unnecessary" and 

that "the exceptional circumstances of this case, which are the gratuitous use of force on 

a child, eliminates the need for prior, clearly established law." 

                Federal courts have found a variety of conduct sufficiently egregious and 
excessive to preclude qualified immunity even without closely analogous case law.57 

        55      See supra Part IV.A. 

        56      When an officer uses multiple applications of nondeadly force and the 

question of excessive force turns on the number of times force is applied, a court may 
consider each sequential application of force.  Olson, 251 P.3d at 1036 (citing Beaver v. 
City of Federal Way, 507 F. Supp. 2d 1137, 1144-45 (W.D. Wash. 2007)).  Or, a court 
may evaluate all applications of force together to determine "whether the entirety of the 
force used was reasonable."  Samaniego, 2 P.3d at 85-86. 

        57      E.g., Hope v. Pelzer, 536 U.S. 730, 738, 745 (2002) (handcuffing a prisoner 

to a hitching post for seven hours without water or bathroom breaks); Asociacion de 
Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 60-61 (1st Cir. 2008) (beating and 
pepper-spraying non-threatening people to force them to exit a private area); Jones v. 
                                                                                        (continued...) 

                                                  -22-                                              6580 

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

Most relevant here is a 2006 case from the Eleventh Circuit Court of Appeals denying 

qualified immunity for an officer who handcuffed a nine-year-old girl who had initially 

disobeyed and verbally threatened to hit a teacher but then complied with the teacher's 
orders.58   The circuit court reasoned that because the girl was not threatening the teacher 

or   the   officer,   the   act   of   handcuffing   was   "an   attempt   to   punish"   the   girl   and   was 

"excessively intrusive given [the girl's] young age and the fact that it was not done to 
protect anyone's safety."59       The Eleventh Circuit stated that "[e]ven in the absence of 

factually    similar    case  law,  an   official   can   have   fair  warning    that   his  conduct    is 
unconstitutional when the constitutional violation is obvious"60 and concluded that the 

officer's "conduct in handcuffing [] a compliant, nine-year-old girl for the sole purpose 
of punishing her was an obvious violation of [her] Fourth Amendment rights."61                         In 

        57      (...continued) 

City of Cincinnati, 521 F.3d 555, 559-60 (6th Cir. 2008) (striking an unresisting suspect 
with a baton, putting pressure on his back, and using chemical irritants); Jennings v. 
Jones, 499 F.3d 2, 16-17 (1st Cir. 2007) (increasing force to the point of breaking an 
arrestees's ankle after the arrestee had been forcibly restrained and had stopped resisting 
arrest); Motley v. Parks, 432 F.3d 1072, 1088-89 (9th Cir. 2005) (en banc) (holding an 
infant at gunpoint); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 
1061-62 (9th Cir. 2003) (kneeling on the back and neck of a compliant detainee after he 
complained that he was choking); Lee v. Ferraro, 284 F.3d 1188, 1198-99 (11th Cir. 
2002)   (slamming   an   arrestee's   head   against   the   trunk   of   a   car   after   arrestee   was 
handcuffed); Priester v. City of Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000) 
(allowing (or ordering) a dog to attack a non-resisting arrestee). 

        58       Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1306-08 (11th Cir. 2006). 

        59      Id. at 1306. 

        60      Id. at 1306-07 (citing United States v. Lanier, 520 U.S. 259, 271 (1997)). 

        61      Id. at 1307; see also C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1170, 1184 

(E.D. Cal. 2010) (refusing to grant qualified immunity to officer who handcuffed a 
                                                                                          (continued...) 

                                                   -23-                                               6580 

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

another case involving a child, the Seventh Circuit Court of Appeals held that, even in 

the absence of a factually similar case, an officer was not entitled to qualified immunity 

where he held a gun to the head of a nine-year-old child and threatened to pull the trigger 
when the child was not resisting arrest or trying to flee.62 

                  Moreover, although we acknowledge that in July 2003 there was no case 

law specifically addressing the use of tasers sufficient to put Officer Virg-In on notice 

that   his   conduct   was   unlawful,   other   general   principles   regarding   appropriate   force 
certainly  existed.63     As   the   United   States   Supreme   Court   has   explained,   while   "the 

        61       (...continued) 

disabled student who had been disruptive but posed no danger to anyone and was no 
longer acting out of control when the officer arrived). 

