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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Crawford v. Kemp (07/14/2006) sp-6022
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| KEANE-ALEXANDER | ) |
| CRAWFORD, | ) Supreme Court No. S- 11356 |
| ) | |
| Appellant, | ) Superior Court No. |
| ) 4FA-02-00183 Civil | |
| v. | ) |
| ) O P I N I O N | |
| KEVIN E. KEMP and STATE OF | ) |
| ALASKA, | ) No. 6022 - July 14, 2006 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Keane-Alexander Crawford, pro
se, Fairbanks, Appellant. Gene L. Gustafson,
Assistant Attorney General, Fairbanks, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Alaska State Trooper Kevin Kemp arrested Keane-
Alexander Crawford for disorderly conduct and performed a search
of Crawfords bag incident to the arrest. Criminal charges
against Crawford were dismissed, and Crawford filed suit against
the State of Alaska and Kemp alleging state law tort claims and
42 U.S.C. 1983 constitutional claims including false arrest,
false imprisonment, unreasonable search and seizure, malicious
prosecution, and violation of free speech. The superior court
granted summary judgment in favor of the State and Kemp.
Crawford does not challenge the States argument that it is immune
from suit under state and federal law and limits his appeal to
claims against Kemp. We reverse the superior courts decision
granting summary judgment in favor of Kemp because there are
genuine issues of material fact as to whether there was probable
cause for Crawfords subsequent arrest and search and whether Kemp
is entitled to immunity.
II. FACTS AND PROCEEDINGS
A. Factual History1
On December 7, 2001, Keane-Alexander Crawford was
sitting in the clerks office of the Rabinowitz courthouse in
Fairbanks, drafting a motion for his divorce case. Alaska State
Trooper Kevin Kemp went to the clerks office in search of a man
named Rodney who had just violated a domestic violence
restraining order by calling his wife. Rodneys phone call
originated from the courthouse, and Kemp was told that he should
be able to find Rodney filing paperwork at the clerks office.
When Kemp arrived at the clerks office, he approached Crawford
and asked his name. Crawford replied that he did not want to
tell Kemp his name and asked if Kemp was trying to arrest him.
Crawford also inquired if Kemp had a tape recorder and
was recording their conversation. When Kemp asked if Crawford
would like him to turn on his tape recorder, Crawford responded
that he would rather just be left alone. Kemp explained that if
Crawford would tell him his name, then he could verify if
Crawford was the person he was looking for. Crawford refused, so
Kemp asked a clerk if she knew Crawford. Kemp then returned to
where Crawford was sitting and looked over Crawfords shoulder to
see if he could read Crawfords name on the form he was filling
out. As Kemp was walking away, Crawford raised his voice
slightly and said to Kemp that he should feel proud for being
able to read over someones shoulder. Crawford states he wasnt
shouting but concedes that he said it loud[ly] because he wanted
others in the immediate vicinity to know what Kemp had done.
Crawford asserts that Kemp then turned, leaned down close to
Crawfords face, and told Crawford he would be arrested if he
continued to speak in a disorderly manner. According to
Crawford, [i]n a voice that [Kemp] would be able to hear, but not
loud enough that it would carry unnecessarily far, Crawford asked
Kemp for his name and the name of his supervisor. Kemp gave
Crawford his name; Crawford then left the clerks office and
obtained the name of Kemps supervisor from Judicial Services.
Crawford returned to the clerks office and told Kemp
that he had the name of his supervisor and that he also knew how
to write reports. Kemp responded that he had a tape recorder and
that he was taping their conversation. At this point, Adam
Bijan, a friend of Crawfords, returned to the clerks office.
Crawford told Bijan, in a voice that was not exceedingly loud,
that Kemp was bothering him. Crawford returned to the table
where he was working and from his seated position turned and
asked Kemp to make sure no harm came to the tape. Kemp then
approached Crawford, who remained sitting, leaned very close to
him, and told Crawford that he had been repeatedly warned his
speech was disorderly and Crawford would be arrested if he spoke
again. As Kemp was warning Crawford not to speak, a small amount
of spittle from Kemps mouth landed on Crawfords face. Crawford
responded by asking Kemp to stop spitting in his face. Kemp
warned Crawford again to stop speaking or he would be arrested
for disorderly conduct. Despite this warning, Crawford repeated
his earlier request that Kemp stop spitting in his face. Kemp
then told Crawford that he was under arrest for disorderly
conduct, handcuffed Crawford, and proceeded to search Crawfords
clothing. Kemp also searched Crawfords bag, located a wallet and
two drivers licenses, and proceeded to search through the
remainder of the bag. During this process, Crawford asked a
member of the clerks office to retain a copy of the security
videotape and asked Kemp if the tape recorder was still running.
