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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maness v. Daily (8/16/2013) sp-6807

Maness v. Daily (8/16/2013) sp-6807

        Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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BRET F. MANESS,                                    )

      Supreme Court No. S-14172  

                 Appellant,                        )

      Superior Court No. 3AN-03-08513 CI  

        v.                                         )  

                                                   )       O P I N I O N  

JOHN DAILY, ERIC SMITH,                            )  

TINAMARIE BUFFINGTON, THAD  )                              No. 6807 – August 16, 2013  

HAMILTON, ERIC SPITZER,                            )  

CLIFTON PECK, KEVIN EHM,                           )  


ANCHORAGE POLICE                                   )  

DEPARTMENT, ALASKA STATE                           )  

TROOPERS, ALASKA COURT                             )  

SYSTEM,                                            )  


                 Appellees.                        )  


                 Appeal from the Superior Court of the State of Alaska, Third  

                 Judicial District, Anchorage, John Suddock, Judge.   

                 Appearances:  Bret  F.  Maness,  pro  se,  Anchorage.    Ruth  


                 Botstein,   Assistant   Attorney   General,   Anchorage,   and  

                 Michael J. Geraghty, Attorney General, Juneau, for Appellees  

                 Hamilton, Spitzer, and the Alaska State Troopers.  Robert P.  


                 Owens,   Assistant   Municipal   Attorney,   and   Dennis   A.  


                 Wheeler,  Municipal  Attorney,  Anchorage,  for  Appellees  

                 Municipality       of   Anchorage,        Daily,    Peck,     Ehm,     and  

                 Anchorage Police Department.     

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

                      Before:    Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                      Bolger, Justices.  

                       STOWERS, Justice.  


                      In the early hours of June 28, 2001, Alaska State Troopers went to Bret  

Maness’s home to take him into custody for psychological evaluation, pursuant to an  

involuntary commitment order that had been issued by the superior court.  When the  

troopers arrived at his home, Maness threatened to kill the troopers then fled, first in his           

RV, and later on foot.  During the pursuit, Maness was shot by an Anchorage Police  


Department officer and then arrested.   


                      Maness filed a civil action against many of the participants in the events  


leading to his shooting and arrest.  In 2008 we affirmed the superior court’s grant of  

summary  judgment  with  respect  to  all  of  Maness’s  claims  except  those  based  on  

excessive force.1  Maness then amended his complaint, adding numerous state tort claims  


to his excessive force claims. The superior court again granted summary judgment to the  

defendants,  with  the  exception  of  the  Anchorage  police  officer  who  actually  shot  


Maness.  Maness’s excessive force claim against the police officer who shot him went  


to trial, where the jury delivered a verdict for the police officer.  Maness now appeals the  


grant of summary judgment with respect to his claims against two of the Alaska State  


Troopers who attempted to execute the civil commitment order.  He also appeals the  

superior court’s award of attorney’s fees to the defendants.  

           1          Maness v. Daily , 184 P.3d 1, 9 (Alaska 2008).  

                                                                       -2-                                                                    6807  

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


          A.       Facts  

                   On June 27, 2001, Maness’s former girlfriend filed a petition for initiation  


of involuntary commitment for Maness, alleging that Maness was confused, delusional,  

and paranoid.  At the ex parte proceeding for the commitment, the former girlfriend  

stated that Maness likely had a gun with him.  Based on her testimony, Superior Court  

Judge Eric Smith ordered that Alaska State Troopers take Maness into temporary custody  

and transport him to the Alaska Psychiatric Institute (API) for psychological evaluation  


pursuant to AS 47.30.700.  The court’s order stated in part that there is “probable cause  


to believe that the respondent is mentally ill and . . . presents a likelihood of causing  

serious harm to [himself] or others.”  


                   The Alaska State Troopers were informed of the basic facts underlying the  


order,  including  that  Maness  was  armed  and  could  be  dangerous.    Troopers  first  

attempted  to  execute  the  order  at  Maness’s  home  in  Wasilla  during  the  evening  of  


April 27, but received no response when they knocked on the front door.  When the next  

shift came on duty that night, Shift Sergeant Randel McPherron sent three troopers —  


Thad Hamilton, Eric Spitzer, and Kevin Yancey —  to Maness’s home for a second  


                   The  three  troopers  arrived  at  Maness’s  home  in  separate  vehicles  at  


approximately 1:00 a.m.  They parked on a side road, about 100 yards from Maness’s  


home,  and  took  separate  paths  up  Maness’s  driveway  on  foot.    Trooper  Hamilton  

described this as a “stealth” approach intended to avoid a surprise attack and ensure  

officer safety.  


                   Maness’s property included both a trailer home and an old Winnebago RV.  


The troopers heard a dog barking inside the RV and could see a male figure through the  


RV window.  Hamilton approached the RV and exchanged words with the man, who  

                                                             -3-                                                      6807

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identified himself as Maness.  Hamilton saw a rifle in the RV, within Maness’s reach.  

Hamilton tried the doorhandle and window of the RV to “make sure [Maness] wasn’t  

going for any weapon,” but both were locked.  


