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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lum v. Koles (9/21/2018) sp-7302
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL LUM and POLLY LUM, for )
themselves and for their minor ) Supreme Court No. S-16057
children, JOSEPH AVEOGANNA, )
ELIZABETH HAWLEY, AIYANNA ) Superior Court No. 2BA-07-00083 CI
LUM, and JAMIE LUM, )
) O P I N I O N
Appellants, )
) No. 7302 - September 21, 2018
v. )
)
GWENDOLYN KOLES F/K/A GRIMES,)
JOSE GUTIERREZ, and NORTH )
SLOPE BOROUGH, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Second Judicial District, Barrow, Michael I. Jeffery, Judge.
Appearances: 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.
----------------------- Page 2-----------------------
Before: Stowers, Chief Justice, Winfree, Bolger, and Carney,
Justices, and Eastaugh, Senior Justice.*
[Maassen, Justice,
not participating.]
CARNEY, Justice.
BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.
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
1
Borough Police Department.
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
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
1 Grimes has since married and changed her legal name to Gwendolyn Koles.
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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.
2 Grimes explained that in the course of her work she got "a lot of crap from
people on the street" regarding rumors of her dealing methamphetamine. She attributed
the rumors to perceptions that the police, including her police chief father, were
protecting her cousin, whom she admitted was a methamphetamine dealer.
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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 18 a 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.
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----------------------- Page 5-----------------------
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
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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
3
Barrow. 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
3 Daniel later learned it had been another officer.
4 Lum v. Koles , 314 P.3d 546, 551 (Alaska 2013).
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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,
5
Alaska's "knock and announce" statute. They also sued the North Slope Borough for
6
negligent training and supervision. 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
7
damages." The court dismissed the Lums' claims against the Borough because the
8
The Lums had raised trespass and
direct claims against the officers had been dismissed.
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
10
But we remanded the
judgment on the excessive force and unlawful entry claims.
5 Id. ; AS 12.25.100 ("A peace officer may break into a building or vessel in
which the person to be arrested is or is believed to be, if the officer is refused admittance
after the officer has announced the authority and purpose of the entry.").
6 Lum , 314 P.3d at 551.
7 Id. at 552.
8 Id.
9 Id. at 557.
10 Id. at 556, 557-59. We affirmed the superior court's grant of summary
judgment on the excessive force and unlawful entry claims because the use of force
following an unlawful entry is not per se excessive force, and because the Lums sued
under a provision of the Alaska Constitution which provides no cause of action to sue
for damages for unlawful entry. Id. at 555-57.
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----------------------- Page 8-----------------------
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
11 Id. at 556-57.
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----------------------- Page 9-----------------------
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
13
in its favor." 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
14
of law." "[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
12 The superior court dismissed the Lums' claims against the Borough as well,
as those claims were dependent on their claims against the officers.
13 Lum , 314 P.3d at 552 (alteration in original) (quoting Russell ex rel. J.N.
v. Virg-In, 258 P.3d 795, 801 (Alaska 2011)).
14 Id. (quoting Russell , 258 P.3d at 801-02).
15 Crawford v. Kemp, 139 P.3d 1249, 1253 (Alaska 2006) (quoting Hammond
v. State, Dep't of Transp. & Pub. Facilities, 107 P.3d 871, 881 (Alaska 2005)).
16
Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014)
(first quoting Peterson v. State, Dep't of Nat. Res., 236 P.3d 355, 367 (Alaska 2010); and
then quoting Wilson v. Pollet, 416 P.2d 381, 384 (Alaska 1966)).
17 See Russell, 258 P.3d at 802; cf. Maness v. Daily , 307 P.3d 894, 900
(Alaska 2013) (determining whether state official immunity applies is a question of law
this court reviews de novo).
