United States District Court, D. Alaska
HAROLD J. ROTH, Plaintiff,
STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY and EDWIN CARLSON, jointly and severally, Defendants.
ORDER RE CERTIFICATION MOTION AND MOTION TO DISMISS
Sharon L. Gleason United States District Judge
Before the Court at Docket 33 is Plaintiff Harold J. Roth’s Renewed Request for Judicial Review of State’s Certification Decision, to which Defendants State of Alaska and Alaska State Trooper Edwin Carlson (Defendants) filed a response at Docket 34. Also before the Court is Defendants’ Renewed Motion to Dismiss State Law Claims at Docket 28, to which Plaintiff responded at Docket 30. No reply was filed. Oral argument was not requested, and was not necessary to the Court’s determination of the motions.
This case concerns Trooper Carlson’s arrest of Mr. Roth for driving under the influence. Mr. Roth seeks reversal of the Alaska Attorney General’s decision to certify that Trooper Carlson was acting within the scope of his employment at the time of the incident. Defendants’ motion to dismiss presumes the certification is valid and seeks dismissal of Mr. Roth’s state law claims on immunity grounds.
Trooper Carlson arrested Mr. Roth on August 25, 2012 for operating a motor vehicle while under the influence in violation of AS 28.35.030. Mr. Roth alleges that Trooper Carlson “lacked probable cause to believe that [Mr. Roth] had committed the crime of operating a motor vehicle in violation of AS 28.35.030 or similar ordinance.” Mr. Roth’s Amended Complaint includes state law claims of false arrest, false imprisonment, battery, and malicious prosecution, as well as claims under 42 U.S.C § 1983 and for punitive damages.
In his original Complaint, Mr. Roth asserted that “Defendant Carlson was at all times relevant to this complaint acting within the course and scope of his employment with the State of Alaska.” In agreement, and pursuant to AS 09.50.253(c), the Alaska Attorney General certified that Trooper Carlson was acting within the scope of his employment at the time of the arrest. By operation of AS 09.50.253(c), certification substitutes the state as the party defendant, “subject to the same limitations and defenses applicable to an action or proceeding against the state.” Mr. Roth first challenged the certification in April 2015. In an order dated July 28, 2015, the Court denied that motion because Mr. Roth was bound by the undisputed allegations in his Complaint. The Court also granted Defendants’ Motion to Dismiss Remaining State Law Claims on immunity grounds pursuant to AS 09.50.253 and AS 09.50.250, which Mr. Roth had opposed only by requesting review of the certification. However, the Court accorded to Mr. Roth an opportunity to file an amended complaint to allege that Trooper Carlson was acting outside the scope of his employment and again seek review of the certification decision.
Mr. Roth filed an Amended Complaint on August 17, 2015 that alleged that Trooper Carlson was “acting outside the scope of his employment” at the time of the arrest. Mr. Roth then filed a renewed Request for Judicial Review of State’s Certification Decision. He asserts that Trooper Carlson acted “outrageously, intentionally, with malice, with reckless indifference and, with deliberate indifference (actions which plaintiff argues take Trooper Carlson outside the course and scope of his employment . . .).” Defendants disagree. But the parties do not dispute the underlying facts of the incident, which was audio and video recorded. The Court has reviewed the transcript of that recording. The undisputed facts in the record regarding the arrest are as follows:
Mr. Roth was initially stopped by U.S. Forest Service Officer Chris Sakraida for failing to stop at a stop sign several minutes before Trooper Carlson arrived at the scene.
When the Forest Service Officer asked Mr. Roth if he had anything to drink, Mr. Roth responded, “Sir, I need to be on my way.” When asked why he needed to be on his way so fast, Mr. Roth responded, “Sir, I’m not answering any other questions.” Several questions later Mr. Roth added, “I’d like to speak with an attorney.” Officer Sakraida responded, “You’re not in custody at all. So, you’re - you’re not under arrest in any way, shape or form right now.”
Trooper Carlson then arrived at the scene. He asked if Mr. Roth was on any medications, to which Mr. Roth gave no audible response. Trooper Carlson asked again, and Mr. Roth responded, “All right. I’m not going to answer any questions.” Trooper Carlson asked again and Mr. Roth said he would not answer “any questions without first speaking with an attorney.” Trooper Carlson then initiated a field sobriety test. But Mr. Roth asked, “Sir, am I required to do the field sobriety--” to which Trooper Carlson responded, “Yes, you do.” Mr. Roth asked again, “I’m required to do the field sobriety test by law?” Trooper Carlson responded, “We need to know if you are under the influence of anything.” Mr. Roth said, “Sir, I’m asking you. Am I required by law to do the field sobriety tests?” Trooper Carlson said, “Yes. Yes, you are.”
After several more similar exchanges, Trooper Carlson had Mr. Roth put his feet together and his hands at his sides, and asked him to focus on Trooper Carlson’s fingertip. Then Trooper Carlson asked him to raise one foot and count for 30 seconds. When Mr. Roth had counted to 17, Officer Carlson asked Mr. Roth several times to look at his toes.
Mr. Roth said he was looking at his toes, but Trooper Carlson said he was not. Mr. Roth did not stop counting at 30, but rather continued to 60. Trooper Carlson said, “Okay. Well, you did that incorrectly.” Trooper Carlson then instructed Mr. Roth on how to perform a heel-to-toe walking test, which Mr. Roth failed to complete. Officer Sakraida and Trooper Carlson next administered a breathalyzer test, which was negative for alcohol. Mr. Roth asked if he was free to go. Trooper Carlson and Officer Sakraida both responded that he was not free to go. Trooper Carlson once again asked if Mr. Roth was under the influence of any illegal drugs, and Mr. Roth said again that he would not answer any questions until speaking with his attorney.
Trooper Carlson then decided to “detain [Mr. Roth] and put him in cuffs.” He told Mr. Roth he was being detained for DUI. Mr. Roth said, “I do not wish to be moved from the general vicinity.” Trooper Carlson did not allow Mr. Roth to secure his vehicle or make a phone call. Mr. Roth said he did not consent to any searches. Trooper Carlson said, “That’s okay. I’m going to still do it, for my safety.” During the search, Trooper Carlson found a round canister and said, “That looks like something that’s used for drugs.”
Trooper Carlson and Officer Sakraida then had a conversation about the incident. Officer Sakraida explained that Mr. Roth “[b]lew a stop sign” and that “[h]e had that look and he constantly had the whole time, refused to answer any questions without (indiscernible).” Trooper Carlson said, “Yep. Yep. (indiscernible) So here’s-here’s my game. So. I mean, I don’t want to take your thunder. So, I-.” Officer Sakraida responded, “No, no. I-I appreciate-.” He said, “We don’t-we don’t deal with these.” Trooper Carlson said that he had dealt with this and added, “Here in town. The DA doesn’t (indiscernible). They-they dump them, for the most part. I actually got one and I got it through, and I got a conviction. (Indiscernible) we get him down to the hospital, they- they telephone a search warrant, they get blood and they move on. That’s it. Screw them.” He added, “And the guy is not being cooperative.” Trooper Carlson said, “They tow him, you know. Just common sense. So, you want to-you want to play the game, we’ll play the game. No big deal. Cost you a couple grand. So-.” The two officers discussed who would take the arrest. Trooper Carlson said, “I don’t care about the stats. They mean nothing to me. Just as long as tonight he goes to jail and the road’s safe.” Some parts of the ensuing conversation were indiscernible, but the Trooper Carlson said he thought the canister may have contained meth, and “he’s doing something, dad or uncle or whatever is playing attorney. I don’t give a shit. But, I mean, there’s something- there’s something.” ...