Several clerks witnessed this incident and three
different clerks testified that Crawford was loud and disruptive,
that Crawfords voice was loud enough to get my attention, and
that Crawford was repeatedly asked to calm down. But Crawfords
friend, Bijan, was also a witness to the event. His affidavit
supports Crawfords version of events, stating that the complete
incident between Kemp and Crawford lasted approximately ten
minutes; that both Kemp and Crawford spoke in a normal tone of
voice; and that no one present in the clerks office indicated
that the incident bothered them or asked Crawford to lower his
voice.
Kemp placed Crawford in a cell at the courthouse for
approximately an hour. Crawford was then transported to the
Fairbanks Correctional Center where he was searched and
fingerprinted. Crawford was released on bail at 1:00 a.m. the
following day. On December 9, 2001, Kemp filed a complaint,
alleging that Crawford was arrested because he made unreasonably
loud noise in a public place and created a hazardous condition
for others. On December 27, 2001, prosecutors dismissed the
criminal charges against Crawford.
B. Procedural History
On January 18, 2002, Crawford filed a complaint against
the State of Alaska and Kemp, and, after amending it twice,
Crawfords final complaint alleged claims of violation of his
right to free speech, unreasonable search and seizure, unlawful
imprisonment, malicious prosecution, and failure by the State to
adequately train and supervise Kemp. Crawford claimed damages for
long-term loss of earning potential, physical and mental pain and
suffering, and punitive damages, and also requested expungement
of his arrest record. On January 9, 2003, Kemp filed a motion
for summary judgment, arguing that his actions were lawful and
that both he and the State are immune from suit.
On January 28, 2003, Crawford filed a notice with the
superior court stating that he dismissed all claims against the
State. The superior court treated Crawfords notice as a motion
for voluntary dismissal under Alaska Civil Rule 41(a)(1). The
State opposed this motion for voluntary dismissal and argued that
summary judgment should be granted with prejudice.
On November 14, 2003, Superior Court Judge Richard D.
Savell issued an order granting summary judgment to Kemp and the
State. Judge Savell found that (1) there was sufficient probable
cause to arrest Crawford for disorderly conduct and perform a
search incident to arrest; (2) the State of Alaska is immune from
suit under both state and federal law; (3) Kemp has qualified
immunity under state law as a public official; (4) Kemp has
immunity under federal law for the civil rights claims brought
under 1983 and the constitutional claims; and (5) Crawfords
constitutional rights were not violated. Crawford appeals the
superior courts decision granting summary judgment in favor of
Kemp.
III. DISCUSSION
A. Standard of Review
Orders granting summary judgment are reviewed de novo,
viewing all facts and drawing all reasonable inferences in the
light most favorable to the party against whom judgment was
entered.2 It is well established that the evidentiary threshold
necessary to preclude the entry of summary judgment is low. 3
B. Lawfulness of Arrest and Search
Crawford contends that he was unlawfully arrested for
disorderly conduct and that the arrest and search incident to
arrest violated his constitutional rights. We first examine the
superior courts determination that Crawfords claims should be
dismissed because the arrest and search were lawful. Disorderly
conduct is a misdemeanor under AS 11.61.110. The relevant
sections of AS 11.61.110 provide:
(a) A person commits the crime of
disorderly conduct if,
. . . .
(2) in a public place . . . and with
intent to disturb the peace and privacy of
another or with reckless disregard that the
conduct is having that effect after being
informed that it is having that effect, the
person makes unreasonably loud noise; [or]
. . . .
(6) the person recklessly creates a
hazardous condition for others by an act
which has no legal justification or excuse[.]