-9- 7302
----------------------- Page 10-----------------------
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
19
perform a discretionary function." "Official immunity in Alaska is qualified . . . it
applies only 'when discretionary acts within the scope of the official's authority are done
20
The issue here is whether there is
in good faith and are not malicious or corrupt.' "
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
21
not be shielded by qualified state law immunity. Crawford had sued the trooper after
18 Prentzel v. State, Dep't of Pub. Safety , 169 P.3d 573, 585 (Alaska 2007).
19 See AS 01.10.060(a)(4) (defining "municipality" to include "a home
rule . . . or general law borough"); Malabed v. North Slope Borough , 70 P.3d 416, 419
(Alaska 2003) (describing the North Slope Borough as a "home rule municipalit[y]").
20
Lane v. City & Borough of Juneau , ___ P.3d ___, Op. No. 7328, 2018 WL
1977730 at *5 (Alaska Apr. 27, 2018) (quoting Aspen Exporation Corp. v. Sheffiled , 739
P.2d 150, 158 (Alaska 1987)).
21 139 P.3d 1249, 1258-59 (Alaska 2006).
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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
24
and conduct. The trooper warned Crawford "his speech was disorderly" and that he
25
Several court
"would be arrested if he spoke again"; Crawford spoke and was arrested.
employees testified that Crawford was "loud and disruptive," but Crawford testified
otherwise and produced an affidavit from a friendly witness stating that both Crawford
26
and the trooper had spoken in normal tones. 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
27
We therefore reversed the
he had a good faith belief that the law had been violated."
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 plaintiff's allegations of police malice
22 Id. at 1251-52.
23 Id. at 1251.
24 Id. at 1251-52.
25 Id. at 1252.
26 Id.
27 Id. at 1258-59.
28 Id. at 1259.
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29
consisted only of his own "subjective impressions." State troopers had mistakenly
arrested Prentzel for violating conditions of release on bail - conditions to which he was
30
no longer subject. Prentzel sued alleging the troopers had demonstrated bad faith
because they "enjoy[ed] arresting [him]" and one trooper had "used a gleeful tone of
31
voice when deciding to transport [him] to jail." 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
33 The defendant officers had gone to Maness's home to execute a civil
him in bad faith.
commitment order, but he armed himself and led the officers on an hours-long car chase
34
and manhunt before he was shot and apprehended. 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
29 169 P.3d 573, 585 (Alaska 2007).
30 Id. at 578.
31
Id. at 585.
32 Id. at 585-86.
33 307 P.3d 894, 904-05 (Alaska 2013).
34 Id. at 897-98.
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35
shots fired. 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
35 Id. at 904-05.
36 Id. at 905.
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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
37
officers did was aimed at effectuating a lawful emergency response. 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
39
Daniel. 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
37 See id. at 905 (quoting Prentzel ,169 P.3d at 585).
38 Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014).
39 Crawford v. Kemp, 139 P.3d 1249, 1258-59 (Alaska 2006).
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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
41
of summary judgment is low." 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 material fact,
and we cannot affirm the superior court's grant of summary judgment on this point.
B. The Officers Are Not Entitled To Judgment As A Matter Of Law On
The Lums' Trespass And Invasion Of Privacy Claims.
The officers urge us to affirm the superior court's grant of summary
judgment. They argue that the invasion of privacy claim is barred because they entered
the Lums' home only in "the orderly performance of [their] duties," and that the trespass
42
claim is barred because their entry was "privileged." We take these arguments to mean
that the officers cannot be held liable under either tort theory because their entry was
40 See id.
41 Hammond v. State, Dep't of Transp. & Pub. Facilities , 107 P.3d 871, 881
(Alaska 2005) (quoting John's Heating Serv. v. Lamb , 46 P.3d 1024, 1032 (Alaska
2002)).
