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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Samaniego v. City of Kodiak (5/19/00) sp-5275

Samaniego v. City of Kodiak (5/19/00) sp-5275

     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.


JULIA SAMANIEGO,              )
                              )    Supreme Court No. S-8189
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3KO-95-450 CI
WILLIAM D. MARSH, and         )
OFFICER MILTON BOHAC,         )    [No. 5275 - May 19, 2000]
               Appellees.     )   

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
                    Donald D. Hopwood, Judge.

          Appearances: Les S. Gara and Jeffrey A.
Friedman, Friedman, Rubin and White, Anchorage, for Appellant. 
Frank S. Koziol, Law Office of Frank S. Koziol, Anchorage, for

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          COMPTON, Justice.  

          Julia Samaniego sued the City of Kodiak and two of its
police officers.  She alleged that the officers had used excessive
force in arresting her, so that they were directly liable for
common-law assault.  She also argued that Kodiak was vicariously
liable under respondeat superior.  The superior court concluded
that the officers had qualified immunity and so granted summary
judgment to them and Kodiak.
          The superior court adopted a qualified-immunity rule
which emphasized the officers' subjective beliefs.  We reverse the
court's determination of the applicable law and remand for the
court to apply a different standard.  We announce an objective
standard based on the privilege to use force in making arrests,
which is codified in AS 11.81.370 and AS 12.25.070, as well as the
case law interpreting our qualified-immunity statute.
          Additionally, facts material to whether the officers'
conduct was privileged are sharply disputed.  The court's
memorandum explaining its summary judgment -- for which it did not
enumerate findings of fact -- improperly made several factual
assertions that disfavor the nonmoving party, Samaniego, and
contradict sworn testimony on material, genuinely disputed issues
of fact.  Therefore we reverse the summary judgment and remand for
          We recount Samaniego's version of the facts and disregard
allegations by the defendants that contradict sworn statements by
her and her daughter.  It must be borne in mind, though, that when
we analyze the issue of reasonableness of the use of force, 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.
     A.   The Arrest
          Kodiak Police Officer Milton Bohac pulled over a car with
a noisy muffler.  When he said over a police radio that the driver
had a California license and was named Jos‚ Mu¤oz, two Immigration
and Naturalization Service (INS) agents, Catherine Malapanes and
Stephanie Conway, decided to go investigate whether Mu¤oz and his
three passengers had documentation to prove that they were legally
in the United States.  Two of them apparently lacked such
documentation.  Agent Malapanes proceeded to arrest one of them. 
She handcuffed him and took him to Officer Bohac's car.
          While Agent Conway was in the process of arresting the
second person who also apparently lacked proper documentation,
Samaniego stopped her car across the street.  She was driving her
four children -- Martha (age fifteen), Korina (age fourteen),
Freddy (age eleven), and Veronica (age four) -- and her friend,
Lup‚ Crist.  Samaniego was forty-one years old, five feet two
inches tall, and weighed about 170 pounds.
          Samaniego called to one of the arrestees in Spanish, and
he replied in Spanish.  The record does not suggest that Officer
Bohac speaks Spanish.  Agent Conway finished handcuffing the second
arrestee and put him in Officer Bohac's car, while Agent Malapanes
crossed the street and asked Samaniego where she was from and
whether she had ID.  Samaniego replied that she was from Mexico,
and that she did not have her permanent resident card or other ID
with her.  Apparently, Samaniego had left this documentation at
          Kodiak Police Sergeant William Marsh pulled up in his
car, and Officer Bohac directed him across the street.  As Sergeant
Marsh approached, Samaniego pointed at him and said, "You know who
I am," and Marsh recalled that he did and said that she looked
vaguely familiar.  Agent Malapanes then told Sergeant Marsh that
Samaniego had said that she had no ID and asked him to intervene in
questioning her.  Sergeant Marsh asked Samaniego if she had any ID,
she replied that she did not; he asked the passengers if any of
them did, they said that they did not, and he said, "I'm going to
take you all to jail 'til you can identify yourselves." 
          Sergeant Marsh then told Samaniego, "Okay, get out of the
car.  Turn off the car and get out or I'm going to do it for you."
The car was parked almost in the roadway.  Samaniego said, "OK."
She then reached for the gear shift.  Sergeant Marsh grabbed her
arm, turned off the ignition, opened the door, and pulled her out.
He led her behind the car, while the INS agents continued
investigating its occupants.  Agent Conway questioned the Samaniego
children, who were in the back seat, and then joined Agent
Malapanes in questioning Mrs. Crist, who had left the car.
          Sergeant Marsh, meanwhile, told Samaniego that she didn't
have to worry about not having her driver's license and "just
need[ed] to cooperate with the INS agents."  She told him that she
had no problem with the police, but that she did have a problem
with the INS, who harass her whenever she comes to town.  She was
annoyed but, as Sergeant Marsh concedes, calm.
          At this point, fifteen-year-old Martha Samaniego got out
of the back seat and walked past the back of the car, passing
