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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lum v. Koles (12/13/2013) sp-6855

Lum v. Koles (12/13/2013) sp-6855

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

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                 

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



DANIEL LUM and POLLY LUM, for                           )
  

themselves and for their minor children                 )    Supreme Court No. S-14424
  

JOSEPH AVEOGANNA, ELIZABETH                             )
  

HAWLEY, AIYANNA LUM, and                                )    Superior Court No. 2BA-07-00083 CI  

JAMIE LUM,                                              )  

                                                        )   O P I N I O N  

                          Appellants,                   )  

                                                        )   No. 6855 - December 13, 2013  

         v.                                             )  

                                                        )  

GWEN KOLES (GRIMES), BENJAMIN  )  

HUNSAKER, JOSE GUTIERREZ, and                           )  

NORTH SLOPE BOROUGH,                                    )  

                                                        )  

                          Appellees.                    )  

                                                        )  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Second Judicial District, Barrow, Michael I. Jeffery, Judge.  



                 Appearances:    Colleen  A.  Libbey,  Libbey  Law  Offices,  

                 Anchorage, for Appellants.  Peter C. Gamache, Law Office  

                                  

                 of Peter C. Gamache, Anchorage, for Appellee North Slope  

                                                                                

                 Borough, and Brent R. Cole, Law Office of Brent R. Cole,  

                 P.C.,   Anchorage,   for   Appellees   Koles,   Hunsaker,   and  

                                                                          

                 Gutierrez.  



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

                 Justices.  [Maassen, Justice, not participating.]  



                 WINFREE, Justice.  


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

I.        INTRODUCTION  



                    In  response  to  a  domestic  disturbance  call,  police  officers  entered  a  



                                                                                                   

residence without a warrant and pepper sprayed and handcuffed a resident.  The family  



                                                                                                                   

sued for excessive force and unlawful entry.  The superior court dismissed the claims on  



                                              

summary  judgment,  granting  qualified  immunity  for  the  excessive  force  claims  and  



                                                                                           

holding that the family had not raised a cognizable unlawful entry claim.  The superior  



                                                                                      

court later denied the family's Alaska Civil Rule 60(b)(2) motion to set aside the rulings  



                

based  on  newly  discovered  evidence.  The  family  appeals;  we  affirm  the  summary  



                                                

judgment ruling and the denial of the Rule 60(b)(2) motion, but we remand for further  



                                                              

proceedings on the family's trespass and invasion of privacy claims raised for the first  



time during the summary judgment proceedings.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    In September 2007 the North Slope Borough (NSB) Police Department  



                                                                                             

received an emergency-line telephone call requesting officers to go to Polly and Daniel  



Lum's residence "for a welfare check on some children."  The caller stated that she was  



                                  

a friend of Polly's and had just received a call for help.  The caller reported hearing Polly  



                                                               

and Daniel "fighting and screaming" and children crying.  She also reported that Polly  



                                                                                           

had "bruises and a cut on her head."  She indicated that there were four or five children  



in the home and that the incident had happened within the last five minutes.  



                    The police dispatcher then contacted all units, explaining that a call had  



                                                                                                    

come in from a "[f]emale asking [for a] welfare check on [a] couple as they were having  



                                                                                                      

a domestic dispute.  Kids are crying, and she is concerned regarding kids' welfare . . . ."  



Two NSB police officers, Sgt. Jose Gutierrez and Officer Gwen Grimes, responded to  



                                                                                                             

the Lum residence, a duplex with a common hallway access.  The officers activated their  



                                                                                      

recorders, creating audio recordings of the incident.  Sgt. Gutierrez and Officer Grimes  



                                                              -2-                                                        6855
  


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

                                                                                                                  

later stated that they could hear an argument inside the residence, although the parties  



                                                                                   

contest whether this is reflected in the recordings.  Sgt. Gutierrez knocked on the outer  



door and a child invited the officers into the common hallway.  Sgt. Gutierrez asked  



where the child's parents were, and the child replied "over there," pointing to the Lums'  



apartment.    The  officers  walked  through  the  hallway,  and,  without  knocking  or  



announcing their presence, entered the Lum residence.  



                                                             

                    When the officers entered  the apartment, Daniel and Polly were in the  



                                                                    

bathroom with their infant daughter.  Daniel told the officers to leave.  Officer Grimes  



                                                                         

told Daniel to come out of the bathroom.  Daniel accused Officer Grimes of shooting at  



                                                         

him during a previous encounter and attempted to shut the bathroom door, separating  



                                                                                              

himself, Polly, and their infant from the officers.  The officers pushed against the door  



                                               

to stop Daniel from closing it.  Officer Grimes then sprayed oleoresin capsicum (pepper  



                                                                              

spray) once in Daniel's face to subdue him.  Daniel immediately stopped resisting and  



                                                                                                         

came  out  of  the  bathroom.    The  officers  handcuffed  Daniel  due  to  what  they  later  



described as his "erratic behavior and resistance."  



                                                                                            

                    Daniel had a strong and immediate reaction to the pepper spray, calling  



                                                                                 

repeatedly for water and saying he could not breathe.  Officer Benjamin Hunsaker then  



arrived, and Officers Hunsaker and Grimes took Daniel outside to defuse the situation  



and ameliorate the pepper spray's effects.  Daniel continued saying that he could not  



breathe and began complaining that he was having or about to have a panic or heart  



attack.    He  repeatedly  asked  for  someone  to  wipe  his  eyes;  he  also  requested  an  



                                                                                           

ambulance.  The officers wiped Daniel's face multiple times, pointed him into the wind  



                                                                                             

to lessen the pepper spray's effects, and informed him that the effects would take some  



time to wear off naturally.  