        62      McDonald v. Haskins, 966 F.2d 292, 293-95 (7th Cir. 1992) (elaborating 

that the fact that the boy was not under arrest, that the officer threatened to pull the gun's 
trigger, and that the boy was "only nine years old," were "the very ingredients relevant 
to an excessive force inquiry" and concluding that "[i]t should have been obvious to [the 
officer] that his threat of deadly force . . . was objectively unreasonable given . . . the fact 
that the victim, a child, was neither a suspect nor attempting to evade the officers or 
posing any other threat."). 

        63       While     not   available    to  inform    Officer    Virg-In's    conduct,    post-2003 

excessive force cases involving tasers rely on these same principles to evaluate when an 
officer's use of a taser is reasonable.   See Bryan v. MacPherson, 630 F.3d 805, 826 (9th 
Cir. 2010) (stating that the most important issue in determining whether taser use is 
excessive force is whether the suspect was an "immediate threat to the safety of the 
officers or others"); Kijowski v. City of Niles, 372 F. App'x 595, 601 (6th Cir. 2010) 
(unpublished) (holding that "the right to be free from physical force when one is not 
resisting the police is a clearly established right" and "[a]gainst the backdrop of existing 
law, [the officer] could not reasonably have believed that use of a [t]aser on a non- 
resistant subject was lawful"); Cavanaugh v. Woods Cross City, 625 F.3d 661, 665-67 
(10th Cir. 2010) (denying an officer qualified immunity and holding that it was "clearly 
established" that the officer "could not use his [t]aser on a nonviolent misdemeanant who 
did   not   pose   a   threat   and   was   not   resisting   or  evading   arrest   without   first   giving   a 
                                                                                           (continued...) 

                                                   -24-                                                 6580 

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

general proposition that use of force is [unconstitutional] if it is excessive under objective 
standards   of   reasonableness"   is   normally   "not   enough,"64        in   an   "obvious   case"   this 

principle alone can give an officer notice that a particular use of force is excessive.65 

There is no question that there is (and was in 2003) a clearly established right to be free 
from excessive force during arrest.66         Moreover, the use of force is least justified against 

        63       (...continued) 

warning"); Brown v. City of Golden Valley, 574 F.3d 491, 493, 499 (8th Cir. 2009) 
(holding that the law was sufficiently clear as of October 2005 to inform a reasonable 
officer "that it was unlawful to [t]aser a nonviolent, suspected misdemeanant who was 
not fleeing or resisting arrest, who posed little to no threat to anyone's safety, and whose 
only noncompliance with the officer's commands was to disobey two orders to end her 
phone call to a 911 operator"); Azevedo v. City of Fresno, No. 1:09-CV-375, 2011 WL 
284637, at *9 (E.D. Cal. Jan. 25, 2011) ("Given the nature of the use of force, something 
more than nonviolent misdemeanors must be at play to justify its use.                   While Azevedo 
was clearly in flight when [the officer] deployed the taser, the Court cannot say as a 
matter of law that Azevedo's flight made use of the taser reasonable."); Odom v. Maffeo, 
No. 3:08-cv-1569, ___ F. Supp. 2d ___ 2011 WL 283946, at *10 (D. Conn. Jan. 24, 
2011) ("In sum, the use of a [t]aser is a significant use of force, and a reasonable jury 
could well find that its repeated deployment on an individual who is suspected of only 
minor traffic infractions, poses no immediate threat, is not attempting to escape, and has 
indicated that she suffers from a brain injury constitutes an excessive and unreasonable 
use of force.").  But see Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11th Cir. 2004) 
(deciding   that   the   single   tasering   of  an   arrestee   after   a   traffic   stop   was   "reasonably 
proportionate to the difficult, tense and uncertain situation that [the officer] faced . . . [the 
arrestee] was hostile, belligerent, and uncooperative"). 