The misdemeanor complaint against Crawford charged that
he committed disorderly conduct by making an unreasonably loud
noise and by recklessly creating a hazardous condition. Crawford
maintains that his voice was not unreasonably loud given the
totality of the circumstances and that he did not create a
hazardous condition. Kemp responds that Crawfords arrest was
lawful because it was supported by probable cause. Probable
cause to arrest exists if the facts and circumstances known to an
officer would support a reasonable belief that an offense has
been or is being committed by the suspect.4 Probable cause is
determined objectively and requires only a fair probability or
substantial chance of criminal activity, not an actual showing
that such activity occurred.5 Kemp argues that because there
was a fair probability that Crawford was being unreasonably loud,
there was probable cause to arrest Crawford.
The focus of our inquiry is on the reasonableness of
Kemps belief that Crawfords words were unreasonably loud or
created a hazardous condition. Although all facts must be viewed
in a light most favorable to Crawford, the reasonableness of an
officers actions is to be assessed in light of all the relevant
circumstances of the case at hand.6 Alaska Statute 11.61.110(b)
defines noise as unreasonably loud if, considering the nature and
purpose of the defendants conduct and the circumstances known to
the defendant, including the nature of the location and the time
of day or night, the conduct involves a gross deviation from the
standard of conduct that a reasonable person would follow in the
same situation. This provision goes on to clarify: Noise does
not include speech that is constitutionally protected.7
The superior court concluded that probable cause
existed to arrest Crawford for making unreasonably loud noise
because [r]easonable behavior in the lobby of the clerks office,
where members of the public gather to do research and file
papers, means using a normal speaking voice. But this finding
seems to improperly discount Crawfords argument that Kemp
arrested him because Crawford continued to speak after Kemp
repeatedly warned him that he would be arrested if he simply
spoke any further. In his complaint, Crawford described the
sequence of events directly before the arrest:
57. I turned in my chair to face Kemp
and in a normal speaking tone said that I
would like him to make sure no harm came to
the tape because I would be requesting a copy
of it.
58. Kemp then approached me, this time
on my right side.
59. He came right to my side and leaned
down close to my face, placing his left hand
on the back of my chair, behind me.
60. Kemp was now between me and A.B.
61. Kemp said that he had repeatedly
warned me that my speech was disorderly, and
that he would arrest me if I spoke any
further.
62. I said that I was still sitting and
that he had approached me.
63. I said that it was him who had his
hand on my chair and I didnt think that made
me disorderly at all.
64. He then said that he wasnt going to
warn me anymore and that if I spoke anymore
he would arrest me for disorderly conduct.
65. As he had been speaking he was also
getting increasingly close to my face. After
one of his warnings to cease speaking a small
amount of spittle came out of his mouth and
landed on my face.
66. I said to him that he had spit on
my face, I asked him to please stop spitting
on my face.
67. He did not back up and he said to
stop speaking or he would arrest me for
disorderly conduct.
68. I asked him to please stop spitting
in my face.
69. He stayed there in front of me
leaning towards me without backing up and
said he had warned me already that my speech
was having a disorderly effect on him and
that if I didnt stop speaking he would arrest
me for disorderly conduct.
70. I said to please stop spitting in
my face.
71. He said thats it, stand up, youre
under arrest.
Crawfords recitation of events in his complaint was
supported by his deposition testimony, in which he recounted that
Kemp told him that he would be arrested if he continued to speak
to Kemp: Hes saying I cannot speak to him because if I speak to
him at all thats disorderly conduct and I -- I probably wouldnt
have been arrested if I had just shut up right then and I didnt
say anything but I knew that I wasnt required by law to just shut
up like he wanted me to. When asked if Kemp had instructed him
to calm down or keep his voice down, Crawford responded, No. He
didnt. . . . He said dont talk to me. Crawford testified that
every time [Kemp] says cease speaking -- I remember that -- he
said stop talking, stop talking, thats disorderly conduct and Ill
arrest you and I said no its not. Crawford maintains that Kemp
never said dont be loud or dont annoy other people.
The superior courts probable cause determination also
failed to give any weight to Bijans affidavit, which stated that
throughout the ten-minute incident, both Crawford and Kemp spoke
to each other at about the same level of voice volume, a very
formal and normal tone of . . . voice. Bijan also recounts that
[n]o one indicated . . . that this incident bothered them.
During this incident, no one (in the lobby of the clerk of the
court) asked anyone to lower their voices.