                    Daniel also complained that the handcuffs were too tight and asked that  



                                                

they be taken off.  The officers declined because of "the way [he was] acting."  Daniel  



                                                              -3-                                                        6855
  


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

                                                                                       

told the officers that his behavior was erratic because he had failed to take prescribed  



                                                                                                   

methadone.  When Daniel again complained about the handcuffs, the officers switched  



                                        

them for a larger pair and double-locked them so they would not tighten.  Daniel stated  



                                                                      

that the new handcuffs were more comfortable.  About eight minutes after the application  



                                                                                                                    

of the pepper spray, the officers confirmed that Daniel did in fact want to go to the  



                                                                

hospital.  The officers called an ambulance to transport Daniel, and it arrived ten minutes  



later.  



                    No charges were filed against Daniel as a result of the encounter.  



          B.        Proceedings  



                    In December 2007 the Lums sued the officers for use of excessive force and  



for unlawful entry in violation of the Alaska Constitution and AS 12.25.100, Alaska's  



                                          1 

knock and announce statute,  and sued NSB for negligent training and supervision.  The  

                                                                                      



officers moved for summary judgment, seeking dismissal of the excessive force claims  



on the basis of qualified immunity.  The Lums opposed the motion, and oral argument  

                                                                       



was held in March 2010.  



                                                     

                    After  oral  argument  the  Lums  filed  several  motions  to  supplement  the  



                                                                                  

evidentiary record, including consolidated appendices of exhibits, a complete transcript  



                                                                                   

of Polly's deposition, and evidence showing the officers were aware that Daniel had been  



                                                                                   

in a weak physical state due to back surgery.  The court struck the motions and attached  



evidence as untimely.  



                    In May the superior court granted partial summary judgment, ruling that the  



                                                                                                               

officers were entitled to qualified immunity and dismissing the excessive force claims  



                                                      

with the exception of one for failure to give Daniel water after applying the pepper spray.  



          1         AS 12.25.100 provides that "[a] peace officer may break into a building or  



                                                                                                   

vessel in which the person to be arrested is or is believed to be, if the officer is refused  

admittance after the officer has announced the authority and purpose of the entry."  



                                                              -4-                                                            6855  


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

The Lums requested reconsideration, and the officers requested reconsideration as to the  



one remaining claim.  The court requested responses to both reconsideration motions.  



NSB's response to the Lums' reconsideration motion included the incident police report         



previously filed by the Lums with their opposition to summary judgment.  The Lums  



challenged the admission of this evidence and moved to file rebuttal evidence.  The  



superior court rejected their motions.  



                                                                                        

                       In July the superior court granted full summary judgment dismissing all of  



                                              

the Lums' excessive force claims on the basis of qualified immunity.  The superior court  



                                                                                                                

later granted summary judgment dismissing the Lums' unlawful entry claims under the  



                                                                        

Alaska Constitution and A.S. 12.25.100, holding that neither could support a claim for  



damages.  



                                                                                                 

                       In January 2011 the Lums filed an Alaska Civil Rule 60(b)(2) motion for  



relief  from  the  summary  judgment  orders  based  on  newly  discovered  evidence  and  



                                                                    

requested that the court accept the new evidence.  The superior court denied the motion  



and rejected the evidence, stating that it was not material and the Lums had not been  



                                                                                           

diligent in submitting it.  The court then dismissed the Lums' negligent training and  



                                                                                                                  

supervision claims against NSB because the direct claims against the officers had been  



dismissed.  



                                                            

                       The Lums appeal the summary judgment decisions, including the decision  



striking submitted evidence and the denial of the Rule 60(b)(2) motion.  They do not  



appeal the dismissal of the negligent training and supervision claim against NSB.  



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  



                                                                        -5-                                                                 6855
  


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

                   2  

                                                                

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



                                                                                                                                     3  

                                                                                     

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



                     Questions  involving  "both  state  and  federal  [qualified]  immunity  are  



                                                                               4  

questions of law . . . subject to de novo review."   "Under the de novo standard of  



                                                                                                 

review, we will 'apply our independent judgment to questions of law, adopting the rule  

of law most persuasive in light of precedent, reason, and policy.' "5  



                                                                               

                     We will reverse an evidentiary ruling only if an error prejudicially affected  



                                         6  

                                            We review orders denying Rule 60(b)(2) relief for abuse of  

a party's substantial rights. 



                7  

discretion.   In reviewing for abuse of discretion, we ask "whether the reasons for the  

exercise of discretion are clearly untenable or unreasonable."8  



IV.	      DISCUSSION  



          A.	        The Superior Court Did Not Err In Granting Summary Judgment  

                                                                

                     Dismissing The Excessive Force Claims Based On Qualified Immunity.  



                     1.	       Qualified immunity for excessive force  



                     "In  Alaska,  questions  concerning  qualified  immunity  for  claims  of  

                                                                                                                      



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



Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010)) (alteration in original).  



          3	        Id. at 801-02 (quoting Schug, 233 P.3d at 1116) (quotation marks omitted).  

                              



          4  

                                                                                                       

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

(alteration in original).  



