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Sun v. Norris, Crawford and State of Alaska (4/10/92), 830 P 2d 772
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NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ROY SUN, )
) Supreme Court No. S-4251
Appellant, )
)
v. ) Superior Court No.
) 2KB-89-79 Civil
STATE OF ALASKA, DOUG NORRIS, )
and RANDY CRAWFORD, ) O P I N I O N
)
Appellees. ) [No. 3830 - April 10, 1992]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Second Judicial District,
Nome,
Charles R. Tunley, Judge.
Appearances: C.R. Kennelly, Stepovich,
Kennelly & Stepovich, P.C., Anchorage, for
Appellant. Burton C. Biss, Biss and Holmes,
Wasilla, for Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
Roy Sun filed a personal injury complaint in superior
court in which it was alleged that Alaska State Troopers, Doug
Norris and Randy Crawford, used excessive force by shooting him a
number of times while attempting to apprehend him. Thereafter,
Norris, Crawford, and the state moved for summary judgment on the
basis that AS 09.17.030 precluded Sun from recovering any
damages. The superior court granted the motion and this appeal
followed.
I. FACTS AND PROCEEDINGS
While drinking heavily, Sun became angry at his nephew,
Jeffrey Sun. Throughout his subsequent search of Shungnak for
his nephew, whom he thought had removed his supply of liquor, Sun
was armed with a .22 caliber rifle.
After turning off the village's power plant, Sun broke
into the public safety building, shot out the tires of Shungnak's
public safety officer's three wheeler, and shot several sled
dogs. At times Sun fired indiscriminately into various houses,
pointed his rifle at the public safety officer, and also shot at
Calvin Black.
After a futile attempt to disarm Sun, the public safety
officer established radio communication with the Alaska State
Troopers. After being advised of the details of Sun's actions,
Troopers Norris and Crawford flew to Shungnak. Upon their
arrival they were informed that Sun was walking up the trail from
the river to the village. Troopers Crawford and Norris then went
to intercept Sun before he re-entered the village. Trooper
Crawford was armed with a 12 gauge shotgun, while Trooper Norris
carried a .223 caliber, Mini 14, high powered rifle.
According to Trooper Crawford the following events
occurred:
Trooper Norris and myself went to the
head of the trail which was normally used to
walk from the beach toward town and we saw
Sun coming up the trail. We got into
positions to block Sun from entering town and
we both identified ourselves and both
instructed Mr. Sun to drop his rifle several
times.
. . . Mr. Sun came within approximately
15 feet of me, and turned his rifle toward me
with his finger on the trigger. I do not
know whether he fired first, but I reacted by
firing two rounds at Mr. Sun with my weapon.
He moved backwards down the hill but still
retained the rifle in his hand and I fired
two additional rounds at which time he
dropped the rifle and fell down the hill.
Trooper Norris and myself immediately called
for health aide assistance and transported
Mr. Sun to the clinic and made arrangements
to evacuate him to a hospital.1
Trooper Norris' version of the critical events is as follows:
As Roy Sun approached to where we could
observe him, he was told to put down his
rifle. . . . We identified ourselves and
instructed Roy Sun to drop his rifle several
times. Instead of doing so, Mr. Sun turned
toward Corporal Crawford bringing his rifle
to bear with his finger on the trigger. I
believed we were both in immediate danger of
being shot, and that if we did not stop Mr.
Sun that other persons in the village were in
danger of being shot by him. I fired my
weapon at Mr. Sun to stop him. When I fired,
he moved backward down the hill but still
held the rifle and did not appear to be
disabled or dissuaded. I fired again and he
dropped the rifle, and fell out of view, down
a hill.
In an affidavit Roy Sun averred in part:
That I did not point the 22 long rifle
that I was carrying at them. I did not shoot
the rifle. I was merely trying to walk home.
I made no threats at them verbally or
otherwise.
. . . That I recall the officers being
there and that they shot me. I fell to the
ground. I remember thinking that they only
shot me once.
. . . That I was shot immediately after
I saw the two men.
As noted above, Trooper Crawford, Norris, and the state
moved for summary judgment seeking dismissal of Sun's complaint
on the basis of AS 09.17.030. This statute provides:
A person who suffers personal injury or
death may not recover damages for the
personal injury or death if the injuries or
death occurred while the person was engaged
in the commission of a felony, the person has
been convicted of the felony, including
conviction based upon a guilty plea or plea
of nolo contendere, and the felony
substantially contributed to the injury or
death. This section does not affect a right
of action under 42 U.S.C. 1983.