                    The troopers continued to exchange words with Maness.  At some point,  


Spitzer  turned  on  his  shirt-pocket  cassette  tape  recorder  and  recorded  the  troopers’  


interactions with Maness.  A transcript of the recording shows that Hamilton told Maness  


that the troopers were concerned about his health and were not going to take Maness to  


jail.  Maness refused to come out of the RV and profanely exclaimed to the troopers that  

they were going to die.  When Hamilton again told Maness they were not going to take  


him to jail, Maness responded, “No, you won’t, but somebody . . . else will and I ain’t  

going back.”  Maness then repeated his threat that the troopers would die if they did not  



                    The troopers returned to their vehicles, intending to set up a perimeter and  


lay a spike strip to disable Maness’s RV if he tried to flee.  Before they set up the strip,  


they  saw  Maness’s  RV  leave  the  property.                        The  troopers  followed  Maness  in  their  

marked police vehicles with their lights and sirens on, with Spitzer in the lead, Yancey  

second,  and  Hamilton  third.    As  the  troopers  chased  Maness,  loud  popping  sounds  


emanated from his RV.  Spitzer and Hamilton believed that some of the popping sounds  


were from the RV backfiring but that others sounded like gunshots and that Maness was  


firing at them.  Spitzer reported on his police radio that Maness was firing at the troopers  

and that his car had been hit.  


                    Pursued by the troopers, Maness drove southbound on the Glenn Highway  

toward Anchorage.  Additional law enforcement, including members of the trooper’s  


State Emergency Response Team (SERT) and the Anchorage Police Department (APD),  

were called to assist with the pursuit.  The vehicle pursuit ended when Maness’s RV hit  


a spike strip that other troopers had placed on the road.  Maness exited the RV and was  

                                                               -4-                                                         6807

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


confronted by numerous law enforcement officers from several agencies.  Maness claims  

that  he  held  his  hands  up  and  heard  gunshots.    Maness  then  ran  back  into  the  RV,  

grabbed a rifle, a handgun, and ammunition, and fled into the woods.  

                    An extended manhunt through the woods ensued as law enforcement agents  


pursued Maness for about five hours.   Hamilton and Spitzer assisted in setting up a  


perimeter to ensure Maness did not escape the area.  Discussing the situation, Spitzer said  


to Hamilton that he could not find a bullet hole in his car, but nevertheless believed that  


something had hit his car during the chase.  Hamilton told Spitzer that he had been close  


to shooting Maness’s tires out and that he should have done so.  While listening to police  

radio  reports  of  Maness’s  movements  through  the  woods,  Spitzer  commented  to  

Hamilton that Maness was going to run into the Inlet and then laughed before saying, “I  


wish  he  would  have.”    After  hearing  further  radio  communications,  Spitzer  said  to  


Hamilton, “[W]eapon levels up, even if he’s . . .  running with it.”  Spitzer testified that  


by this comment he meant that if the troopers saw Maness running with his weapon  

pointed toward them, they should be prepared to shoot him.  


                    At about 4:30 a.m., two troopers (not Spitzer and Hamilton) encountered  

Maness  in  the  woods  and  ordered  him  to  stop;  Maness  responded  with  a  profane  

comment and fled.  At about 6:45 a.m., an APD-led canine tracking team consisting of  


three APD officers, a police dog, and State Trooper Sgt. McPherron found Maness in a  


small clearing. APD Officer Clinton Peck fired his weapon, hitting and injuring Maness.  

At the time he was shot, Maness had in his hand a fully loaded rifle.  There was a factual  


dispute concerning whether Maness had pointed his gun at the team before the shooting.  

Troopers Hamilton and Spitzer were not part of the canine tracking team and were not  

present when Maness was shot.  

                    After Maness was shot, Spitzer’s car was thoroughly inspected; there was  


no evidence of gunshot damage.  Spitzer testified that even though he may have been  

                                                             -5-                                                        6807

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mistaken, he was right to make a “shots fired” report based on what he perceived at the  


time.  He stated that the road they were driving on was very bumpy and “apparently [his]  


vehicle had bottomed out . . . right after the shot was heard,” leading him to believe it  


was hit.  Hamilton testified that he continued to trust his initial impressions that Maness  

was shooting at the troopers, despite the lack of damage to the car.  

                    McPherron  testified  that  the  reason  the  SERT  team  was  called  in  was  

“partly” because of Spitzer’s report that Maness was shooting at them, but “the other  


information that [Maness was]  potentially armed and [was] . . .  refusing to comply with  

troopers’ orders to surrender” also informed the decision to call in SERT.  McPherron  


also stated that regardless of the report of shots fired, it was proper to continue the  


pursuit of Maness because the troopers had a valid commitment order and Maness was  

fleeing officers and committing traffic violations.  

                    Maness acknowledged that previous to the night of the incident he had  


never met Hamilton or Spitzer and that he had no reason to believe they had a pre­ 

existing vendetta against him.  