          5  

                                                                                                                        

                    Id.  (quoting  Jacob  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008)).  



          6         Marron v. Stromstad , 123 P.3d 992, 998 (Alaska 2005).  



          7          Rude v. Cook Inlet Region, Inc. , 294 P.3d 76, 86 (Alaska 2012).  



          8          Burke v. Maka , 296 P.3d 976, 979-80 (Alaska 2013) (citing Lewis v. State ,  

                                                                    

469 P.2d 689, 695 (Alaska 1970)).  



                                                                 -6-	                                                         6855
  


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

excessive force are governed both by the Fourth Amendment and by state statute."9  



                                                                                                                     

"Qualified immunity is intended to protect 'all but the plainly incompetent or those who  

knowingly violate the law.' "10  



                    "[A]n 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  



                   11  

                                                            

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  



                                                                                                        12  

                                                                                                             If "the officers  

been 'on notice' that his particular use of force would be unlawful." 



                                                                                                             

reasonably  believed  that  the  force  they  used  was  permissible,"  they  are  entitled  to  



                                                                                                                                13  

                                                                                                                                    

qualified immunity, "even if they were mistaken and actually used excessive force." 



                    To determine whether officers were "on notice" that their conduct was  



                       

unreasonable, we "look to our own jurisdiction and other jurisdictions to see if there are  



                                                                                            

any cases, laws, or regulations which would suggest that the type of action taken by the  



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



omitted); see also AS 11.81.370 (explaining when officer may use force); AS 12.25.070   

(explaining amount of force officer is authorized to use).  



          10        Russell ex rel. J.N. , 258 P.3d at 802 (quoting Malley v. Briggs , 475 U.S.  



335, 341 (1986)).  



          11  

                                                                                                             

                    Id. at 803 (citing Sheldon v. City of Ambler, 178 P.3d 459, 463-64 (Alaska  

2008)); see also Olson , 251 P.3d at 1032 ("[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.").  



          12        Id. (citing Sheldon, 178 P.3d at 463).  



          13        Olson, 251 P.3d at 1037 (footnote omitted).  



                                                               -7-                                                         6855
  


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

                                                 14  

            

officer is considered unlawful."                     Plaintiffs have the burden of showing that clearly  



                                                                                                           15  

                                                                                                               Although the  

established law gave fair notice that the officer's conduct was unlawful. 



                                                                                               

clearly established law does not need to arise from "an identical factual scenario," it must  



                                                                                                                                16  

                                                                                                  

offer sufficiently specific guidance to give an officer clear notice of unlawful conduct. 



"Officials are not liable for bad guesses in gray areas; they are liable for transgressing  



                    17  

bright lines."          But in the absence of "explicit law," we also may consider whether the  



conduct was "so egregious, so excessive, that [the officer] should have known it was  

unlawful."18  



                    In  analyzing  qualified  immunity  questions  we  "focus  on  the  officers'  



                                                               

perspectives and perceptions, as it is what reasonable officers in their position could have  



                                                             19  

thought that is dispositive of this issue."                      And we also have recognized that "officers  



must often make quick judgments which might have unanticipated consequences, [and]  



          14        Sheldon, 178 P.3d at 466.  



          15        Russell , 258 P.3d at 801, 803 ("The superior court found that [plaintiff] had  



'not shown the law was clearly established' . . . .") (footnote omitted); see also  Terrell  

                                                                                                                         

v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012); Alston v. Read , 663 F.3d 1094, 1098 (9th  

                             

Cir. 2011).  



          16        Russell , 258 P.3d at 804.  



          17  

                                                                                      

                    City of Fairbanks v. Rice, 20 P.3d 1097, 1109 (Alaska 2000) (quoting  

Maciariello v. Sumner , 973 F.2d 295, 298 (4th Cir. 1992)).  



          18        Sheldon, 178 P.3d at 467.  



          19  

                                             

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

                                                       

Samaniego v. City of Kodiak, 2 P.3d 78, 80 (Alaska 2000), overruled in part by Sheldon,  

 178 P.3d 459) (emphasis in original).  



                                                               -8-                                                         6855
  


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

                                                                                                                                        20  

we must resist the urge to second guess those actions when things turn out badly."                                                            



                                                                                        

                      2.	        The excessive force claim does not require consideration of the  

                                 allegedly unlawful entry.  



                      In granting qualified immunity regarding the Lums' excessive force claims,  



                                                                                      21  

                                                                                              

the superior court cited Samaniego v. City of Kodiak                                     in ruling that even if the officers'  



                                                                                                       

initial entry were unlawful, they still were privileged to use reasonable force against  



                                                                                                               

Daniel once the situation escalated.  The court held that regardless of the legality of the  



                                                                                                                                  

entry, the officers used reasonable force in reacting to the situation in front of them -  



                                                              

a large, agitated man attempting  to  barricade himself, his wife, and an infant in the  



bathroom  in  the  context  of  a  domestic  dispute  call  when  the  officers  could  have  



reasonably believed that a kidnaping or an assault was about to occur.  

                                                                                                       22 and subsequent acts of  

                      The Lums argue that the allegedly unlawful entry                                                               



force must be considered together because these episodes are so intertwined as to make  

                                                                                                      



it impractical to take a segmented view of the sequence of events. They argue that when  

                                                                                                             



the events are viewed in their entirety, the officers had fair notice that provoking the  

                                                                                                                        



pepper spray incident by an unlawful and unannounced entry constituted excessive force.  



