Lum v. Koles

          Appeal from the Superior Court of the State of Alaska, No. 2BA-07-00083 CI, Second Judicial District, Barrow, Michael I. Jeffery, Judge.

          Colleen A. Libbey, Libbey Law Offices, Anchorage, for Appellants Daniel and Polly Lum.

          Lester K. Syren, Syren Law Offices, Anchorage, for Appellant Minor Children.

          Brent R. Cole, Law Office of Brent R. Cole, P.C., Anchorage, for Appellees Gwendolyn Koles and Jose Gutierrez.

          Peter C. Gamache, Law Office of Peter C. Gamache, Anchorage, for Appellee North Slope Borough.

          Before: Stowers, Chief Justice, Winfree, Bolger, and Carney, Justices, and Eastaugh, Senior Justice.^[*]

          Maassen, Justice, not participating.

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         The Lum family sued two police officers and the North Slope Borough for trespass and invasion of privacy after an allegedly unlawful entry into the Lums' home. The superior court dismissed both claims on summary judgment, reasoning that the officers were protected by qualified immunity under state law because the Lums had not produced sufficient evidence that the officers acted in bad faith. We reverse the superior court's decision because there are genuine issues of material fact as to whether they acted in bad faith.

         II. FACTS AND PROCEEDINGS

         A. Daniel Lum's Relationship With The Officers

         In 2007 Daniel and Polly Lum and their children lived in Barrow. Officer Gwendolyn Grimes and Sergeant Jose Gutierrez were officers with the North Slope Borough Police Department.^[1]

         Daniel first met Grimes in her official capacity on August 22, 2007 after he reported that someone had stolen his methadone medication. Grimes responded to the call and met Daniel and Polly at their apartment. Grimes later said she "felt bad for [Daniel] that he was a junkie, methadone user." She knew that Daniel worked by driving tourists around in his van, and had referred people to his business. Grimes was concerned that he might be driving under the influence of drugs, so she made a mental note to "keep an eye on him" while he was driving around town.

         Daniel and Grimes met again in early September 2007 when they spoke about an incident purportedly involving a white man trying to abduct Native children. At that time Grimes was in her police vehicle and Daniel was on foot. Grimes later recalled that because the subject matter made Daniel visibly angry, she asked him "if everything was okay." Daniel remembered that she had asked what his problem was. Grimes recalled that Daniel then "just jumped down my throat and just started yelling and screaming at me," and said, "I'm not gonna talk to a meth dealer." In contrast Daniel said he told Grimes, "[M]y problem is your family is dealing meth in our village, that's my problem."

         Grimes later said that she interpreted Daniel's response as an accusation that she was a meth dealer.^[2] She said she did not pay much mind to Daniel's accusation, calling it "just... one of [his] ranting and ravings." She said that she quickly terminated the encounter. Daniel recalled her departure as less friendly: Grimes telling him, "[Y]ou go with that Daniel, I'll see you on the street. And that wasn't a see you later, buddy, that was I'll see you on the street. ... I took it as a threat."

         The following day Daniel was involved in a police chase ending at Point Barrow. When he reached the point and got out of his vehicle, he saw a police officer some distance away fire a gun in his direction. Daniel thought it was Grimes. He remained on the point until his negotiated surrender with the police.

         Soon afterward Daniel began making accusations of police corruption. He spoke to the City of Barrow mayor about the incident at Point Barrow and attempted to speak to the North Slope Borough mayor. Grimes knew that there were accusations of police corruption but said that she did not know they were coming from Daniel.

         Her colleague Gutierrez knew of Daniel and his tour business van. Gutierrez said that he knew "in general" that Daniel had been accusing police officers of being "dirty cops," but that he had no "direct knowledge" and knew only "scuttlebutt."

         B. The Events Of September 18, 2007

         About 8:00 p.m. on September 18a dispatcher at the North Slope Borough Police Department received a 911 call from a woman who identified herself and stated that she was a friend of Polly Lum. She said that she wanted "some officers to go to [the Lums' apartment] for a welfare check on some children." She said she had heard the children "crying, and [a] newborn infant crying and two adults fighting and screaming." She had heard this when Polly called her on the phone for help. She also said that Daniel had told her that Polly had "bruises and a cut on her head."

         The dispatcher reported to all units: "Female asking PD to do welfare check on couple as they were having a domestic dispute. Kids are crying, and she is concerned regarding kids' welfare at [the Lums' address]."

