BRET F. MANESS v. JOHN DAILY, ERIC SMITH, TINAMARIE BUFFINGTON, THAD HAMILTON, ERIC SPITZER, CLIFTON PECK, KEVIN EHM, MUNICIPALITY OF ANCHORAGE, ANCHORAGE POLICE DEPARTMENT, ALASKA STATE TROOPERS, ALASKA COURT SYSTEM
Supreme Court No. S-14172
THE SUPREME COURT OF THE STATE OF ALASKA
August 16, 2013
No. 6807
Superior Court No. 3AN-03-08513 CI
OPINION
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge.
Appearances: Bret F. Maness, pro se, Anchorage. Ruth Botstein, Assistant Attorney General, Anchorage, and Michael J. Geraghty, Attorney General, Juneau, for Appellees Hamilton, Spitzer, and the Alaska State Troopers. Robert P. Owens, Assistant Municipal Attorney, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for Appellees Municipality of Anchorage, Daily, Peck, Ehm, and Anchorage Police Department.
STOWERS, Justice.
I. INTRODUCTION
In the early hours of June 28, 2001, Alaska State Troopers went to Bret Maness’s home to take him into custody for psychological evaluation, pursuant to an involuntary commitment order that had been issued by the superior court. When the troopers arrived at his home, Maness threatened to kill the troopers then fled, first in his RV, and later on foot. During the pursuit, Maness was shot by an Anchorage Police Department officer and then arrested.
Maness filed a civil action against many of the participants in the events leading to his shooting and arrest. In 2008 we affirmed the superior court’s grant of summary judgment with respect to all of Maness’s claims except those based on excessive force.1 Maness then amended his complaint, adding numerous state tort claims to his excessive force claims. The superior court again granted summary judgment to the defendants, with the exception of the Anchorage police officer who actually shot Maness. Maness’s excessive force claim against the police officer who shot him went to trial, where the jury delivered a verdict for the police officer. Maness now appeals the grant of summary judgment with respect to his claims against two of the Alaska State Troopers who attempted to execute the civil commitment order. He also appeals the superior court’s award of attorney’s fees to the defendants.
A. Facts
On June 27, 2001, Maness’s former girlfriend filed a petition for initiation of involuntary commitment for Maness, alleging that Maness was confused, delusional, and paranoid. At the ex parte proceeding for the commitment, the former girlfriend stated that Maness likely had a gun with him. Based on her testimony, Superior Court Judge Eric Smith ordered that Alaska State Troopers take Maness into temporary custody and transport him to the Alaska Psychiatric Institute (API) for psychological evaluation pursuant to
The Alaska State Troopers were informed of the basic facts underlying the order, including that Maness was armed and could be dangerous. Troopers first attempted to execute the order at Maness’s home in Wasilla during the evening of June 27, but received no response when they knocked on the front door. When the next shift came on duty that night, Shift Sergeant Randel McPherron sent three troopers — Thad Hamilton, Eric Spitzer, and Kevin Yancey — to Maness’s home for a second attempt.
The three troopers arrived at Maness’s home in separate vehicles at approximately 1:00 a.m. They parked on a side road, about 100 yards from Maness’s home, and took separate paths up Maness’s driveway on foot. Trooper Hamilton described this as a “stealth” approach intended to avoid a surprise attack and ensure officer safety.
Maness’s property included both a trailer home and an old Winnebago RV. The troopers heard a dog barking inside the RV and could see a male figure through the RV window. Hamilton approached the RV and exchanged words with the man, who
The troopers continued to exchange words with Maness. At some point, Spitzer turned on his shirt-pocket cassette tape recorder and recorded the troopers’ interactions with Maness. A transcript of the recording shows that Hamilton told Maness that the troopers were concerned about his health and were not going to take Maness to jail. Maness refused to come out of the RV and profanely exclaimed to the troopers that they were going to die. When Hamilton again told Maness they were not going to take him to jail, Maness responded, “No, you won’t, but somebody . . . else will and I ain’t going back.” Maness then repeated his threat that the troopers would die if they did not leave.