        

The officers respond that our reasoning in Samaniego controls and such incidents should  



                                              

be considered sequentially - they argue holding that any force used after an unlawful  



entry is per se  excessive infringes on an officer's need to use reasonable force when  



required by immediate circumstances, regardless of the context.  



                      Our Samaniego decision governs here.  In Samaniego we held that even if  



           20         Sheldon, 178 P.3d at 467.  



           21         2 P.3d at 87 (holding officers had qualified immunity for excessive force           



even after an unlawful arrest).  



           22         See Zinn v. State, 656 P.2d 1206, 1207-09 (Alaska App. 1982) (holding  

                              

unjustified warrantless entry was violation of Fourth Amendment).  



                                                                     -9-	                                                              6855
  


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

                                                                                     

the officer's initial arrest were illegal, "once [the arrestee] resisted [the officer's] attempt  



                                                                                                          

to grab her wrist, she . . . committed the additional offense of resisting arrest" and the  



                                                                                                             23  

officer was privileged to use reasonable force to arrest her for that offense.                                   The same  



approach applies here - in excessive force claims we look solely at the officers' use of  



force in dealing with the situation before them at the time the force was applied.  



                                                                                                      

                    The Lums attempt to distinguish Samaniego by noting that Daniel was in  



his home, raising privacy concerns absent in  Samaniego, and that he was not placed  



under arrest before the officers used pepper spray.  But an unlawful arrest arguably raises  



                                                              

liberty concerns equally as compelling as the privacy concerns raised by unlawful entry  



into a home.  And our reasoning in Samaniego  is readily applicable to any situation  



                            

where officers are met with dangerous circumstances, and does not rely on commission  



of a crime.  



                                                                            

                    The Lums also point to Ninth Circuit Court of Appeals precedent holding  



                                                                                                                         

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



provocation is an independent Fourth Amendment violation, [the officer] may be held  



                                                                                   24  

liable for [an] otherwise defensive use of deadly force."                              They argue that even if the  



officers  acted  reasonably  in  spraying  and  handcuffing  Daniel,  their  unlawful  entry  

provoked the confrontation and rendered the officers liable for excessive force.25                                        We  



                                                                                    

have not accepted such a theory and, as the Ninth Circuit has acknowledged, the federal  



          23        Samaniego, 2 P.3d at 87  (emphasis omitted).  



          24  

                                    

                    Billington  v.  Smith ,  292  F.3d  1177,  1188-91  (9th  Cir.  2002)  (citing  

Alexander v. City & Cnty. of San Francisco , 29 F.3d 1355, 1366 (9th Cir. 1994)).  



          25        See Alexander, 29 F.3d at 1366.  



                                                             -10-                                                       6855
  


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

circuits  have  split  on  the  validity  of  similar  provocation-of-violence  theories.26                                     We  



                                                                                                                       27 

                                                                                                                          and we  

recently declined to adopt the provocation theory in a qualified immunity case, 



decline to do so here.  



                                          

                    Samaniego 's segmented approach may not fully acknowledge that citizens  



might  react  strongly,  and  sometimes  violently,  to  an  unwarranted  intrusion  on  their  



                                                                                                                     

privacy  and  liberty.    But  "it  is  of  great  societal  importance  that  officers  be  able  to  



                                                                                                                

perform their investigatory and law enforcement duties, without fear of retribution for  



                                              28  

mistakes made in good faith."                     Officers must be able to carry out their jobs safely and  



                                                      

effectively, even after an unlawful entry or seizure.  Because Samaniego is controlling,  



                                                

we hold that even an unlawful entry by the officers would not make the use of force per  



se unreasonable.  



                                                                            

                     3.	       The   officers   are   entitled   to   qualified   immunity   for   their  

                               application of force.  



                                                                                                    

                     The questions then are (1) whether the officers' use of pepper spray, use of  



                                                                                                                  

handcuffs, and  actions  after  the  altercation  were  reasonable; and  (2)  if the  officers'  



                                                                                                 

actions were unreasonable, whether the officers were on notice their conduct constituted  



                                                                                                                  

excessive force. We have stated that when analyzing multiple applications of nondeadly  



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



F.3d 837 (10th Cir. 1997) with Gardner v. Buerger, 82 F.3d 248, 254 (8th Cir. 1996);   

Carter v. Buscher           , 973 F.2d 1328, 1332 (7th Cir. 1992);                     Greenidge v. Ruffin, 927 F.2d  

789, 792 (4th Cir. 1991)); see also Livermore ex rel. Rohm v. Lubelan , 476 F.3d 397,  

406 (6th Cir. 2007) (rejecting Billington in favor of a segmented analysis).  



          27        See Maness v. Daily, 307 P.3d 894, 902 (Alaska 2013).  



          28  

                                                 

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

(quotation marks omitted).  



                                                               -11-	                                                         6855
  


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

force,  a  court  may  consider  each  sequential  application  of  force  separately.29                            The  



superior court considered the officers' actions separately; they therefore are considered  



in turn. 



                                                                       

                    Officers are permitted to use pepper spray when an individual is "resisting  



                                                 30  

                                                     

arrest or refusing police requests."                 Pepper spray is "of limited intrusiveness" and is  

"designed to disable a suspect without causing permanent physical injury."31 Pepper  



spray generally is considered reasonable for bringing a person under control, but not  



                                                                                               32  

                                                                                                   In Russell ex rel.  

when the person already has surrendered and been rendered helpless. 