The troopers and the state argued, in part, that "as a
matter of law . . . this plaintiff may not recover damages for
personal injury when the injuries occurred while the plaintiff
was engaged in the commission of a felony." Sun opposed the
summary judgment motion with his own affidavit as well as
affidavits contesting the issue of whether Sun's conduct
"substantially contributed"to his injuries. In resolving the
motion the superior court noted that:
[Sun] plead "Nolo Contendre"[sic] to
Count VII of an Indictment dated July 31,
1987 in the case of State of Alaska v. Roy
Sun, 2KB-S87-436CR., Count VII charging
Assault in the Third Degree, which reads as
follows:
"That on or about the 5th
day of July, 1987, at or near
Shungnak in the Second Judicial
District, State of Alaska, ROY SUN
did unlawfully and recklessly place
Alaska State Trooper Randy
Crawford, a uniformed police
officer in fear of imminent serious
physical injury by means of a
dangerous instrument, to wit: a
gun."
Based on Sun's plea of nolo contendere, the superior
court concluded that Sun was engaged in the commission of a
felony at the time he sustained his injuries, that Sun was
convicted of the felony, and that the felony substantially
contributed to Sun's injuries. On the basis of the foregoing,
the superior court granted the troopers' and the state's motion
for summary judgment pursuant to AS 09.17.030.
II. DOES AS 09.17.030 DEPRIVE SUN OF DUE PROCESS UNDER ALASKA'S
CONSTITUTION?
Sun contends that AS 09.17.030 violates the due process
clause of Alaska's Constitution.2 More particularly, Sun argues
that application of AS 09.17.030 to the factual circumstances of
the case at bar would nullify Alaska's statutes on the use of
excessive or deadly force.3 In this regard Sun states that:
Allowing summary execution of a burglar,
simply because he was in the process of
committing a felony, would violate every
constitutionally fair procedure and the
entire concept of individual justice, so
extensively written into or [sic] laws.
Applying this statute, to . . . factual
situations, as in the case at bar, would do
just that.
In opposition, Norris, Crawford and the state argue
that:
When the conditions of AS 09.17.030
are satisfied, a felon has no right to
recover damages. That disqualification does
not create a right in all of the rest of the
population to damage the felon. A shield is
not a sword. Justification is a defense, not
a disqualification of prospective plaintiffs.
Prohibiting Roy Sun from recovering damages
is not the same as shielding the State from
liability. The State still remains liable to
the penalties of the criminal law and to the
civil penalties of their personnel and
employment rules and regulations, including
license and certification suspension.
State v. Sundberg, 611 P.2d 44, 50 (Alaska 1980) is
relevant to the resolution of this issue. There we said:
The fleeing felony suspect advances two
distinct but interrelated interests: the interest
in not being deprived of life or limb because he
committed a crime (a right to life) and the
interest in suffering no deprivation until
convicted in a court of law (a right to trial).
When deadly force is used to arrest nonviolent
felony suspects . . . the deprivation of life or
limb without trial is offensive to the presumption
of innocence and other values central to our
conception of justice and should not be condoned
except in emergency situations. (Quoting Comment,
Deadly Force to Arrest: Triggering Constitutional
Review, 11 Harv. C.R.-C.L. L. Rev. 361, 372-73
(1976)).
In Sundberg we further observed that we "would
entertain grave doubts as to the constitutionality of a statute
which permitted peace officers to employ deadly force against all
fleeing felons regardless of the particular circumstances." Id.
at 50 n.16. The broad language of AS 09.17.030 could be read to
immunize unconstitutional use of deadly force from a civil suit,
but it is in no sense a grant of immunity from criminal
prosecution. AS 09.17.030 does not change the law of arrest set
out in AS 11.81.370, wherein deadly force may be utilized by a
police officer only in narrowly defined circumstances. Where
such circumstances do not exist, the police officer may be
prosecuted under the criminal law for homicide or other crimes,
may be administratively sanctioned, and may be civilly sanctioned
under 42 U.S.C. 1983. Because AS 09.17.030 did not change the
substantive law of arrest, and because significant sanctions
remain for violations of the substantive law of arrest, we hold
that AS 09.17.030 does not deprive Sun of due process under the
constitution of Alaska.4
III. DID THE LEGISLATURE INTEND AS 09.17.030 TO APPLY TO THE
CIRCUMSTANCE WHERE EXCESSIVE USE OF DEADLY FORCE IS APPLIED?