Crawfords version of events, set out in his complaint
and his deposition, and the affidavit of his friend, Bijan,
raises a genuine issue of material fact as to whether the facts
and circumstances known to Kemp would support a reasonable belief
that Crawfords words were unreasonably loud or created a
hazardous condition. We therefore conclude that the superior
court could not determine as a matter of law that Kemp acted
reasonably or that a jury would inevitably find that Kemp was
reasonable in believing that Crawfords actions justified an
arrest for disorderly conduct. Viewing the facts in the light
most favorable to Crawford,8 we conclude that there is a genuine
issue of fact as to the lawfulness of Kemps arrest of Crawford.9
C. Immunity
Crawford alleges that his federal constitutional right
to free speech and his right to be free from search and seizure
and malicious prosecution were violated and that Kemp should be
subject to personal civil liability under 42 U.S.C. 1983.10
Crawford also makes a number of state law tort claims against
Kemp stemming from his arrest for disorderly conduct. He claims
that Kemp is not entitled to qualified immunity from these claims
because Kemp acted with malice,11 and no reasonable officer in
Kemps position could have believed his actions warranted arrest
for disorderly conduct.
With respect to Crawfords constitutional claims, a law
enforcement officer is entitled to qualified immunity if, in
light of clearly established law and the information available to
the officer at the time, a reasonable officer could have believed
the arrest was lawful.12 The law is clearly established if the
contours of the right are sufficiently clear that a reasonable
official would understand that his actions violate that right.13
The United States Supreme Court has interpreted the reach of
qualified immunity broadly and has explained that [o]nly where
the [arrest] warrant application is so lacking in indicia of
probable cause as to render official belief in its existence
unreasonable, will the shield of immunity be lost.14 The Supreme
Court acknowledged that [o]fficers can have reasonable, but
mistaken, beliefs as to the facts establishing the existence of
probable cause and clarified that officers should be granted
immunity for reasonable mistakes as to the legality of their
actions.15 If the law did not put the officer on notice that his
conduct would be clearly unlawful, summary judgment based on
qualified immunity is appropriate.16 In explaining our decision
to craft an objective standard for qualified immunity claims
under Alaska law for alleged violations of statutes or the Alaska
Constitution, we declared that [p]rotecting the exercise of
judgment of local officials from the undue interference caused by
the threat of litigation is necessary to promote the public
interest.17
Although we recognize the policy in favor of deciding
immunity issues prior to trial in order to insulate officers from
claims based on reasonable mistakes, the objective reasonableness
of Kemps decision to arrest in this case presents a question of
fact that requires resolution by a jury. The superior court
found that Kemps belief that Crawford had committed disorderly
conduct was well-grounded, and that a person in Kemps position
would entertain probable cause to believe that Crawfords conduct
was disorderly. But Crawfords version of events raises a
material question of fact about whether Kemps belief was so well-
grounded.
First, Crawford has raised a genuine issue of material
fact as to whether he was making unreasonably loud noise, which
by definition factors in the nature and purpose of the defendants
conduct and circumstances known to the defendant, including the
nature of the location and the time of day or night.18 Given the
context, the conduct must involve a a gross deviation from the
standard of conduct that a reasonable person would follow in the
same situation and does not include speech that is
constitutionally protected.19
It is undisputed that the confrontation between
Crawford and Kemp began when Kemp asked Crawford to identify
himself and Crawford refused. It is well-established, and Kemp
acknowledged in his deposition testimony, that Crawford was not
under a legal obligation to tell Kemp his name and was not
required by law to produce identification for Kemp.20 Crawford
became agitated when, after Crawford refused to give Kemp his
name, Kemp proceeded to look over his shoulder and read Crawfords
name anyway. Perceiving that Kemp was invading [Crawfords]
personal space, Crawford testified that he raised his voice and
told Kemp that you ought to feel proud of yourself for being able
to read over someones shoulder. And I wanted everybody to know
that that [was] exactly what he did . . . . Crawford further
explained that he hadnt done anything wrong and that he hadnt
broken any law and then Kemp came back and snuck up behind [him]
and read over [his] shoulder. When Crawford verbally objected to
Kemps behavior, according to Crawford, Kemp repeatedly told him
to stop talking or he would be arrested for disorderly conduct.
Crawford protested and responded that merely speaking was not
disorderly conduct. Crawford also claims that the event that
culminated in his arrest was when, after Kemp told him to stop
speaking and spittle landed on his face, Crawford said please
stop spitting in my face.
