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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 .  

        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  

                                                                                

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                  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 – 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  



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-----------------------

II.       FACTS AND PROCEEDINGS  



          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  



attempt.  



                   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
  


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

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  



leave.  



                                         

                    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
  


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

                                                                                                         

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
  


----------------------- 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 Maness’s claims, including his  



                                   2  

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  



                                                                                                     3  

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.   



III.      STANDARD OF REVIEW  



                                                                                        

                    We review a grant of summary judgment “de novo, reading the record in  



                                                                 

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

                  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  

                                       



                                                            7  

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.  
 



          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 “exercise our independent judgment in reviewing whether a trial court  



                                                                                                                                       9  

                                                                                      

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  



IV.	       DISCUSSION  



           A.	       The Superior Court Properly Granted Troopers Hamilton And Spitzer  

                     Summary Judgment On Maness’s Excessive Force Claims.  



                                                                                                                               11 

                                                                                                                          

                     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  



           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 “[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-----------------------

                                                                                                                                       12  

                                                                          

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  

                                                              [13] 

                     resisting or fleeing arrest.  



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



                                                                                      14  

                                                                                          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  



2000)).  



                                                                 -11-                                                            6807
  


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

                                             15  

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



                                                                                                                 

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



                                                                  16  

a statutory or constitutional mandate.”                               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 “insofar as their conduct  



                  

does  not  violate  clearly  established  statutory  or  constitutional  rights  of  which  a  



                                                                    18  

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  



                      19  

                                                                                            

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  



                                                                                                                   20  

                                                                                                                        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-----------------------

                                                                              21  

                                             

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  



                                        22  

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  



                        23  

                             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  



                                                                                         24  

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).  



          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.”                        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  



                                                                           26  

                                                                               “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-----------------------

                                                                                                               28  

                                                                                                                     

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  



                                                                                                                    29  

                                                                                                                          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  



                                                                                                                           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 “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                   



                                                                                                        33  

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  



                     34  

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  

                                                                                                              



                            36  

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-----------------------

                                                                      37  

                                    

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  



                                                                                                            38  

                                                                                                                   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-----------------------

                                 39  

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  



                                              40  

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  



                                        41  

                                            Accordingly, in Prentzel we concluded that the plaintiff’s  

judgment may be granted.”  



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



                                           42  

                                               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  



             43  

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).      



          40  

                                                                                           

                    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).   



          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 “objective evidence establishing facts  



                                                                                                          45  

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  



                                                                                       47  

                                                                                           We have defined gross  

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



                                                                                                      48  

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).  



                                                           -21-                                                      6807
  


----------------------- 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  



                                                                                            51  

                                                                                                             

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.  



          50  

                                                                                                                                

                    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.                               



                                                                                          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 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  



                     55  

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.  



          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 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  



                                                                               56  

                                                                                                       

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  

case.”57  



IV.       CONCLUSION  



                     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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