Lum v. Koles
314 P.3d 546
Alaska2013Background
- In Sept. 2007 NSB officers responded to a 911 welfare check reporting a domestic disturbance and children crying at the Lums’ duplex. Officers entered the Lums’ unit via the common hallway without knocking or announcing.
- Upon entry officers encountered Daniel Lum in a bathroom with his wife and infant; he attempted to close the door and was pepper-sprayed once, subdued, and handcuffed. No criminal charges resulted.
- The Lums sued officers for excessive force and unlawful entry (Alaska Constitution and AS 12.25.100); they sued the borough for negligent training/supervision.
- The superior court granted summary judgment: officers entitled to qualified immunity on excessive force claims (except a brief water claim that was later dismissed), and ruled the constitutional and statutory unlawful-entry theories do not provide a private damages remedy.
- The Lums’ attempts to file supplemental evidence during summary-judgment briefing were largely struck as untimely; a later Rule 60(b)(2) motion to reopen based on newly discovered interview transcripts was denied.
- The Alaska Supreme Court affirmed summary judgment and denial of Rule 60(b)(2), but remanded for further proceedings on common-law trespass and invasion-of-privacy claims that were first raised in opposition to summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers lose qualified immunity for using pepper spray & handcuffs after warrantless entry | Lum: unlawful, unannounced entry provoked confrontation; entry and force must be considered together so officers had notice their conduct was unlawful | Officers: even if entry was unlawful, use of reasonable force afterward is judged on the circumstances then presented; qualified immunity applies | Court: Apply Samaniego segmented approach — unlawful entry does not render subsequent reasonable force per se excessive; officers entitled to qualified immunity for pepper spray, handcuffs, and post-incident conduct |
| Whether an unlawful entry converts otherwise defensive force into excessive force under Alaska law (provocation theory) | Lum: provocation-by-unlawful-entry theory should apply; officers should be liable if entry intentionally provoked confrontation | Officers: adopting such a theory undermines officers’ ability to respond to real-time threats; Samaniego controls | Court: Declined to adopt provocation theory; Samaniego controls; no clear-law notice making officers’ actions unlawful |
| Whether Alaska Constitution or AS 12.25.100 provides a private damages cause of action for unlawful entry | Lum: constitutional violations and AS 12.25.100 support damages for unlawful entry | Officers/NSB: No private damages remedy under statute; constitutional damages limited where alternative remedies exist | Court: No private damages remedy under article I or AS 12.25.100; alternative remedies (trespass, §1983) available so constitutional tort for damages not permitted |
| Whether the superior court abused discretion by excluding late evidence and denying Rule 60(b)(2) relief | Lum: struck evidence was material and would have altered outcome; newly discovered transcripts warranted relief | Officers: evidence was untimely, not prejudicial, and Lums were not diligent; transcripts wouldn’t change result | Court: No abuse of discretion — striking late-filed evidence harmless or unjustified; Rule 60(b)(2) denied for lack of diligence and failure to show materiality/probable change in result |
Key Cases Cited
- Samaniego v. City of Kodiak, 2 P.3d 78 (Alaska 2000) (segmented analysis: illegal arrest does not foreclose reasonable force for later resistance)
- Russell ex rel. J.N. v. Virg-In, 258 P.3d 795 (Alaska 2011) (qualified immunity standards for excessive force)
- Olson v. City of Hooper Bay, 251 P.3d 1024 (Alaska 2011) (qualified immunity and officer perspective)
- Graham v. Connor, 490 U.S. 386 (U.S. 1989) (use of force governed by specific constitutional standard)
- Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125 (9th Cir. 2002) (failure to ameliorate pepper-spray effects could be unreasonable)
- LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000) (use of pepper spray unreasonable when subject helpless)