United States District Court, D. Alaska
ESTATE OF SHANE TASI, by and through his Widow and Personal Representative of Estate, Jean Taualo-Tasi, et al., Plaintiffs,
MUNICIPALITY OF ANCHORAGE, et al., Defendants.
ORDER RE PENDING MOTIONS
SHARON L. GLEASON UNITED STATES DISTRICT JUDGE
Before the Court at Docket 32 is Defendant Officer Boaz Gionson’s Motion for Summary Judgment. Plaintiffs opposed at Docket 71, and Defendant replied at Docket 93. Defendants Anchorage Police Department (APD), Municipality of Anchorage (MOA), Officer Joshua Vance, and Officer James Williams also filed a Motion for Summary Judgment at Docket 43. Plaintiffs opposed at Docket 73, and Defendants replied at Docket 94. Oral argument on both of the summary judgment motions was held on July 27, 2015.
Also pending before the Court is Plaintiffs’ Motion in Limine at Docket 51. Defendants opposed at Docket 59, and Plaintiffs replied at Docket 66. Oral argument was not requested and was not necessary to the Court’s determination of that motion.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the June 9, 2012 shooting death of Shane Tasi by APD Officer Gionson. Viewed in the light most favorable to the non-moving party for the purposes of these motions, the facts are as follows.
The day of the shooting, Mr. Tasi, his wife Jean Taualo-Tasi, and their three children went to a party at Mr. Tasi’s cousin’s home. Over the course of the day, Mr. Tasi used Spice, smoked marijuana, and drank alcohol. By the time the family left the party that evening at around 8:00 p.m., Mr. Tasi was very intoxicated.
Ms. Taualo-Tasi drove the family home. Once the family reached their neighborhood, Mr. Tasi climbed out of the passenger window of the vehicle. Ms. Taualo-Tasi left him to walk the remaining blocks home. Immediately after leaving the vehicle, Mr. Tasi began yelling at people on the street and in passing vehicles, and a witness called 911. Mr. Tasi also yelled at a dog in a neighbor’s yard, trying to get the dog to fight with him. Neighbors again called 911, and Mr. Tasi moved on once he was told that the police had been called. Next Mr. Tasi attempted to get into the passenger side of another person’s car. After these brief confrontations Mr. Tasi crossed the street and rejoined Ms. Taualo-Tasi and the children, who had just exited the vehicle.
The following events surrounding the shooting were caught by various surveillance video systems outside the apartment complex, but the time stamps on the videos do not reflect the actual time of day. Thus, Mr. Tasi entered the apartment at roughly 13:19 on the video feed, despite the fact that the events happened close to 10:00 p.m.
Dispatch issued reports on the two 911 calls. The first report stated that a Samoan male wearing black shorts and no shirt was yelling at cars on Bunn Street; roughly a minute later dispatch reported that the man was now yelling at people and attacking a dog. Office Gionson responded and drove around Mountain View trying to find the subject of the reports.
Meanwhile, inside the apartment, Mr. Tasi began to throw objects through the kitchen window. He also overturned the couch and the refrigerator. Multiple witnesses heard the noise that this generated. Bronson Birdsell, Jason Netter, and Willie Emry all heard the commotion and ran to the apartment building at 13:29 on the video. Mr. Birdsell looked inside through the apartment’s front door, which was ajar. He testified that he saw a man holding a stick who had what looked like a bloody thumbprint on his forehead.
The three men hailed Officer Gionson as he was driving by. Officer Gionson parked his marked patrol car across the street from the apartment and exited the vehicle, leaving his pepper spray behind. The officer was not carrying a Taser. The three men told Officer Gionson that there was a man with a stick inside the apartment who was “acting violent” and was bloody. Officer Gionson also learned that there were children in the apartment, making the situation a possible incident of domestic violence. At all relevant times prior to the shooting, Officer Gionson was unaware that Mr. Tasi had been drinking or had used drugs.
While talking to the three men, Officer Gionson drew his gun, at approximately 13:30:24 on the video. At that time, Officer Gionson was standing behind a roughly three-foot high chain-link fence, which separated the apartment complex from the sidewalk. On the other side of the fence was a paved walkway, which abutted grass that ran up to the apartments. Officer Gionson was approximately 30 feet from the entrance to the Tasis’ apartment.
Seconds later, at 13:30:37 on the video, Mr. Tasi exited the apartment. There is considerable conflicting testimony from the moment Mr. Tasi exited his apartment. For purposes of these summary judgment motions, the Court reviews the evidence in the light most favorable to Plaintiffs, and has reviewed and relied in part on the security camera footage of the incident.