Drawing all inferences in favor of Crawford, Crawfords
response could be viewed as constitutionally protected verbal
opposition to what he perceived as over-reaching by a police
officer. Kemp concedes that there was strictly verbal contact
between himself and Crawford. Kemp also admits that Crawford
never approached him and never used foul language. While Kemp
states in his deposition that Crawford shoved [his] chair back
and took a defensive position or aggressive position scooting
back like he was getting ready to stand up out of [his] seat, he
did not state in his affidavit in support of the complaint
against Crawford that Crawford engaged in any threatening
behavior. Therefore, under the facts as presented by Crawford,
and to some degree corroborated by Kemp, Crawford was only
engaged in communicative utterances directed at a police officer
which under both United States and Alaska law are entitled to
constitutional protection.
It is well-settled that [u]sually, arguing with a
police officer, even when using profane and insulting words will
not be enough to constitute disorderly conduct unless the words
are coupled with threatening behavior.21 As the United States
Supreme Court observed in City of Houston, Texas v. Hill in a
plurality opinion striking down an ordinance that prohibited
speech that in any manner . . . interrupt[s] an officer, the
freedom of individuals verbally to oppose or challenge police
action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a
police state,22 and it is therefore constitutionally protected.
In our decision in Anniskette v. State,23 we
acknowledged that police officers, even when faced with verbal
communications that could be described as fighting words words
that provoke in the average listener an immediate violent
response should exercise more restraint than the private
citizen. We cited favorably language from the American Law
Institute, which noted:
Insofar as the theory of disorderly conduct
rests on the tendency of the actors behavior
to provoke violence in others, one must
suppose that policemen, employed and trained
to maintain order, would be least likely to
be provoked by disorderly responses.[24]
According to Crawford, when Crawford was seated, Kemp
bent over Crawford and told him that he was engaging in
disorderly conduct because Crawford was trying to annoy Kemp and
was trying to make him feel disorderly. The affidavit filed by
Kemp in support of his complaint against Crawford further
indicates that Kemp made the arrest at least in part because he
was annoyed by Crawfords behavior. Kemp reported that Crawford
was . . . repeatedly advised that he would be arrested for
disorderly conduct if he continued to (harass and annoy) initiate
contact (3-4 times) with Sgt. Kemp.
As we noted in Anniskette, [t]hat the officer was
personally offended . . . does not render the defendants conduct
a crime. That would be to make the terms of the statute and the
content of the First Amendment shift with the mentation and
emotional status of the recipient of the verbal communications.
Under an objective standard it is not permissible to make
criminality hinge upon the ideological vicissitudes of the
listener.25 Under the facts as described by Crawford, Kemp
warned Crawford that his speech was having a disorderly effect on
Kemp, and that Crawford would be arrested if he spoke anymore.
From the fact that Kemp was irritated with Crawford does not flow
the inevitable conclusion that Crawford was grossly deviating
from the standard of conduct that a person would follow in the
same situation. Nor does it follow that a reasonable officer in
Kemps position would similarly be provoked to make an arrest.
The constitutional protection of verbal communications directed
at police officers was well-established when Kemp arrested
Crawford, and therefore a fact finder might find that Crawfords
version of events was credible and that he was arrested for
conduct which was entitled to constitutional protection and
therefore did not constitute noise within the meaning of the
disorderly conduct statute.26
Even if Crawford did not raise a material issue of fact
as to whether his constitutional rights to free speech were
violated, he did raise a genuine issue of material fact as to
whether there was probable cause to believe that the volume of
his voice was unreasonably loud and therefore whether there was
probable cause to believe that his arrest was lawful. According
to Bijan, Crawford and Kemp spoke to each other at about the same
level of voice volume, a very formal and normal tone of . . .
voice. Bijan also offered evidence that [n]o one indicated that
this incident bothered them and no one . . . asked anyone to
lower their voices. While Crawford himself admitted that he was
at times loud, he qualified his admission with statements such as
he wasnt shouting, and was not exceedingly loud. Kemp testified
that Crawford was at his loudest when Crawford was asking Kemp to
stop spitting in his face. We have acknowledged that the
disorderly conduct statute limits not the content of speech but
the time, place, and manner of speech to avoid excess noise.27
And we agree with the superior court that weight should be
accorded to the fact that Crawfords admittedly loud speech took
place in the clerks office of the courthouse, where a reasonable
speaking volume should be used. But considering the nature of
the confrontation, as required by the disorderly conduct statute,
it is not clear that as a matter of law Kemp had probable cause
to believe that Crawfords conduct involved a gross deviation from
the standard of conduct that a reasonable person would follow in
the same situation.28 Whether a reasonable officer could have
believed that the arrest was lawful depends on the resolution of
factual disputes as to what transpired.
