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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yi v. Yang (7/20/2012) sp-6695

Yi v. Yang (7/20/2012) sp-6695

        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 



YONG H. YI,                                      ) 

                                                 )   Supreme Court No. S-13427 

                       Appellant,                ) 

                                                 )   Superior Court No. 4FA-04-02761 CI 

        v.                                       ) 

                                                 )   O P I N I O N 

HARRIS S. YANG, SHARON YANG,                     ) 

MAX ARTHUR LAMOUREAUX,                           ) 

Y & I CORPORATION, OFFICER                       ) 

LAWRENCE PEYTON MERIDETH,                        ) 

and CITY OF FAIRBANKS,                           ) 

                                                 )    No. 6695 - July 20, 2012 

                       Appellees.                ) 

                                                 ) 



               Appeal     from   the  Superior   Court   of   the  State  of   Alaska, 

               Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge. 



               Appearances:      Robert   John,   Law   Office   of   Robert   John, 

               Fairbanks,   for   Appellant.     Paul   J.   Ewers,   City   Attorney, 

               Fairbanks, for Appellees Merideth and City of Fairbanks.  No 

               appearance for remaining Appellees. 



               Before:     Carpeneti,     Chief   Justice,   Fabe,   Winfree,    and 

               Stowers, Justices.    [Christen, Justice, not participating.] 



               WINFREE, Justice. 



I.       INTRODUCTION 



               A man was arrested for misdemeanor crimes after an altercation arising 



from a business dispute. He brought civil claims against a police officer and the officer's 


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municipal   employer   based   on   the   arrest.   The   superior   court   granted   a   motion   for 



summary   judgment   and   dismissed   all   claims   against   them.     We   affirm   the   superior 



court's decision because:       (1) the police officer had probable cause to make a felony 



arrest, and, therefore, any perceived deficiencies in the misdemeanor arrest process are 



irrelevant; and (2) no municipal policy deprived the arrestee of property, and, therefore, 



the municipality did not violate the arrestee's constitutional rights. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                The Klondike Inn and the Klondike Restaurant and Bar are located across 



the street from each other in Fairbanks.  At the time of the events underlying this appeal, 



Y & I Corporation owned the Klondike Inn.              Harris Yang was the registered agent of 



Y & I; Yang owned the Klondike Restaurant and Bar, as well as the liquor license for the 



bar, independently from Y & I. 



                In September 2004 Yang leased the Klondike Restaurant and Bar to Yong 



Yi (Yi); Yi's brother, Kenny Yi (Kenny), worked for Yi at the Klondike Restaurant and 



Bar.  The business relationship between Yi and Yang rapidly deteriorated over concerns 



with carry-over inventory not included in the lease agreement and problems with the 



liquor license transfer. 



                On the morning of December 19, 2004, the Fairbanks Police Department 



received a series of 911 calls concerning the Klondike Inn and the Klondike Restaurant 



and Bar.  The first caller identified himself as Joe Hayes, calling on Yang's behalf, and 



requested police assistance removing what he referred to as "the management group" 



from the Klondike Restaurant and Bar.            Hayes represented to the dispatcher that Yang 



had a writ of assistance to take possession, a statement later revealed to be false.  The 



dispatcher responded that Yang needed to bring the writ to the police station, and after 



verification, the Department could provide a civil standby on an officer-available basis. 



                                                 -2-                                            6695
 


----------------------- Page 3-----------------------

               The next caller identified himself as John Dockery, from the front desk of 



the Klondike Inn. Dockery requested police assistance removing Yi and Kenny from the 



Klondike Restaurant and Bar.        Dockery's 911 call was interrupted by a third call. 



               The third caller identified himself as Kenny, from the Klondike Restaurant 



and Bar. Kenny reported that a man he did not recognize had attempted to break into the 



Klondike Restaurant and Bar.         Kenny claimed to be waiting outside by a red Dodge 



Durango; the dispatcher told him to remain where he was, not make any contact with the 



alleged perpetrator, and wait for the police to arrive. 



               The    police   dispatcher   then   returned   to  Dockery's    call,  and  Dockery 



reported Kenny was attempting to break into the Klondike Restaurant and Bar.  The 



dispatcher told Dockery that someone was on the way.             The dispatcher then contacted 



officers   and   advised   that  callers  from   the  Klondike    were    reporting   contradictory 



allegations of attempted break-ins. 



