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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yi v. Yang (7/20/2012) sp-6695
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
YONG H. YI, )
) Supreme Court No. S-13427
Appellant, )
) Superior Court No. 4FA-04-02761 CI
v. )
) O P I N I O N
HARRIS S. YANG, SHARON YANG, )
MAX ARTHUR LAMOUREAUX, )
Y & I CORPORATION, OFFICER )
LAWRENCE PEYTON MERIDETH, )
and CITY OF FAIRBANKS, )
) No. 6695 - July 20, 2012
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Robert John, Law Office of Robert John,
Fairbanks, for Appellant. Paul J. Ewers, City Attorney,
Fairbanks, for Appellees Merideth and City of Fairbanks. No
appearance for remaining Appellees.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
A man was arrested for misdemeanor crimes after an altercation arising
from a business dispute. He brought civil claims against a police officer and the officer's
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municipal employer based on the arrest. The superior court granted a motion for
summary judgment and dismissed all claims against them. We affirm the superior
court's decision because: (1) the police officer had probable cause to make a felony
arrest, and, therefore, any perceived deficiencies in the misdemeanor arrest process are
irrelevant; and (2) no municipal policy deprived the arrestee of property, and, therefore,
the municipality did not violate the arrestee's constitutional rights.
II. FACTS AND PROCEEDINGS
A. Facts
The Klondike Inn and the Klondike Restaurant and Bar are located across
the street from each other in Fairbanks. At the time of the events underlying this appeal,
Y & I Corporation owned the Klondike Inn. Harris Yang was the registered agent of
Y & I; Yang owned the Klondike Restaurant and Bar, as well as the liquor license for the
bar, independently from Y & I.
In September 2004 Yang leased the Klondike Restaurant and Bar to Yong
Yi (Yi); Yi's brother, Kenny Yi (Kenny), worked for Yi at the Klondike Restaurant and
Bar. The business relationship between Yi and Yang rapidly deteriorated over concerns
with carry-over inventory not included in the lease agreement and problems with the
liquor license transfer.
On the morning of December 19, 2004, the Fairbanks Police Department
received a series of 911 calls concerning the Klondike Inn and the Klondike Restaurant
and Bar. The first caller identified himself as Joe Hayes, calling on Yang's behalf, and
requested police assistance removing what he referred to as "the management group"
from the Klondike Restaurant and Bar. Hayes represented to the dispatcher that Yang
had a writ of assistance to take possession, a statement later revealed to be false. The
dispatcher responded that Yang needed to bring the writ to the police station, and after
verification, the Department could provide a civil standby on an officer-available basis.
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The next caller identified himself as John Dockery, from the front desk of
the Klondike Inn. Dockery requested police assistance removing Yi and Kenny from the
Klondike Restaurant and Bar. Dockery's 911 call was interrupted by a third call.
The third caller identified himself as Kenny, from the Klondike Restaurant
and Bar. Kenny reported that a man he did not recognize had attempted to break into the
Klondike Restaurant and Bar. Kenny claimed to be waiting outside by a red Dodge
Durango; the dispatcher told him to remain where he was, not make any contact with the
alleged perpetrator, and wait for the police to arrive.
The police dispatcher then returned to Dockery's call, and Dockery
reported Kenny was attempting to break into the Klondike Restaurant and Bar. The
dispatcher told Dockery that someone was on the way. The dispatcher then contacted
officers and advised that callers from the Klondike were reporting contradictory
allegations of attempted break-ins.
The fourth caller identified herself as the bartender at the Klondike
Restaurant and Bar, calling on Kenny's behalf. She reported a robbery attempt and that
a silver mini-van had attempted to run someone over. The bartender handed the
telephone to Kenny, who reported that someone had attempted to run Yi and him over
with a truck. The call ended when officers arrived on scene.
The fifth caller identified himself as Max Lamoureaux, an employee of the
Klondike Inn. Lamoureaux stated he was locked inside the Klondike Inn with John Lee.
He reported that unidentified persons had smashed into the white Ford truck he was
driving, and "chased us down, jumped in the back of the truck, shattered the window."
The call ended when an officer approached the Klondike Inn.
Officer Lawrence Merideth and three other officers arrived on scene around
9:45 a.m. Officer Merideth observed a silver mini-van stuck in a snowbank and a white
Ford truck left running and parked at an odd angle outside the Klondike Inn. The truck's
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front and rear windows were shattered. Officer Merideth entered the office of the
Klondike Inn and made contact with Lamoureaux and Lee. Another officer made contact
with a group of people standing outside the Klondike Restaurant and Bar, including Yi
and Kenny.
