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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
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 firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA 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 â August 16, 2013 HAMILTON, ERIC SPITZER, ) CLIFTON PECK, KEVIN EHM, ) MUNICIPALITY OF ANCHORAGE, ) 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. I. INTRODUCTION In the early hours of June 28, 2001, Alaska State Troopers went to Bret Manessâs 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 courtâs grant of summary judgment with respect to all of Manessâs 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. Manessâs 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 courtâs award of attorneyâs fees to the defendants. 1 Maness v. Daily , 184 P.3d 1, 9 (Alaska 2008). -2- 6807 ----------------------- Page 3----------------------- II. FACTS AND PROCEEDINGS A. Facts On June 27, 2001, Manessâs 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 courtâs order stated in part that there is âprobable cause to believe that the respondent is mentally ill and . . . presents a likelihood of causing serious harm to [himself] or others.â 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 Manessâs 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 â Thad Hamilton, Eric Spitzer, and Kevin Yancey â to Manessâs home for a second attempt. The three troopers arrived at Manessâs home in separate vehicles at approximately 1:00 a.m. They parked on a side road, about 100 yards from Manessâs home, and took separate paths up Manessâs driveway on foot. Trooper Hamilton described this as a âstealthâ approach intended to avoid a surprise attack and ensure officer safety. Manessâs 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 ----------------------- Page 4----------------------- identified himself as Maness. Hamilton saw a rifle in the RV, within Manessâs reach. Hamilton tried the doorhandle and window of the RV to âmake sure [Maness] wasnât going for any weapon,â 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 troopersâ 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, âNo, you wonât, but somebody . . . else will and I ainât going back.â Maness then repeated his threat that the troopers would die if they did not leave. The troopers returned to their vehicles, intending to set up a perimeter and lay a spike strip to disable Manessâs RV if he tried to flee. Before they set up the strip, they saw Manessâs 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 trooperâs State Emergency Response Team (SERT) and the Anchorage Police Department (APD), were called to assist with the pursuit. The vehicle pursuit ended when Manessâs 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 Manessâs tires out and that he should have done so. While listening to police radio reports of Manessâs movements through the woods, Spitzer commented to Hamilton that Maness was going to run into the Inlet and then laughed before saying, âI wish he would have.â After hearing further radio communications, Spitzer said to Hamilton, â[W]eapon levels up, even if heâs . . . running with it.â 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, Spitzerâs car was thoroughly inspected; there was no evidence of gunshot damage. Spitzer testified that even though he may have been -5- 6807 ----------------------- Page 6----------------------- mistaken, he was right to make a âshots firedâ report based on what he perceived at the time. He stated that the road they were driving on was very bumpy and âapparently [his] vehicle had bottomed out . . . right after the shot was heard,â 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 âpartlyâ because of Spitzerâs report that Maness was shooting at them, but âthe other information that [Maness was] potentially armed and [was] . . . refusing to comply with troopersâ orders to surrenderâ 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 preÂ existing vendetta against him. B. Proceedings 1. Manessâs 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 Spitzerâs vehicle and found no damage yet negligently failed to report that Spitzerâs 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 ----------------------- Page 7----------------------- in the back without warning, essentially stating a claim that excessive force was used to arrest Maness. The superior court dismissed a number of Manessâs claims, including his 2 excessive force claims. Maness appealed. We affirmed the superior courtâs grant of summary judgment with respect to all of Manessâs claims except those based on 3 excessive force and remanded those claims for further proceedings. 2. Manessâs amended complaint On remand, Maness amended his complaint, adding constitutional claims under 42 U.S.C. Â§ 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 Defendantsâ motion for summary judgment in an oral ruling. The court focused on Manessâs excessive force claims against the troopers, finding that the case was âat its heart an excessive force case.