               The    fourth   caller  identified  herself   as  the  bartender   at  the  Klondike 



Restaurant and Bar, calling on Kenny's behalf.  She reported a robbery attempt and that 



a   silver   mini-van   had   attempted   to   run   someone   over. The   bartender   handed   the 



telephone to Kenny, who reported that someone had attempted to run Yi and him over 



with a truck.   The call ended when officers arrived on scene. 



               The fifth caller identified himself as Max Lamoureaux, an employee of the 



Klondike Inn. Lamoureaux stated he was locked inside the Klondike Inn with John Lee. 



He reported that unidentified persons had smashed into the white Ford truck he was 



driving, and "chased us down, jumped in the back of the truck, shattered the window." 



The call ended when an officer approached the Klondike Inn. 



                Officer Lawrence Merideth and three other officers arrived on scene around 



9:45 a.m.  Officer Merideth observed a silver mini-van stuck in a snowbank and a white 



Ford truck left running and parked at an odd angle outside the Klondike Inn.  The truck's 



                                                -3-                                           6695
 


----------------------- Page 4-----------------------

front   and   rear   windows   were   shattered.    Officer   Merideth   entered   the   office   of   the 



Klondike Inn and made contact with Lamoureaux and Lee. Another officer made contact 



with a group of people standing outside the Klondike Restaurant and Bar, including Yi 



and Kenny. 



                Officer Merideth did not record his conversation with Lamoureaux, but 



according to Officer Merideth, Lamoureaux relayed the following version of events. 



Lamoureaux identified himself to Officer Merideth as a manager of the Klondike Inn and 



stated he had traveled to Fairbanks from Anchorage to help serve eviction papers on Yi. 



Lamoureaux and Lee had posted eviction paperwork around 8:00 a.m. and attempted to 



leave in the white Ford truck around 9:30 a.m.            A silver mini-van blocked their path. 



Kenny exited the mini-van and began yelling at Lamoureaux and Lee.                    Kenny jumped 



into the back of the truck and used a broom handle to break out the back window.  Yi 



threw an object at the front windshield of the truck, breaking it;  Yi then jumped into the 



back of the truck and Kenny jumped out. Yi repeatedly attempted to strike Lamoureaux 



and Lee with the broom handle - his attempts were successful at least once, striking 



Lamoureaux's wrist and breaking his watch.   Lamoureaux attempted to drive away, but 



the silver mini-van collided into the truck's driver's side door.             Lamoureaux and Lee 



retreated    into  the  Klondike    Inn   office,  chased    by  the  broom-handle-wielding        Yi. 



Lamoureaux was in fear and thought he would have been killed if Yi and Kenny had the 



opportunity. 



                Officer Merideth contacted two witnesses who corroborated portions of 



Lamoureaux's version of the events.          Yi and Kenny relayed their version of the events 



to another officer as follows.   They observed Lamoureaux and Lee attempting to break 



into the Klondike Restaurant and Bar.           After Kenny called the police, the white Ford 



truck attempted to leave.  Yi and Kenny tried to stop the truck from leaving.  The driver 



of the white Ford truck tried to run them over.  Yi and Kenny's version of jumping in the 



                                                 -4-                                            6695
 


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

back of the truck and breaking the windows was largely the same as Lamoureaux's, 



although they believed their actions were justified because they were trying to stop the 



truck   from   leaving.    Yi   and   Kenny   also   admitted   to   Officer   Merideth   that   they   had 



broken the truck's windows. 



                 Officer Merideth directed another officer to arrest Yi and Kenny.                   They 



were arrested and told that Officer Merideth was the arresting officer.                  They were not 



told why they were under arrest or that it was a delegated citizen's arrest. 



                 Lamoureaux signed citizen's arrest forms for both Yi and Kenny.                     Later 



during   this   litigation,   Officer   Merideth   could   not   specifically   recall   explaining   the 



citizen's arrest procedure to Lamoureaux, but stated it is his routine practice to give an 



explanation and there was no reason he would not have done so in this case.  Although 



he also could not specifically recall what happened on December 19, Officer Merideth 



stated it is his routine practice to have the citizen sign the form contemporaneously with 



the   arrest;   however,   notations   on   the   bottom   of   the   form   indicate   Officer   Merideth 



prepared the forms at 1:12 p.m. Lamoureaux stated he signed the forms "within an hour 



or so" of the police arriving.        Lamoureaux stated he knew he was participating in the 



arrest, but did not know he "had the sole discretion in arresting" the Yis. 