42 The Lums respond that the superior court did not rule on these arguments
and the officers have waived them. It is true that the superior court did not make any
rulings beyond granting the officers qualified immunity. But that does not mean the
argument is waived. "We are not bound by the reasoning articulated by the superior
court and can affirm a grant of summary judgment on alternative grounds, including
grounds not advanced by the superior court or the parties." Hoffman Constr. Co. of
Alaska v. U.S. Fabrication & Erection, Inc. , 32 P.3d 346, 351 (Alaska 2001). The
officers raised this argument in their motion for summary judgment before the superior
court, and the Lums responded to the argument in their opposition. Both parties have
briefed the issue on appeal. The argument is not waived and we will consider it.
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----------------------- Page 16-----------------------
43
lawful. But we cannot uphold judgment for the officers on this basis because
determining the legality of their entry requires resolution of genuine issues of material
fact.
We note first that the officers entered the Lums' apartment without a
warrant. Both the United States and Alaska Constitutions prohibit "unreasonable
44
searches and seizures." "Under the Fourth Amendment of the United States
Constitution 'searches and seizures inside a home without a warrant are presumptively
45 But "[u]nder the Alaska Constitution 'a search without a warrant is
unreasonable.' "
per se unreasonable unless it clearly falls within one of the narrowly defined exceptions
46
to the warrant requirement.' " This is because "[i]n Alaska we have . . . recognized the
distinctive nature of the home as a place where the individual's privacy receives special
protection"47 and "[o]ur . . . state has traditionally been the home of people who prize
their individuality and who have chosen to settle or to continue living here in order to
43 See 87 C.J.S. Trespass § 54 (2018) ("Valid authority from the
government . . . is a defense in trespass for authorized acts by authorized persons
provided the scope of authority has not been exceeded."); 75 A
M . JUR . 2D Trespass § 78
(2018) ("Law enforcement officers who enter premises without authority are subject to
common law trespass actions, and trespass will lie for an unconstitutional entry.");
Greywolf v. Carroll, 151 P.3d 1234, 1245 (Alaska 2007) (holding "the orderly
performance of the police officers' duties" could not give rise to an invasion of privacy
claim); City of Nome v. Ailak, 570 P.2d 162, 167 (Alaska 1977) (holding that police
officers' "reasonable belief as to the existence of an emergency" justified unauthorized
home entry and protected officers from liability for trespass).
44 Alaska Const. art. I, § 14; U.S. CONST . amend. IV.
45 State v. Gibson, 267 P.3d 645, 650-51 (Alaska 2012) (quoting Groh v.
Ramirez , 540 U.S. 551, 559 (2004)).
46 Gibson, 267 P.3d at 650-51 (emphasis added).
47 Ravin v. State , 537 P.2d 494, 503 (Alaska 1975).
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----------------------- Page 17-----------------------
achieve a measure of control over their own lifestyles which is now virtually unattainable
48
in many of our sister states." We have "consistently recognized that the home is
constitutionally protected from unreasonable searches and seizures, reasoning that the
home itself retains a protected status under the Fourth Amendment and Alaska's
[C]onstitution distinct from that of the occupant's person."49
As a result of the home's protected status, a warrant is required under
Alaska law for entry; an officer must demonstrate probable cause to obtain a warrant.50
Probable cause requires more than reasonable suspicion; it exists when "reliable
information is set forth in sufficient detail to warrant a reasonably prudent [person] in
51
believing that a crime has been or was being committed." A limited number of
52
one of
narrowly defined exceptions to the warrant requirement have been recognized;
them is the emergency aid exception.53
48 Id. at 504.
49 Id. at 503 (citing State v. Spietz, 531 P.2d 521 (Alaska 1975); Ferguson v.
State, 488 P.2d 1032, 1035 (Alaska 1971)). See Alaska Const. art. I, §§ 14, 22 ("The
right of the people to privacy is recognized and shall not be infringed . . . ."); Gibson,
267 P.3d at 659 (explaining "the Alaska Constitution . . . affords greater protection
against warrantless search and seizures in the emergency aid context than the United
States Constitution").