The troopers returned to their vehicles, intending to set up a perimeter and lay a spike strip to disable Maness’s RV if he tried to flee. Before they set up the strip, they saw Maness’s RV leave the property. The troopers followed Maness in their marked police vehicles with their lights and sirens on, with Spitzer in the lead, Yancey second, and Hamilton third. As the troopers chased Maness, loud popping sounds emanated from his RV. Spitzer and Hamilton believed that some of the popping sounds were from the RV backfiring but that others sounded like gunshots and that Maness was firing at them. Spitzer reported on his police radio that Maness was firing at the troopers and that his car had been hit.
Pursued by the troopers, Maness drove southbound on the Glenn Highway toward Anchorage. Additional law enforcement, including members of the trooper’s State Emergency Response Team (SERT) and the Anchorage Police Department (APD), were called to assist with the pursuit. The vehicle pursuit ended when Maness’s RV hit
An extended manhunt through the woods ensued as law enforcement agents pursued Maness for about five hours. Hamilton and Spitzer assisted in setting up a perimeter to ensure Maness did not escape the area. Discussing the situation, Spitzer said to Hamilton that he could not find a bullet hole in his car, but nevertheless believed that something had hit his car during the chase. Hamilton told Spitzer that he had been close to shooting Maness’s tires out and that he should have done so. While listening to police radio reports of Maness’s movements through the woods, Spitzer commented to Hamilton that Maness was going to run into the Inlet and then laughed before saying, “I wish he would have.” After hearing further radio communications, Spitzer said to Hamilton, “[W]eapon levels up, even if he’s . . . running with it.” Spitzer testified that by this comment he meant that if the troopers saw Maness running with his weapon pointed toward them, they should be prepared to shoot him.
At about 4:30 a.m., two troopers (not Spitzer and Hamilton) encountered Maness in the woods and ordered him to stop; Maness responded with a profane comment and fled. At about 6:45 a.m., an APD-led canine tracking team consisting of three APD officers, a police dog, and State Trooper Sgt. McPherron found Maness in a small clearing. APD Officer Clinton Peck fired his weapon, hitting and injuring Maness. At the time he was shot, Maness had in his hand a fully loaded rifle. There was a factual dispute concerning whether Maness had pointed his gun at the team before the shooting. Troopers Hamilton and Spitzer were not part of the canine tracking team and were not present when Maness was shot.
After Maness was shot, Spitzer’s car was thoroughly inspected; there was no evidence of gunshot damage. Spitzer testified that even though he may have been
McPherron testified that the reason the SERT team was called in was “partly” because of Spitzer’s report that Maness was shooting at them, but “the other information that [Maness was] potentially armed and [was] . . . refusing to comply with troopers’ orders to surrender” also informed the decision to call in SERT. McPherron also stated that regardless of the report of shots fired, it was proper to continue the pursuit of Maness because the troopers had a valid commitment order and Maness was fleeing officers and committing traffic violations.
Maness acknowledged that previous to the night of the incident he had never met Hamilton or Spitzer and that he had no reason to believe they had a pre-existing vendetta against him.