          B.        Proceedings 

                     1.      Maness’s initial complaint  


                    Maness, acting without legal counsel, filed a civil action against many of  

the participants in the events leading to his shooting and arrest, including the Alaska  

State Troopers and individual Troopers Hamilton and Spitzer.  The complaint alleged  

that Spitzer falsely reported to police dispatch that shots were fired at him and that his  


car was hit.  The complaint also alleged that after stopping but before pursuing Maness  


into the woods, Spitzer and Hamilton inspected Spitzer’s vehicle and found no damage  


yet negligently failed to report that Spitzer’s earlier report that shots had been fired was  


untrue.  The complaint also named the Municipality of Anchorage, the Anchorage Police  


Department, and APD Officer Peck.  The complaint alleged that Peck had shot Maness  

                                                             -6-                                                        6807

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in the back without warning, essentially stating a claim that excessive force was used to  

arrest Maness.  


                    The superior court dismissed a number of Maness’s claims, including his  


excessive force claims.   Maness appealed.  We affirmed the superior court’s grant of  

summary  judgment  with  respect  to  all  of  Maness’s  claims  except  those  based  on  


excessive force and remanded those claims for further proceedings.   

                    2.        Maness’s amended complaint  


                    On remand, Maness amended his complaint, adding constitutional claims  


under 42 U.S.C. § 1983 as well as a number of common law tort claims, including causes  

of action against Troopers Hamilton and Spitzer for burglary,  trespass, and conspiracy. 


 Superior Court Judge John Suddock granted the State Defendants’ motion for summary  


judgment  in  an  oral  ruling.    The  court  focused  on  Maness’s  excessive  force  claims  


against the troopers, finding that the case was “at its heart an excessive force case.”  The  


court found that Maness “does nothing to pierce [the troopers’] mantle as state police  

servants for a qualified immunity acting in good faith without malice” and that therefore  

the troopers were entitled to summary judgment on all of Maness’s claims.  The court  

adduced several reasons for this conclusion.  

                    First, the court found that the troopers were lawfully present at Maness’s  


home and “did nothing unlawful at the scene.”  Second, the court rejected Maness’s  


argument, based on Ninth Circuit precedent, that the troopers “provoked a course of  


action  that  foreseeably  led  to  bloodshed.”    The  court  found  that  the  troopers  were  

“simply  .  .  .  coming  to  serve  a  mundane  warrant  .  .  .  .    And  the  unforeseeable,  

          2         See  id.   at  4-5.       Maness’s  remaining  claims  against  the  State  and  

Municipality were resolved by stipulation.                       Id. at 5.  The stipulation reserved Maness’s  

right to appeal the dismissal of his excessive force claims.  Id.  

          3         Id. at 9.  

                                                               -7-                                                           6807  

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


unpredictable response, the violent response, the unreasonable response is all generated  

by Mr. Maness within [the RV].”  The court concluded that nothing the troopers did “can  

reasonably be construed to be the sort of action which provokes an armed response.”  


Further, the court found that after Maness threatened the troopers and fled, “the only  


reasonable response of the [troopers was] to stay with him [and] pursue him,” in light of  


the  fact  that  they  knew  Maness  was  armed,  angry,  and  possibly  mentally  unstable.  


Finally,  the  court  found  that  the  “ultimate  shooting  happened  independently  of  the  


troopers. . . .  [N]othing they did hours earlier . . . can reasonably be construed to be the  

sort of action which provokes an armed response.”  


                    With respect to the troopers’ good faith, the court found that Maness “cites  


no preexisting grudge or hatred, no reason for particular animus, no desire to get back  


at [Maness].”  The court found that the troopers’ report of shots fired was made in “the  

fog of war” and in any event was ultimately “irrelevant” to the pursuit of Maness because  


it “adds no useful information to the task at hand for the officers who all on good and  

sufficient information” knew that Maness was dangerous.  Moreover, the court found  


that even if the troopers were negligent in reporting that shots were fired or in failing to  


retract the report once they discovered no damage to their vehicles, “there’s nothing to  

suggest in the remotest sense that it was maliciously so or in bad faith . . . . There’s  

absolutely no information to that effect.”  In short, “there’s no evidence that anything  

happened that pierced the qualified immunity of the state actors.”  

                    The court also granted summary judgment to the Municipality, but denied  


summary judgment to APD Officer Peck, the officer who fired the shots, finding that  


there was a factual issue concerning the circumstances of the shooting.  Maness’s claim  


against Peck proceeded to trial.  The jury rendered a defense verdict, finding that it was  

“more likely true than not that Officer Peck reasonably believed the use of deadly force  

                                                               -8-                                                         6807

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

was necessary to make an arrest  of  a  person he reasonably believed may otherwise  


endanger life . . . or inflict serious physical injury, unless arrested without delay.”  


                    The State and Municipal defendants moved for attorney’s fees pursuant to  


Alaska Civil Rule 82.  The court applied Rule 82’s fee schedule, awarding prevailing- 

party attorney’s fees in the defendants’ favor.  


                    Maness appeals the grant of summary judgment to the troopers and the  

award of attorney’s fees against him.   



                    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  

                  4   We “will affirm a grant of summary judgment when there are no genuine  


in its favor.” 

issues of material fact and the moving party is entitled to judgment as a matter of law.”5  


“The applicability of both state and federal immunity are questions of law that are . . .  