50 Carter v. State, 910 P.2d 619, 623 (Alaska 1996).
51
Id. (alteration in original) (quoting Van Buren v. State, 823 P.2d 1258, 1261
(Alaska App. 1992)).
52 Other exceptions that allow the warrantless entry into a home include when
officers are in hot pursuit of a suspect, to prevent the imminent destruction of known
evidence, and when effective consent to enter is given. Erickson v. State , 507 P.2d 508,
515 (Alaska 1973).
53 Gibson, 267 P.3d at 658-60.
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The officers here rely on the emergency aid exception, which allows a
warrantless entry when three elements exist:
(1) The police must have reasonable grounds to believe there
is an emergency at hand and an immediate need for their
assistance in the protection of life or property; (2) the search
must not be primarily motivated by the intent to arrest a
person or to seize evidence; and (3) there must be some
reasonable basis, approximating probable cause, to associate
[54]
the emergency with the area or place to be searched.
We note this exception explicitly incorporates a threshold requirement approximating
probable cause.
In analyzing the first element, "the criterion is the reasonableness of the
55
belief as to the existence of an emergency, not the existence of an emergency in fact."
Reading the record in the light most favorable to the Lums, we conclude that there is a
genuine issue of material fact whether the officers had reasonable grounds to believe that
an emergency was at hand in the Lums' apartment. As we explained in the previous
section, a reasonable person could conclude that there was no evidence of an emergency
taking place in the Lums' residence beyond the 911 dispatcher's report of a domestic
dispute.
The officers and the dissent, citing State v. Miller, argue that threats of
domestic violence are no minor matter. We agree. We remain mindful "of the
continuing problem of domestic violence, and the state's responsibility in protecting
54 Id. at 659 (emphasis added) (citing Gallmeyer v. State , 640 P.2d 837, 842
(Alaska App. 1982)).
55 Id. at 658 (alteration omitted) (quoting Stevens v. State, 443 P.2d 600, 605
(Alaska 1968) (Rabinowitz, J. concurring)).
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----------------------- Page 19-----------------------
against it."56
In Miller we held that a reported "verbal domestic dispute" in a parking lot
could justify a "minimally intrusive" investigative stop of the fighting couple's vehicle.57
An officer in Alaska may conduct an investigative stop "where the police officer has a
reasonable suspicion that imminent public danger exists or serious harm to person or
58
property has recently occurred." Reasonable suspicion requires an officer to have
"some minimal level of objective justification for making the stop."59 "The objective
justification must be 'something more than an inchoate and unparticularized suspicion
or hunch.' "60
But to rule as the officers and the dissent suggest would create an exception
to the warrant requirement whenever a dispatcher reports a domestic dispute at a given
residential address, even when officers arrive and find no evidence that a dispute, much
less a violent one, is taking place. It would also seem to create an exception to Gibson's
requirement of "a reasonable basis approximating probable cause" to believe that
emergency entry into the residence is necessary.61
The officers argue further that the dispatcher had information - a
description of Polly's alleged injuries - that would support a reasonable belief in the
existence of an emergency, and that this knowledge should be imputed to them in
56 State v. Miller, 207 P.3d 541, 546 (Alaska 2009).
57 Id . at 547, 549-51.
58 Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
59 Miller , 207 P.3d at 544 (quoting McQuade v. State , 130 P.3d 973, 976-77
(Alaska App. 2006)).