Sergeant Marsh on his left.  Her mother asked her in English where
she was going; she replied that she was going to get the papers.
Sergeant Marsh turned and grabbed Martha's left arm, spinning her
to her right and causing her to stumble, and said that she wasn't
going anywhere and should get back into the car until the INS was
done talking to her.  Samaniego then stepped between her daughter
and Sergeant Marsh, extending her arms to her sides to keep Martha
behind her and repeatedly telling Marsh not to touch Martha.
Samaniego did not touch Sergeant Marsh in so doing.  He then told
Samaniego, "you're under arrest" and tried to grab her wrist; she
flicked her wrist or otherwise pulled away from his grasp at least
twice, saying, "no, leave me alone."  He eventually grabbed her
left hand, pulled it behind her, and handcuffed it.
          The rapid sequence of events that followed is not fully
          Holding Samaniego's handcuffed left arm behind her,
Sergeant Marsh began walking her, or attempting to walk her, to the
back of the car.  Samaniego's shirt had ridden up her torso; Martha
tried to pull it down but one of the INS agents grabbed her and
held her arms behind her.  As Sergeant Marsh walked Samaniego to
the back of the car, her right arm was "flying around"; she may
have been trying to pull down her shirt, Martha later explained. 
Samaniego did not actively resist having her right hand cuffed,
though she did not facilitate its cuffing by putting it behind her
at that point.
          As he walked Samaniego to the back of the car, Sergeant
Marsh twice used a hand-held, 50,000-volt stun gun on the base of
her neck, inflicting pain.  Though she struggled in response to the
pain, she did not try to hit or kick Sergeant Marsh, nor did she
balk at moving where he directed her.
          Sergeant Marsh then threw Samaniego against the trunk of
the car; she tried to use her right hand to keep her face from
hitting the car, but her face struck the trunk anyway.  Sergeant
Marsh soon thereafter pressed her head down and used the stun gun
on her neck at least once more, possibly twice.  Samaniego did not
clearly specify when each use of the stun gun occurred, but she
said that it was used a total of five times.
          Officer Bohac came to where Sergeant Marsh was holding 
Samaniego, possibly directing him to use the stun gun again.  By
this time, Samaniego's children, and perhaps other people, were
screaming.  At this point, Fish and Wildlife Protection Officer Ron
Nelson arrived at the scene, identified himself, and told the
police he would assist.  They directed his attention to what he
later deemed "the crowd," presumably the Samaniego children, Mrs.
Crist, and perhaps Mr. Mu¤oz and the passenger in his car who had
not been arrested.  Officer Nelson stood between "the crowd" and
the police.
          After Sergeant Marsh stunned her either for the third or
fourth time, Samaniego stood up straight and closed her eyes, with
both hands behind her.  Officer Bohac then threw her to the ground
by putting his foot in front of her and pushing her.  He got on top
of her, put his knee on her neck and pressed down with increasing
force in order to cause pain, and eventually handcuffed her.  At
some point during the arrest the officers' acts bloodied
Samaniego's mouth, injured her nose, and caused pain that made her
scream and cry.  The stun gun bruised her neck.
          Samaniego said in a deposition that, after she was fully
handcuffed, and while Officer Bohac was on top of her, Sergeant
Marsh stunned her neck one more time.  She also said that one of
the officers' acts while she was pinned on the ground broke her
     B.   The Criminal Proceeding
          The police charged Samaniego with fourth-degree assault,
[Fn. 1] disorderly conduct (i.e., "challeng[ing] another to fight
or engag[ing] in fighting other than in self defense" [Fn. 2]), and
forcibly resisting or interfering with an arrest. [Fn. 3]  At her
criminal trial, she conceded that she had resisted Sergeant Marsh's
initial attempt to grab her wrist after he had told her that she
was under arrest. A jury acquitted her of assault and disorderly
conduct, but convicted her of resisting or interfering with an
     C.   The Civil Suit
          Samaniego sued the City of Kodiak, [Fn. 4] as well as
Officer Bohac and Sergeant Marsh, [Fn. 5] in tort, alleging that
the officers had "use[d] excessive force in arresting [her]" (i.e.,
committed an assault for which the privilege to use reasonable
force in making an arrest was no defense), and that the City had
negligently supplied Sergeant Marsh with a stun gun without
training him in its proper use.  She later abandoned her failure-
to-train claim.  The superior court treated her complaint as
raising a vicarious-liability (i.e., respondeat superior) claim
against Kodiak based on its employment of the officers. [Fn. 6]
          Defendants unsuccessfully sought summary judgment on the
basis that Samaniego's conviction for resisting arrest collaterally
estopped her from arguing that the officers had used excessive
force during that arrest.  They then moved for summary judgment on
the ground that the officers possessed qualified immunity from
suit.  The superior court set forth its view of Alaska's law of
qualified immunity in a memorandum and ordered the parties to
supplement their briefing.  It then granted summary judgment on the
basis of qualified immunity.  Samaniego appeals.
     A.   Standards of Review
          We review summary judgments de novo, drawing all
reasonable inferences in favor of the nonmoving party (i.e.,
Samaniego) and viewing all facts in the light most favorable to
her. [Fn. 7]  We make no attempt to weigh the evidence or evaluate
the credibility of witnesses, and we assume that all facts set
forth in the nonmoving party's affidavits are true and capable of