                                                           

J.N. v. Virg-In we noted that the use of a taser, another non-deadly disabling device, is  



                                                                                                       

reasonable against a person actively resisting or not cooperating with the police, but not  



                                                               33  

                                                                     Because  Daniel  resisted  the  officers'  

against  nonviolent,  nonthreatening  subjects. 



                                                                                         

commands to come out of the bathroom and their attempts to ensure the other family  



                                                                                 

members' safety, we affirm the superior court's holding that the officers were entitled  



to qualified immunity for their reasonable use of pepper spray.  



                   The  use  of  handcuffs  is  reasonable  "to  control  the  scene  and  protect  



         29        Russell  ex  rel.  J.N.  v. Virg-In, 258 P.3d 795, 807 n.56 (Alaska 2011); Olson  



v. City of Hooper Bay, 251 P.3d 1024, 1036 (Alaska 2011).  



         30        Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002).  



         31        Id. (quoting Gainor v. Douglas Cnty.,  59 F.                Supp.2d 12      59,  1287 (N.D. Ga.  



 1998)).  



         32        LaLonde v. Cnty. of Riverside , 204 F.3d 947, 961 (9th Cir. 2000); compare  



Jackson v. City of Bremerton , 268 F.3d  646, 65                2-53  (9th Cir. 2001) (holding use of spray  

not excessive force  when plaintiff  yelled and swore at officers and attempted to interfere  

with arrests), with Headwaters Forest  Def.  v. Cnty. of Humboldt, 276 F.3d 1125, 1130  

(9th Cir. 2002) (holding use of spray was excessive force when   used on nonviolent  

protesters who were easily moved by police and did not threaten or harm officers).  



         33        Russell , 258 P.3d at 808 n.63.  



                                                          -12-                                                    6855
  


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

                                                                                                                                      

[officer] safety" and is improper only when "suspects are cooperative and officers have  



                                                                   34  

no objective concerns for safety."                                      Here the officers handcuffed Daniel due to his  



                                                                  

"erratic behavior" and because he had been actively resisting them moments prior.  The  



                                                                                                                                                           

Ninth Circuit has held that prolonged use of handcuffs that are too tight, resulting in pain  



                                                            35  

                                                                but here the officers switched to looser handcuffs after       

or injury, may be unreasonable, 



Daniel complained and when they believed it was safe to do so.                                                            We therefore affirm the     



superior court's holding that the officers were entitled to qualified immunity for their   



reasonable use of handcuffs.  



                                                                                                                                        

                          The Lums argue that the officers' failure to provide water to ameliorate the  



                                             

effects  of  the  pepper  spray  violated  NSB  Police  Department  guidelines  and  was  



                                                                     

unreasonable.  But the NSB Police Department guidelines state that the subject may be  



                                                                                                                                

allowed cool water to rinse eyes.  The officers wiped Daniel's face,  brought him into the  



                                                        

wind, and reassured him that the effects would wear off naturally.  The officers' conduct  



                                                                                                                                                            

was reasonable and certainly does not violate clearly established law, unlike that of the  



                                                                                             

officers in Headwaters Forest Defense v. County of Humboldt who unreasonably refused  

to ameliorate pepper spray effects to coerce protesters to abandon their protest.36                                                                             We  



therefore affirm the superior court's holding that the officers are entitled to qualified  



immunity for their amelioration of the pepper spray's effects.  



             34           El-Ghazzawy v. Berthiaume , 636  F.3d  452, 459-60 (8th Cir. 2011); see also  



Seremeth v. Bd. of Cnty. Comm'rs Frederick Cnty., 673 F.3d 333, 340 (4th Cir. 2012)  

(stating use of handcuffs generally is a reasonable standard procedure during domestic  

                                                                                                  

disturbance  calls  as  officers  must  ensure  no  threat  exists  against  them  or  anyone  in  

home).  



             35  

                                                                                 

                          Meredith v. Erath , 342 F.3d  1057, 1063 (9th Cir. 2003); LaLonde , 204 F.  

3d at 960.  



             36           276 F.3d at 1131.  



                                                                               -13-                                                                          6855
  


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

                   Finally,  the  Lums  argue  that  the  officers  erred  in  failing  to  call  for  an  



ambulance immediately after Daniel complained of a possible heart attack.  NSB Police  

                                                                            



Department guidelines instruct that medical attention should be given for pepper spray  

                                               



if the subject requests it or if symptoms persist past 45 minutes; the officers called an  



ambulance about eight minutes after spraying Daniel, and it arrived ten minutes later.   



                                                                                                    

Because Daniel variously complained of a panic attack, heart attack, "freaking out," and  



hyperventilating during that time, the officers reasonably could have concluded that  



                                                                                                               

Daniel did not immediately need an ambulance to treat an ongoing heart attack, and  



because they called for an ambulance when it was clear that Daniel wanted one, we  



                                                               

affirm the superior court's holding that the officers are entitled to qualified immunity for  



their response to Daniel's request for an ambulance.  



                   We therefore affirm the superior court's summary judgment granting the  



officers qualified immunity for all of the Lums' excessive force claims.  