60 Id. (quoting McQuade , 130 P.3d at 977).
61 Gibson, 267 P.3d at 659.
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evaluating the legality of their entry. The dispatcher never transmitted this information
to the responding officers, telling them only that there was a "domestic dispute" at the
Lum address and relaying the caller's request for a welfare check. And Gutierrez later
acknowledged that the dispatcher would normally tell the officers if a call involved
physical injury - which was not done here. Officers Grimes and Gutierrez concede
they never relied on the dispatcher's knowledge that the dispute potentially involved
physical injury. They therefore cannot claim the benefit of it.62
The officers and the dissent point to cases where this court and others have
imputed a dispatcher's knowledge to officers to justify traffic stops and defeat motions
63
to suppress evidence obtained from the stop. They ask us to allow her information to
be imputed to them, citing cases from several federal and state courts. We find these
64
decisions unpersuasive. They are based upon the collective knowledge doctrine, which
62 Nor does the information known to the 911 dispatcher affect the qualified
immunity analysis of the previous section. We have emphasized that, "[i]n analyzing
qualified immunity questions we 'focus on the officers' perspectives and perceptions, as
it is what reasonable officers in their position could have thought that is dispositive of
this issue.' " Lum v. Koles , 314 P.3d 546, 553 (Alaska 2013) (quoting Olson v. City of
Hooper Bay , 251 P.3d 1024, 1030 (Alaska 2011)).
63 See Miller, 207 P.3d at 548-49 (allowing dispatcher knowledge to support
an officer's traffic stop); see also United States v. Hensley, 469 U.S. 221, 232 (1985)
(holding that police-issued flyer can support investigative stop based on reasonable
suspicion); State v. Prater, 958 P.2d 1110, 1113 (Alaska App. 1998) (holding dispatcher
knowledge could provide reasonable suspicion for traffic stop).
64
We note that the cases on which the dissent relies themselves rest upon
information that has been transmitted from one officer to another. See, e.g., Schoolcraft
v. City of New York, 103 F. Supp. 3d 465, 502 (S.D.N.Y. 2015) ("The doctrine applies
only where the officers are in communication, sharing information relevant to the
determination of exigent circumstances."); James v. Chavez, 830 F. Supp. 2d 1208,
1261-2 (D.N.M. 2011) (recognizing that effective law enforcement requires that "police
(continued...)
-20- 7302
----------------------- Page 21-----------------------
allows police officers to act in reliance on another officer's knowledge to take action,
65
This doctrine was
even though the individual assisting officer lacks that knowledge.
66 There the
recognized by the United States Supreme Court in United States v. Hensley.
Court approved the investigative stop of a vehicle by an officer who relied upon
67
information from a wanted flyer issued by another police department. Subsequent
cases from federal and state courts have upheld similar stops, and a few federal circuits
and state courts have suggested that it could be extended to support probable cause to
enter a home, but neither the United States Supreme Court nor any federal circuit court
or state supreme court has extended the doctrine to permit warrantless entry into a
home.68
Demonstrating reasonable suspicion for an investigative stop requires
significantly less than the probable cause needed to enter a home; we are not persuaded
to dilute the probable cause necessary for a home entry by extending the collective
knowledge doctrine to this context. While we approved the use of the collective
knowledge doctrine in State v. Miller, that approval allowed an officer to rely upon
64 (...continued)
officers can act on directions and information transmitted by one officer to another.").
65 Hensley, 469 U.S. at 232.
66 Id.
67 Id. "Assuming the police make a Terry stop i n objective reliance on a flyer
or bulletin, we hold that the evidence uncovered in the course o f the s top is admissible
if the police who issued the f lyer or bul letin possessed a reasonable suspicion justifying
a stop, and if the stop that in fact occurred was not significantly more intrusive than
would have been permitted the issuing department." Id. at 233.
68
See United States v. Russell, 436 F.3d 1086, 1095 (9th Cir. 2006) (Thomas,
J., Concurring); Schoolcraft v. City of New York, 103 F. Supp. 3d 465, 502 (S.D.N.Y.
2015); United States v. Christy, 810 F. Supp. 2d 1219, 1260-62 (D.N.M. 2011).