Here Sun advances an argument which is closely related
to the discussion in Part II above. Sun argues that the
legislature's objective in enacting AS 09.17.030 was to alleviate
a "perceived 'crisis' in insurance rates and availability." Lake
v. Construction Mach. Inc., 787 P.2d 1027, 1031 n.9 (Alaska
1990). Sun further argues that AS 09.17.030 must be read
together with AS 11.81.370, so that the reasonable belief
standard provided for in AS 11.81.370 defines the "felony
substantially contributed to the injury or death"standard of AS
09.17.030.5
Alaska Statute 09.17.030 "embodies the public policy
articulated in Adkinson [v. Rossi Arms Co., 659 P.2d 1236, 1240
(Alaska 1983)]." Lord v. Fogcutter Bar, 813 P.2d 660, 663,
(Alaska, 1991). Adkinson states that "allowing a criminal
defendant, who has been convicted [after a trial] of an
intentional killing, to impose liability on others for the
consequences of his own anti-social conduct runs counter to basic
values underlying our criminal justice system." 659 P.2d at
1240. In Fogcutter, this court used Adkinson to bar a felon's
civil claim under the dram shop act (AS 04.21.020) for damages,
because he was convicted of kidnapping, rape, and assault. Id.
at 663.
We are in agreement with the troopers' and state's
argument that "Our legislature has decided that it will not
permit a felon to recover for personal injuries he received which
were substantially contributed to by his felonious activity."6
On the other hand, if the evidence shows that commission of the
felony did not substantially contribute to plaintiff's injury or
death, then AS 09.17.030 would not bar plaintiff's suit.
IV. ARE THERE GENUINE ISSUES OF MATERIAL FACT WHICH PRECLUDE
SUMMARY JUDGMENT?
The parties agree that AS 09.17.030 bars Sun's claims
for damages if the evidence shows that (1) Sun sustained his
injuries while engaged in the commission of a felony; (2) that
Sun was convicted of the felony (including a conviction based on
a plea of nolo contendere); and (3) that commission of the felony
substantially contributed to Sun's injuries.
Sun concedes that the proof shows he was convicted of
assaulting Trooper Crawford with a gun (Assault in the Third
Degree - AS 11.41.220(a)(1)). Concerning the remaining two
elements, Sun's position is that the evidence does not show that
he was injured during the commission of a felonious assault nor
does the evidence show that the felonious assault substantially
contributed to his injuries.7
As noted above, Sun opposed the motion for summary
judgment with his own affidavit attesting that he did not point
his rifle at or fire upon the troopers. He further attests that
the troopers did not give him an opportunity to surrender. Sun
also offered the affidavits of Roy Hendricks and Paul Barnhardt
in opposition to the troopers' motion for summary judgment.
Hendricks and Barnhardt, both former police officers, attest that
the troopers' affidavits are inconsistent with the physical
evidence, police reports, and medical records. Barnhardt
concludes that Sun's injuries are more consistent with Sun's
version of the facts.
In ruling on the summary judgment motion the superior
court concluded:
under the uncontroverted facts included
in defendant's felony conviction of Assault
in the Third Degree upon Trooper Crawford,
that the Plaintiff's acts in committing the
felony substantially contributed to
Plaintiff's injuries. There is no issue of
fact as to "the causal relationship between
the felonies that Mr. Sun stands convicted of
and the injuries suffered." See:
Plaintiff's Memorandum, supra, at page 11.
Plaintiff was charged with putting Trooper
Crawford in fear of imminent serious physical
injury with a firearm at the same date, time
and place in a criminal action. Troopers,
including Trooper Crawford, shot plaintiff a
number of times on that same date, time and
place. Plaintiff was convicted of this
felony assault upon Trooper Crawford. This
civil action arises from these very same
facts. Without question, the felony for
which plaintiff was convicted of
substantially contributed to his injuries.
Plaintiff has failed to "clearly and
specifically demonstrate that he can produce
admissible evidence disputing the movant's
evidence." Southeast Alaska Const., supra at
342. AS 09.17.030 does not provide for the
fine distinction proposed by plaintiff, i.e.,
alot [sic] of shots at him were not
justified, though the first shot may have
been. His injuries occurred while he was
engaged in a felony; he was convicted of this
felony; the felony substantially contributed
to his injuries. These findings and
conclusion are undisputed. Summary judgment
under Civil Rule 56 must therefore be entered
herein in favor of defendants pursuant to AS
09.17.030.
Implicitly, the superior court assumed that a
conviction based upon a nolo contendere plea has collateral
estoppel effect in subsequent civil litigation. We have
expressly refrained from deciding whether a plea of nolo
contendere has collateral estoppel effect. Pletnikoff v.
Johnson, 765 P.2d 973, 976 n.2 (Alaska 1988). Nevertheless we
conclude that AS 09.17.030 has a clear meaning in this context.8
The statute is intended to preclude a person who receives
injuries in the course of a felony, and pleads nolo contendere to
that felony from later contesting whether he actually committed
the felony. Thus, the superior court correctly ruled that Sun is
collaterally estopped from denying the fact that he pointed his
rifle at Trooper Crawford.9
This conclusion, however, does not end our review of
the superior court's grant of summary judgment. For, as noted
above, AS 09.17.030 contains a third element, namely, that
commission of the felony "substantially contributed to the
injury."
