Alaska Employment Law

What is proper standard: “deliberate indifference” or “shocks the conscience”? 

Judge John Sedwick has held that parents stated a claim under 42 USC § 1983 against a State Trooper who shot their adult son.  The son was in a stopped car in a pull-out on the Sterling Highway.  After the son refused to get out of the car, was pepper sprayed and again refused to get out of the car, the Trooper shot the driver five times. 

Sedwick first held that the First Amendment protects the “familial association” between the parents and their adult son.  Next, he held that the proper standard was the “deliberate indifference” standard applicable to situations where the actor had time to “deliberate,” rather than the “shocks the conscience” standard used in emergency or high-speed chase situations.  Because the constitutional law on police shootings was “clearly established,” Sedwick denied the State’s summary judgment motion on the Trooper’s qualified immunity. He also dismissed the claims against a second, by-stander Trooper.

The parents also sued for loss of consortium and emotional distress under both Alaska common law and the Alaska Constitution.  The court granted summary judgment against the parents on both claims.

Porter v. Osborn, 2007 WL 2774379 (D.Alaska Sept. 24, 2007).

Mark Osterman of Kenai represents the parents. David Floerchinger of the Anchorage AG’s office represents the Troopers.