â The court found that Maness âdoes nothing to pierce [the troopersâ] mantle as state police servants for a qualified immunity acting in good faith without maliceâ and that therefore the troopers were entitled to summary judgment on all of Manessâs claims. The court adduced several reasons for this conclusion. First, the court found that the troopers were lawfully present at Manessâs home and âdid nothing unlawful at the scene.â Second, the court rejected Manessâs argument, based on Ninth Circuit precedent, that the troopers âprovoked a course of action that foreseeably led to bloodshed.â The court found that the troopers were âsimply . . . coming to serve a mundane warrant . . . . And the unforeseeable, 2 See id. at 4-5. Manessâs remaining claims against the State and Municipality were resolved by stipulation. Id. at 5. The stipulation reserved Manessâs 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].â The court concluded that nothing the troopers did âcan reasonably be construed to be the sort of action which provokes an armed response.â Further, the court found that after Maness threatened the troopers and fled, âthe only reasonable response of the [troopers was] to stay with him [and] pursue him,â in light of the fact that they knew Maness was armed, angry, and possibly mentally unstable. Finally, the court found that the âultimate 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.â With respect to the troopersâ good faith, the court found that Maness âcites no preexisting grudge or hatred, no reason for particular animus, no desire to get back at [Maness].â The court found that the troopersâ report of shots fired was made in âthe fog of warâ and in any event was ultimately âirrelevantâ to the pursuit of Maness because it âadds no useful information to the task at hand for the officers who all on good and sufficient informationâ 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, âthereâs nothing to suggest in the remotest sense that it was maliciously so or in bad faith . . . . Thereâs absolutely no information to that effect.â In short, âthereâs no evidence that anything happened that pierced the qualified immunity of the state actors.â 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. Manessâs claim against Peck proceeded to trial. The jury rendered a defense verdict, finding that it was âmore 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.â The State and Municipal defendants moved for attorneyâs fees pursuant to Alaska Civil Rule 82. The court applied Rule 82âs fee schedule, awarding prevailing- party attorneyâs fees in the defendantsâ favor. Maness appeals the grant of summary judgment to the troopers and the award of attorneyâs fees against him. III. STANDARD OF REVIEW We review a grant of summary judgment âde novo, reading the record in the light most favorable to the non-moving party and making all reasonable inferences 4 We âwill affirm a grant of summary judgment when there are no genuine in its favor.â issues of material fact and the moving party is entitled to judgment as a matter of law.â5 âThe applicability of both state and federal immunity are questions of law that are . . . 6 Under the de novo standard of review, we will âapply our subject to de novo review.â independent judgment to questions of law, adopting the rule of law most persuasive in 7 light of precedent, reason, and policy.â âBecause this case raises the question of entitlement to qualified immunity, we âfocus on the officersâ perspectives and perceptions, as it is what reasonable officers in their position could have thought that is dispositive of this issue.â â8 4 Russell ex rel. J.N. v. Virg-In , 258 P.3d 795, 801 (Alaska 2011). 5 Id. at 801-02. 6 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 (continued...) -9- 6807 ----------------------- Page 10----------------------- We âexercise our independent judgment in reviewing whether a trial court 9 has applied the appropriate legal standard in making its prevailing party determination.â But we âreview a superior courtâs determination of prevailing party status and attorneyâs fees for abuse of discretionâ and âwill overturn such determinations only if they are manifestly unreasonable.â10 IV. DISCUSSION A. The Superior Court Properly Granted Troopers Hamilton And Spitzer Summary Judgment On Manessâs Excessive Force Claims. 11 The use of excessive force is a statutory violation under Alaska law and âmay 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 âto 8(...continued) 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). 10 Id. (quoting Braun v. Denali Borough , 193 P.3d 719, 726 (Alaska 2008)) (internal quotation marks omitted). 11 AS 12.25.070 provides that â[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.â AS 11.81.370(a) provides in part that a peace officer âmay 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.â -10- 6807 ----------------------- Page 11----------------------- 12 be secure in their personsâ and protect against âunreasonable searches and seizures.