                                        6   Under the de novo standard of review, we will “apply our  

subject to de novo review.”                                     

independent judgment to questions of law, adopting the rule of law most persuasive in  



light  of  precedent,  reason,  and  policy.”     “Because  this  case  raises  the  question  of  

entitlement  to  qualified  immunity,  we  ‘focus  on  the  officers’  perspectives  and  


perceptions, as it is what reasonable officers in their position could have thought that is  

dispositive of this issue.’ ”8  

          4        Russell ex rel. J.N. v. Virg-In , 258 P.3d 795, 801 (Alaska 2011). 

          5        Id. at 801-02.  

       Id. at 802 (quoting Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008)).  

          7        Id.  

          8         Olson v. City of Hooper Bay              , 251 P.3d 1024, 1030 (Alaska 2011) (quoting  


                                                             -9-                                                        6807

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

                     We “exercise our independent judgment in reviewing whether a trial court  



has applied the appropriate legal standard in making its prevailing party determination.” 


But we “review a superior court’s determination of prevailing party status and attorney’s  

fees for abuse of discretion” and “will overturn such determinations only if they are  

manifestly unreasonable.”10  


           A.	       The Superior Court Properly Granted Troopers Hamilton And Spitzer  

                     Summary Judgment On Maness’s Excessive Force Claims.  



                     The use of excessive force is a statutory violation under Alaska law                                         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  


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

           9         State v. Jacob       , 214 P.3d 353, 358 (Alaska 2009) (quoting Halloran v. State ,  

Div. of Elections , 115 P.3d 547, 550 (Alaska 2005)) (internal quotation marks omitted).           



                     Id. (quoting Braun v. Denali Borough , 193 P.3d 719, 726 (Alaska 2008))  

(internal quotation marks omitted).  



                     AS 12.25.070 provides that “[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.”  AS 11.81.370(a) provides in part that 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.”  

                                                                 -10-	                                                          6807

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



be secure in their persons’ and protect against ‘unreasonable searches and seizures.’ ” 

We have explained:  

                     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).  The standard for excessive 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.  

                     “Police  officers,  like  other  public  officials,  are  protected  by  qualified  


                                                                                          In 1987, in Breck v. Ulmer,  we  

immunity when they exercise discretionary functions.” 


first addressed the question of “what standard should be applied to determine whether  


qualified immunity exists when a public official is alleged to have violated a statute or  

           12        Russell ex rel. J.N. v. Virg-In               , 258 P.3d 795, 802 (Alaska 2011).  Maness’s  

briefing does not clearly differentiate between his excessive force claims under state law   

and his excessive force claims under federal law (42 U.S.C. § 1983).  However, “[l]ike       

most courts, we do not require litigants to specify that they are suing under § 1983.”                                              Id.  

at 800 n.5.   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”).  

           13        Russell , 258 P.3d at 802 (citations omitted).  

           14        Id.  at  803  (citing  Samaniego  v.  City  of  Kodiak,  2  P.3d  78,  83  (Alaska  


                                                                 -11-                                                            6807

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


the  Alaska  Constitution.”                        We  chose  “to  follow  federal  precedent  for  determining  


whether qualified immunity should be conferred for [official] acts alleged to contravene  


a statutory or constitutional mandate.”                               Specifically, we adopted a test established by  


the  United  States  Supreme  Court  in  Harlow  v.  Fitzgerald .                                               Under  this  standard,  


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.”                                    


                       Applying this framework to the specific situation of excessive force claims,  

we have 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.”              “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  


                                                                                                                        Courts inquiring  

been ‘on notice’ that his particular use of force would be unlawful.” 

into the presence of notice should “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  


            15         745 P.2d 66, 71 (Alaska 1987).  

            16         Id. at 71-72.  

            17         Id.  (citing Harlow v. Fitzgerald , 457 U.S. 800 (1982)).  

            18         Harlow , 457 U.S. at 818.  

            19         Russell , 258 P.3d at 803; see also Olson v. City of Hooper Bay                                            , 251 P.3d  

1024, 1032 (Alaska 2011) (stating that “a police officer in Alaska is entitled to qualified           

immunity in an excessive force case if the officer’s conduct was objectively reasonable   

or the officer reasonably believed that the conduct was lawful, even if it was not”).  

           20          Russell , 258 P.3d at 803.  

                                                                      -12-                                                                 6807

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



action taken by the officer is considered unlawful.”                              “Alternatively, notice can also be  


assumed if the officer’s conduct is ‘so egregious, so excessive, that he . . . should have  


known it was unlawful.’ ”                   


                     We  have  also  observed  that  our  approach  to  qualified  immunity  in  


excessive force cases “comports in all essential respects” with that of the United States  


                             In particular we have clarified that under both Alaska law and federal  

Supreme Court.                                   

law  “qualified  immunity  can  be  conferred  when  an  officer  could  have  reasonably  


believed that his conduct was lawful (even if it was not).”                                   

                    Under both Alaska law and federal law, Maness’s excessive force claims  


are unsupported, and the troopers are entitled to qualified immunity.  First, as a matter  


of fact and law there was no excessive force applied to Maness.  The only force that was  


applied to Maness was applied by APD  Officer  Peck when he shot Maness, and in  


Maness’s lawsuit against Peck, the jury found that Peck’s use of force was reasonable.  

