Alaska Employment Law

The plaintiff Personal Representative claimed that a village police officer had caused the death of the decedent by using excessive force - a bear hug and a “take down.”  The police officer claimed qualified immunity, presumably under AS 09.65.070.  Judge Michael Jeffery entered summary judgment for the officer.  On appeal, the State of Alaska filed an amicus brief in support of the officer.  The Supreme Court has now affirmed Judge Jeffery.

The Supreme Court first reiterates that it “usually follows federal case law in the area of qualified immunity.”  But the Court then faces the tension between its opinion in Samaniego v. City of Kodiak, 2 P.3d 78 (Alaska 2000), and the U. S. Supreme Court’s opinion in Saucier v. Katz, 533 U.S. 194 (2001).  At some length, the Alaska Court reconciles the two by holding that some “muddy” language in Justice Compton’s opinion in Samaniego actually means exactly what the U. S. Supreme Court held a year later in Saucier - that a police officer who reasonably errs in believing that a certain kind of force was appropriate, even if the belief is not objectively reasonable, is protected by qualified immunity.  The Court, thus, rejects the State’s request that it explicitly overrule Samaniego.

When the Court applies the “reasonably believe” standard to the officer’s conduct, it rejects reliance on statutes (here, AS 11.81.370 and AS 12.25.070) that are too “general.”  The Court then “look[s] to our own jurisdiction and other jurisdictions to see if there are any cases, law, or regulations which would suggest that the type of action taken by the officer is considered unlawful.”  Finding only a federal district court case from Idaho, it notes that “the lack of evidence from other jurisdictions that a bear hug and a take down would be unlawful is telling.” 

the silence speaks even louder in this case.  Even supposing that the hypothetical reasonable Alaska police officer should be informed about district court cases from Idaho, we find much more persuasive the fact that there is no clear case or law or regulation from Alaska, or from anywhere else, that says that a bear hug and a take down are excessive uses of force when applied to an intoxicated and assaultive arrestee.

That leaves the PR one remaining hope of defeating qualified immunity - the “common sense” question of whether the officer’s conduct was “so egregious, so excessive” that the officer should have known it was impermissible, despite the absence of legal authority.  The Court holds for the officer:

Althought the series of events in this case resulted in tragedy, Jones’s conduct was not shocking  He did not do anything we can now, on reflection, say that he should have known at the time was excessive and unlawful.  Cognizant of the reality that officers must often make quick judgments which might have unanticipated consequences, we must resist the urge to second guess those actions when things turn out badly.

Finally, despite the Alaska Court’s statement of general allegiance to the federal law of qualified immunity, the Court does question the “order of battle” rule in Saucier - that a court faced with a defense of qualified immunity must first decide the liability question - whether the defendant violated the constitutional provision at stake - and only thereafter address the immunity question.  See n. 37.  Justice Matthews, writing for the three-member Court (Fabe and Bryner did not participate), cites the concurring opinion of Breyer, joined by Ginsberg and Scalia, in Brosseau v. Haugen, 543 U.S. 194 (2004).  [See this recent AEL post on the same subject.]  Matthews writes:

In the present case the order in which the relevant issues should be decided is not in question.  We therefore have no occasion to decide whether to adopt this aspect of the Saucier opinion.

Sheldon v. City of Ambler, Op. No. 6238 (Alaska Mar. 14, 2008)

The late C. R. (Neil) Kennelly represented the PR.  Howard Trickey and Matthew Singer of JDO represented the City.  Mary Ann Lundquist of the Fairbanks AG’s office represented the State as amicus.