         Grimes was on shift with Gutierrez and another officer. They were together on the scene of another call when they received the dispatcher's message and said they would respond to the call.

         The officers' information was limited to what the dispatcher told them. They did not know the details of the 911 call. They did not therefore know the caller's identity or about Polly's reported injuries. Gutierrez later agreed that a dispatcher would normally inform the officers if she had reason to believe the call involved alcohol, weapons, or physical injury.

         Gutierrez arrived on the scene first, followed shortly by Grimes. Grimes realized after arriving that the apartment was the Lums' because Daniel's van was parked outside. Both Grimes and Gutierrez turned on their audio recorders and walked toward the apartment. They did not speak to one another as they approached.

         Gutierrez later testified he had heard "shouting" or "yelling" inside the home as he approached. Grimes testified she did not remember hearing anything as she approached the house but heard yelling inside the house once she was in front of the door. Their audio recordings do not offer definitive support for this claim. Footsteps can be heard on Gutierrez's recording as he approaches the apartment building, as well as what might be voices in the background; distortion makes it difficult to draw any conclusions. Grimes's recording is no clearer. The officers concede that any argument they might have heard is "not audible on the recordings." The Lums concede that they were arguing, but claim that by the time the police arrived they had moved their argument into the bathroom and had resumed speaking in normal voices.

         Gutierrez knocked on the exterior door of the apartment building and a young girl, approximately six to eight years old, opened it. A barking dog stood with her in the hallway. The girl told the officers to come in. Gutierrez asked her where her parents were, and she responded "over there" pointing toward the interior door to the apartment. Gutierrez asked the child to "get him," meaning to "get a hold of the dog." The voices of a young girl and a young boy can then be heard on the recording attempting to introduce the officers to their dog, Mabel. The children's voices do not reveal any obvious signs of stress. The superior court's order noted that the children on the audio recording "did not sound stressed at the time."

         Gutierrez opened the interior door and entered the apartment immediately after the children "got hold of the dog." Grimes followed. After entering, Grimes took out her pepper spray. She later stated she did this because she was concerned the dog might bite the officers.

         Neither officer announced their identity as police officers or their purpose. Gutierrez said this was because it was not required when police respond to a domestic dispute that they can hear in progress: "You kick the door in . . . if you deem it's an emergency." He explained that they did not send the children to fetch their parents, because "[t]hat would be putting the child at risk." Grimes said that they did not announce their presence because the argument that they heard outside the apartment created an "exigent circumstance" requiring their entry and investigation.

         The officers entered the apartment and briefly looked into adjoining rooms before spotting Daniel, Polly, and an infant in the bathroom. Daniel did not know the police were there until he saw them from the bathroom. He told them to leave and accused Grimes of shooting at him, presumably referring to the earlier incident at Point Barrow.^[3] The officers ordered him to come out of the bathroom. Daniel tried to slam the door shut, but Gutierrez used his shoulder to keep it open. Gutierrez and Daniel struggled over the door until it was open enough for Grimes to see Daniel; she then sprayed him with the pepper spray. Polly and their infant were hit with some of the spray.

         Daniel started to feel like he was choking and unable to breathe. He repeatedly called out for an ambulance and said he was having a heart attack. The officers wrestled him out of the bathroom and put him in handcuffs. They then called an ambulance and one arrived about ten minutes later.^[4]

         C. Proceedings

         In December 2007 the Lums filed suit against the officers, alleging excessive force and unlawful entry under the Alaska Constitution and AS 12.25.100, Alaska's "knock and announce" statute.^[5] They also sued the North Slope Borough for negligent training and supervision.^[6] In 2010 the superior court granted summary judgment dismissing the Lums' excessive force claims on qualified immunity grounds and dismissing their unlawful entry claims because "neither could support a claim for damages."^[7] The court dismissed the Lums' claims against the Borough because the direct claims against the officers had been dismissed.^[8] The Lums had raised trespass and invasion of privacy claims for the first time in their opposition to summary judgment; the trial court had not considered those claims in granting summary judgment on the other claims.^[9]

         The Lums appealed, and in Lum v. Koles we affirmed the superior court's judgment on the excessive force and unlawful entry claims.^[10] But we remanded the trespass and invasion of privacy claims to the superior court for further proceedings.^[11]