Officer Merideth did not record his conversation with Lamoureaux, but
according to Officer Merideth, Lamoureaux relayed the following version of events.
Lamoureaux identified himself to Officer Merideth as a manager of the Klondike Inn and
stated he had traveled to Fairbanks from Anchorage to help serve eviction papers on Yi.
Lamoureaux and Lee had posted eviction paperwork around 8:00 a.m. and attempted to
leave in the white Ford truck around 9:30 a.m. A silver mini-van blocked their path.
Kenny exited the mini-van and began yelling at Lamoureaux and Lee. Kenny jumped
into the back of the truck and used a broom handle to break out the back window. Yi
threw an object at the front windshield of the truck, breaking it; Yi then jumped into the
back of the truck and Kenny jumped out. Yi repeatedly attempted to strike Lamoureaux
and Lee with the broom handle - his attempts were successful at least once, striking
Lamoureaux's wrist and breaking his watch. Lamoureaux attempted to drive away, but
the silver mini-van collided into the truck's driver's side door. Lamoureaux and Lee
retreated into the Klondike Inn office, chased by the broom-handle-wielding Yi.
Lamoureaux was in fear and thought he would have been killed if Yi and Kenny had the
opportunity.
Officer Merideth contacted two witnesses who corroborated portions of
Lamoureaux's version of the events. Yi and Kenny relayed their version of the events
to another officer as follows. They observed Lamoureaux and Lee attempting to break
into the Klondike Restaurant and Bar. After Kenny called the police, the white Ford
truck attempted to leave. Yi and Kenny tried to stop the truck from leaving. The driver
of the white Ford truck tried to run them over. Yi and Kenny's version of jumping in the
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back of the truck and breaking the windows was largely the same as Lamoureaux's,
although they believed their actions were justified because they were trying to stop the
truck from leaving. Yi and Kenny also admitted to Officer Merideth that they had
broken the truck's windows.
Officer Merideth directed another officer to arrest Yi and Kenny. They
were arrested and told that Officer Merideth was the arresting officer. They were not
told why they were under arrest or that it was a delegated citizen's arrest.
Lamoureaux signed citizen's arrest forms for both Yi and Kenny. Later
during this litigation, Officer Merideth could not specifically recall explaining the
citizen's arrest procedure to Lamoureaux, but stated it is his routine practice to give an
explanation and there was no reason he would not have done so in this case. Although
he also could not specifically recall what happened on December 19, Officer Merideth
stated it is his routine practice to have the citizen sign the form contemporaneously with
the arrest; however, notations on the bottom of the form indicate Officer Merideth
prepared the forms at 1:12 p.m. Lamoureaux stated he signed the forms "within an hour
or so" of the police arriving. Lamoureaux stated he knew he was participating in the
arrest, but did not know he "had the sole discretion in arresting" the Yis.
Consistent with the citizen's arrest forms, Yi was charged with two counts
of assault in the fourth degree under AS 11.41.230 and one count of criminal mischief
in the fourth degree under AS 11.46.484. These misdemeanor charges were later
dismissed.
B. Proceedings
On December 13, 2004, six days prior to his arrest, Yi filed a pro se
complaint against Yang alleging breach of contract and other claims. After his arrest Yi
retained counsel and filed an amended complaint adding other defendants, including
Officer Merideth and the City of Fairbanks. Relevant to this appeal, Yi asserted federal
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----------------------- Page 6-----------------------
claims under 42 U.S.C. § 1983 for deprivation of Fourth and Fourteenth Amendment
rights and state law claims for false arrest against Officer Merideth and the City.
Officer Merideth and the City moved for summary judgment on all claims
against them. The superior court granted the motion but did not issue a detailed written
order, only a bench ruling after oral argument followed by a brief written order. Based
on the superior court's oral argument comments, it appears qualified immunity was the
driving force behind granting summary judgment.
Yi appeals the superior court's grant of summary judgment to Officer
Merideth and the City.
III. STANDARD OF REVIEW
We review a grant of summary judgment "de novo, affirming if the record
presents no genuine issue of material fact and if the movant is entitled to judgment as a
matter of law."1 On review, "we view the facts in the light most favorable to the
non-moving party."2 "We may affirm a grant of summary judgment on any basis
appearing in the record."3 "The applicability of both state and federal immunity are
questions of law that are . . . subject to de novo review."4 "Under de novo review, we
1 Lot 04B & 5C Block 83 Townsite v. Fairbanks N. Star Borough , 261 P.3d
422, 424 (Alaska 2011) (quoting Lot 04B & 5C, Block 83 Townsite v. Fairbanks N. Star
Borough , 208 P.3d 188, 191 (Alaska 2009)).