â â 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 governmentâs need for that intrusion (as measured by the severity of the crime, whether the suspect posed an immediate threat to the officerâs or the publicâs safety, and whether the suspect was resisting arrest or attempting to escape). The standard for excessive force in Alaska is nearly identical â 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. âPolice officers, like other public officials, are protected by qualified 14 In 1987, in Breck v. Ulmer, we immunity when they exercise discretionary functions.â first addressed the question of âwhat 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). Manessâs 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. Â§ 1983). However, â[l]ike most courts, we do not require litigants to specify that they are suing under Â§ 1983.â 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 Â§ 1983 based on â[c]ombining the broad purposes of 42 U.S.C. Â§ 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 8â). 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 2000)). -11- 6807 ----------------------- Page 12----------------------- 15 the Alaska Constitution.â We chose âto follow federal precedent for determining whether qualified immunity should be conferred for [official] acts alleged to contravene 16 a statutory or constitutional mandate.â Specifically, we adopted a test established by 17 the United States Supreme Court in Harlow v. Fitzgerald . Under this standard, qualified immunity shields public officials from civil liability âinsofar as their conduct does not violate clearly established statutory or constitutional rights of which a 18 reasonable person would have known.â Applying this framework to the specific situation of excessive force claims, we have held that âan officer is entitled to qualified immunity if the officerâs conduct was an objectively reasonable use of force or the officer reasonably believed that the conduct 19 was lawful.â âUnder the second part of the inquiry, the reasonableness of an officerâs belief that his conduct was lawful depends on whether a reasonable officer would have 20 Courts inquiring been âon noticeâ that his particular use of force would be unlawful.â into the presence of notice should âlook 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 âa police officer in Alaska is entitled to qualified immunity in an excessive force case if the officerâs conduct was objectively reasonable or the officer reasonably believed that the conduct was lawful, even if it was notâ). 20 Russell , 258 P.3d at 803. -12- 6807 ----------------------- Page 13----------------------- 21 action taken by the officer is considered unlawful.â âAlternatively, notice can also be assumed if the officerâs conduct is âso egregious, so excessive, that he . . . should have 22 known it was unlawful.â â We have also observed that our approach to qualified immunity in excessive force cases âcomports in all essential respectsâ with that of the United States 23 In particular we have clarified that under both Alaska law and federal Supreme Court. law âqualified immunity can be conferred when an officer could have reasonably 24 believed that his conduct was lawful (even if it was not).â Under both Alaska law and federal law, Manessâs 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 Manessâs lawsuit against Peck, the jury found that Peckâs 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 âwhere 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). 23 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 25 his otherwise defensive use of deadly force.â Maness argued that Troopers Hamilton and Spitzer were liable for intentionally or recklessly provoking âa verbally violent response from Mr. Maness and escalat[ing] the situation that ultimately resulted in Mr. Maness being shot by law enforcement.â Manessâs argument fails because the provocation-of-violence theory he proposes is not âclearly establishedâ in Alaska law. Alaska has never accepted such a theory and, as the Ninth Circuit has acknowledged, the federal circuits have split on the 26 âWhere no controlling authority validity of similar provocation-of-violence theories. specifically prohibits a defendantâs conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.â27 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 Manessâs 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. Sheriffâs Depât , 267 P.3d 1022, 1033 (Wash. App. 2011) (quoting Morgan v. Swanson , 659 F.3d 359, 372 (5th Cir. 2011)). -14- 6807 ----------------------- Page 15----------------------- 28 theory only if there is an âindependent Fourth Amendment violation.â Here, the troopers were acting under a valid court order establishing that âthere is probable cause to believe that the respondent . . . presents a likelihood of causing serious harm to [himself] or othersâ and requiring the troopers to take Maness into custody. Manessâs 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 Manessâs RV. In other words, they did nothing to infringe upon Manessâs Fourth Amendment rights. Finally, there is no evidence that the troopers recklessly or intentionally âprovoked violenceâ by their actions. There was a time lag of six hours, including a police chase and an extended manhunt in the woods, between the troopersâ conduct at Manessâs residence and the shooting. Maness has not cited any authority holding that 29 As the such an attenuated chain of causation can create excessive force liability. superior court found, nothing the troopers did âcan reasonably be construed to be the sort of action which provokes an armed response.