proof. [Fn. 8]  We determine whether the parties genuinely dispute
any material facts and, if not, whether the undisputed facts
entitle the moving party (i.e., Kodiak and the officers) to
judgment as a matter of law. [Fn. 9]   We use our independent
judgment to resolve the legal questions raised by this case,
adopting the rules that best reflect precedent, policy, and reason.
[Fn. 10] 
     B.   Common-Law Excessive Force Actions Implicate the
Objective Reasonableness Standard of the Officers' Privilege and
Qualified Immunity.
          Because the court below misconstrued the law to be
applied when peace officers assert the defense of "immunity" or
"privilege" against claims of excessive force when making arrests,
the court erroneously granted the defendants summary judgment.
          The officers' privilege to use force when making arrests
is codified in AS 11.81.370 and AS 12.25.070.  Alaska Statute
11.81.370 states in part that "a peace officer may use nondeadly
force . . . when and to the extent the officer reasonably believes
it necessary to make an arrest."  Alaska Statute 12.25.070 states
in part that officers "may not subject a person arrested to greater
restraint than is necessary and proper for the arrest and detention
of the person."  Read together, these statutes give police officers
a privilege to use reasonable force in making arrests.
          As these statutes make clear, privilege analysis has both
subjective and objective components.  With respect to AS 11.81.370,
the court must inquire into whether the police officer had a
subjective belief that the level of force was necessary.  This
belief must also be objectively reasonable.  Alaska Statute
12.25.070, on the other hand, codifies a privilege for "necessary
and proper" levels of force, with no mention of the officer's
personal beliefs.  The court must therefore inquire into the
objective reasonableness of the officer's conduct itself. 
Regardless of whether the individual officer actually believed that
his use of force was reasonable -- and regardless of the
reasonableness of that belief -- the officer is not privileged to
use an objectively unreasonable level of force in making an arrest.
          Apart from this privilege, police officers, as municipal
officials, concurrently enjoy qualified immunity for certain
discretionary actions.  Under AS 09.65.070(d), "[a]n action for
damages may not be brought against a municipality or any of its
agents, officers, or employees if the claim . . . (2) is based upon
the exercise or performance or the failure to exercise or perform
a discretionary function or duty by a municipality or its agents,
officers, or employees, whether or not the discretion involved is
abused."  For purposes of official immunity, "discretionary"
actions are those that require "personal deliberation, decision and
judgment." [Fn. 11]  An officer's use of a certain level of force
in making an arrest will almost invariably be characterized as a
discretionary, rather than a ministerial, function. [Fn. 12]
          In excessive force claims, the complainant alleges that
police officers have exceeded the scope of their privilege codified
in AS 11.81.370 and AS 12.25.070.  We analyze qualified immunity in
the context of alleged statutory violations under Breck v. Ulmer.
[Fn. 13] There we adopted the federal Harlow v. Fitzgerald [Fn. 14]
test for official immunity. [Fn. 15]  Under this standard, "the
relevant inquiry is whether a reasonable official could have
believed the challenged conduct was lawful in light of clearly
established law and the facts of the case." [Fn. 16]  In other
words, "[w]hether an official may prevail in his qualified immunity
defense depends upon the 'objective reasonableness of his
conduct.'" [Fn. 17]  Because objective reasonableness is required,
officers do not enjoy immunity on account of their subjective good
faith alone. [Fn. 18]
          Therefore, in the context of excessive force claims, the
substantive analysis under Breck and Harlow for qualified immunity
merges with the privilege analysis. [Fn. 19]  Each analysis
requires the trial court to focus on whether the level of force
used by the police officer in making an arrest was objectively
reasonable under the totality of the circumstances. [Fn. 20]   We
emphasize, though, that the reasonableness of an officer's actions
is to be assessed in light of all the relevant circumstances of the
case at hand.
     C.   Summary Judgment Was Erroneous.
          Given the preceding discussion, we examine the propriety
of the summary judgment in a different light than the trial court
did.  The relevant inquiry is whether -- resolving all factual
disputes in Samaniego's favor -- it can be said as a matter of law
that no reasonable jury would find the officers' use of force to be
excessive.  As discussed below, this cannot be said.
          Further, the trial court committed several other errors
in granting summary judgment to the defendants.  First, it failed
to adhere to the requirement that it resolve all factual disputes
in favor of the non-movant when ruling on a summary judgment
motion.  Second, it made an insupportable judgment as a matter of
law on the reasonableness of the officers' belief that "the crowd"
at the scene posed such a threat to them as to justify additional
force against Samaniego.  Finally, the court did not conclusively
address one of Samaniego's theories of the case -- namely, that the
arrest itself was invalid and the officers thus forfeited any
privilege they might otherwise have had -- although this theory is
ultimately unavailing.
          1.   Presuming the arrest was valid, it cannot be said
that no reasonable jury would find that the officers' use of force
was excessive.
               a.   The superior court's analysis