When Mr. Tasi walked out of his apartment, he was holding a broomstick from which the broom portion had been removed. He walked across the grass towards the paved walkway on the opposite side of the fence from Officer Gionson. As Mr. Tasi walked, he tapped the broomstick on the ground twice. Once he reached the walkway, roughly four seconds after exiting the apartment, Mr. Tasi walked along the walkway, still on the opposite side of the fence from Officer Gionson. At this point Mr. Tasi was walking in Officer Gionson’s direction, along a paved walkway behind the fence. At no point did Mr. Tasi make eye contact with or look at Officer Gionson; instead he was focused on the three men, one of whom had just attempted to enter his family’s apartment. Mr. Tasi then raised the broomstick over his head, grasped at both ends. At this point two of the men had run down the street and one may have retreated along a vehicle. Officer Gionson twice stated a command along the lines of “drop the stick, ” but Mr. Tasi did not appear to hear and did not comply.
At this point, Officer Gionson-still behind the fence and outside of Mr. Tasi’s striking distance with the broomstick-fired three shots at Mr. Tasi. The shots were fired approximately seven seconds after Mr. Tasi first emerged from the front door of the apartment. The three bullets entered Mr. Tasi’s body on the left side, indicating that he was not facing Officer Gionson when he was shot. When the shots were fired, Mr. Tasi was roughly 11 feet from Officer Gionson and had not reached the end of the chain link fence that ran between them. Had Mr. Tasi reached the end of the fence, Mr. Tasi could have turned and would have had an unobstructed path towards Officer Gionson.
Ms. Taualo-Tasi exited the apartment when she heard the shots. Officers Vance and Williams were among the officers that arrived on the scene immediately after the shooting. Officer Vance testified that he did not think Ms. Taualo-Tasi needed to witness the emotional scene, so he asked her to go back inside the apartment. Ms. Taualo- Tasi answered, “No. I want to know if my husband’s alright.” Nonetheless, the officers led Ms. Taualo-Tasi back to the apartment. But upon seeing the condition of the apartment, the officers decided that it could be a crime scene such that Ms. Taualo-Tasi should not remain in the apartment; they then asked her to move with the children to the apartment building’s laundry room. Officer Williams told Ms. Taualo-Tasi that they “were going to be interviewing you, each and every one of you, ” and that it was “probably going to be hours.” Officer Williams testified that he told Ms. Taualo-Tasi that after he interviewed her, she could leave if the Sergeant allowed it. Both officers testified that Ms. Taualo-Tasi was not free to leave during the exchange. Ms. Taualo-Tasi’s detention in the laundry room lasted approximately 10 minutes; the total time from the shooting until Ms. Taualo-Tasi was taken to the police station was roughly 30 minutes, which included the time in the apartment, the time moving between the various locations, and the time spent transferring the children to a family member so that Ms. Taualo-Tasi could go to the station.
When Officer Gionson gave his first statement-three days after the incident-he stated that he shot Mr. Tasi after he had moved around the fence into the yard and between Mr. Tasi and the three men, directly in Mr. Tasi’s path. In that statement Officer Gionson also asserted that when he fired his gun, Mr. Tasi was so close to him that the officer had to take a step back or Mr. Tasi would have fallen on him. However, at deposition about two years later, Officer Gionson admitted that these recollections of the incident were not in accord with the videotapes, which showed that Officer Gionson had not moved around the end of the fence and that there was considerably more distance between him and Mr. Tasi at the time of the shooting.
Plaintiffs filed this suit on November 21, 2013 in Anchorage Superior Court.Plaintiffs are Jean Taualo-Tasi, as representative of Mr. Tasi’s estate and individually, and Mr. Tasi’s children. On December 23, 2013, Defendants filed a Notice of Removal to this Court. Plaintiffs filed a Corrected Amended Complaint on December 31, 2014.After Defendants moved to add another child to the Complaint, Plaintiffs filed a Second Amended Complaint (SAC) on March 27, 2015, which is the operative complaint for purposes of the motions for summary judgment.
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 because the SAC alleges violations of Mr. Tasi’s, Ms. Taualo-Tasi’s, and the children’s federal constitutional rights. The Court has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.
II. 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.” When considering a motion for summary judgment, a court must accept as true all evidence presented by the non-moving party and draw “all justifiable inferences” in the non-moving party’s favor. The burden of showing the absence of a genuine dispute of material fact initially lies with the moving party. If the moving party meets this burden, the non-moving party must present specific evidence demonstrating the existence of a genuine issue of fact. The non-moving party may not rely on mere allegations or denials. To reach the level of a genuine dispute, the evidence must be such “that a reasonable jury could return a verdict for the non-moving party.” If the evidence provided by the non-moving party is “merely colorable” or “not significantly probative, ” summary judgment to the moving party is appropriate.
III. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” The purpose of qualified immunity is to “balance two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
Government officials are not entitled to qualified immunity on summary judgment if (1) the facts taken in the light most favorable to the plaintiff show that the officials’ conduct violated a constitutional right, and (2) that right was clearly established at the time of the alleged violation. Both prongs of the analysis must be satisfied, so that if a court determines that one prong is not met, qualified immunity applies. A court may consider either prong first.