â In sum, the troopers did not violate any clearly established right of Manessâs 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 Manessâs 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 âimmediately connectedâ 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 Manessâs State Tort Claims. Manessâs 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. Manessâs briefing before this court does not distinguish among these various claims. Rather, Manessâs 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 Manessâs tort claims. 1. Sources of the troopersâ qualified immunity The troopers are eligible for qualified immunity from Manessâs 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 32 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 âis limited solely to situations where a plaintiffâs common law rights are involved. We express no opinion as to situations where a public official violates clearly established statutory or constitutional rights.â 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: âFirst, does the doctrine of official immunity apply to the state officialâs conduct? Second, if it does apply, is the immunity absolute or qualified? And third, if it is only a qualified immunity, did the 33 state official act corruptly, maliciously, or in bad faith?â 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 34 negligence. With respect to the first question of the Aspen test, we observed that âofficial immunity applies to an officialâs conduct if (1) it is within the scope of the officialâs authority, and (2) it is a discretionary act.â35 Applying these criteria to the facts of Prentzel, we held that âmaking arrests and seizing property incident to arrests is conduct that falls within the troopersâ usual authority,â and that Alaska law provided for 36 such authority. Similarly here, the execution of civil commitment orders falls within the troopersâ usual authority as established in AS 47.30.700, which provides that a judge âmay direct that a peace officer take the respondent into custody and deliver the respondent to the nearest appropriate facility for emergency examination or treatment.â 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 troopersâ âdiscretionary 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----------------------- 37 seizing contraband in the course of arrest.â Similarly here, qualified rather than absolute immunity applies to the troopersâ 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 âa peace officer . . . responsible for detaining or transporting a personâ under an involuntary civil commitment order âmay not be held civilly or criminally liable for detaining a person . . . if the persons have 38 There is no performed their duties in good faith and without gross negligence.â 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 âgood faithâ and âgross negligenceâ 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 âscared them into running awayâ from his home, thereby âinjuring their egos.â According to Maness, the troopers then âmaliciously and in bad faith conspired to provide false information . . . that [Maness] had shot at them, when they knew this was not true.â Maness offers several arguments in support of this claim. First, he argues that the physical evidence âundeniably provesâ that he did not fire any shots. Second, he argues that Hamilton and Spitzer âdisplayed a hostile and dishonest demeanor at deposition . . . and they seemed disappointed and angry that [Maness had] survived to file a lawsuit against them.â Third, Spitzer âmade incredible allegations over police radio that [Maness] had a gun rigged on [his] motor home to fire backwards while [Maness] was driving.â (Emphasis in original.) Fourth, âHamilton and Spitzerâs 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.â Fifth, Spitzer âhas a long history of retaliatory and vindictive behavior on the job.â Sixth, Hamiltonâs and Spitzerâs testimony âwas not believable to anyone objectively assessing their credibility.â Seventh, Maness argues that other law enforcement witnesses were present who âdid not report any shots fired.â In Prentzel , we observed that âbefore malice can become a disputed question of factâ sufficient to defeat a motion for summary judgment, âthe record must contain at least some objective evidence establishing facts capable of supporting an -19- 6807 ----------------------- Page 20----------------------- 39 inference of malice.â Moreover, âthe 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 ânot just 40 from liability, but from suit.â â We also emphasized that âalthough 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 41 Accordingly, in Prentzel we concluded that the plaintiffâs judgment may be granted.â âconclusory statements describing his subjective impressions [did] not raise disputed 42 In particular, we explained that when the plaintiffâs questions of material fact.