Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lum v. Koles

Supreme Court of Alaska

December 13, 2013

Daniel LUM and Polly Lum, for themselves and for their minor children Joseph Aveoganna, Elizabeth Hawley, Aiyanna Lum, and Jamie Lum, Appellants,
Gwen KOLES (Grimes), Benjamin Hunsaker, Jose Gutierrez, and North Slope Borough, Appellees.

Page 547

[Copyrighted Material Omitted]

Page 548

[Copyrighted Material Omitted]

Page 549

[Copyrighted Material Omitted]

Page 550

Colleen A. Libbey, Libbey Law Offices, Anchorage, for Appellants.

Peter C. Gamache, Law Office of Peter C. Gamache, Anchorage, for Appellee North Slope Borough, and Brent R. Cole, Law Office of Brent R. Cole, P.C., Anchorage, for Appellees Koles, Hunsaker, and Gutierrez.

Before: FABE, Chief Justice, WINFREE, STOWERS, and BOLGER, Justices.


WINFREE, Justice.


In response to a domestic disturbance call, police officers entered a residence without a warrant and pepper sprayed and handcuffed a resident. The family sued for excessive force and unlawful entry. The superior court dismissed the claims on summary judgment, granting qualified immunity for the excessive force claims and holding that the family had not raised a cognizable unlawful entry claim. The superior court later denied the family's Alaska Civil Rule 60(b)(2) motion to set aside the rulings based on newly discovered evidence. The family appeals; we affirm the summary judgment ruling and the denial of the Rule 60(b)(2) motion, but we remand for further proceedings on the family's trespass and invasion of privacy claims raised for the first time during the summary judgment proceedings.


A. Facts

In September 2007 the North Slope Borough (NSB) Police Department received an emergency-line telephone call requesting officers to go to Polly and Daniel Lum's residence " for a welfare check on some children." The caller stated that she was a friend of Polly's and had just received a call for help. The caller reported hearing Polly and Daniel " fighting and screaming" and children crying. She also reported that Polly had " bruises and a cut on her head." She indicated that there were four or five children in the home and that the incident had happened within the last five minutes.

Page 551

The police dispatcher then contacted all units, explaining that a call had come in from a " [f]emale asking [for a] welfare check on [a] couple as they were having a domestic dispute. Kids are crying, and she is concerned regarding kids' welfare...." Two NSB police officers, Sgt. Jose Gutierrez and Officer Gwen Grimes, responded to the Lum residence, a duplex with a common hallway access. The officers activated their recorders, creating audio recordings of the incident. Sgt. Gutierrez and Officer Grimes later stated that they could hear an argument inside the residence, although the parties contest whether this is reflected in the recordings. Sgt. Gutierrez knocked on the outer door and a child invited the officers into the common hallway. Sgt. Gutierrez asked where the child's parents were, and the child replied " over there," pointing to the Lums' apartment. The officers walked through the hallway, and, without knocking or announcing their presence, entered the Lum residence.

When the officers entered the apartment, Daniel and Polly were in the bathroom with their infant daughter. Daniel told the officers to leave. Officer Grimes told Daniel to come out of the bathroom. Daniel accused Officer Grimes of shooting at him during a previous encounter and attempted to shut the bathroom door, separating himself, Polly, and their infant from the officers. The officers pushed against the door to stop Daniel from closing it. Officer Grimes then sprayed oleoresin capsicum (pepper spray) once in Daniel's face to subdue him. Daniel immediately stopped resisting and came out of the bathroom. The officers handcuffed Daniel due to what they later described as his " erratic behavior and resistance."

Daniel had a strong and immediate reaction to the pepper spray, calling repeatedly for water and saying he could not breathe. Officer Benjamin Hunsaker then arrived, and Officers Hunsaker and Grimes took Daniel outside to defuse the situation and ameliorate the pepper spray's effects. Daniel continued saying that he could not breathe and began complaining that he was having or about to have a panic or heart attack. He repeatedly asked for someone to wipe his eyes; he also requested an ambulance. The officers wiped Daniel's face multiple times, pointed him into the wind to lessen the pepper spray's effects, and informed him that the effects would take some time to wear off naturally.

Daniel also complained that the handcuffs were too tight and asked that they be taken off. The officers declined because of " the way [he was] acting." Daniel told the officers that his behavior was erratic because he had failed to take prescribed methadone. When Daniel again complained about the handcuffs, the officers switched them for a larger pair and double-locked them so they would not tighten. Daniel stated that the new handcuffs were more comfortable. About eight minutes after the application of the pepper spray, the officers confirmed that Daniel did in fact want to go to the hospital. The officers called an ambulance to transport Daniel, and it arrived ten minutes later.

No charges were filed against Daniel as a result of the encounter.

B. Proceedings

In December 2007 the Lums sued the officers for use of excessive force and for unlawful entry in violation of the Alaska Constitution and AS 12.25.100, Alaska's knock and announce statute,[1] and sued NSB for negligent training and supervision. The officers moved for summary judgment, seeking dismissal of the excessive force claims on the basis of qualified immunity. The Lums opposed the motion, and oral argument was held in March 2010.

After oral argument the Lums filed several motions to supplement the evidentiary record, including consolidated appendices of exhibits, a complete transcript of Polly's deposition, and evidence showing the officers were aware that Daniel had been in a weak physical state due to back surgery. The court struck the motions and attached evidence as untimely.

Page 552

In May the superior court granted partial summary judgment, ruling that the officers were entitled to qualified immunity and dismissing the excessive force claims with the exception of one for failure to give Daniel water after applying the pepper spray. The Lums requested reconsideration, and the officers requested reconsideration as to the one remaining claim. The court requested responses to both reconsideration motions. NSB's response to the Lums' reconsideration motion included the incident police report previously filed by the Lums with their opposition to summary judgment. The Lums challenged the admission of this evidence and moved to file rebuttal evidence. The superior court rejected their motions.

In July the superior court granted full summary judgment dismissing all of the Lums' excessive force claims on the basis of qualified immunity. The superior court later granted summary judgment dismissing the Lums' unlawful entry claims under the Alaska Constitution and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.