Therefore, all of the alleged torts of the troopers that occurred hours before and miles  


away, which Maness claims set in motion the ultimate act of his being shot, did not in  

fact cause (or result in) excessive force.   


                     In his briefing before the superior court, Maness relied in part on a theory  


of excessive force liability set forth in a line of cases from the Ninth Circuit holding that  


“where an officer intentionally or recklessly provokes a violent confrontation, if the  

          21         Olson, 251 P.3d at 1032 (quoting                  Sheldon v. City of Ambler, 178 P.3d 459,   

466 (Alaska 2008)).  

          22        Id. (quoting Sheldon, 178 P.3d at 467).  



                    Sheldon, 178 P.3d at 466; see also Russell, 258 P.3d at 802-04 and Olson,  


251 P.3d at1031-32 (discussing federal and state law with respect to excessive force and  

qualified immunity).  

          24        Sheldon, 178 P.3d at 464.  

                                                               -13-                                                          6807

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

provocation is an independent Fourth Amendment violation, he may be held liable for  



his otherwise defensive use of deadly force.”                        Maness argued that Troopers Hamilton  

and Spitzer were liable for intentionally or recklessly provoking “a verbally violent  

response  from  Mr.  Maness  and  escalat[ing]  the  situation  that  ultimately  resulted  in  

Mr. Maness being shot by law enforcement.”  

                   Maness’s argument fails because the provocation-of-violence theory he  


proposes is not “clearly established” in Alaska law.  Alaska has never accepted such a  


theory and, as the Ninth Circuit  has acknowledged, the federal circuits have split on the  


                                                                               “Where no controlling authority  

validity of similar provocation-of-violence theories. 

specifically prohibits a defendant’s conduct, and when the federal circuit courts are split  


on the issue, the law cannot be said to be clearly established.”27  In short, because Maness  


cannot show pursuant to his theory of liability that the troopers violated any of his clearly  


established  rights,  the  troopers  are  protected  by  qualified  immunity  from  Maness’s  


excessive force claims.  

                   Further, even if the provocation-of-violence theory asserted by Maness  


were clearly established, his excessive force claims would still fail.  The Ninth Circuit  


has made clear that an officer may be held liable under the provocation-of-violence  

          25       Billington  v.  Smith ,  292  F.3d  1177,  1189   (9th  Cir.  2002)  (discussing  

Alexander v. City and Cnty. of S.F. , 29 F.3d 1355 (9th Cir.1994)).  

          26       Billington , 292 F.3d at 1186-88 (comparing Allen v. Muskogee, Okla. , 119  

F.3d 837 (10th Cir. 1997) with Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992),  

Gardner v. Buerger, 82 F.3d 248, 254 (8th Cir. 1996), and Greenidge v. Ruffin, 927 F.2d  


789, 792 (4th Cir. 1991)).   

          27       Feis v. King Cnty. Sheriff’s Dep’t , 267 P.3d 1022, 1033 (Wash. App. 2011)  

(quoting Morgan v. Swanson , 659 F.3d 359, 372 (5th Cir. 2011)).   

                                                            -14-                                                      6807

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



theory  only  if  there  is  an  “independent Fourth  Amendment  violation.”                                        Here,  the  


troopers were acting under a valid court order establishing that “there is probable cause  


to  believe  that  the  respondent  .  .  .  presents  a  likelihood  of  causing  serious  harm  to  


[himself] or others” and requiring the troopers to take Maness into custody.  Maness’s  


flight prevented the troopers from carrying out the order, but in their attempt to do so the  


troopers never touched Maness, much less searched or seized him; nor did they search,  


seize, or enter Maness’s RV.  In other words, they did nothing to infringe upon Maness’s  

Fourth Amendment rights.  


                    Finally, there is no evidence that the troopers recklessly or intentionally  

“provoked violence” by their actions.  There was a time lag of six hours, including a  


police chase and an extended manhunt in the woods, between the troopers’ conduct  at  

Maness’s residence and the shooting.  Maness has not cited any authority holding that  


                                                                                                                          As  the  

such  an  attenuated  chain  of  causation  can  create  excessive  force  liability. 

superior court found, nothing the troopers did “can reasonably be construed to be the sort  

of action which provokes an armed response.”  


                    In  sum,  the  troopers  did  not  violate  any  clearly  established  right  of  


Maness’s when they attempted to serve the involuntary commitment order.   On  the  

contrary, as the superior court found, the troopers acted in an objectively reasonable  


fashion throughout the encounter.  Accordingly, the superior court correctly ruled that  


under the doctrine of qualified immunity the troopers were entitled to summary judgment  

on Maness’s excessive force claims.  

          28        Billington , 292 F.3d at 1189.  

          29        To the contrary, the Tenth Circuit has held that a provocation-of-violence     

theory   of   excessive force can be successful only where the police conduct arguably  

creating the need for force is “immediately connected” with the Fourth Amendment  

violation.  Medina v. Cram , 252 F.3d 1124, 1132 (10th Cir. 2001).  

                                                              -15-                                                         6807

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

          B.	      The Superior Court Properly Granted Troopers Hamilton And Spitzer  

                   Summary Judgment On Maness’s State Tort Claims.  