                           

          B.	       The Superior Court Did Not Err By Granting Summary Judgment On  

                    The Stated Unlawful Entry Claims, But It Should Have Considered  

                                                                                        

                    The  Trespass  And  Invasion  Of  Privacy   Claims  Raised  In  The  

                    Summary Judgment Proceedings.  



                    The superior court granted summary judgment for the officers on the Lums'  



claims for unlawful entry in violation of AS 12.25.100 and of article 1, sections 14  



(unreasonable search and seizure) and 22 (right to privacy) of the Alaska Constitution.  



                                                                                                                  

The court declined to address the unlawful entry as an excessive force claim and held  



                                                   

that  even  if  the  officers'  entry  were  unlawful,  the  constitutional  provisions  and  



                                                          

AS 12.25.100 did not provide a cause of action for damages.  The superior court also  



declined to address the common law trespass and invasion of privacy claims raised by  



the  Lums  for  the  first  time  in  their  opposition  to  summary  judgment.    Because  the  



                                    

superior court held that the Lums did not raise a valid unlawful entry claim, it did not  



                                                              

reach the question of whether the officers had qualified immunity.  On appeal the Lums  



                                                            -14-	                                                      6855
  


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

                                                            

contest  these  determinations,  and  also  claim  that  the  officers  did  not  have  qualified  

immunity because their entry was pretextual.37  



                       First, the superior court was correct to separate the unlawful entry claims  



                                                                                                          

from the excessive force claims addressed above.  The Lums fail to point to any case  



where an unlawful entry was considered under an excessive force analysis.  Although  



both claims have their roots in the Fourth Amendment and article 1, section 14 of the  



Alaska Constitution, they are substantively different issues with substantively different  

governing standards.38  



                                  

                      Next, the superior court was correct in rejecting the Lums' constitutional  



tort claim.  We have stated that we "will not allow a constitutional claim for damages,  



                                                                    

except in cases of flagrant constitutional violations where little or no alternative remedies  



                         39  

are available."              The alternative remedies do not need to provide the same level of  



                                                                                                            

protection,  "may  include  federal  remedies,"  "need  not  be  an  exact  match,"  and  are  



           37          See Samaniego v. City of Kodiak                       , 2 P.3d 78, 87 (Alaska 2000) (noting that   



qualified immunity to use force in making arrest would be nullified if basis for arrest  

were pretextual).  Whether an entry was pretextual affects the availability of a qualified  

                                                                                       

immunity defense, not the viability of a cause of action.  See Crawford v. Kemp, 139  

                                               

P.3d 1249, 1258-59 (Alaska 2006).  Because we hold that the Lums do not have a cause  

                                                                                                                              

of action for their unlawful entry claims and we remand the Lums' common law trespass  

and invasion of privacy claims, we do not need to decide whether the officers enjoy  

qualified immunity for those claims.  Therefore, we do not need to decide whether the  

                                                                                         

officers' entry was pretextual.  



           38          See Graham v. Connor, 490 U.S. 386, 394 (1989) (stating constitutional  



violations should be addressed "by reference to the specific constitutional standard which  

governs that right, rather than to some generalized 'excessive force' standard").  



           39         Larson v. State, Dep't of Corr ., 284 P.3d 1, 10 n.32 (Alaska 2012) (quoting  



Lowell v. Hayes , 117 P.3d 745, 753 (Alaska 2005)).  



                                                                      -15-                                                               6855
  


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

                                                                            40  

alternatives  even  if  no  longer  procedurally  available.                      Here  the  Lums  could  have  



brought a common law trespass claim or a federal civil rights action under 42 U.S.C.  



                                                                               

 1983, and these alternative remedies preclude a suit for damages under the Alaska  

Constitution.41  



                   Finally, the superior court was correct in ruling that the Lums may not  



recover tort damages under AS 12.25.100.  Alaska Statute 12.25.100, in conjunction with  



AS  12.35.040,  establishes  the  procedure  for  police  forcing  entry  when  executing  a  



            42 

                                                                                                        

warrant.        But as the superior court pointed out, the remedy for a violation of the statute  

is exclusion of illegally obtained evidence,43 not a private tort claim for damages.44  



                                                        

                   The Lums raised trespass and invasion of privacy claims for the first time  



in their opposition to summary judgment on the unlawful entry claims.  The Lums did  



      

not seek leave to amend their complaint to include these claims, and the superior court  



did  not  consider  them  in  granting  summary  judgment  on  the  Lums'  unlawful  entry  



                                                                     

claims.  The Lums argue that these claims were sufficiently raised in their complaint  



                                                                              

through their claim that the officers invaded the Lums' privacy by unlawfully entering  



their home.  



                                                                            

                   We have held that pleadings adequately raise a claim if they provide the  



         40        State, Dep't of Corr. v. Heisey, 271 P.3d 1082, 1096-98 (Alaska 2012).  



         41        See, e.g., Hertz v. Beach, 211 P.3d 668, 677 n.12 (Alaska 2009) (holding  



medical malpractice and federal constitutional law provided adequate remedies to redress  

inadequate dental treatment and therefore precluded state constitutional claims).  



         42       Davis v. State , 525 P.2d 541, 543 (Alaska 1974).  



         43       Berumen v. State , 182 P.3d 635, 642 (Alaska App. 2008).  



         44        See Peter v. Schumacher Enters., Inc, 22 P.3d 481, 489 (Alaska 2001)  



(laying out test for determining whether statute provides for private cause of action).  