         In June 2014 the officers moved for summary judgment on those claims, arguing that qualified immunity protected them as it had against the excessive force claims and that the claims failed as a matter of law. The Lums argued that the officers' entry into their home was illegal and made in bad faith, that the officers therefore were not entitled to qualified immunity, and that summary judgment was not appropriate. They argued that the officers had fabricated their claim about hearing an argument before entering the apartment, and that Daniel's allegations that Grimes was a methamphetamine dealer, as well as Gutierrez's knowledge of Daniel's charges against the police department, supported an inference of malice. The officers countered that the evidence showed that they entered the Lums' home to investigate a report of domestic violence and that the information known to the 911 dispatcher should be imputed to them, which would support the legality of their entry.

         The superior court granted the officers' motion for summary judgment, concluding that the officers were protected by qualified immunity. It reasoned that Gutierrez's general awareness of Daniel's police corruption claims was too speculative a basis for a reasonable inference of malice. The court acknowledged that Grimes presented a "closer issue," given her prior contacts with Daniel, and that viewing the evidence in the light most favorable to the Lums a jury might find that Grimes was "annoyed" with Daniel "because she assumed he was a significant person in spreading the rumor about her alleged meth dealing." Nonetheless the court determined that this evidence was insufficient because Grimes "faced ... a report of a domestic dispute with kids crying, and her superior officer had already entered the inner part of the duplex." The court determined that there was insufficient evidence to support an inference of malice against either officer, regardless of whether the 911 dispatcher's knowledge was imputed to them. The Lums appeal.^[12]

         III. STANDARD OF REVIEW

         "We review [a] grant of summary judgment de novo, reading the record in the light most favorable to the non-moving party and making all reasonable inferences in its favor."^[13] A grant of summary judgment will be affirmed "when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."^[14] "[T]he evidentiary threshold necessary to preclude the entry of summary judgment is low, "^[15] but the evidence supporting a claim must not be "based entirely on 'unsupported assumptions and speculation' and must not be 'too incredible to be believed by reasonable minds.' "^[16]

         Whether official immunity applies is a question of law that we review de novo.^[17] But the existence of bad faith or malice on the part of police officers is generally a question of fact, and a disputed issue of malice will survive summary judgment where the record contains "at least some objective evidence establishing facts capable of supporting an inference of malice."^[18]

         IV. DISCUSSION

         A. The Lums Have Produced Sufficient Evidence Of Bad Faith To Survive Summary Judgment On The Issue Of Qualified Immunity.

         Alaska Statute 09.65.070(d)(2) grants municipal employees immunity from suits for damages based on the "exercise or performance or the failure to exercise or perform a discretionary function."^[19] "Official immunity in Alaska is qualified ... it applies only 'when discretionary acts within the scope of the official's authority are done in good faith and are not malicious or corrupt.' "^[20] The issue here is whether there is evidence that the officers acted corruptly, maliciously, or in bad faith when they entered the Lums' home, and whether any such evidence is sufficient for the Lums' claims to survive summary judgment.

         We have analyzed similar questions before in the context of state officials. In Crawford v. Kemp we reversed a superior court's grant of summary judgment in favor of a state trooper, because there was a genuine issue of material fact whether the defendant trooper had acted in bad faith; if he had acted in bad faith, those acts would not be shielded by qualified state law immunity.^[21] Crawford had sued the trooper after the trooper arrested him for disorderly conduct in a courthouse clerk's office.^[22] The trooper had approached Crawford while searching for another individual in the building.^[23] Crawford grew annoyed and complained loudly about the trooper's questions and conduct.^[24] The trooper warned Crawford "his speech was disorderly" and that he "would be arrested if he spoke again"; Crawford spoke and was arrested.^[25] Several court employees testified that Crawford was "loud and disruptive," but Crawford testified otherwise and produced an affidavit from a friendly witness stating that both Crawford and the trooper had spoken in normal tones.^[26] Considering the conflicting testimony, we held that there was a genuine issue of material fact whether the trooper reasonably believed he had probable cause for a disorderly conduct arrest and whether his "decision to arrest Crawford was made because he was annoyed with Crawford rather than because he had a good faith belief that the law had been violated."^[27] We therefore reversed the superior court's judgment that the trooper enjoyed qualified immunity as a matter of law.^[28]