B. Proceedings
1. Maness’s initial complaint
Maness, acting without legal counsel, filed a civil action against many of the participants in the events leading to his shooting and arrest, including the Alaska State Troopers and individual Troopers Hamilton and Spitzer. The complaint alleged that Spitzer falsely reported to police dispatch that shots were fired at him and that his car was hit. The complaint also alleged that after stopping but before pursuing Maness into the woods, Spitzer and Hamilton inspected Spitzer’s vehicle and found no damage yet negligently failed to report that Spitzer’s earlier report that shots had been fired was untrue. The complaint also named the Municipality of Anchorage, the Anchorage Police Department, and APD Officer Peck. The complaint alleged that Peck had shot Maness
The superior court dismissed a number of Maness’s claims, including his excessive force claims.2 Maness appealed. We affirmed the superior court’s grant of summary judgment with respect to all of Maness’s claims except those based on excessive force and remanded those claims for further proceedings.3
2. Maness’s amended complaint
On remand, Maness amended his complaint, adding constitutional claims under
First, the court found that the troopers were lawfully present at Maness’s home and “did nothing unlawful at the scene.” Second, the court rejected Maness’s argument, based on Ninth Circuit precedent, that the troopers “provoked a course of action that foreseeably led to bloodshed.” The court found that the troopers were “simply . . . coming to serve a mundane warrant . . . . And the unforeseeable,
With respect to the troopers’ good faith, the court found that Maness “cites no preexisting grudge or hatred, no reason for particular animus, no desire to get back at [Maness].” The court found that the troopers’ report of shots fired was made in “the fog of war” and in any event was ultimately “irrelevant” to the pursuit of Maness because it “adds no useful information to the task at hand for the officers who all on good and sufficient information” knew that Maness was dangerous. Moreover, the court found that even if the troopers were negligent in reporting that shots were fired or in failing to retract the report once they discovered no damage to their vehicles, “there’s nothing to suggest in the remotest sense that it was maliciously so or in bad faith . . . . There’s absolutely no information to that effect.” In short, “there’s no evidence that anything happened that pierced the qualified immunity of the state actors.”
The court also granted summary judgment to the Municipality, but denied summary judgment to APD Officer Peck, the officer who fired the shots, finding that there was a factual issue concerning the circumstances of the shooting. Maness’s claim against Peck proceeded to trial. The jury rendered a defense verdict, finding that it was “more likely true than not that Officer Peck reasonably believed the use of deadly force
The State and Municipal defendants moved for attorney’s fees pursuant to
Maness appeals the grant of summary judgment to the troopers and the award of attorney’s fees against him.
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 in its favor.”4 We “will affirm a grant of summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”5 “The applicability of both state and federal immunity are questions of law that are . . . subject to de novo review.”6 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.”7 “Because this case raises the question of entitlement to qualified immunity, 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.’ ”8
IV. DISCUSSION
A. The Superior Court Properly Granted Troopers Hamilton And Spitzer Summary Judgment On Maness’s Excessive Force Claims.
The use of excessive force is a statutory violation under Alaska law11 and “may also run afoul of the Fourth Amendment to the United States Constitution and article I, section 14 of the Alaska Constitution, both of which grant citizens a right ‘to
Pursuant to federal law, whether a police officer uses excessive force in making an arrest depends on the gravity of the intrusion (the type and amount of force inflicted) balanced against the government’s need for that intrusion (as measured by the severity of the crime, whether the suspect posed an immediate threat to the officer’s or the public’s safety, and whether the suspect was resisting arrest or attempting to escape). The standard for excessive force in Alaska is nearly identical — the three considerations that frame the excessive force inquiry are the severity of the crime, whether the suspect immediately threatens the safety of the police or others, and whether the suspect is actively resisting or fleeing arrest.13
“Police officers, like other public officials, are protected by qualified immunity when they exercise discretionary functions.”14 In 1987, in Breck v. Ulmer, we first addressed the question of “what standard should be applied to determine whether qualified immunity exists when a public official is alleged to have violated a statute or
Applying this framework to the specific situation of excessive force claims, we have held that “an 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 was lawful.”19 “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 been ‘on notice’ that his particular use of force would be unlawful.”20 Courts inquiring into the presence of notice should “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
We have also observed that our approach to qualified immunity in excessive force cases “comports in all essential respects” with that of the United States Supreme Court.23 In particular we have clarified that under both Alaska law and federal law “qualified immunity can be conferred when an officer could have reasonably believed that his conduct was lawful (even if it was not).”24
Under both Alaska law and federal law, Maness’s excessive force claims are unsupported, and the troopers are entitled to qualified immunity. First, as a matter of fact and law there was no excessive force applied to Maness. The only force that was applied to Maness was applied by APD Officer Peck when he shot Maness, and in Maness’s lawsuit against Peck, the jury found that Peck’s use of force was reasonable. Therefore, all of the alleged torts of the troopers that occurred hours before and miles away, which Maness claims set in motion the ultimate act of his being shot, did not in fact cause (or result in) excessive force.