Crawford further raises a question of fact as to
whether a reasonable officer could believe that Crawford was
recklessly creating a hazardous condition for others. According
to both Crawford and Kemp, for much of the encounter between
Crawford and Kemp, including the events immediately leading up to
Crawfords arrest, Crawford was seated and Kemp was standing above
him. While Kemp testified that he was concerned that Bijan and
Crawford would join together to resist Crawfords arrest, Crawford
testified that when he was arrested, he couldnt see [Bijan]
because [Bijan] was on the other side of [Kemp] and [Kemp] was
right there. Given Kemps physically dominant position, it is not
clear that as a matter of law a reasonable officer could find
that Crawford was creating a hazardous condition for others.
We therefore conclude that Crawford has raised a
genuine issue of material fact as to whether a reasonable officer
in Kemps position, when faced with the factual scenario viewed
most favorably to Crawford, could have believed that the arrest
for disorderly conduct was lawful.
Even if the superior court were to determine that a
reasonable officer in Kemps position could have believed that the
arrest was lawful, and that Kemp is therefore immune from suit
with respect to Crawfords constitutional claims, the inquiry does
not end there. When considering whether Kemp is immune from suit
on Crawfords state law tort claims, a subjective test comes into
play. Kemps motive becomes relevant because a public official is
shielded from liability only when discretionary acts within the
scope of the officials authority are done in good faith and are
not malicious or corrupt.29 When viewing the facts in the light
most favorable to Crawford, an issue of material fact has been
raised about whether Kemps 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. Because a
factual issue has been raised as to whether Kemps arrest was made
for an impermissible or pretextual purpose, we reverse the
superior courts grant of summary judgment on Crawfords state law
tort claims.
As a final matter, we note that Crawford does not
challenge or dispute the States argument that it is immune from
suit under both state and federal law. Claims for false arrest
and false imprisonment against the State are not actionable under
state law.30 The State is statutorily immune for state tort law
claims under Alaskas Tort Claims Act, AS 09.50.250.31 Crawford
also originally filed claims against the State for violation of
federal law, specifically the Civil Rights Act of 1871, 42 U.S.C.
1983. Section 1983 permits a cause of action against a public
official in his personal capacity for money damages when that
official violates a persons constitutionally protected rights.32
But the United States Supreme Court has specifically held that
neither a State nor its officials acting in their official
capacities are persons under 1983.33 The superior court thus
correctly found that all 1983 claims must be dismissed to the
extent that they seek money damages from the State, and we leave
this decision undisturbed.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the superior
courts grant of summary judgment in favor of Kemp and REMAND this
case for further proceedings consistent with this opinion.
_______________________________
1 Because factual inferences must be drawn in favor of
the non-moving party, we focus on Crawfords version of the facts
as articulated in his complaint, deposition, and opposition to
summary judgment.
2 Samaniego v. City of Kodiak, 2 P.3d 78, 82-83 (Alaska
2000).
3 Hammond v. State, Dept of Transp. & Pub. Facilities,
107 P.3d 871, 881 (Alaska 2005) (quoting Johns Heating Serv. v.
Lamb, 46 P.3d 1024, 1032 (Alaska 2002)).
4 State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).
5 Id. at 1119 (quoting Van Sandt v. Brown, 944 P.2d 449,
452 (Alaska 1997)).
6 Samaniego, 2 P.3d at 84.
7 AS 11.61.110(b).
8 See Samaniego, 2 P.3d at 84-85; see also Van Sandt, 944
P.2d at 451-53 (holding that the issue of whether a trooper could
have reasonably believed that probable cause existed to search a
house was a question for the jury).
9 Because we have determined that there is a genuine
issue of material fact as to whether Crawfords arrest was lawful,
we remand to the trial court the question whether Kemps search of
Crawford and his bag incident to his arrest was lawful.
10 To sustain an action under 42 U.S.C. 1983, Crawford
must show: (1) that the conduct complained of was committed by a
person acting under color of state law and (2) that the conduct
deprived the plaintiff of a constitutional right. See, e.g.,
Balistreri v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir.