          Summary judgment was improper here, because Samaniego
submitted sworn testimony and depositions from herself and her
daughter asserting that (1) she did not touch Sergeant Marsh when
she interposed herself between him and Martha; (2) she never hit
Sergeant Marsh or, as he has alleged, grabbed his testicles during
the arrest; and (3) after her initial resistance to his attempt to
grab her left hand, she did not thereafter resist being arrested
and handcuffed, although she was struggling in response to the pain
caused by the stun gun and by being manhandled.
          Despite this evidence, the superior court stated, in its
memorandum order granting summary judgment, that "Officer Marsh
. . . advised Samaniego that she was under arrest for disorderly
conduct.  Thereafter, Samaniego fully resisted . . . ." (emphasis
added); "Samaniego was actively resisting a lawful arrest"
(emphasis added); and "[Mrs. Samaniego] forcibly interfered in the
detention of Martha Samaniego" (emphasis added).  These factual
findings alone warrant reversal, because in making them the court
did not portray the facts in the light most favorable to the
          Further, the superior court emphasized a theory, based on
the law enforcement officers' testimony as to their subjective
beliefs, that "the situation was explosive"; that there was "a very
tense and explosive situation involving agitated participants and
a gathering crowd"; and that there was "an immediate threat to the
safety of everyone involved."  The court never discussed the
objective reasonableness of this theory.  It never specified who
was in the "gathering crowd."  Again, the court's description of
this element of the arrest cannot be said to portray the facts in
the light most favorable to the nonmoving party.
          This is so because of the court's focus on Officer
Nelson's subjective impressions of the scene.  On a summary
judgment motion, Officer Bohac's and Sergeant Marsh's privilege
depends on what a reasonable officer viewing the situation in the
light most favorable to Samaniego could have believed, not on what
the officers testified that they subjectively believed, or, a
fortiori, on what Officer Nelson testified as to his assessment of
the situation.  Nelson's subjective belief is two steps removed
from establishing as a matter of law that a reasonable officer in
the position of Officer Bohac and Sergeant Marsh could have
believed that his or her safety was endangered.  The record implies
that the "crowd" that the court reasoned was threatening to the
officers comprised:  Jos‚ Mu¤oz and the one passenger who had not
been arrested; Mrs. Crist; and the four Samaniego children -- the
two adolescent girls and their younger siblings. [Fn. 21]  The
officers who were threatened by this "crowd" comprised the two
armed INS agents and three armed police officers.  It cannot be
said that a reasonable jury would inevitably find that the officers
were reasonable in thinking that this "gathering crowd" posed a
threat to the five armed law enforcement officers on the scene,
justifying a greater use of force than would otherwise be
reasonable in arresting a five-feet-two-inch unarmed woman. 
Nevertheless, in granting the defendants' summary judgment motion
based in part on the perceived "dangerousness" of the "crowd," this
is exactly what the court did.  This was error.
          The third problematic part of the court's analysis is its
conclusion that Sergeant Marsh's use of the stun gun a final time
after Samaniego was handcuffed (a) should be analyzed separately
from the other force used and (b) when so analyzed, was de minimis
as a matter of law.  This confusion is a product of the superior
court's overall analytic method, and that of defendants on appeal. 
That method is to break down the total force used and to assert
that no clearly established law barred each particular technique
(the use of the stun gun, the knee-in-the-neck pain compliance
technique, etc.). [Fn. 22]
          Samaniego does not argue that any of the officers'
techniques, when viewed in isolation, was unreasonable.  Rather,
she argues that the sum of the force used -- in light of the
provocation, the seriousness of her crimes, and other circumstances
-- was excessive.  While the answer to this question is properly
left to a jury, Samaniego has framed the inquiry correctly.  The
proper inquiry on an excessive force claim must be whether the
entirety of the force used was reasonable, as we elaborate below.