â âsubjective conclusion that the troopers enjoyed arresting him finds no objective support from the facts in the record,â that conclusion âfails to raise a genuine issue of material fact disputing the strong evidence tending to show that the troopers acted without 43 malice.â We also observed that there was âample record evidence that the troopers acted without malice, and, in fact, did everything they could to ensure that Prentzelâs arrest was appropriate.â44 Manessâs 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, Depât of Pub. Safety, 169 P.3d 573, 585 (Alaska 2007). 40 Id. (quoting Karen L. v. State, Depât of Health & Soc. Servs., Div. of Family & Youth Servs., 953 P.2d 871, 879 (Alaska 1998)) (emphasis in original). 41 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 âobjective evidence establishing facts 45 capable of supporting an inference of malice,â as required by Prentzel . Although Maness points to some âobjective factsâ â such as the fact that the troopersâ car did not show any evidence of gunshot damage and some stray comments made by the troopers during their stakeout â these facts do not support an inference of malice even if viewed in the light most favorable to Maness. Rather, there is âample record evidenceâ46 that everything the troopers did â from the moment they arrived at Manessâs home through the pursuit when Maness fled â was aimed at effectuating the courtâs lawful order to take Maness into custody and deliver him to API. Accordingly, the superior court properly ruled that Maness â[did] nothing to pierce [the troopersâ] mantle as state police servants for a qualified immunity acting in good faith without malice.â b. Gross negligence Finally, the troopersâ qualified immunity under AS 47.30.815(b) requires 47 We have defined gross not only good faith but also an absence of gross negligence. 48 negligence as requiring âa major departure from the standard of care.â Our holding above that the troopersâ 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 âmay 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 negligenceâ). 48 Storrs v. Lutheran Hosp. & Homes Soc. of Am., Inc., 661 P.2d 632, 634 (Alaska 1983). -21- 6807 ----------------------- Page 22----------------------- C. Attorneyâs Fees The superior court granted the defendantsâ motions for attorneyâs fees pursuant to Alaska Civil Rule 82. Maness argues that the superior courtâs award of attorneyâs fees was âclearly erroneousâ 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 attorneyâs fees âonly if the plaintiffâs underlying claim was frivolous, unreasonable, or groundless.â 1. Maness is not a public interest litigant. As the State correctly observes, AS 09.60.010(c) and (e) do not apply to Manessâs claims. Those sections apply âto all civil actions and appeals filed on or after 51 the effective date of this Act,â 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. 50 AS 09.60.010(e) provides that â[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.â 51 Ch. 86, Â§ 4, SLA 2003. -22- 6807 ----------------------- Page 23----------------------- The standard applicable to Manessâs claim is set forth in a series of cases 52 Gilbert and its progeny established that Rule 82 fees beginning with Gilbert v. State. 53 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 Manessâs suit will not benefit numerous people. Because Maness is not a public interest litigant, we affirm the superior courtâs determination that the defendants were prevailing parties entitled to a Rule 82 attorneyâs fee award with respect to Manessâs state law claims. 2. Remand is required for reconsideration of Â§ 1983 attorneyâs fees. Alaska courts âdo not award attorneyâs fees against section 1983 plaintiffs for that portion of the prevailing partyâs attorneyâs fees incurred defending against the section 1983 action, unless the 1983 action was âfrivolous, unreasonable or without 55 foundation.â â Because the superior court did not make a finding whether Manessâs Â§ 1983 excessive force claims were âfrivolous, unreasonable, or without foundation,â we remand for further proceedings on this point. Additionally, because the ârecord 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. 55 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 attorneyâs fees derive from defending the state law claim[s] as distinguished from the federal law claim,â a âremand on allocation of attorneyâs fees and costs to the state law claim and 56 the federal law claims . . . is therefore required.â On remand, âthe [S]tate has the burden of identifying and segregating the state law claim costs,â and the superior court âcan order the [S]tateâs counsel to itemize the hours and nature of the work spent on the case.â57 IV. CONCLUSION We AFFIRM the superior courtâs order granting summary judgment and all other rulings encompassed in its final judgment except the award of attorneyâs fees pertaining to Manessâs Â§1983 claim. We VACATE that fee award and REMAND for further proceedings on attorneyâs fees consistent with this opinion. 56 Lyman , 824 P.2d at 707. 57 Id. -24- 6807
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