In his briefing before the superior court, Maness relied in part on a theory of excessive force liability set forth in a line of cases from the Ninth Circuit holding that “where an officer intentionally or recklessly provokes a violent confrontation, if the
Maness’s argument fails because the provocation-of-violence theory he proposes is not “clearly established” in Alaska law. Alaska has never accepted such a theory and, as the Ninth Circuit has acknowledged, the federal circuits have split on the validity of similar provocation-of-violence theories.26 “Where no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.”27 In short, because Maness cannot show pursuant to his theory of liability that the troopers violated any of his clearly established rights, the troopers are protected by qualified immunity from Maness’s excessive force claims.
Further, even if the provocation-of-violence theory asserted by Maness were clearly established, his excessive force claims would still fail. The Ninth Circuit has made clear that an officer may be held liable under the provocation-of-violence
Finally, there is no evidence that the troopers recklessly or intentionally “provoked violence” by their actions. There was a time lag of six hours, including a police chase and an extended manhunt in the woods, between the troopers’ conduct at Maness’s residence and the shooting. Maness has not cited any authority holding that such an attenuated chain of causation can create excessive force liability.29 As the superior court found, nothing the troopers did “can reasonably be construed to be the sort of action which provokes an armed response.”
In sum, the troopers did not violate any clearly established right of Maness’s when they attempted to serve the involuntary commitment order. On the contrary, as the superior court found, the troopers acted in an objectively reasonable fashion throughout the encounter. Accordingly, the superior court correctly ruled that under the doctrine of qualified immunity the troopers were entitled to summary judgment on Maness’s excessive force claims.
Maness’s amended complaint asserted a variety of tort claims, including negligence, trespass, defamation, intentional infliction of emotional distress, conspiracy, aiding and abetting attempted murder, and assault and battery. Maness’s briefing before this court does not distinguish among these various claims. Rather, Maness’s briefing focuses on the issue of qualified immunity and argues that Hamilton and Spitzer acted in bad faith, especially with respect to their reports of gunshots by Maness, and that they therefore are not entitled to immunity from Maness’s tort claims.
1. Sources of the troopers’ qualified immunity
The troopers are eligible for qualified immunity from Maness’s common law tort claims under the three-step analysis set out in Aspen Exploration Corp. v. Sheffield30 and Alpine Industries, Inc. v. Feyk.31 Alternatively, the troopers are eligible for qualified immunity under
a. Common law qualified immunity
In Aspen Exploration Corp. v. Sheffield, we addressed the scope of immunity to be conferred for official acts alleged to have violated common law rights.32 As later summarized in Alpine Industries, Inc. v. Feyk, the Aspen test for official
In Prentzel v. State, Department of Public Safety, we applied the Aspen test and held that state troopers were entitled to qualified immunity when a plaintiff brought suit alleging false arrest, false imprisonment, trespass to chattels, conversion, and negligence.34 With respect to the first question of the Aspen test, we observed that “official immunity applies to an official’s conduct if (1) it is within the scope of the official’s authority, and (2) it is a discretionary act.”35 Applying these criteria to the facts of Prentzel, we held that “making arrests and seizing property incident to arrests is conduct that falls within the troopers’ usual authority,” and that Alaska law provided for such authority.36 Similarly here, the execution of civil commitment orders falls within the troopers’ usual authority as established in
The second question of the Aspen test asks whether the immunity should be absolute or qualified. In Prentzel, we concluded that qualified immunity rather than absolute immunity should apply to the troopers’ “discretionary act of making arrests and
The third and final question of the Aspen test asks whether the official acted in bad faith. We discuss this question in section 2 below.
b. Qualified immunity under AS 47.30.815(b)
Alaska Statute 47.30.815(b) provides an alternative ground for qualified immunity in this case. This statute provides that “a peace officer . . . responsible for detaining or transporting a person” under an involuntary civil commitment order “may not be held civilly or criminally liable for detaining a person . . . if the persons have performed their duties in good faith and without gross negligence.”38 There is no question that the troopers were engaged in an attempt to detain and transport Maness pursuant to an involuntary commitment order. We shall now turn to the “good faith” and “gross negligence” inquiries.