“For a constitutional right to be clearly established, its contours ‘must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Courts should not define clearly established law at a high level of generality; otherwise, qualified immunity becomes no immunity at all if the only prerequisite is a constitutional violation.
IV. Officer Gionson’s Motion for Summary Judgment at Docket 32
Plaintiffs’ SAC includes Officer Gionson in Counts One, Two, Three, Five, Seven, and Eight. Counts One and Two allege § 1983 claims related to the excessive force allegedly used on Mr. Tasi under the Fourth, Fifth, and Fourteenth Amendments. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” In Count Three Plaintiffs allege a claim related to the excessive force allegedly used on Mr. Tasi under Article I, § 7 and § 14 of the Alaska Constitution. Count Five is a claim for violations of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, § 14 of the Alaska Constitution. Count Seven alleges a tort claim under state law for “False Arrest and/or Imprisonment” against all “Defendants.” Finally, Count Eight alleges “State Law Negligence” claims against Officer Gionson.
The Court will first address Plaintiffs’ Fourteenth and Fifth Amendment claims contained in Counts One, Two, and Five. Counts One and Two allege violations of those two Constitutional Amendments, as well as a violation of the Fourth Amendment, all based on Officer Gionson’s use of allegedly excessive force against Mr. Tasi. “Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process, ’ must be the guide for analyzing these claims.” Accordingly, the Court will grant summary judgment to Officer Gionson on the Fourteenth and Fifth Amendment claims in Counts One and Two and focus on the Fourth Amendment claims. Plaintiffs do not dispute this in their opposition. Count Five appears to allege a substantive due process claim against Officer Gionson by Ms. Taualo-Tasi and the children for loss of companionship under the Fourteenth Amendment.Although Defendant’s motion is directed at “all claims, ” Defendant’s briefing does not discuss these Fourteenth Amendment claims, so the issue is not before the Court. The Court will deny summary judgment as to the Fourteenth Amendment claims in Count Five.
With regard to the claims under the Alaska Constitution, Alaska has not recognized a Bivens-type private right of action for constitutional torts under its constitution. The Alaska Supreme Court has indicated that a state constitutional claim for damages will not be allowed except in cases of flagrant constitutional violations where little or no alternative remedies are available. In this case, Plaintiffs have ample alternative remedies and have pled such in their SAC. Accordingly, the Court will grant summary judgment to Officer Gionson on the Alaska Constitutional claims pled in Counts Three and Five. As with the Fifth and Fourteenth Amendment claims in Counts One and Two, Plaintiffs do not dispute that summary judgment in that regard is appropriate in their opposition briefing.
Regarding the two state law tort claims, Officer Gionson reads Count Seven as applying to Officers Vance and Williams, not Officer Gionson. Plaintiffs do not dispute this reading in their opposition brief. As the weight of Plaintiffs’ allegations against Officers Vance and Williams go to Ms. Taualo-Tasi’s alleged unreasonable detention and the weight of Plaintiffs’ allegations against Officer Gionson go to excessive force, the Court will accept this uncontested reading of the SAC. Thus, the Court grants summary judgment on any residual claims against Officer Gionson in Count Seven. Officer Gionson asserts that Count Eight is a state law claim for excessive force that is mislabeled as a negligence claim. Plaintiffs do not clarify this in their opposition. This reading of the count is logical, so the Court will accept the interpretation.
Thus, the remaining claims against Officer Gionson are the § 1983 claims in Counts One and Two for the alleged violation of Mr. Tasi’s Fourth Amendment rights, the Alaska state law claim for excessive force at Count Eight, and the Fourteenth Amendment claim at Count Five that is not currently before the Court. With respect to the excessive force claims, the central issue presented by Officer Gionson’s motion is whether Officer Gionson is entitled to qualified immunity.
As discussed above, Officer Gionson is entitled to qualified immunity on summary judgment on the two § 1983 claims if he can demonstrate-under the facts taken in the light most favorable to Plaintiffs-that either (1) he did not violate Mr. Tasi’s Fourth Amendment rights, or that (2) at the time of the violation it was not clearly established that he was violating Mr. Tasi’s rights. Alaska’s qualified immunity doctrine follows a functionally similar analysis for excessive force claims. The Court will address the federal constitutional claims first.
Plaintiffs’ federal constitutional claims of excessive force are analyzed under the Fourth Amendment’s prohibition on unreasonable seizures. “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” In weighing these interests, courts consider “the government’s interests by assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the officers’ or public’s safety; and (3) whether the suspect was resisting arrest or attempting to escape.” The officer’s actions are measured against an objective reasonableness standard, so a court should consider whether a reasonable officer would have believed that the suspect was an imminent threat to the officer or a bystander.The Supreme Court has also considered the suspect’s culpability in relation to innocent bystanders. And “an officer’s failure to warn, when it is plausible to do so, weighs in favor of finding a constitutional violation.” Courts also “consider whether there were less intrusive means of force that might have been used.” This includes considering what other means are available, and if there was a clear, reasonable, less intrusive ...