        64      Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004). 

        65      Id. at 199; see also Hope v. Pelzer, 536 U.S. 730, 740-41, 745-46 (2002) 

(reasoning that "general statements of the law are not inherently incapable of giving fair 
and clear warning" and adding that the "obvious cruelty inherent" in the practice of tying 
a   prisoner   to   a   post   "should   have   provided   respondents   with   some   notice"   that   the 
conduct was an Eighth Amendment violation). 

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

                                                   -25-                                              6580
 

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

nonviolent misdemeanants who are not fleeing or actively resisting arrest67 and who do 

not "pose[] an immediate threat to the safety of the officers or others."68   And as the 

Ninth Circuit Court of Appeals explained in 2001, "[w]here there is no need for force, 
any force used is constitutionally unreasonable."69  Finally, J.N.'s young age contributes 

to the unreasonableness of Officer Virg-In's conduct, especially because tasers may 
cause increased harm to children.70          We agree with Officer Virg-In and the City that 

post-2003 cases indicate that the use of a taser on a juvenile is not always an excessive 

use   of   force,   but   these   cases   do   not   support   that   an   officer   may   use   a   taser   on   an 

11-year-old girl charged with a traffic offense who is not resisting arrest and does not 
present a threat to the officers.71 

        67      See Graham v. Connor, 490 U.S. 386, 395-96 (1989). 

        68      Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). 

        69      Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001) (quotation marks 

omitted). 

        70      J.N. attached to her opposition to summary judgment a paper from the 

International Association of Chiefs of Police National Law Enforcement Policy Center, 
originally published in 1996, which notes that the model policy on tasers "includes in the 
population of 'susceptible' individuals . . . children  . . . and persons of small stature, 
regardless of age."  For such "susceptible" persons, "[a]dded caution may be warranted 
when using [tasers] . . . just as added caution would normally be recommended when 
using OC [pepper] spray or similar nondeadly force weapons." 

        71      See RT v. Cincinnati Pub. Sch., No. 1:05cv605, 2006 WL 3833519, at *2 

(S.D. Ohio Dec. 29, 2006) (finding use of a taser not excessive where a minor was 
kicking, screaming, jerking, biting and otherwise resisting arrest and was warned before 
being tased a single time); N.A. ex rel. Ainsworth v. Inabinett, No. 2:05-CV-740, 2006 
WL 2709850, at *1, 5-6 (M.D. Ala. Sept. 20, 2006) (determining that using a taser one 
time   to   subdue   a   mentally   unstable,   suicidal,   and   otherwise   violent   and   threatening 
16-year-old minor after attempting alternative means and giving a warning was not 
excessive); Maiorano ex rel. Maiorano v. Santiago, No. 6:05-cv-107-Orl-19KRS, 2006 
                                                                                         (continued...) 

                                                  -26-                                               6580 

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

                 We recognize that there are factual disputes regarding whether, for example, 

J.N. was fully non-resistant and compliant before Officer Virg-In first deployed the 

taser's probes.      J.N. testified that she "stopped right away" after she was grabbed by 

another teenager on the street and was "face to face" with Officer Virg-In, "wait[ing] for 

him"   when   he   first   used   his   taser.  Multiple   uses   of   a   taser   on   a   non-threatening 

11-year-old girl suspected of traffic violations, who was no longer resisting or attempting 

to flee, could be sufficiently egregious to put any reasonable officer on notice that the 

conduct   was   unlawful.        Thus,   the   superior   court's   grant   of   qualified   immunity   on 

summary judgment cannot stand and the relevant disputed facts must be resolved at trial. 

