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Dunlap v. Anchorage Police Department

United States District Court, D. Alaska

March 8, 2016

DONALD W. DUNLAP, Plaintiff,



Before the Court is Defendants’ Motion for Summary Judgment at Docket 36. The Court previously ruled on that motion in an order issued on October 31, 2012, granting the motion and dismissing Mr. Dunlap’s claims.[1] Mr. Dunlap appealed to the Ninth Circuit, which affirmed in part, and reversed and remanded in part.[2] On remand, both parties filed supplemental briefing addressing the Ninth Circuit’s memorandum disposition.[3]Defendants’ Motion for Summary Judgment at Docket 36 is now back before the Court and ripe for decision. Oral argument was not requested and was not necessary to the determination of the motion.


The facts, when viewed in the light most favorable to Mr. Dunlap 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 Shaun Henry.[4] Officer Henry spoke to Mr. Dunlap and received identification from him.[5] 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 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 between the front passenger seat and the center console.[6]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 loaded rifle on the passenger seat was in Officer Henry’s plain view.[7] 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.”[8] 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.[9] Officer Henry then handcuffed Mr. Dunlap and conducted a pat down search. Mr. Dunlap explains that “Officer Henry discovered through his search . . . that [he] had no weapons on [his] person.”[10] 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.”[11]

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 a person contacted by a peace officer fails 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. Mr. Dunlap’s vehicle was then searched and his personal effects photographed.[12]

Mr. Dunlap was taken before a state magistrate judge.[13] There, Officer Henry testified that he had arrested Mr. Dunlap because Mr. Dunlap “had failed to inform him of a weapon concealed on [his] person.”[14] The charging document states that “Dunlap failed to notify a police officer of a loaded weapon and refused to notify [the] officer of any other dangerous weapons and loaded firearms in his possession (large hunting knives and a machete).”[15] Bail was set and Mr. Dunlap was remanded to jail.[16] 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 coworkers were on duty.[17] Mr. Dunlap indicates that on February 19, 2008, the charge against him was dismissed.[18]

As relevant on remand, Mr. Dunlap asserts claims under 42 U.S.C. § 1983 for his arrest, [19] and state law tort claims of false arrest/imprisonment and intentional infliction of emotional distress.[20] Mr. Dunlap also asserts that the Municipality of Anchorage (MOA) and the Anchorage Police Department (APD) are “liable for negligent hiring, supervision, training, and retention” of Officer Henry.[21]

Defendants filed their Motion for Summary Judgment on March 12, 2012.[22] The Court granted summary judgment to Defendants, holding that Defendants were entitled to qualified immunity because even under the facts taken in the light most favorable to Mr. Dunlap, a reasonable jury could not find a constitutional violation.[23] The Court held that even if AS 11.61.220(a)(1)(A)-the statute under which Officer Henry had arrested Mr. Dunlap-did not provide probable cause to arrest, other authority did. Specifically, the Court interpreted Anchorage Municipal Ordinance 8.25.020 to prohibit carrying weapons that were concealed “about [Mr. Dunlap’s] . . . person” in the vehicle, based on a prior decision from the Alaska Court of Appeals.[24] Because Mr. Dunlap possessed the two concealed knives near his person, the Court concluded that Officer Henry had probable cause to arrest Mr. Dunlap under the municipal ordinance, even though the knives were not directly on Mr. Dunlap’s person. The Court granted summary judgment on the remaining claims on the basis that the arrest was lawful.[25]

Mr. Dunlap appealed to the Ninth Circuit. The Ninth Circuit affirmed many of the Court’s rulings, but reversed the Court’s holding regarding Mr. Dunlap’s arrest. It held that based upon a different provision in the municipal ordinance, because Mr. Dunlap was “authorized to possess a firearm, ” then “he also was permitted to have the weapons found in his car because none of them was concealed on his person.”[26] But the Ninth Circuit remanded with instructions to consider whether, pursuant to the United States Supreme Court’s recent decision in Heien v. North Carolina, the arrest was lawful, and, if not, whether Officer Henry is entitled to qualified immunity.[27]


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. 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.[28] If the moving party meets this burden, the non-moving party must present specific factual evidence demonstrating the existence of a genuine issue of fact.[29]

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.[30] When granting or denying a motion for summary ...

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