[Fn. 23]
               b.   Analysis of plaintiff's version of facts
          In conducting this inquiry, a 1989 United States Supreme
Court opinion is helpful.  In Graham v. Conner, [Fn. 24] the Court
held that federal courts must address all excessive-force claims
under an "objective reasonableness" standard. [Fn. 25]  While a
court must ultimately evaluate the totality of the circumstances,
the Court outlined three considerations to frame the inquiry:
first, the severity of the crime; second, whether the suspect
immediately threatens the safety of the police or others; and
third, whether he or she is actively resisting or fleeing arrest.
[Fn. 26]  This framework is persuasive, and we adopt it as an
elaboration of our common-law standard of reasonable force. 
          Viewing the facts in the light most favoring Samaniego
and resolving all disputes in her favor -- as we must when we
review a grant of summary judgment -- the Graham factors all favor
her.  First, her crimes, accepting as we must her claim not to have
hit Sergeant Marsh, were only (1) disorderly conduct in challenging
him, and (2) resisting arrest by pulling her wrist away and saying,
"no, leave me alone."  These are but mild instances of minor
          Second, as for resistance or flight, it is undisputed
that Samaniego struggled and did not affirmatively cooperate with
her handcuffing.  Thus she can be said to have resisted arrest,
even viewing the facts in the light most favorable to her. 
However, she did so in a very low-level way -- she never struck or
fled from or brandished a weapon at the officers.  Such mild
struggling will not bar an excessive-force claim. [Fn. 27]
          Third, the record does not suggest that the officers had
any basis for suspecting that Samaniego herself posed an immediate
threat to their safety.
          Beyond Graham's three enumerated considerations,
defendants rely on one other circumstance within the totality of
the case -- the vicarious threat she posed, as it were, because of
the "safety hazard to Marsh due to the crowd surrounding the
officers, according to an independent witness (Nelson)."  This
argument lacks merit.  Given the standard we have announced above,
the defendants' theory must be that a reasonable jury would
inevitably decide that reasonable police officers in their position
would have perceived the "crowd" (two theretofore-cooperative men,
a woman, and four children), none of whose members was armed, as a
threat to their safety.  Nelson's subjective impression, based on
incomplete information, does not establish that no reasonable jury
could reject that theory.
          In short, the superior court's factual findings were in
contravention of the nonmoving party's evidence, and thus warrant
reversal in and of themselves.  Further, reviewing the evidence de
novo, it was error to decide that no reasonable jury would have
found that the officers' use of force was excessive in the totality
of the circumstances.
          2.   The possibility that the arrest was invalid
          Samaniego argues briefly on appeal that Sergeant Marsh's
arrest of her was unlawful and so, under AS 11.81.370(b), he had no
privilege to use any force against her, and reversal (at least as
to him [Fn. 28]) is required as a matter of law.  The superior
court did not address this theory of the case at all, other than to
assert in conclusory fashion that Samaniego "is guilty of resisting
a lawful arrest." [Fn. 29]  (Emphasis added.) 
          Samaniego's theory is unavailing, however.  Even if
Marsh's announced arrest of Samaniego for disorderly conduct was
illegal, once she resisted his attempt to grab her wrist, she
thereby committed the additional offense of resisting arrest,
regardless of the arrest's illegality. [Fn. 30]  Marsh then had
probable cause to arrest her for that, and a privilege to use
reasonable force to do so.
          The only way that the illegality of the initial arrest
could matter is if Samaniego could prove that it was pretextual and
that this fact nullified the privilege Marsh would otherwise have
had to use force to arrest her for the offense of resisting arrest.
However, Samaniego has waived this argument. [Fn. 31]  Thus,
whatever the scope of the privilege, the officers did not forfeit
it by illegally arresting Samaniego.
     D.   Samaniego Is Not Collaterally Estopped to Argue that the
Officers Used Excessive Force in Arresting Her.