                   Maness’s amended complaint asserted a variety of tort claims, including  


negligence, trespass, defamation, intentional infliction of emotional distress, conspiracy,  

aiding and abetting attempted murder, and assault and battery.  Maness’s briefing before  



this court does not distinguish among these various claims.  Rather, Maness’s briefing  


focuses on the issue of qualified immunity and argues that Hamilton and Spitzer acted  


in bad faith, especially with respect to their reports of gunshots by Maness, and that they  

therefore are not entitled to immunity from Maness’s  tort claims.  

                   1.	       Sources of the troopers’ qualified immunity  

                   The troopers are eligible for qualified immunity from Maness’s common  

law  tort  claims  under  the  three-step  analysis  set  out  in Aspen  Exploration  Corp.  v.  

             30	                                                  31 

Sheffield       and  Alpine Industries, Inc. v. Feyk .                 Alternatively, the troopers are  eligible  

for qualified immunity under AS 47.30.815(b), which gives peace officers qualified  

immunity for their actions in execution of mental-health orders.  

                             a.        Common law qualified immunity  


                   In  Aspen  Exploration  Corp.  v.  Sheffield ,  we  addressed  the  scope  of  



immunity to be conferred for official acts alleged to have violated common law rights. 

As  later  summarized  in  Alpine  Industries,  Inc.  v.  Feyk ,  the  Aspen  test  for  official  


          30       739 P.2d 150 (Alaska 1987).  

          31       22 P.3d 445 (Alaska 2001).  

          32       739   P.2d   150   (Alaska   1987).    In Aspen , we noted that our opinion “is  

limited solely to situations where a plaintiff’s common law   rights are involved.  We  

express no opinion as to situations where a public official violates clearly established  

statutory or constitutional rights.”  Id. at 160 n.23.  We first addressed this latter situation  


in Breck v. Ulmer, 745 P.2d 66 (Alaska 1987).  See supra Part IV.A.  


                                                            -16-	                                                     6807

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

immunity from a common law tort claim asks three questions:  “First, does the doctrine     

of official immunity apply to the state official’s conduct?  Second, if it does apply, is the   

immunity absolute or qualified?  And third, if it is only a qualified immunity, did the                   


state official act corruptly, maliciously, or in bad faith?”                                                 

                         In Prentzel v. State, Department of Public Safety , we applied the Aspen test  

and held that state troopers were entitled to qualified immunity when a plaintiff brought  


suit  alleging  false  arrest,  false  imprisonment,  trespass  to  chattels,  conversion,  and  


negligence.               With respect to the first question of the Aspen test, we observed that  

“official immunity applies to an official’s conduct if (1) it is within the scope of the  


official’s authority, and (2) it is a discretionary act.”35  Applying these criteria to the facts  


of Prentzel, we held that “making arrests and seizing property incident  to  arrests is  


conduct that falls within the troopers’ usual authority,” and that Alaska law provided for  



such authority.                 Similarly here, the execution of civil commitment orders falls within  


the troopers’ usual authority as established in AS 47.30.700, which provides that a judge  


“may  direct  that  a  peace  officer  take  the  respondent  into  custody  and  deliver  the  


respondent to the nearest appropriate facility for emergency examination or treatment.”  


                         The second question of the Aspen test asks whether the immunity should  


be absolute or qualified.  In Prentzel , we concluded that qualified immunity rather than  


absolute immunity should apply to the troopers’ “discretionary act of making arrests and  


            33           22 P.3d 445, 447-48 (Alaska 2001) (citations omitted).  

            34           169 P.3d 573, 583, 586 (Alaska 2007).  

            35           Id. at 583.   

            36           Id. at 584.  

                                                                             -17-                                                                      6807

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



seizing  contraband  in  the  course  of  arrest.”                          Similarly  here,  qualified  rather  than  


absolute immunity applies to the troopers’ discretionary act of executing the court order.  


                    The third and final question of the Aspen test asks whether the official acted  

in bad faith.  We discuss this question in section 2 below.  

                               b.        Qualified immunity under AS 47.30.815(b)  


                    Alaska Statute  47.30.815(b) provides an alternative ground for qualified  

immunity in this case.  This statute provides that “a peace officer . . . responsible for  


detaining or transporting a person” under an involuntary civil commitment order “may  


not be held civilly or criminally liable for detaining a person . . . if the persons have  


                                                                                                                   There  is  no  

performed  their  duties  in  good  faith  and  without  gross  negligence.” 

question that the troopers were engaged in an attempt to detain and transport Maness  


pursuant to an involuntary commitment order. We shall now turn to the “good faith” and  

“gross negligence” inquiries.  

                    2.        Application of qualified immunity standards    

                    Both Aspen and AS 47.30.815(b) require that the troopers have acted in  

good faith in order to be eligible for qualified immunity.  In addition, AS 47.30.815(b)  


also requires an absence of gross negligence.   We examine each of these requirements  

in turn.  

          37        Id.   at  584-85.    We  reached  this  conclusion  by  weighing  three  factors  

identified in Aspen :  (1) the nature and importance of the function the officer performed;     

(2)  the  likelihood  the  officer  will  be  subjected   to   frequent  accusations  of  wrongful  

motives and how easily the officer can defend against these allegations; and (3) the  

availability to the injured party of other remedies.  