2 Id. (quoting Lot 04B & 5C , 208 P.3d at 191) (internal quotation marks
omitted).
3 Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032,
1036 (Alaska 2008) (quoting Parker v. Tomera , 89 P.3d 761, 765 (Alaska 2004)).
4 Russell ex rel. J.N. v. Virg-In , 258 P.3d 795, 802 (Alaska 2011) (quoting
Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008)).
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----------------------- Page 7-----------------------
apply 'the rule of law that is most persuasive in light of precedent, reason, and policy.' "5
IV. DISCUSSION
A. Yi's Arrest-Related Claims
Yi bases his arrest-related claims against Officer Merideth and the City on
his assertion that his citizen's arrest was invalid because Lamoureaux lacked sufficient
intent to effect a citizen's arrest and there was unnecessary delay between the actual
incident and the completion of the citizen's arrest paperwork. Yi then argues that
because the citizen's arrest was invalid, he was arrested for a misdemeanor offense
committed outside Officer Merideth's presence. Yi contends this violated: (1) his
Fourth Amendment right to be free from warrantless arrests for misdemeanor criminal
offenses committed outside an officer's presence; and (2) AS 12.25.030(a)(1).6
According to Yi, the latter violation constitutes the state-law tort of false arrest.7
5 State v. Native Vill. of Tanana, 249 P.3d 734, 737 (Alaska 2011) (quoting
Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)).
6 Alaska Statute 12.25.030 provides, in relevant part:
(a) A private person or a peace officer without a warrant may
arrest a person
(1) for a crime committed or attempted in the presence
of the person making the arrest;
(2) when the person has committed a felony, although
not in the presence of the person making the arrest;
(3) when a felony has in fact been committed, and the
person making the arrest has reasonable cause for believing
the person to have committed it.
7 False arrest is not a separate tort, but merely one way to commit the tort of
false imprisonment. Prentzel v. State, Dep't of Pub. Safety , 169 P.3d 573, 582 n.17
(Alaska 2007) (quoting Waskey v. Municipality of Anchorage, 909 P.2d 342, 345 (Alaska
(continued...)
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We have never clarified the delegated citizen's arrest doctrine adopted by
the court of appeals in Moxie v. State .8 And whether the Fourth Amendment contains an
"in the presence" requirement for misdemeanor arrests appears to be a question
unresolved by the United States Supreme Court.9 But we do not need to consider or
resolve these issues, or related issues of qualified immunity, because the superior court's
decision is otherwise affirmable.
Officer Merideth argues that the arrest was supported by probable cause
that Yi had committed a felony. Felony arrests are not governed by an "in the presence
requirement" under federal or Alaska law.10 We have explained probable cause as
follows:
7 (...continued)
1996)). "The elements of the false arrest-imprisonment tort are (1) a restraint upon the
plaintiff's freedom, (2) without proper legal authority." Waskey, 909 P.2d at 345 (citing
Hazen v. Municipality of Anchorage , 718 P.2d 456, 461 (Alaska 1986)).
8 662 P.2d 990 (Alaska App. 1983) (holding that a private person can initiate
an arrest and delegate the task to a police officer); see generally Lael Harrison, Citizen's
Arrest or Police Arrest? Defining the Scope of Alaska's Delegated Citizen's Arrest
Doctrine , 82 WASH . L. REV . 431, 433 (2007) (noting a "lack of clarity" in the area of
delegated citizen's arrests).
9 See Atwater v. City of Lago Vista, 532 U.S. 318, 341 n.11 (2001) ("We
need not, and thus do not, speculate whether the Fourth Amendment entails an 'in the
presence' requirement for purposes of misdemeanor arrests.").
10 See Maryland v. Pringle, 540 U.S. 366, 370 (2003) ("A warrantless arrest
of an individual in a public place for a felony . . . is consistent with the Fourth
Amendment if the arrest is supported by probable cause."); AS 12.25.030(a)(3); see also
McCoy v. State , 491 P.2d 127, 130 (Alaska 1971) (interpreting AS 12.25.030(a)(3) and
holding "a peace officer, without a warrant, may arrest a person for a felony when the
officer has probable cause to believe that a felony has been committed and probable
cause to believe that the person committed it").
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Probable cause to arrest exists if the facts and circumstances
known to the officer would support a reasonable belief that
an offense has been or is being committed by the suspect . . . .