          Samaniego was convicted of resisting arrest.  Defendants
note that it is a defense to that crime that the arrestee "may use
nondeadly force upon a peace officer when and to the extent [the
arrestee] reasonably believes the peace officer is using
unreasonable and excessive force."  This, in any event, was the
jury instruction given in Samaniego's criminal trial, and she does
not challenge it here.  The defendants further note that Samaniego
argued such a defense to the jury, and the State necessarily
disproved it beyond a reasonable doubt.  Therefore, the defendants
argue, Samaniego is barred from now arguing that the police
officers used unreasonable force in arresting her.
          Defendants' argument sweeps too broadly, however, as
Samaniego shows.  The only relevant requirements of collateral
estoppel here are that the issue "have been actually litigated and
determined in the first action . . . and the determination must
have been essential to the judgment." [Fn. 32]  These requirements
have not been satisfied here.
          This is so because of the following: (1) the jury
instruction said that a person may use nondeadly force "when . . .
she reasonably believes the peace officer is using unreasonable and
excessive force"; (2) Samaniego conceded in her criminal trial that
she resisted Sergeant Marsh's attempt to grab her wrist when he
first announced that she was under arrest; (3) she did not argue
that he had theretofore used "unreasonable and excessive force";
and (4) the jury could have concluded that she committed the
offense of resisting arrest as of the moment she pulled her wrist
away, and so need not have reached any conclusion about whether the
force that the police used after that moment was excessive. 
Because any such determination, if it was even made, was therefore
not necessary to the jury's decision, it does not bar Samaniego's
instant claim.
          It is beyond dispute that police officers, in pursuit of
their dangerous and important jobs, are often forced to make
difficult decisions regarding the use of force.  By extending a
privilege to these officers to use force in making an arrest, our
courts and legislature have recognized this reality.
          Our legal system, however, must not insulate police
officers from liability as to allow them to violate such a 
fundamental human right -- the right to bodily integrity.  Thus, if
an officer uses unreasonable force, he or she is liable for
damages.  The standard of reasonableness incorporates respect for
the difficult decisions police must make, since the jury's inquiry
takes the specific circumstances of the arrest into account. [Fn.
33]  Any concerns, such as those voiced by the court below, that
officers will be "second-guessed" by lawyers and judges with 20/20
hindsight are thereby ameliorated.  Juries properly instructed to
consider these often confused and dangerous situations are unlikely
to hold officers liable for reasonable uses of force.
          We hold that the proper analysis of defendant officers'
claims of privilege to rebut excessive-force allegations, pursuant
to AS 11.81.370 and AS 12.25.070, is to examine the objective
reasonableness of the officers' use of force in making an arrest. 
It was error to apply an immunity analysis driven by the officers'
subjective beliefs as to the reasonableness of the force used.  The
lower court also erred in deciding that there were no material
issues of disputed fact.  The summary judgment is REVERSED.  We
REMAND for further proceedings consistent with this opinion.


