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Donald W. Dunlap v. Anchorage Police Department

October 31, 2012

DONALD W. DUNLAP,
PLAINTIFF,
v.
ANCHORAGE POLICE DEPARTMENT AND THE MUNICIPALITY OF ANCHORAGE, AND SHAUN HENRY,
DEFENDANTS.



The opinion of the court was delivered by: Sharon L. Gleason United States District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Donald Dunlap initiated this action in 2010.*fn1 The defendants are (1) the Anchorage Police Department ("APD"); (2) the Municipality of Anchorage ("MOA"); and (3) Shaun Henry, an officer with the Anchorage Police Department.*fn2 The Second Amended Complaint seeks damages for claims arising from Officer Henry's arrest of Mr. Dunlap on December 26, 2007.*fn3 Before the Court is a Motion for Summary Judgment filed by all the defendants.*fn4

FACTUAL AND PROCEDURAL BACKGROUND

The facts, when viewed in the light most favorable to the plaintiff for purposes of this summary judgment motion, are as follows: At approximately 3:00 a.m. on December 26, 2007, Mr. Dunlap was sitting in the driver's seat of his vehicle parked in a vacant lot near the Merrill Field airport in Anchorage when he was approached by Officer Henry.*fn5 Officer Henry spoke to Mr. Dunlap and received identification from him.*fn6 At the time of the stop, it is undisputed that Mr. Dunlap had a loaded rifle on the passenger seat, a machete on the driver's side of the floor of the vehicle, a large fixed-blade knife in the door compartment next to the driver's seat, a loaded pistol in a fanny pack on the passenger seat, and another loaded pistol in between the front passenger seat and the center console.*fn7 It is also undisputed that Mr. Dunlap did not have any weapons physically attached to his person at that time. And it is undisputed that Mr. Dunlap did not notify Officer Henry about any of these weapons at the time of the stop.

Mr. Dunlap asserts that at the time of the stop, the rifle was in plain view of Officer Henry.*fn8 Mr. Dunlap claims that "Officer Henry then asked me if I was aware that I was to notify Officers when I had weapons in my vehicle" and Mr. Dunlap "asked Officer Henry if he was referring to the rifle that was in plain view on the passenger seat in my vehicle."*fn9 Mr. Dunlap asserts that Officer Henry then ordered Mr. Dunlap out of his vehicle. As Mr. Dunlap got out of the vehicle, Officer Henry observed the fixed-blade knife in the driver's side door pocket and the machete on the floor by the driver's seat.*fn10

Officer Henry then handcuffed Mr. Dunlap and conducted a pat down search.*fn11 Mr. Dunlap explains that "Officer Henry discovered through his search . . . that [he] had no weapons on [his] person."*fn12 Mr. Dunlap also maintains that he "informed Officer Henry that [he] was not legally required to notify him of any weapons that were not concealed on [his] person."*fn13

Officer Henry then placed Mr. Dunlap in his police vehicle and arrested him for violating AS 11.61.220(a)(1)(A), misconduct involving weapons in the fifth degree. That law makes it a crime when contacted by a peace officer to fail to immediately inform the peace officer of a deadly weapon "that is concealed on the person." Mr. Dunlap repeatedly asked Officer Henry to look in the sun visor of his vehicle where he had placed a copy of this statute, as he maintained then, and continues to maintain, that he had not committed that crime because he had no concealed weapons that were physically attached to his person.*fn14 Mr. Dunlap's vehicle was then searched and his personal effects photographed.*fn15

Mr. Dunlap was then taken before a Magistrate.*fn16 There, Officer Henry stated he had arrested Mr. Dunlap because he "had failed to inform him of a weapon concealed on [his] person."*fn17 The charging document states that "Dunlap failed to notify a police officer of a loaded weapon and refused to notify officer of any other dangerous weapons and loaded firearms in his possession (large hunting knives and a machete)."*fn18 Bail was set and Mr. Dunlap was remanded to jail.*fn19 Mr. Dunlap is a former correctional officer and asserts he was "embarrassed and humiliated" by being taken into the jail where some of his former co-workers were on duty.*fn20 Mr. Dunlap indicates that on February 19, 2008, the charge against him was dismissed.*fn21

Mr. Dunlap's complaint initially named Police Chief Mark Mew as a defendant in this action.*fn22 However, on January 21, 2011, the Court dismissed Chief Mew, because Mr. Dunlap "has alleged no facts against Chief Mew[]" and "officials cannot be held liable for alleged civil rights violations under the theory of respondeat superior."*fn23 Mr.

Dunlap then filed his Second Amended Complaint against the remaining defendants in May 2011.*fn24 Mr. Dunlap asserts claims under 42 U.S.C. § 1983 arising from the alleged improper search of his vehicle and person in violation of the Fourth Amendment.*fn25

He also alleges "perjury, false arrest, false imprisonment, and intentional infliction of emotional distress" and malicious prosecution based upon these events.*fn26 Mr. Dunlap also asserts that the MOA "is liable for negligent hiring, supervision, training, and retention" of Officer Henry.*fn27

The defendants filed this Motion for Summary Judgment on March 12, 2012.*fn28

Mr. Dunlap filed his Response in April 2012 to which the defendants replied in May 2012.*fn29 Pursuant to Mr. Dunlap's request, this Court granted limited discovery with respect to Mr. Dunlap's direct claims against the MOA and APD.*fn30 Thereafter, Mr. Dunlap filed a supplemental response in June 2012 together with the deposition transcript of APD Captain William Miller.*fn31 The defendants filed a supplemental reply in July 2012.*fn32 Oral argument was not requested and was not necessary for this Court's determination of the motion.

DISCUSSION

I. Jurisdiction.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1343(a)(3) and 28 U.S.C. § 1331.

II. Analysis.

A. Summary Judgment Standard.

Federal Rule of Civil Procedure 56(a) directs a court to "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The burden of showing the absence of a genuine dispute of material fact initially lies with the moving party.*fn33 If the moving party meets this burden, the non-moving ...

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