        C.       The City Of Kotzebue Is Not Entitled To Summary Judgment. 

                 The    superior     court   granted    the   City's   summary       judgment      motion, 

dismissing J.N.'s claims for improper and negligent training or supervision, "based on 

[Officer Virg-In's] qualified immunity" and "the lack of a constitutional violation." We 

agree with the superior court that to the extent that J.N. sought to hold the City jointly 

and severally liable for Officer Virg-In's conduct, the City would be entitled to statutory 

immunity   under   Alaska   law   predicated   on   a  determination   that   Officer   Virg-In   has 

        71       (...continued) 

WL 2024951, at *2, 10 (M.D. Fla. July  15, 2006) (concluding that using a taser on 
fighting   high   school   students   in   a   school   with   suspected   gang-related   violence   and 
possible weapons was not excessive); Johnson v. City of Lincoln Park, 434 F. Supp. 2d 
467, 469-70, 479-80 (E.D. Mich. 2006) (finding it not excessive to taser a 14-year-old 
minor who was handcuffed but still resisting arrest, including trying to head butt and bite 
the officer, where the officer gave a warning and did not use the taser after the minor 
stopped struggling).  But see Michaels v. City of Vermillion, 539 F. Supp. 2d 975, 977- 
79,   989-90   (N.D.   Ohio   2008)   (holding   that   an  officer   was   not   entitled   to   qualified 
immunity from claims that he used a taser 25 times after placing a 17-year-old arrestee 
accused of vandalism in handcuffs and stating that "the right of people who pose no 
safety risk to the police to be free from gratuitous violence during arrest" was clearly 
established). 

                                                   -27-                                              6580
 

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

qualified immunity.72       Because we reverse the summary judgment grant of qualified 

immunity to Officer Virg-In, dismissal of the City from a claim of joint and several 

liability must be reversed as well. 

                However, J.N.'s claim of improper and negligent training or supervision, 

lodged solely against the City, should not have been dismissed because it is a separate 
claim charging the City with direct liability.73         As counsel for the City explained, "the 

claim against the city is a claim for improper and negligent supervision and training. 
This is a direct liability claim."74      Officer Virg-In's entitlement to qualified immunity 

        72      See Estate of Logusak v. City of Togiak, 185 P.3d 103, 109-10 (Alaska 

2008) (holding that because city police officers "acted reasonably in performing [a] 
discretionary      act"   the   city  was    "immune      under    discretionary     function    official 
immunity"); Sheldon v. City of Ambler, 178 P.3d 459, 461 (Alaska 2008) (equating the 
officer and the city for purposes of entitlement to qualified immunity when plaintiff sued 
both for excessive force in violation of Alaska statutes); see also Pauley v. Anchorage 
Sch. Dist., 31 P.3d 1284, 1285-86 (Alaska 2001) (granting qualified immunity to a school 
district after the school principal released a child to a non-custodial parent because the 
principal's act was discretionary and entitled to qualified immunity). Nor would the City 
have been liable on a respondeat superior theory had J.N. argued a  1983 claim, though 
the   City   may   have   been   directly   liable   if   it   inflicted   a   constitutional   injury. See 
Hildebrandt v. City of Fairbanks (Hildebrandt II), 957 P.2d 974, 977 (Alaska 1998) ("A 
municipality may be directly responsible under  1983 when an employee executes a 
governmental policy or custom that inflicts constitutional injury.") (citing Monell v. 
Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)); see also Monell, 436 
U.S. at 690-91 (holding that "Congress did intend municipalities . . . to be included 
among those persons to whom  1983 applies" but that "a municipality cannot be held 
liable under  1983 on a respondeat superior theory"). 

        73      Again, it is unclear whether J.N. intended to plead a federal constitutional 

claim against the City.  See supra note 5 and accompanying text. 

        74      Counsel for the City added, "[T]here [are] really two defendants and there 

are two issues that have been raised by the pleadings filed by the defendants.  First is the 
issue of qualified immunity for Officer Virg-In, and second is the issue of summary 
                                                                                         (continued...) 