2. Application of qualified immunity standards
Both Aspen and
Maness acknowledges that Troopers Hamilton and Spitzer did not have any malice towards him before they arrived at his home. However, Maness alleges that Hamilton and Spitzer began to act in bad faith against him after he “scared them into running away” from his home, thereby “injuring their egos.” According to Maness, the troopers then “maliciously and in bad faith conspired to provide false information . . . that [Maness] had shot at them, when they knew this was not true.” Maness offers several arguments in support of this claim. First, he argues that the physical evidence “undeniably proves” that he did not fire any shots. Second, he argues that Hamilton and Spitzer “displayed a hostile and dishonest demeanor at deposition . . . and they seemed disappointed and angry that [Maness had] survived to file a lawsuit against them.” Third, Spitzer “made incredible allegations over police radio that [Maness] had a gun rigged on [his] motor home to fire backwards while [Maness] was driving.” (Emphasis in original.) Fourth, “Hamilton and Spitzer’s general demeanor at deposition and a cassette recording of the incident show a hostility and desire to retaliate against [Maness] for scaring them into running away from [his] property . . . including an expressed desire to shoot [him] on sight, lamentation for failure to shoot [his] tires out, and a desire that [he] would have run into the inlet.” Fifth, Spitzer “has a long history of retaliatory and vindictive behavior on the job.” Sixth, Hamilton’s and Spitzer’s testimony “was not believable to anyone objectively assessing their credibility.” Seventh, Maness argues that other law enforcement witnesses were present who “did not report any shots fired.”
In Prentzel, we observed that “before malice can become a disputed question of fact” sufficient to defeat a motion for summary judgment, “the record must contain at least some objective evidence establishing facts capable of supporting an
Maness’s affidavit consists largely of the type of conclusory statements and subjective impressions that we found insufficient to create a genuine issue of material
b. Gross negligence
Finally, the troopers’ qualified immunity under
The superior court granted the defendants’ motions for attorney’s fees pursuant to
1. Maness is not a public interest litigant.
As the State correctly observes,
Maness does not argue that he meets any of these criteria, nor is there reason to believe that he does. In particular, it is clear that Maness’s suit will not benefit numerous people. Because Maness is not a public interest litigant, we affirm the superior court’s determination that the defendants were prevailing parties entitled to a
2. Remand is required for reconsideration of § 1983 attorney’s fees.
Alaska courts “do not award attorney’s fees against section 1983 plaintiffs for that portion of the prevailing party’s attorney’s fees incurred defending against the section 1983 action, unless the 1983 action was ‘frivolous, unreasonable or without foundation.’ ”55 Because the superior court did not make a finding whether Maness’s § 1983 excessive force claims were “frivolous, unreasonable, or without foundation,” we remand for further proceedings on this point. Additionally, because the “record at
IV. CONCLUSION
We AFFIRM the superior court’s order granting summary judgment and all other rulings encompassed in its final judgment except the award of attorney’s fees pertaining to Maness’s § 1983 claim. We VACATE that fee award and REMAND for further proceedings on attorney’s fees consistent with this opinion.
Notes
In a civil action or appeal concerning the establishment, protection, or enforcement of a right under the United States Constitution or the Constitution of the State of Alaska, the court . . . may not order a claimant to pay the attorney fees of the opposing party devoted to claims concerning constitutional rights if the claimant . . . did not prevail in asserting the right, the action or appeal asserting the right was not frivolous, and the claimant did not have sufficient economic incentive to bring the action or appeal regardless of the constitutional claims involved.