                 Consistent with the citizen's arrest forms, Yi was charged with two counts 



of assault in the fourth degree under AS 11.41.230 and one count of criminal mischief 



in   the   fourth   degree   under   AS   11.46.484.     These   misdemeanor   charges   were   later 



dismissed. 



        B.       Proceedings 



                 On   December   13,   2004,   six   days   prior   to   his   arrest,   Yi   filed   a   pro   se 



complaint against Yang alleging breach of contract and other claims.   After his arrest Yi 



retained counsel and filed an amended complaint adding other defendants, including 



Officer Merideth and the City of Fairbanks.   Relevant to this appeal, Yi asserted federal 



                                                    -5-                                              6695
 


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

claims under 42 U.S.C.  1983 for deprivation of Fourth and Fourteenth Amendment 



rights and state law claims for false arrest against Officer Merideth and the City. 



                Officer Merideth and the City moved for summary judgment on all claims 



against them.  The superior court granted the motion but did not issue a detailed written 



order, only a bench ruling after oral argument followed by a brief written order.  Based 



on the superior court's oral argument comments, it appears qualified immunity was the 



driving force behind granting summary judgment. 



                Yi   appeals   the   superior   court's   grant   of   summary   judgment   to   Officer 



Merideth and the City. 



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."1  On   review,   "we   view   the   facts   in   the   light   most   favorable   to   the 



non-moving   party."2      "We   may   affirm   a   grant   of   summary   judgment   on   any   basis 



appearing in the record."3        "The applicability of both state and federal immunity are 



questions of law that are . . . subject to de novo review."4          "Under de novo review, we 



        1       Lot 04B & 5C Block 83 Townsite v. Fairbanks N. Star Borough , 261 P.3d 



422, 424 (Alaska 2011) (quoting Lot 04B & 5C, Block 83 Townsite v. Fairbanks N. Star 

Borough , 208 P.3d 188, 191 (Alaska 2009)). 



        2       Id.  (quoting Lot 04B & 5C , 208 P.3d at 191) (internal quotation marks 



omitted). 



        3       Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032, 



1036 (Alaska 2008) (quoting Parker v. Tomera , 89 P.3d 761, 765 (Alaska 2004)). 



        4       Russell ex rel. J.N. v. Virg-In , 258 P.3d 795, 802 (Alaska 2011) (quoting 



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



                                                  -6-                                            6695
 


----------------------- Page 7-----------------------

apply 'the rule of law that is most persuasive in light of precedent, reason, and policy.' "5 



IV.     DISCUSSION 



        A.      Yi's Arrest-Related Claims 



                Yi bases his arrest-related claims against Officer Merideth and the City on 



his assertion that his citizen's arrest was invalid because Lamoureaux lacked sufficient 



intent to effect a citizen's arrest and there was unnecessary delay between the actual 



incident   and   the   completion   of   the   citizen's   arrest   paperwork.  Yi   then   argues   that 



because the citizen's arrest was invalid, he   was   arrested for a misdemeanor offense 



committed   outside   Officer   Merideth's   presence.         Yi   contends   this   violated:  (1)   his 



Fourth Amendment right to be free from warrantless arrests for misdemeanor criminal 

offenses     committed     outside    an   officer's   presence;    and   (2)  AS    12.25.030(a)(1).6 



According to Yi, the latter violation constitutes the state-law tort of false arrest.7 



        5       State v. Native Vill. of Tanana, 249 P.3d 734, 737 (Alaska 2011) (quoting 



Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)). 



        6       Alaska Statute 12.25.030 provides, in relevant part: 



                (a) A private person or a peace officer without a warrant may 

                arrest a person 



                        (1) for a crime committed or attempted in the presence 

                of the person making the arrest; 



                        (2) when the person has committed a felony, although 

                not in the presence of the person making the arrest; 



                        (3) when a felony has in fact been committed, and the 

                person making the arrest has reasonable cause for believing 

                the person to have committed it. 



        7       False arrest is not a separate tort, but merely one way to commit the tort of 



false imprisonment.       Prentzel v. State, Dep't of Pub. Safety , 169 P.3d 573, 582 n.17 

(Alaska 2007) (quoting Waskey v. Municipality of Anchorage, 909 P.2d 342, 345 (Alaska 

                                                                                        (continued...) 



                                                  -7-                                             6695
 


----------------------- Page 8-----------------------

                 We have never clarified the delegated citizen's arrest doctrine adopted by 

the court of appeals in Moxie v. State .8       And whether the Fourth Amendment contains an 



"in    the  presence"     requirement     for  misdemeanor        arrests  appears    to  be   a  question 

unresolved by the United States Supreme Court.9                 But we do not need to consider or 



resolve these issues, or related issues of qualified immunity, because the superior court's 



decision is otherwise affirmable. 