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.[11]
The existence of probable cause is a mixed question of law and fact.12 In a criminal
context the question is resolved pretrial with the judge applying law and finding fact.13
In a civil action a probable cause determination is a jury question, unless no material
facts are in dispute and summary judgment is appropriate.14
Officer Merideth argues he had probable cause to arrest Yi for the felony
crime of assault in the third degree.15 Probable cause to arrest for assault in the third
degree exists where the facts and circumstances known to an officer would support a
reasonable belief that the arrestee recklessly placed another in fear of imminent serious
physical injury16 by means of a dangerous instrument.17 It is undisputed that Officer
11 State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001) (internal citations
and quotation marks omitted).
12 Bessette v. State , 145 P.3d 592, 594 (Alaska App. 2006) (citing Chandler
v. State, 830 P.2d 789, 792 (Alaska App. 1992)).
13 See Alaska R. Crim. P. 12.
14 See City of Nome v. Ailak, 570 P.2d 162, 170 (Alaska 1977); see also
Thacker v. City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003).
15 AS 11.41.220(a)(1)(A) ("A person commits the crime of assault in the third
degree if that person recklessly places another person in fear of imminent serious
physical injury by means of a dangerous instrument[.]").
16 AS 11.81.900(56) defines "serious physical injury" as:
(A) physical injury caused by an act performed under
(continued...)
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Merideth heard Lamoureaux's statements of fear for his life based on Yi's actions. It is
also undisputed that Yi used a broom handle to break out the windows of the truck and
attack Lamoureaux.18 These facts were supported by witness statements, Yi's
admissions, and a scene consistent with victim and witness statements.
Yi argues that summary judgment on probable cause is inappropriate
because there is a reasonable inference "that Yi was not acting toward injuring
Lamoureaux but rather in order to stop the vehicle from making its getaway." "But
probable cause is by definition a standard that hinges on probability rather than certainty,
so a showing of probable cause need not rule out other explanations that are merely
possible."19 Thus Yi's alternative explanation of possibly justified behavior does nothing
to diminish the existence of probable cause. Yi cites to authority holding probable cause
does not exist where an officer relies "solely on an unexamined charge by a [victim] . . .
16 (...continued)
circumstances that create a substantial risk of death; or
(B) physical injury that causes serious and protracted
disfigurement, protracted impairment of health, protracted
loss or impairment of the function of a body member or
organ, or that unlawfully terminates a pregnancy[.]
17 AS 11.81.900(15) (" 'dangerous instrument' means . . . any deadly weapon
or anything that, under the circumstances in which it is used, attempted to be used, or
threatened to be used, is capable of causing death or serious physical injury[.]").
18 This is not to say a broom handle is always a "dangerous instrument" as
defined by AS 11.81.900(15). But "under the particular circumstances presented here,
[Yi] used [the broom handle] in a manner that created a substantial risk of serious
physical injury" sufficient to support probable cause. See Hutchings v. State, 53 P.3d
1132, 1137 (Alaska App. 2002);see also Rupeiks v. State , 263 P.3d 57, 59 (Alaska App.
2011).
19 State v. Koen, 152 P.3d 1148, 1152 (Alaska 2007) (discussing probable
cause in warrant context).
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and ha[s] done no further investigation."20 But Officer Merideth observed physical
evidence and heard multiple witness statements in addition to Lamoureaux's statements.
Yi also argues he is entitled to an additional favorable inference because Officer
Merideth did not record his conversations at the scene.21 But this rule is only applicable
where police lose or destroy evidence, not where police fail to create evidence.22
We hold that because felony probable cause existed, Yi's Fourth
Amendment rights were not violated and Officer Merideth had proper legal authority
under state law for the arrest. The fact that Officer Merideth did not actually arrest Yi
for a felony is irrelevant. The United States Supreme Court has consistently rejected
considering an officer's state of mind, including the crime articulated as the basis for the
arrest, when reviewing the existence of probable cause.23 We similarly determine the
existence of probable cause under an objective standard without regard to the officer's
subjective intent.24
20 John v. City of El Monte , 515 F.3d 936, 941 (9th Cir. 2008) (citing Arpin
v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001)).
21 See Thorne v. Dep't of Pub. Safety, State of Alaska, 774 P.2d 1326 (Alaska
1989) (holding intentional destruction of evidence by state violates due process and
proper remedy is a presumption that evidence would have been favorable to accused).
22 State v. Amend, 250 P.3d 541, 545 (Alaska App. 2011) (stating due process
does not "require[] the police to record or photograph all investigative procedures, even
though there may be a disagreement about what happened").
23 See, e.g., Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004) (rejecting
decision that alternative basis for probable cause could not be considered in § 1983 case).
24 See State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001) (stating "[p]robable
cause is determined objectively"); see also Bertilson v. State, 64 P.3d 180, 185 (Alaska
App. 2003) (stating an "officers' subjective reasons for making the arrest are irrelevant"
to a probable cause determination).