          38        AS 47.30.815(b).  

                                                               -18-                                                         6807

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

                              a.        Good faith  

                    Maness acknowledges that Troopers Hamilton and Spitzer did not have any  


malice towards him before they arrived at his home.  However, Maness alleges that  


Hamilton and Spitzer began to act in bad faith against him after he “scared them into  


running away” from his home, thereby “injuring their egos.”  According to Maness, the  

troopers then “maliciously and in bad faith conspired to provide false information . . .  


that [Maness] had shot at them, when they knew  this was not true.”   Maness offers  


several arguments in support of this claim.  First, he argues that the physical evidence  


“undeniably proves” that he did not fire any shots. Second, he argues that Hamilton and  


Spitzer “displayed a hostile and dishonest demeanor at deposition . . . and they seemed  

disappointed  and  angry  that  [Maness  had]  survived  to  file  a  lawsuit  against  them.”  


Third, Spitzer “made incredible allegations over police radio that [Maness] had a gun  


rigged on [his] motor home to fire backwards while [Maness] was driving.”  (Emphasis  


in original.)   Fourth, “Hamilton and Spitzer’s general demeanor at deposition and a  


cassette recording of the incident show a hostility and desire to retaliate against [Maness]  

for scaring them into running away from [his] property . . . including an expressed desire  


to shoot [him] on sight, lamentation for failure to shoot [his] tires out, and a desire that  


[he] would have run into the inlet.”  Fifth, Spitzer “has a long history of retaliatory and  


vindictive behavior on the job.”   Sixth, Hamilton’s and Spitzer’s testimony “was not  

believable to anyone objectively assessing their credibility.”  Seventh, Maness argues  


that other law enforcement witnesses were present who “did not report any shots fired.”  

                    In  Prentzel ,  we  observed  that  “before  malice  can  become  a  disputed  


question of fact” sufficient to defeat a motion for summary judgment, “the record must  

contain at least some objective evidence establishing facts capable of supporting an  

                                                              -19-                                                         6807

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


inference  of  malice.”                Moreover,  “the  need  for  a  non-conclusory  factual  basis  is  

especially important when . . . the ultimate question involves immunity; as we have  


emphasized on other occasions, official immunity shields government officials ‘not just  


from liability, but from suit.’ ”                 We also emphasized that “although the existence or  


absence of malice is generally a question of fact for the jury, when this question has been  

removed  from  the  case  by  uncontroverted  affidavits  and/or  depositions,  summary  


                                            Accordingly, in Prentzel we concluded that the plaintiff’s  

judgment may be granted.”  

“conclusory statements describing his subjective impressions [did] not raise disputed  


                                               In  particular,  we  explained  that  when  the  plaintiff’s  

questions  of  material  fact.” 


“subjective conclusion that the troopers enjoyed arresting him finds no objective support  

from the facts in the record,” that conclusion “fails to raise a genuine issue of material  

fact  disputing  the  strong  evidence  tending  to  show  that  the  troopers  acted  without  


malice.”         We also observed that there was “ample record evidence that the troopers  

acted without malice, and, in fact, did everything they could to ensure that Prentzel’s  

arrest was appropriate.”44  

                    Maness’s affidavit consists largely of  the type of conclusory statements and  


subjective impressions that we found insufficient to create a genuine issue of material  

          39        Prentzel v. State, Dep’t of Pub. Safety,  169 P.3d 573, 585 (Alaska 2007).      



                    Id. (quoting Karen L. v. State, Dep’t of Health & Soc. Servs., Div. of Family  

& Youth Servs., 953 P.2d 871, 879 (Alaska 1998)) (emphasis in original).   



                    Id. (quoting Aspen Exploration Corp. v. Sheffield , 739 P.2d 150, 160 n.24  

(Alaska 1987)).  

          42        Id.  

          43        Id. at 586.  

          44        Id. at 585.  

                                                             -20-                                                        6807

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

fact in Prentzel .   Further, Maness provides no “objective evidence establishing facts  


capable of supporting an inference of malice,” as required by Prentzel .                                      Although  



Maness points to some “objective facts” — such as the fact that the troopers’ car did not  

show any evidence of gunshot damage and some stray comments made by the troopers  


during their stakeout — these facts do not support an inference of malice even if viewed  

in the light most favorable to Maness.  Rather, there is “ample record evidence”46 that  


everything the troopers did — from the moment they arrived at Maness’s home through  


the pursuit when Maness fled — was aimed at effectuating the court’s lawful order to  

take  Maness  into  custody  and  deliver  him  to  API.    Accordingly,  the  superior  court  


properly ruled that Maness “[did] nothing to pierce [the troopers’] mantle as state police  

servants for a qualified immunity acting in good faith without malice.”  

                             b.       Gross negligence  

                   Finally, the troopers’ qualified immunity under AS 47.30.815(b) requires  


                                                                                           We have defined gross  

not only good faith but also an absence of gross negligence. 


negligence as requiring “a major departure from the standard of care.”                                    Our holding  

above that the troopers’ conduct was objectively reasonable necessarily compels the  


conclusion  that  they  acted  without  gross  negligence.    Accordingly,  the  troopers  are  

protected by qualified immunity under AS 47.30.815(b).  