                 Officer Merideth argues that the arrest was supported by probable cause 



that Yi had committed a felony.   Felony arrests are not governed by an "in the presence 

requirement"   under   federal   or   Alaska   law.10      We   have   explained   probable   cause   as 



follows: 



        7        (...continued) 



1996)).  "The elements of the false arrest-imprisonment tort are (1) a restraint upon the 

plaintiff's freedom, (2) without proper legal authority."            Waskey, 909 P.2d at 345 (citing 

Hazen v. Municipality of Anchorage , 718 P.2d 456, 461 (Alaska 1986)). 



        8        662 P.2d 990 (Alaska App. 1983) (holding that a private person can initiate 



an arrest and delegate the task to a police officer); see generally Lael Harrison, Citizen's 

Arrest   or   Police   Arrest?   Defining   the   Scope   of   Alaska's   Delegated   Citizen's   Arrest 

Doctrine , 82 WASH . L. REV . 431, 433 (2007) (noting a "lack of clarity" in the area of 

delegated citizen's arrests). 



        9        See Atwater v. City of Lago Vista, 532 U.S. 318, 341 n.11 (2001) ("We 



need not, and thus do not, speculate whether the Fourth Amendment entails an 'in the 

presence' requirement for purposes of misdemeanor arrests."). 



        10       See Maryland v. Pringle, 540 U.S. 366, 370 (2003) ("A warrantless arrest 



of   an   individual   in   a   public   place  for   a   felony   .   .   .   is   consistent   with   the   Fourth 

Amendment if the arrest is supported by probable cause."); AS 12.25.030(a)(3); see also 

McCoy v. State , 491 P.2d 127, 130 (Alaska 1971) (interpreting AS 12.25.030(a)(3) and 

holding "a peace officer, without a warrant, may arrest a person for a felony when the 

officer has probable cause to believe that a felony has been committed and probable 

cause to believe that the person committed it"). 



                                                    -8-                                              6695
 


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

                Probable cause to arrest exists if the facts and circumstances 

                known to the officer would support a reasonable belief that 

                an offense has been or is being committed by the suspect . . . . 

                Probable cause is determined objectively and requires only a 

                fair probability or substantial chance of criminal activity, not 

                an actual showing that such activity occurred.[11] 



The existence of probable cause is a mixed question of law and fact.12                  In a criminal 



context the question is resolved pretrial with the judge applying law and finding fact.13 



In a civil action a probable cause determination is a jury question, unless no material 

facts are in dispute and summary judgment is appropriate.14 



                Officer Merideth argues he had probable cause to arrest Yi for the felony 

crime of    assault in the third degree.15     Probable cause to arrest for assault in the third 



degree exists where the facts and circumstances known to an officer would support a 



reasonable belief that the arrestee recklessly placed another in fear of imminent serious 

physical injury16 by means of a dangerous instrument.17               It is undisputed that Officer 



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



and quotation marks omitted). 



        12      Bessette v. State , 145 P.3d 592, 594 (Alaska App. 2006) (citing Chandler 



v. State, 830 P.2d 789, 792 (Alaska App. 1992)). 



        13      See Alaska R. Crim. P. 12. 



        14      See City of Nome v. Ailak, 570   P.2d   162, 170   (Alaska   1977); see also 



Thacker v. City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003). 



        15      AS 11.41.220(a)(1)(A) ("A person commits the crime of assault in the third 



degree   if   that   person   recklessly   places   another   person   in   fear   of   imminent   serious 

physical injury by means of a dangerous instrument[.]"). 



        16      AS 11.81.900(56) defines "serious physical injury" as: 



                (A)    physical    injury   caused    by  an   act  performed     under 

                                                                                        (continued...) 



                                                  -9-                                             6695
 


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

Merideth heard Lamoureaux's statements of fear for his life based on Yi's actions.  It is 



also undisputed that Yi used a broom handle to break out the windows of the truck and 

attack   Lamoureaux.18         These     facts   were    supported     by   witness    statements,     Yi's 



admissions, and a scene consistent with victim and witness statements. 



