DANIEL LUM and POLLY LUM, for themselves and for their minor children, JOSEPH AVEOGANNA, ELIZABETH HAWLEY, AIYANNA LUM, and JAMIE LUM, Appellants,
v.
GWENDOLYN KOLES F/K/A GRIMES, JOSE GUTIERREZ, and NORTH SLOPE BOROUGH, Appellees.
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 ...