In applying this element of AS 09.17.030 to the facts
appearing in this record we find we are in agreement with the
superior court's conclusion that "AS 09.17.030 does not provide
for the fine distinction proposed by plaintiff, i.e, alot [sic]
of shots at him were not justified, though the first shot may
have been."10 Review of the record fails to disclose the
existence of a genuine issue of material fact as to whether or
not Sun's assault of Trooper Crawford substantially contributed
to Sun's injuries. Nothing in the record shows a break in the
nexus between Sun's assault of Trooper Crawford with a dangerous
weapon and the Troopers' instantaneous response thereto with
deadly force. Here there is no indication that Sun clearly and
unequivocally broke off his assault prior to receiving his
injuries. There simply is no genuine issue of material fact as
to whether Sun's criminal assault substantially contributed to
the injuries he received.11
AFFIRMED.
_______________________________
1. In his affidavit, Trooper Crawford further stated that:
I was acquainted with Mr. Sun and I
thought I would be able to talk him out of
the rifle but he refused to obey our orders
to drop the rifle even though I believe he
recognized Trooper Norris and myself. We
were both in full uniform.
2. Article I, section 7 of the Alaska Constitution
provides:
No person shall be deprived of life,
liberty or property without due process of
law. . . .
3. Sun relies, in part, on the provisions of AS 11.81.370
which state in part:
[t]he officer may use deadly force only
when and to the extent the officer reasonably
believes the use of deadly force is necessary
to make the arrest or terminate the escape. .
. .
4. Questions concerning the constitutionality of a statute
are questions of law and are reviewed de novo. See Hicklin v.
Orbeck, 565 P.2d 159 (Alaska 1977); rev'd on other grounds, 437
U.S. 518 (1978). This court has a duty to construe statutory
provisions, whenever possible, to avoid the dangers of
unconstitutionality. Keith v. State, 612 P.2d 977, 986 (Alaska
1980).
5. AS 11.81.370 provides in part:
The [police] officer may use deadly
force only when and to the extent the officer
reasonably believes the use of force is
necessary to make the arrest or terminate the
escape or attempted escape from custody of a
person the officer reasonably believes
(1) has committed or attempted to
commit a felony which involved the use of
force against a person. . . .
(Emphasis added).
6. Appellees further argue:
Whether viewed as a
disability/disqualifica-tion to Mr. Sun, or
an extension of the privilege of self-defense
and defense of others to the Troopers (as
viewed by Roy Sun), the result in this
instance is the same. One lawfully using
deadly force against his victim simply has no
legally protected interest against his victim
defending himself with deadly force, and must
accept whatever degree of personal injury or
death results. Damage recovery redress is
simply not allowed.
7. In reviewing a grant of summary judgment, this court
must draw all inferences of fact in favor of the non-moving
party. Kodiak Elec. Ass'n v. DeLaval Turbine, Inc., 694 P.2d
150, 152 n.1 (Alaska 1984). The moving party has the burden of
proving that his opponent's case has no merit. Riley v. Northern
Com'l Co., 648 P.2d 961, 966 (Alaska 1982). If, after examining
the record, we discover the existence of a genuine issue as to
any material fact, or it appears that the prevailing party was
otherwise not entitled to summary judgment, this court must
reverse the order and remand the case for trial. Ellis v. City
of Valdez, 686 P.2d 700, 702 (Alaska 1984); Breck v. Ulmer, 745
P.2d 66, 69-70 n.6 (Alaska 1987).
8. We have previously stated that:
[t]he goal of statutory construction is
to give effect to the legislative intent,
with due regard for the meaning the statutory
language conveys to others. In this respect,
we have repeatedly stated that unless words
have acquired a peculiar meaning, by virtue
of statutory definition or judicial
construction, they are to be construed in
accord with their common usage.
Tesoro Alaska Petro. v. Kenai Pipe Line Co., 746 P.2d 896, 905
(Alaska 1987) (citations omitted).
9. Given that this holding is based on the express language
of AS 09.17.030, we need not decide whether a conviction based on
a nolo contendere plea has collateral estoppel effect in other
contexts.
10. In their brief before this court the Troopers and state
argue the point in the following fashion:
The Troopers answered deadly force
with deadly force. Roy Sun would like to
argue over a careful gauging of the number of
shots the Troopers fired,5 but because of
this statute, fine distinctions in the amount
of deadly force used are precluded, and Roy
Sun cannot state a claim for relief if his
personal injuries stem from the commission of
the felony for which he was convicted.
_____________________________________________
5. The troopers are entitled to
respond to deadly force by using overwhelming
deadly force and win the battle, not just
tie.
11. Implicit in our holding is that nothing in Hendricks' or
Barnhardt's affidavits give rise to genuine issues of material
fact.
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