                 Yi   argues   that   summary   judgment   on   probable   cause   is   inappropriate 



because     there   is  a  reasonable     inference    "that  Yi   was   not   acting   toward    injuring 



Lamoureaux but rather in order to stop the vehicle from making its getaway."                         "But 



probable cause is by definition a standard that hinges on probability rather than certainty, 



so a showing of probable cause need not rule out other explanations that are merely 

possible."19  Thus Yi's alternative explanation of possibly justified behavior does nothing 



to diminish the existence of probable cause.  Yi cites to authority holding probable cause 



does not exist where an officer relies "solely on an unexamined charge by a [victim] . . . 



        16	      (...continued)
 



                 circumstances that create a substantial risk of death; or 
 



                 (B)    physical    injury   that   causes    serious    and   protracted 

                 disfigurement,   protracted   impairment   of   health,   protracted 

                 loss   or   impairment   of   the   function   of   a   body   member   or 

                 organ, or that unlawfully terminates a pregnancy[.] 



        17       AS 11.81.900(15) (" 'dangerous instrument' means . . . any deadly weapon 



or anything that, under the circumstances in which it is used, attempted to be used, or 

threatened to be used, is capable of causing death or serious physical injury[.]"). 



        18       This is not to say a broom handle is always a "dangerous instrument" as 



defined by AS 11.81.900(15).   But "under the particular circumstances presented here, 

[Yi]   used   [the   broom   handle]   in   a   manner   that   created   a   substantial   risk   of   serious 

physical injury" sufficient to support probable cause.              See Hutchings v. State, 53 P.3d 

1132, 1137 (Alaska App. 2002);see also Rupeiks v. State , 263 P.3d 57, 59 (Alaska App. 

2011). 



        19       State v. Koen, 152 P.3d 1148, 1152 (Alaska 2007) (discussing probable 



cause in warrant context). 



                                                   -10-	                                             6695
 


----------------------- Page 11-----------------------

and ha[s] done no further investigation."20            But Officer Merideth   observed physical 



evidence and heard multiple witness statements in addition to Lamoureaux's statements. 



Yi   also   argues   he   is   entitled   to   an   additional   favorable   inference   because   Officer 

Merideth did not record his conversations at the scene.21           But this rule is only applicable 



where police lose or destroy evidence, not where police fail to create evidence.22 



                We     hold   that   because    felony    probable    cause    existed,   Yi's   Fourth 



Amendment rights were not violated and Officer Merideth had proper legal authority 



under state law for the arrest.      The fact that Officer Merideth did not actually arrest Yi 



for a felony is irrelevant.     The United States Supreme Court has consistently rejected 



considering an officer's state of mind, including the crime articulated as the basis for the 

arrest, when reviewing the existence of probable cause.23              We similarly determine the 



existence of probable cause under an objective standard without regard to the officer's 

subjective intent.24 



        20      John v. City of El Monte , 515 F.3d 936, 941 (9th Cir. 2008) (citing Arpin 



v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001)). 



        21      See Thorne v. Dep't of Pub. Safety, State of Alaska, 774 P.2d 1326 (Alaska 



1989) (holding intentional destruction of evidence by state violates due process and 

proper remedy is a presumption that evidence would have been favorable to accused). 



        22      State v. Amend, 250 P.3d 541, 545 (Alaska App. 2011) (stating due process 



does not "require[] the police to record or photograph all investigative procedures, even 

though there may be a disagreement about what happened"). 



        23      See, e.g., Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004) (rejecting 



decision that alternative basis for probable cause could not be considered in  1983 case). 



        24      See State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001) (stating "[p]robable 



cause is determined objectively"); see also Bertilson v. State, 64 P.3d 180, 185 (Alaska 

App. 2003) (stating an "officers' subjective reasons for making the arrest are irrelevant" 

to a probable cause determination). 



                                                  -11-                                            6695
 


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

                Yi's arrest-related claims against Officer Merideth and the City therefore 

must fail.25  We uphold the superior court's grant of summary judgment on Yi's arrest- 



related claims on this alternative ground, without addressing qualified immunity, the 



bounds of delegated citizen's arrests, or whether the Fourth Amendment contains an "in 

the presence" requirement for misdemeanor arrests.26 



        B.      Yi's Due Process Claim Against The City 



                Yi argues the City deprived   him   of property when an officer told Yi's 



employees not to enter the Klondike Restaurant and Bar after the altercation.  When the 



bartender told an officer she was returning to work, the officer responded:               "I might be 



wrong, but for right now, let's stay out of the bar. Okay?" 