                                                  -28-                                               6580 

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would not provide the City with any type of "derivative" immunity from this separate, 
direct-liability claim.75 

                 Finally, because it may affect the proceedings on remand, we wish to clarify 

that   it   is   incorrect   to   equate   a   grant   of   qualified   immunity   with   a   finding   of   no 

constitutional violation.         In City of Los Angeles v. Heller, the United States Supreme 

Court   explained   that   finding   in   favor   of   an   officer   sued   for   excessive   force   "was 

conclusive not only as to [the officer], but also as to the city," reasoning that "if the 

[officer] inflicted no constitutional injury on respondent, it is inconceivable that [the city] 
could   be   liable   to   respondent."76    But   a   careful   distinction  must   be   drawn   between 

situations     where     an   officer   is  found    not   liable   because     the  conduct     was    not   a 

         74      (...continued) 

judgment for the City of Kotzebue on the separate issue of training and supervision." 

         75      See Sheldon, 178 P.3d at 467 (addressing plaintiff's state law failure to train 

claim against the city even after affirming a grant of qualified immunity to the officer, 
though not reaching the merits of the claim because the claim was waived); Prentzel v. 
State, Dep't of Pub. Safety (Prentzel II), 169 P.3d 573, 589-91 (Alaska 2007) (concluding 
that officers were entitled to statutory and common law qualified immunity on plaintiff's 
state   law   and      1983   claims   but   still   considering   plaintiff's      1983   and   state   law 
negligence claim against supervisors and the State for failure to train). 

                 Nor is the City likely entitled to statutory immunity on its own behalf under 
AS     09.65.070(d).         Statutory     immunity      is  available     to  municipalities       for  their 
"discretionary" acts, but the City does not have "discretion" to act negligently in training 
its officers. See Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 976 
(Alaska 2005) (clarifying that "[o]nce the state has made a planning-level decision to 
undertake a project, it does not have discretion to implement that decision negligently"). 

                 In   a      1983   action,   municipalities   are   simply   not   entitled   to   qualified 
immunity under federal law.            Owen v. City of Independence, 445 U.S. 622, 650, 657 
(1980) (rejecting "a construction of  1983 that would accord municipalities a qualified 
immunity for their good-faith constitutional violations"). 

         76      475 U.S. 796, 798-99 (1986). 

                                                     -29-                                               6580
 

----------------------- Page 30-----------------------

constitutional   violation   and   where   an   officer   is   granted   immunity   because   it   was 
reasonable for the officer to believe that his or her conduct was lawful.77              As summarized 

by one treatise: 

                 [T]he fact that a defendant official is found to be protected 
                 from personal liability by qualified immunity because she did 
                 not violate clearly established federal law does not protect the 
                 municipality from liability. . . . On the other hand, if the court 
                 finds   that   the   individual   officer   is   protected   by   qualified 
                 immunity because she did not violate plaintiff's federal right, 
                 this determination may lead to dismissal of the municipal 
                 liability claim.[78] 

                 Here, the superior court determined that there were issues of material fact 

regarding whether Officer Virg-In's conduct was an excessive use of  force.  Thus, even 

if Officer Virg-In is found to be entitled to qualified immunity because he could have 

reasonably believed that his conduct was lawful, the City may still be liable on a failure 
to train claim.79 

        77       As we have stated, "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."  Sheldon, 178 P.3d at 463. 

        78       1A MARTIN        A.  SCHWARTZ,         SECTION    1983 LITIGATION:   CLAIMS           AND 

DEFENSES  7.13[A] (4th ed. 2003). 

        79       Moreover, a determination that an officer's conductwas not a constitutional 

violation will relieve a municipality from liability only in a suit under 42 U.S.C.  1983. 
Hildebrandt v. City of Fairbanks (Hildebrandt II), 957 P.2d 974, 977-78 (Alaska 1998) 
("[J]oin[ing] the majority of the Courts of Appeals" and holding that "a 42 U.S.C.  1983 
claim   based   on   a   municipality's   failure   to   train   requires   an   underlying   violation   of 
constitutional rights."); see also City of Canton v. Harris, 489 U.S. 378, 380 (1989) 
(deciding that a city may be liable under  1983 for "constitutional violations resulting 
from its failure to train municipal employees"); Simmons v. Navajo Cnty., 609 F.3d 1011, 
1021 (9th Cir. 2010) ("Because we hold that there was no underlying constitutional 
violation,   [plaintiff]   cannot   maintain   a   claim   for   municipal   liability.").      A   federal 
                                                                                           (continued...) 