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Yi's arrest-related claims against Officer Merideth and the City therefore
must fail.25 We uphold the superior court's grant of summary judgment on Yi's arrest-
related claims on this alternative ground, without addressing qualified immunity, the
bounds of delegated citizen's arrests, or whether the Fourth Amendment contains an "in
the presence" requirement for misdemeanor arrests.26
B. Yi's Due Process Claim Against The City
Yi argues the City deprived him of property when an officer told Yi's
employees not to enter the Klondike Restaurant and Bar after the altercation. When the
bartender told an officer she was returning to work, the officer responded: "I might be
wrong, but for right now, let's stay out of the bar. Okay?"
A municipality can be held liable under § 1983 only when its policy or
custom results in the deprivation of a right secured by the United States Constitution or
federal statute.27 In the superior court, Yi argued the City had a policy of providing civil
standbys, the officer followed this policy, and that this policy caused Yi a constitutional
25 Under Alaska law, a principal has no respondeat superior liability where
the agent's actions are not tortious. Cf. Taranto v. N. Slope Borough, 909 P.2d 354, 358
(Alaska 1996) (Under respondeat superior, "an employer will be held liable for both
negligent and intentional torts of its employee.") (emphasis added). Likewise, a
municipality cannot be held liable under § 1983 if there is no underlying violation of a
federal right. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) ("[I]f the
[officer] inflicted no constitutional injury on [the plaintiff], it is inconceivable that [the
municipality] could be liable.").
26 See State, Dep't of Health & Soc. Servs. v. Valley Hosp. Ass'n, 116 P.3d
580, 584 (Alaska 2005) ("This is consistent with our practice of reaching constitutional
issues only when the case cannot be fairly decided on statutory or other grounds.").
27 Monell v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 691-92
(1978); City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 & n.7 (1985) (describing
the required causal link between policy and deprivation as "moving force" and an
"affirmative link").
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----------------------- Page 13-----------------------
deprivation of property.28 On appeal, Yi argues the City failed to train Officer Merideth
in the proper civil standby procedures. "[T]he inadequacy of police training may serve
as the basis of § 1983 liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact."29 We have
held that "training can justifiably be said to represent policy when the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policy-makers can reasonably be said to have been
deliberately indifferent to the need."30
Neither the City's policy of providing civil standbys nor its alleged failure
to train Officer Merideth in the proper civil standby procedures can serve as a basis for
liability under § 1983. There is no dispute that the police response was not a civil
standby, but rather was a criminal investigation. And we reject Yi's failure to train
argument because it was never raised below.31
28 The record does not explain what a "civil standby" is, but it appears to be
the police response to a writ of assistance. Compare Mahan v. State, 51 P.3d 962, 964
(Alaska App. 2002) (describing "writ of assistance" as "a court order directing law
enforcement officers to assist a person in enforcing a prior court order when there is
reason to believe that enforcement efforts may be met with forcible opposition"), with
Harris County v. Hinojosa , 294 S.W.3d 737, 741 (Tex. App. 2009) (describing "civil
standby" as "when an officer is basically called . . . to make sure there is no breach of the
peace").
29 City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989), quoted in
Prentzel v. State, Dep't of Pub. Safety , 53 P.3d 587, 595 (Alaska 2002).
30 Prentzel , 53 P.3d at 595 (quoting Hildebrandt v. City of Fairbanks , 863
P.2d 240, 246 (Alaska 1993)) (internal marks omitted).
31 Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Motors Corp. , 221 P.3d
977, 985 (Alaska 2009) ("We have held that, in general, 'a party may not present new
issues or advance new theories to secure a reversal of a lower court decision.' " (quoting
(continued...)
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Yi also argues on appeal that Officer Merideth's actions were consistent
with another City policy, identifying a policy of following the laws of the State of
Alaska. The City's policy of following State laws cannot serve as the basis for § 1983
liability. As the Seventh Circuit noted:
It is difficult to imagine a municipal policy more innocuous
and constitutionally permissible, and whose causal
connection to the alleged violation is more attenuated, than
the "policy" of enforcing state law. If the language and
standards from Monell are not to become a dead letter, such
a "policy" simply cannot be sufficient to ground liability
against a municipality.[32]
Because Yi has not demonstrated a City policy sufficient to support
municipal liability under § 1983, we rely on this alternative ground to affirm the superior
court's grant of summary judgment on this claim.
V. CONCLUSION
We AFFIRM the superior court's decision.
31 (...continued)
Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985))).
32 Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th
Cir. 1991).
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