                                                         -16-                                                    6855
  


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

                                                                                      45  

opponent  fair  notice  of  the  nature  of  the  case.      "[P]leadings  are  to  be  liberally  

                                                                                                        46   In Gamble v. Northstore  

                    

construed, with the goal being to achieve substantial justice." 



Partnership we held that affirmative defenses raised for the first time in an opposition  



                                       

to summary judgment were sufficiently pled because other defenses raised in the party's  



                                                                                                                                        

answer "invoke[d] some of the same concerns in more general terms" as those raised in  



                                                                                 

the opposition to summary judgment and thus the opposing party had fair notice of the  



                                47  

                                    Here the Lums' trespass and invasion of privacy claims implicate  

litigation's nature.                                                            



the same privacy concerns arising from the officers' warrantless entry as the Lums' other  



unlawful entry claims, and therefore put the officers on fair notice of the general type of  



litigation involved.  Although these claims were articulated very late in the proceedings,  



                                                                   

in light of our policy preference that decisions be based on the merits rather than on  



                                          48  

pleading  technicalities,                     we  remand  this  case  to  the  superior  court  for  further  



proceedings on these claims.  



            C.	        It Was Not Reversible Error To Strike Submitted Evidence From The  

                                             

                       Record.  



                       The Lums challenge the superior court's rejection of their attempts to file  

                                                                                                               



additional evidence after briefing and oral argument on summary judgment for qualified  

                                                                                          



immunity.    They  argue  that  the  court  should  have  imposed  lesser  sanctions  before  



            45	        See Gamble v. Northstore P'ship, 907 P.2d 477, 482 (Alaska 1995).  



            46	        Id.  



            47         Id. at 483.        "The standards governing the pleading of affirmative defenses        



under Rule 8(c) are no different than the liberal approach taken for all pleadings."  Id.  

at 482 (citing 5 CHARLES A.  WRIGHT  &  ARTHUR R.   MILLER ,   FEDERAL PRACTICE AND  

PROCEDURE   1274, at 455 (1990)).  



            48         Sea Hawk Seafoods, Inc. v. State                        , 215 P.3d 333, 340 (Alaska 2009) (citing     



Gamble, 907 P.2d at 483).  



                                                                       -17-	                                                                 6855
  


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

striking the evidence49 and that the evidence was timely because it was offered before the  

                                                                       



final qualified immunity order was issued.  



                                                                              

                   The officers respond that the Lums fail to make the required showing that  

the decision to exclude the evidence prejudicially affected their substantial rights.50  The  



officers also argue that the Lums did not comply with timeliness requirements when  



submitting the evidence and that if they needed additional time to obtain evidence, they  



                                                           51  

                                                                                                        

should have asked for it under Rule 56(f),                    which requires a showing of why the original  



                                        52  

time frame was inadequate.                  The challenged rulings are addressed in turn.  



                    1.	      Evidence   of   Daniel's  fear   of   Officer  Grimes  and   Officer  

                                                                                                          

                             Grimes's knowledge of Daniel's medical condition  



                   The Lums argue that the superior court erred by striking as untimely their  

                                                                                      



submission  of  supplemental  evidence  in  an  opposition  to  summary  judgment.    The  



                                                                                 

evidence was offered after oral argument, but before the superior court issued its decision  



                                                                                                

on qualified immunity.  The Lums argue the proffered evidence showing that Officer  



                                                   

Grimes knew about Daniel's back injury rebutted assertions that Daniel was physically  



                                                                                          

threatening to the officers at the time of their confrontation.  The Lums also argue that  



          49       See Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 326 (Alaska 2007)  



(citing Arbelovsky v. Ebasco Servs., Inc. , 922 P.2d 225, 227 (Alaska 1996)) (holding  

                                                                                           

courts must ordinarily impose lesser sanctions if available before striking evidence).  



          50       See Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 353 (Alaska  

                                                                                             

2012) (citing Noffke v. Perez , 178 P.3d 1141, 1147 (Alaska 2008)); Marron v. Stromstad ,  

123 P.3d 992, 998 (Alaska 2005) (citing Getchell v. Lodge, 65 P.3d 50, 53 (Alaska  

2003)).  



          51       See  Peterson  v.  State,  Dep't  of  Natural  Res.,  236  P.3d  355,  362  n.12  

                                                                                                                 

(Alaska 2010).  



          52       Mat-Su Reg'l Med. Ctr., LLC v. Burkhead , 225 P.3d 1097, 1104-05 (Alaska  



2010).  



                                                            -18-	                                                      6855
  


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

the evidence of prior encounters with police corroborated Daniel's testimony that he  



believed officers had shot at him during a previous incident, which helped explain his  



fearful and agitated reaction upon seeing the officers in his house.  



                                                                                  

                   But Officer Grimes's putative knowledge of Daniel's back problems and  



Daniel's putative fearful reaction to the officers' presence do not negate the objective  



reasonableness  of  the  officers'  conduct  in  taking  control  of  a  potentially  dangerous  



                                                                                                                    

situation in which Daniel was resisting the officers and barricading  himself  and his  



                                                                                                             

family  in  the bathroom.              Rejection  of the evidence was not prejudicial because  the  

evidence would not have substantially affected the superior court's decision.53  



                   2.        Polly Lum's deposition  



                   The superior court struck as untimely the Lums' filing of Polly's entire  



deposition  to  authenticate  the  portions  of  her  testimony  already  submitted  and  to  



                                                         

"complete the record." The deposition was taken more than six months before the Lums'  



summary  judgment  opposition,  but  the  evidence  was  offered  three  months  after  the  



                                                      

deadline for the summary judgment opposition with no explanation for the delay.  The  



                                                                                                          

Lums fail to explain why the transcript was pertinent or how its exclusion was prejudicial  



                        

in any manner. We therefore affirm the superior court's decision to strike this evidence.  