          45       Id.  

          46       Id.  

          47       AS 47.30.815(b) (stating that  officers  and other  specified persons “may not  

be     held       civilly      or     criminally          liable      for     detaining         a    person        under  


AS 47.30.700-47.30.915 . . . if the persons have performed their duties in good faith and  

without gross negligence”).  

          48       Storrs v. Lutheran Hosp. & Homes Soc. of Am., Inc., 661 P.2d 632, 634  

(Alaska 1983).  

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

          C.        Attorney’s Fees  

                    The  superior  court  granted  the  defendants’  motions  for  attorney’s  fees  

pursuant to Alaska Civil Rule 82.  Maness argues that the superior court’s award of  

attorney’s fees was “clearly erroneous” under AS 09.60.010(c)49 and AS 09.60.010(e).50  


He also argues that under federal law a prevailing defendant may be awarded attorney’s  

fees “only if the plaintiff’s underlying claim was frivolous, unreasonable, or groundless.”  


                    1.        Maness is not a public interest litigant.  


                    As the State correctly observes, AS 09.60.010(c) and (e) do not apply to  


Maness’s claims.  Those sections apply “to all civil actions and appeals filed on or after  



the effective date of this Act,” which was September 11, 2003.                                 Maness filed his lawsuit  

on June 16, 2003, before the act took effect.  

          49        AS 09.60.010(c) provides:  


                    In  a  civil  action  or  appeal  concerning  the  establishment,  


                    protection, or enforcement of a right under the United States  

                    Constitution or the Constitution of the State of Alaska, the  

                    court . . . may not order a claimant to pay the attorney fees of  


                    the      opposing         party       devoted         to    claims        concerning  


                    constitutional rights if the claimant . . .   did not prevail in  


                    asserting the right, the action or appeal asserting the right was  


                    not  frivolous,  and  the  claimant  did  not  have  sufficient  


                    economic incentive to bring the action or appeal regardless of  

                    the constitutional claims involved.  



                    AS 09.60.010(e) provides that “[t]he court, in its discretion, may abate . . .  


an award of attorney fees and costs otherwise payable under (c) and (d) of this section  


if the court finds . . .  that the full imposition of the award would inflict a substantial and  

undue hardship upon the party ordered to pay the fees and costs.”  

          51        Ch. 86, § 4, SLA 2003.  

                                                              -22-                                                         6807

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

                    The standard applicable to Maness’s claim is set forth in a series of cases  

                                              52   Gilbert and its progeny established that Rule 82 fees  

beginning with Gilbert v. State.                               


could not be awarded against a losing public interest litigant.                               Public-interest-litigant  

status is determined by application of four criteria: (1) whether the litigation sought to  


effectuate strong public policies; (2) whether numerous people would benefit from the  


litigation; (3) whether only a private party could have been expected to bring the action;  

and (4) whether the litigant had sufficient economic incentive to bring the lawsuit.54  

                    Maness does not argue that he meets any of these criteria, nor is there  

reason to believe that he does.  In particular, it is clear that Maness’s suit will not benefit  


numerous people.  Because Maness is not a public interest litigant, we affirm the superior  


court’s determination that the defendants were prevailing parties entitled to a Rule 82  

attorney’s fee award with respect to Maness’s state law claims.  

                    2.       Remand is required for reconsideration of § 1983 attorney’s fees.  


                    Alaska courts “do not award attorney’s fees against section 1983 plaintiffs  


for that portion of the prevailing party’s attorney’s fees incurred defending against the  

section 1983 action, unless the 1983 action was ‘frivolous, unreasonable or without  


foundation.’ ”           Because the superior court did not make a finding whether Maness’s  

§ 1983 excessive force claims were “frivolous, unreasonable, or without foundation,” we  


remand  for  further  proceedings  on  this  point.    Additionally,  because  the  “record  at  

          52        526 P.2d 1131, 1136 (Alaska 1974).  

          53        See State v. Native Vill. of Nunapitchuk                 , 156 P.3d 389, 394 (Alaska 2007)  

(discussing Gilbert, 526 P.2d at 1136).  

          54       Id.  



                    City of N. Pole v. Zabek, 934 P.2d 1292, 1301 (Alaska 1997) (citing Lyman  

v. State, 824 P.2d 703, 707 (Alaska 1992)).  

                                                             -23-                                                       6807

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

present does not include enough information to determine which costs and attorney’s   

fees derive from defending the state law claim[s] as distinguished from the federal law         

claim[],” a “remand on allocation of attorney’s fees and costs to the state law claim and  



the federal law claims . . .  is therefore required.”                              On remand, “the [S]tate has the  


burden of identifying and segregating the state law claim costs,” and the superior court  


“can order the [S]tate’s counsel to itemize the hours and nature of the work spent on the  



                     We AFFIRM the superior court’s order granting summary judgment and  


all other rulings encompassed in its final judgment except the award of attorney’s fees  

pertaining to Maness’s §1983 claim.  We VACATE that fee award and REMAND for  

further proceedings on attorney’s fees consistent with this opinion.  

          56        Lyman , 824 P.2d at 707.  

          57        Id.  

                                                               -24-                                                              6807  

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