Footnote 1:

     See AS 11.41.230(a)(1).

Footnote 2:

     AS 11.61.110(a)(5).

Footnote 3:

     See AS 11.56.700(a)(1).

Footnote 4:

     Samaniego also named the Kodiak Police Department as a
defendant, but it is simply a branch of the City.

Footnote 5:

     Samaniego's complaint did not specify whether she was suing
Officer Bohac and Sergeant Marsh in their individual or official
capacities, or both, but defendants have explicitly waived any
argument that we should read her complaint only to make official-
capacity claims.

Footnote 6:

     The complaint mentioned no such claim, charging the City only
with direct liability on a negligent entrustment/failure-to-train
theory, but the City has chosen to concede that the complaint "can
be reasonably read to include a vicarious liability claim against
the City."

Footnote 7:

     See Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1167 n.3
(Alaska 1998) (citing Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d
763, 765 (Alaska 1987)).

Footnote 8:

     See id. 

Footnote 9:

     See Maddox v. River & Sea Marine, Inc., 925 P.2d 1033, 1035
(Alaska 1996).

Footnote 10:

     See Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948
P.2d 963, 966 (Alaska 1997).

Footnote 11:

     Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 155
(Alaska 1987) (internal quotations omitted).  In contrast,
discretionary actions in the sovereign immunity context involve
broad planning and policy formulations.  See id.

Footnote 12:

     A legion of judicial decisions discuss the difficult judgment
calls involved in deciding how much force to use in making an
arrest.  See, e.g., Graham v. Connor, 490 U.S. 386, 397 (1989)
("[P]olice officers are often forced to make split-second judgments
-- in circumstances that are tense, uncertain, and rapidly evolving
-- about the amount of force that is necessary in a particular
situation."); Miller v. State, 462 P.2d 421, 427 (Alaska 1969)
(noting that we can judge the use of force in an arrest "only [by]
elastic standards . . . as so much depends upon the exigencies of
the situation, the gravity of the offense, and the amount of force
and counterforce used or threatened"); see also Louis L. Jaffe,
Suits Against Governments and Officers: Damage Actions, 77 Harv. L.
Rev. 209, 218 19 (1969) (finding it "particularly clear" that
police officers exercise "more than a 'merely ministerial
function'" in making arrests; they "are called upon to make
extremely difficult factual choices, and important, if
unarticulated, policy decisions").

Footnote 13:

     745 P.2d 66 (Alaska 1987).  Although Breck did not address
this specific statutory provision, we have subsequently held that
the Breck analysis applies to claims of qualified immunity under AS
09.65.070(d)(2).  See Integrated Resources Equity Corp. v.
Fairbanks N. Star Borough, 799 P.2d 295, 301-02 (Alaska 1990). 

Footnote 14:

     457 U.S. 800 (1982).

Footnote 15:

     See Breck, 745 P.2d at 71-72.

Footnote 16:

     Mathis v. Sauser, 942 P.2d 1117, 1125 (Alaska 1997) (citing
Anderson v. Creighton, 483 U.S. 635, 639 (1987)).

Footnote 17:

     Davis v. Scherer, 468 U.S. 183, 191 (1984) (quoting Harlow,
457 U.S. at 818). 