                A municipality can be held liable under  1983 only when its policy or 



custom results in the deprivation of a right secured by the United States Constitution or 

federal statute.27   In the superior court, Yi argued the City had a policy of providing civil 



standbys, the officer followed this policy, and that this policy caused Yi a constitutional 



        25      Under Alaska law, a principal has no respondeat superior liability where 



the agent's actions are not tortious.  Cf. Taranto v. N. Slope Borough, 909 P.2d 354, 358 

(Alaska 1996) (Under respondeat superior, "an employer will be held liable for both 

negligent     and  intentional   torts   of  its  employee.")    (emphasis     added).    Likewise,     a 

municipality cannot be held liable under  1983 if there is no underlying violation of a 

federal right.    See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) ("[I]f the 

[officer] inflicted no constitutional injury on [the plaintiff], it is inconceivable that [the 

municipality] could be liable."). 



        26      See State, Dep't of Health & Soc. Servs. v. Valley Hosp. Ass'n, 116 P.3d 



580, 584 (Alaska 2005) ("This is consistent with our practice of reaching constitutional 

issues only when the case cannot be fairly decided on statutory or other grounds."). 



        27      Monell v. Dep't of Soc. Servs. of  City of New York , 436 U.S. 658, 691-92 



(1978); City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 & n.7 (1985) (describing 

the   required   causal   link   between   policy   and   deprivation   as   "moving   force"   and   an 

"affirmative link"). 



                                                  -12-                                            6695
 


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

deprivation of property.28      On appeal, Yi argues the City failed to train Officer Merideth 



in the proper civil standby procedures.  "[T]he inadequacy of police training may serve 



as the basis of    1983   liability only   where the failure to   train   amounts to deliberate 

indifference to the rights of persons with whom the police come into contact."29               We have 



held that "training can justifiably be said to represent policy when the need for more or 



different training is so obvious, and the inadequacy so likely to result in the violation of 



constitutional   rights,    that   the  policy-makers     can   reasonably     be  said  to  have   been 

deliberately indifferent to the need."30 



                Neither the City's policy of providing civil standbys nor its alleged failure 



to train Officer Merideth in the proper civil standby procedures can serve as a basis for 



liability under  1983.       There is no dispute that the police response was   not   a civil 



standby, but rather was a criminal investigation.             And we reject Yi's failure to train 

argument because it was never raised below.31 



        28      The record does not explain what a "civil standby" is, but it appears to be 



the police response to a writ of assistance.         Compare Mahan v. State, 51 P.3d 962, 964 

(Alaska App. 2002) (describing "writ of assistance" as "a court order directing   law 

enforcement officers to assist a person in enforcing a prior court order when there is 

reason to believe that enforcement efforts may be met with forcible opposition"), with 

Harris County v. Hinojosa , 294 S.W.3d 737, 741 (Tex. App. 2009) (describing "civil 

standby" as "when an officer is basically called . . . to make sure there is no breach of the 

peace"). 



        29      City   of   Canton,   Ohio   v.   Harris,   489   U.S.   378,   388   (1989),  quoted   in 



Prentzel v. State, Dep't of Pub. Safety , 53 P.3d 587, 595 (Alaska 2002). 



        30      Prentzel , 53 P.3d at 595 (quoting Hildebrandt v. City of Fairbanks , 863 



P.2d 240, 246 (Alaska 1993)) (internal marks omitted). 



        31      Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Motors Corp. , 221 P.3d 



977, 985 (Alaska 2009) ("We have held that, in general, 'a party may not present new 

issues or advance new theories to secure a reversal of a lower court decision.' " (quoting 

                                                                                         (continued...) 



                                                  -13-                                             6695
 


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

                Yi also argues on appeal that Officer Merideth's actions were consistent 



with   another City   policy, identifying   a policy   of following   the laws of the State   of 



Alaska.     The City's policy of following State laws cannot serve as the basis for  1983 



liability.  As the Seventh Circuit noted: 



                It is difficult to imagine a municipal policy more innocuous 

                and     constitutionally      permissible,      and    whose      causal 

                connection to the alleged violation is more attenuated, than 

                the   "policy"   of   enforcing   state   law. If   the   language   and 

                standards from Monell are not to become a dead letter, such 

                a   "policy"   simply   cannot   be   sufficient   to   ground   liability 

                against a municipality.[32] 



                Because     Yi   has  not   demonstrated     a  City   policy  sufficient   to  support 



municipal liability under  1983, we rely on this alternative ground to affirm the superior 



court's grant of summary judgment on this claim. 



V.      CONCLUSION 



                We AFFIRM the superior court's decision. 



        31      (...continued) 



Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985))). 



        32      Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th 



Cir. 1991). 



                                                  -14-                                              6695 

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