1990). It is undisputed that Kemp was acting under color of
state law at the time he arrested Crawford and searched his
person and bag.
11 We note that ordinarily immunity questions should be
decided long before trial. Van Sandt, 944 P.2d at 451 n.4
(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Official
immunity shelters the state and government officials from all
aspects of a lawsuit, including pre-trial discovery; it is not
solely a shelter from liability. Hunter v. Bryant, 502 U.S. 224,
227 (1991); Karen L. v. Dept of Health & Soc. Servs., 953 P.2d
871, 879 (Alaska 1998).
12 Anderson v. Creighton, 483 U.S. 635, 639 (1987); Breck
v. Ulmer, 745 P.2d 66, 71-72 (Alaska 1987) (adopting federal
precedent as articulated in Harlow v. Fitzgerald, 457 U.S. 800
(1982), to determine whether qualified immunity should be
conferred for alleged violations of a statute or constitutional
rights, and holding that officials were entitled to qualified
immunity so long as they did not violate clearly established
law); see also Samaniego, 2 P.3d at 84 (applying the federal test
for official immunity to a claim for excessive force).
13 Van Sandt, 944 P.2d at 452 (citing Anderson, 483 U.S.
at 640).
14 Malley v. Briggs, 475 U.S. 335, 344-45 & n.6 (1986)
(citing United States v. Leon, 468 U.S. 897, 923 (1984))
(explaining that the same standard of objective reasonableness
applied in the context of a suppression hearing defines qualified
immunity and that any distinction between a search warrant and
arrest warrant does not affect the degree of immunity accorded to
an officer); see also Saucier v. Katz, 533 U.S. 194, 206 (2001)
(explaining that the deference owed officers facing suits for
excessive force is not qualitatively different from the probable
cause inquiry).
15 Saucier, 533 U.S. at 206.
16 Id. at 202.
17 Breck, 745 P.2d at 71.
18 AS 11.61.110(b).
19 Id.
20 See, e.g., Richardson v. Bonds, 860 F.2d 1427, 1433 n.5
(7th Cir. 1988) (citing Justice Whites concurrence in Terry v.
Ohio, 392 U.S. 1, 34 (1968), which first approved of brief
noncustodial police interrogation based on reasonable suspicion,
for the proposition that of course, the person stopped is not
obliged to answer, . . . and refusal to answer furnishes no basis
for an arrest, although it may alert the officer to the need for
continued observation, and citing multiple circuits that have
recognized Justice Whites statement as authoritative).
21 12 Am. Jur. 2d, Breach of Peace and Disorderly Conduct
33 (2005).
22 482 U.S. 451, 462-63 (1987).
23 489 P.2d 1012 (1971).
24 Anniskette, 489 P.2d at 1015 n.5 (citing Model Penal
Code 250.1, Comment at p.14 (Tent. Draft No. 13, 1961)).
25 489 P.2d at 1015.
26 While in Earley v. State the court of appeals upheld AS
11.61.110(a) and (b) as constitutional as applied to the facts of
that case, where an arrest was made when Earley was loud and
belligerent at a late hour, a citizen informant had complained,
and the police had indications that Earley would have continued
to disturb the peace of his neighbors unless he was taken into
custody, the court of appeals expressly acknowledged that what
saved the statute from being unconstitutionally overbroad was the
fact that the statute provides that noise does not include
speech that is constitutionally protected. Earley v. State, 789
P.2d 374, 376 n.2 (Alaska App. 1990).
27 Id.
28 AS 11.61.110(b).
29 Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 158
(Alaska 1987).
30 AS 09.50.250.
31 AS 09.50.250(3) grants the State statutory immunity for
claims arising out of false imprisonment, false arrest, malicious
prosecution, [and] abuse of process.
32 See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)
(distinguishing between personal-capacity and official-capacity
suits and explaining that, while personal-capacity suits seek to
impose personal liability upon a government official for actions
he takes under color of law . . . an official-capacity suit is,
in all respects other than name, to be treated as a suit against
the entity).
33 Will v. Michigan Dept of State Police, 491 U.S. 58, 71
(1989); see also Brady v. State, 965 P.2d 1, 20 n.72 (Alaska
1998) ([A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
against the officials office.); Robinson v. Francis, 777 P.2d
202, 203 (Alaska 1989) (finding no compelling reason to conclude
that states are persons under 1983).
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