         Conversely, we upheld a qualified immunity determination in Prentzel v. State, Department of Public Safety, where the plaintiffs allegations of police malice consisted only of his own "subjective impressions."^[29] State troopers had mistakenly arrested Prentzel for violating conditions of release on bail - conditions to which he was no longer subject.^[30] Prentzel sued alleging the troopers had demonstrated bad faith because they "enjoy[ed] arresting [him]" and one trooper had "used a gleeful tone of voice when deciding to transport [him] to jail."^[31] We held that Prentzel's subjective beliefs found "no objective support from the facts in the record" and that he had failed to raise a genuine issue of material fact about the officer's alleged malice sufficient to survive summary judgment.^[32]

         We reached a similar conclusion in Maness v. Daily, where the plaintiff argued that there was a genuine issue of material fact whether the officers had pursued him in bad faith.^[33] The defendant officers had gone to Maness's home to execute a civil commitment order, but he armed himself and led the officers on an hours-long car chase and manhunt before he was shot and apprehended.^[34] He sued the officers for various torts, alleging that he had overcome their qualified immunity through proof of malice: for instance, the officers had claimed that he fired shots while fleeing in his RV, but their vehicles did not have any signs of gunshot damage, and other officers had not reported shots fired.^[35] We held that "these facts [did] not support an inference of malice even if viewed in the light most favorable to Maness," because of the abundance of evidence that "everything the troopers did ... was aimed at effectuating" the lawful civil commitment order.^[36]

         The superior court here usefully framed the issue of officer malice: whether the Lums produced sufficient evidence that the officers entered their home with "a malicious desire to disturb [Daniel] beyond what was necessary as they responded to a report of the existence of a domestic dispute that caused children to be crying." We hold that the Lums have produced sufficient evidence of malice to overcome the low threshold to survive summary judgment.

         We note first that, reading the record in the light most favorable to the Lums, as we must, there was little evidence on the scene that would have signaled to the officers that their entry was necessary to effect a lawful purpose. It is undisputed that the dispatch message requested a "welfare check" on a couple that was having a "domestic dispute," with kids crying at the scene. Although the officers have consistently claimed that they entered the home after hearing a loud argument inside, no such argument is audible in their recordings of the incident. Furthermore, the officers knocked on the exterior door and waited for it to be opened before they entered. And after knocking on the exterior door, the officers were greeted by children who showed no obvious signs of distress and whose primary concern appeared to be introducing the officers to their dog.

         The Lums claim that at the time of the officers' arrival they were speaking at normal volumes. The Lums have presented evidence that the circumstances apparent to the officers when they arrived at the Lums' building and entered the Lum apartment did not indicate that there was any emergency requiring their assistance, other than the message from dispatch reporting a "domestic dispute." The Lums' testimony, the audio recordings, and the officers' testimony reveal a genuine issue of material fact whether the officers heard "shouting" or "yelling" from inside the apartment. Unlike in Maness and Prentzel, we cannot say that there is "ample record evidence" that everything the officers did was aimed at effectuating a lawful emergency response.^[37] Because "summary judgment is appropriate only when no reasonable person could discern a genuine factual dispute on a material issue" it was not appropriate here in light of the evidence presented.^[38]

         As in Crawford, where there was a genuine issue of material fact whether the officer arrested Crawford because he believed he had probable cause to arrest or because he was annoyed by Crawford, so here there is a genuine issue whether the officers were motivated by an apparent emergency or by their prior experiences with Daniel.^[39] Both Gutierrez and Grimes knew Daniel, and both officers identified the apartment as his, either from past experience or from his distinctive van parked outside. Daniel had made public accusations of police corruption. Both officers were generally aware of the accusations and Gutierrez testified he knew the accusations were coming from Daniel. Daniel had personally confronted Grimes with accusations that her family was selling methamphetamine. Daniel's account of the confrontation with Grimes ended with the officer threatening him that she would "see [him] on the street." The officers entered Daniel's home less than three weeks later. It remains a question whether the officers entered the Lums' apartment without hearing or witnessing anything on the scene indicating an emergency and whether their entry was for reasons other "than because [they] had a good faith belief that their assistance was required inside.^[40]

         We reiterate that "the evidentiary threshold necessary to preclude an entry of summary judgment is low."^[41] Collectively, the evidence presented could support an inference that the officers' entry was motivated by "a malicious desire to disturb [Daniel] beyond what was necessary as they responded to a report of the existence of a domestic dispute." The existence of bad faith therefore remains a genuine issue of ...