                   3.        Consolidated appendices  



                                                              

                   The superior court struck as untimely consolidated appendices submitted  



after  the  deadline  for  summary  judgment  opposition.    The  appendices  consisted  of  



                                                                                           

deposition testimony from relevant parties, much of which was already part of the record.  



                                                      

The Lums argue that the appendices should have been admitted but do not explain why  



        

they  delayed  in  filing  them,  how  the  excluded  evidence  was  relevant,  or  how  its  



          53       See  Barton,  268  P.3d  at  353-55  (holding  error  in  evidentiary  decision  



harmless as it would not have substantially affected outcome of case).  



                                                            -19-                                                          6855  


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

                                                                                                

exclusion was prejudicial.  We therefore affirm the superior court's decision to strike this  



evidence.  



                   4.	       Rebuttal evidence  



                                                                                                   

                   The superior court also struck the Lums' submission of "rebuttal evidence"  



                                                                                                

in response to the officers' submission of a police officer incident report attached to the  



NSB's opposition to the Lums' motion for reconsideration of the qualified immunity  



issue.  The Lums argue that the incident report was inadmissible hearsay because it  



                                                  

contains officers' statements that Polly appeared to be in fear and that Daniel appeared  



                                                      

to be withdrawing from methadone.  The Lums requested an opportunity to file rebuttal  



                                                                                                        

evidence consisting of Polly's affidavit describing the domestic dispute incident and the  



layout of the Lum residence, along with a video of the home which the Lums argued  



showed that the officers could not have seen Polly from their position.  



                           

                   But  the  incident  report  already  was  in  the  record  because  the  Lums  



themselves previously had filed it.  And the Lums fail to explain how the new evidence  



rebutting the report would have affected the superior court's determination on qualified  



immunity.  Further, the Lums cannot use reconsideration motions for "presentation of  



                                                                                                           

additional evidence on the merits" of the original motion but must argue based on the  

                      54  For these reasons, we affirm the superior court's decision to strike this  

existing record.                         



evidence.  



          D.	      The Superior Court Did Not Abuse Its Discretion By Denying The  

                   Lums' Rule 60(b)(2) Motion.  



                   In January 2011 the Lums filed a Rule 60(b)(2) motion for relief from the  

                                                                            



summary judgment decisions on excessive force and unlawful entry on the basis of  



                                                                                          

newly  discovered  evidence.    The  Lums  asked  the  court  to  accept  new  evidence  of  



          54  

                                                    

                   Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth. , 895 P.2d  

497, 506 (Alaska 1995).  



                                                            -20-	                                                        6855  


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

                                                                                                              

recorded statements given by Sgt. Gutierrez and Officer Grimes during an Alaska State  



Trooper investigation in 2007, less than three months after the initial incident.  The Lums  



                                                                                                          

argued that the evidence was newly discovered because they had not received a copy of  



it from NSB until after the court had ruled on all summary judgment motions.  They  



                                                   

argued that statements made in the interviews contradicted deposition testimony and  



showed  that  Daniel  had  accused  Officer  Grimes  of  dealing  methamphetamine  in  a  



previous encounter, supporting their assertion that the entry was pretextual.  



                                                                                                                           

                     The superior court denied the motion, concluding that the evidence did not  



                                                                                                    55 

                                                                                                        was not warranted.  

justify relief under Rule 60(b)(2) and that relaxation under Rule 94 



                                                 

The court stated that the Lums had failed to show how the evidence would change the  



summary  judgment  decision,  NSB's  error  in  not  producing  the  reports  sooner  was  



harmless because the Lums were aware of the investigation, and the evidence was not  



material because it did not support the claim that Officer Grimes had been accused of  



dealing methamphetamine prior to the incident.  



                     Motions for relief from judgment under Rule 60(b)(2) are reviewed for  



                                           

abuse of discretion, and the party seeking relief must show, among other things, that the  



                                                                                         

evidence would probably change the result and could not have been discovered earlier  



                           56  

                                               

by  due  diligence.               Because  the  Lums  did  not  explain  their  failure  to  discover  this  



                                                                        

transcript even though they were aware of the investigation and failed to show how the  



evidence would have changed the summary judgment decisions, we uphold the superior  



court's denial of this motion.  



          55         Rule 94 provides that the civil rules "may be relaxed or dispensed with by     



the court in any case where it shall be manifest to the court that a strict adherence to them   

will work injustice."  



          56        Babinec v. Yabuki, 799 P.2d 1325, 1332-33 (Alaska 1990).  



                                                               -21-                                                             6855  


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

V.       CONCLUSION  



                 We AFFIRM the superior court's evidentiary rulings and grant of summary  



                      

judgment on the excessive force and unlawful entry claims.  We AFFIRM the superior  



court's  denial  of  the  Lums'  Rule  60(b)(2)  motion.    We  REMAND  for  further  



proceedings on the Lums' late-raised trespass and invasion of privacy claims.  



                                                    -22-                                            6855
  

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