Footnote 18:

     Cf. City of Nome v. Ailak, 570 P.2d 162, 171-72 (Alaska 1977)
(noting that any good faith defense to false arrest claim must have
an objective component); Miller, 462 P.2d at 426-27 (noting that
false imprisonment or false arrest claims are available for
unlawful peaceful arrests effectuated in good faith).

Footnote 19:

     See Katz v. United States, 194 F.3d 962, 968 (9th Cir. 1999)
("[T]he inquiry as to whether officers are entitled to qualified
immunity for the use of excessive force is the same as the inquiry
on the merits of the excessive force claim.") (quoting Alexander v.
County of Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 1995)).

Footnote 20:

     See id. at 968 ("Both the second prong of the qualified
immunity defense (whether a reasonable officer could have believed
his conduct was lawful), and the merits of an excessive force claim
focus on the objective reasonableness of the officer's conduct.").

Footnote 21:

     We do not, for obvious reasons, include the two men who were
handcuffed inside Officer Bohac's car in this tally.

Footnote 22:

     Cf. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) ("Perry
urges what amounts to a segmented view of the sequence of events .
. . [in which] each distinct act of force becomes reasonable . . .
. This approach misses the forest for the trees.  The better way to
assess the objective reasonableness of force is to view it in full
context, with an eye toward the proportionality of the force in
light of all the circumstances.").

Footnote 23:

     The court also emphasized the fact that it was in her November
1996 deposition that Samaniego first alleged that Sergeant Marsh
stunned her after she was handcuffed.  Possibly, the court
commented on this fact to indicate that it reflected badly on
Samaniego's credibility.  On summary judgment, however, a court is
not to weigh the credibility of witnesses.  See, e.g., Sykes v.
Melba Creek Mining, Inc., 952 P.2d 1164, 1167 n.3 (Alaska 1998).

Footnote 24:

     490 U.S. 386 (1989).

Footnote 25:

     See id. at 395.  

Footnote 26:

     See id. at 396.

Footnote 27:

     See James O. Pearson, Jr., Annotation, Peace Officer's Civil
Liability for Death or Personal Injuries Caused by Intentional
Force in Arresting Misdemeanant, 83 A.L.R.3d 238, 245 47 (1978)
(surveying state common-law cases and noting that, while "it is
difficult to isolate individual factors as being determinative," a
finding of excessive force seems to relate to whether "the suspect
actually struck, as opposed to merely resisting, the arresting

Footnote 28:

     She does not argue that Officer Bohac knew or reasonably
should have known that Sergeant Marsh's arrest of her was illegal,
such that Bohac would forfeit any privilege as well.

Footnote 29:

     The offense of resisting arrest does not require that the
arrest be lawful, see AS 11.56.700, and Samaniego's conviction thus
does not collaterally estop her to argue that the arrest was
unlawful.  The court's order does not explain why it concluded that
her arrest was "lawful."

Footnote 30:

     See Miller v. State, 462 P.2d 421, 426 27 (Alaska 1969). 

Footnote 31:

     Samaniego claims that Sergeant Marsh's initial detentions of
her and Martha were illegal attempts to aid an INS fishing
expedition conducted without a reasonable, articulable suspicion
that she or her passengers lacked proper documentation.  She notes
that "the arrest was additionally illegal because the stop leading
to it was illegal."  This could raise a host of thorny Fourth
Amendment/poisonous-tree issues, but in fact it does not, for she
has waived any such claim.  She prefaces her discussion of the
detention's illegality by saying it is "not necessary to resolution
of this claim" and concludes that "[r]egardless of whether Marsh's
initial stop of Samaniego was justifiable, the arrest was not." 

Footnote 32:

     DeNardo v. Anchorage, 775 P.2d 515, 517 (Alaska 1989)
(emphasis added); accord Scott v. Robertson, 583 P.2d 188, 191 92
(Alaska 1978) (requiring, for criminal conviction to have
collateral estoppel effect, that "it [be] shown that the issue on
which the judgment is offered was necessarily decided in the
previous trial") (emphasis added).

Footnote 33:

     See, e.g., Dauffenbach v. City of Wichita, 667 P.2d 380,
386 87 (Kan. 1983); see Pearson, supra note 27, at 247 49.