                                                   -30-                                                 6580 

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

                Because the City was not entitled to immunity, we remand to the superior 

court to determine whether the City is entitled to summary judgment on the merits of 
J.N.'s negligent training and supervision claim.80 

        D.      Attorney's Fees and Costs 

                Because we reverse the grants of summary judgment to Officer Virg-In and 

the City of Kotzebue the attorney's fees and costs award is vacated.  We note, however, 

that the provisions applicable to any attorney's fees or costs award in this case, where 

        79      (...continued) 

constitutional violation is not a necessary element of a state law negligence claim for 
failure to train.  See Prentzel II, 169 P.3d at 588-89 (evaluating the merits of plaintiff's 
state law negligent training and supervision claims after finding that the officer's conduct 
did not violate the Fourth Amendment); Hildebrandt II, 957 P.2d at 976 (dismissing 
plaintiff's 42 U.S.C.  1983 failure to train claim because there was no constitutional 
violation by the officer but not disturbing the superior court's verdict holding the city 
liable pursuant to plaintiff's state law negligence claim). 

        80      The superior court stated: "[T]here would be a triable issue of fact as to the 

adequacy of training and supervision of Kotzebue police officers as to the use of [t]asers. 
But   for   the   qualified   immunity,   this   issue would   result   in   denial  of  the   defendants' 
motion for summary judgment on these claims."  But because the superior court did not 
grant or deny the City's motion for summary judgment on the merits, we cannot consider 
the merits of the claim. 

                                                  -31-                                             6580
 

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                                                                                                 81 
Russell brought the action on behalf of her minor child as the child's guardian,                    are 
Alaska Civil Rule 17(c)82 and AS 09.60.030.83 

V.      CONCLUSION 

                We REVERSE the superior court's summary judgment grant of qualified 

immunity to Officer Virg-In and REMAND for proceedings consistent with this opinion. 

We REVERSE the superior court's grant of summary judgment dismissing J.N.'s claims 

against the City of Kotzebue and REMAND for proceedings consistent with this opinion. 

We VACATE the attorney's fees and costs award. 

        81      AS 09.15.010, which creates a separate, independent parental cause of 

action, does not apply here because it accounts for parents' losses resulting from injury 
or death to their child.  Gillispie v. Beta Const. Co., 842 P.2d 1272, 1273 (Alaska 1992); 
see id. at 1273-74 (noting that the predecessor statute to AS 09.15.010 was "interpreted 
as pertaining to pecuniary loss of the parent," and concluding that AS 09.15.010 is "the 
appropriate vehicle for recognizing [parents' mental and emotional] loss" resulting from 
the death of their child).      Russell did not assert any claims on her own behalf in this 
matter and so does not incur liability for attorney's fees and costs as a plaintiff. 

        82      Alaska Rule of Civil Procedure 17(c) provides in relevant part: "Whenever 

an   infant   or   incompetent   person   has   a   representative,   such   as   a   general   guardian, 
committee, conservator, or other like fiduciary, the representative may sue or defend on 
behalf of the infant or incompetent person.  An infant or incompetent person who does 
not have a duly appointed representative may sue by a next friend or by a guardian ad 
litem." 

        83      AS 09.60.030 provides: "When costs or disbursements are adjudged against 

an infant plaintiff or incompetent, the guardian by whom the plaintiff appeared in the 
action is responsible for the payment, and payment may be enforced against the guardian 
as if the guardian were the actual plaintiff." 

                                                  -32-                                              6580 
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