-21- 7302
----------------------- Page 22-----------------------
information imputed from a dispatcher to meet the reasonable suspicion requirement for
an investigative stop of a vehicle.69
The investigative stop of a vehicle differs fundamentally from an entry into
a home; the reasonable suspicion needed for an investigative stop is a substantially lower
70
In order to enter a home without a
showing than the one required for probable cause.
warrant under the emergency aid exception, the officers must satisfy all of the
exception's requirements, and each requirement specifically refers to the responding
71
officer's reasonable belief. Thus, when they arrived at the Lums' home, Grimes and
Gutierrez needed to observe circumstances that provided corroboration approaching
probable cause that an ongoing emergency existed before they could enter the home
72
without a warrant. The dispatcher's undisclosed knowledge of the details of the 911
call did not provide any information about the situation at the home when the officers
arrived; her information may not be imputed to them for the purpose of meeting the
requirements of the emergency aid exception. Further, allowing the dispatcher's
information to be imputed to justify the warrantless entry into a home appears to be at
69 Miller , 207 P.3d at 547-50.
70 See Navarette v. California, 134 S.Ct. 1683, 1687 (2014) ("Although a
mere 'hunch' does not create reasonable suspicion, the level of suspicion [required for
reasonable suspicion] is . . . 'obviously less' than is necessary for probable cause." (first
quoting Terry v. Ohio, 392 U.S. 1, 27 (1968) then quoting United States v. Sokolow, 490
U.S. 1,7 (1989)); State v. Moran, 667 P.2d 734, 735-36 (Alaska App. 1983)
(differentiating "quantum of information" an officer must have for reasonable suspicion
as lower than that for probable cause).
71 State v. Gibson, 267 P.3d 645, 659, 667 (Alaska 2012).
72 Id. at 659, 662-67.
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odds with the strong privacy protections provided by the Alaska Constitution. 73 We
decline the officers' invitation to impute the dispatcher's knowledge to them in this
different arena on the facts of this case.
Whether the officers' entry into the Lums' home was legal depends on the
resolution of genuine issues of material fact. The officers and the Borough are therefore
not entitled to summary judgment on the Lums' trespass and invasion of privacy claims.
V. CONCLUSION
We REVERSE the superior court's grant of summary judgment in favor of
the officers and the Borough and REMAND this case for further proceedings consistent
with this opinion.
73 See Ravin, 537 P.2d at 503-04.
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----------------------- Page 24-----------------------
BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.
The court's opinion complicates the police response to domestic violence
situations by limiting a court's consideration of a victim's report conveyed to a police
dispatcher. Ignoring this information endangers some of the most vulnerable victims:
those whose pleas are silenced by threats or violence. The court offers no persuasive
reason to restrict the use of this information when assessing whether the police have
acted lawfully in responding to a domestic violence emergency.
Polly Lum called her best friend for help because she was in a fight with
her husband, Daniel Lum. During the call, Daniel told Polly's friend that Polly had
suffered bruises and a cut on her head. Polly's friend relayed this information to the
police dispatcher and asked for police officers to go to the Lums' residence for a welfare
check.
Based on this call, the superior court concluded that Sergeant Gutierrez was
justified in entering the Lums' residence to render emergency aid and that Officer
Grimes was justified in following. These conclusions are well supported by our prior
case law.
In State v. Gibson, we recognized that the police may enter a residence
without a warrant when they have "reasonable grounds to believe there is an emergency
1
at hand and an immediate need for their assistance." These grounds are established
when the police have good reason to believe there might be someone injured in the
2
Here, the police collectively had good reason to believe that Polly had been
premises.
injured based on the call from Polly's friend. Therefore, the officers were privileged to
1 267 P.3d 645, 659 (Alaska 2012).
2 Id . at 664.
-24- 7302
----------------------- Page 25-----------------------
enter the premises to protect Polly from further injury. This privilege protects the
officers from liability to the Lums for trespass3 or breach of privacy.4
The court refuses to consider Polly's friend's call to the dispatcher in
deciding whether the officers' entry was legal and reasonable. This refusal contravenes
persuasive precedent from this jurisdiction and across the nation.
In State v. Miller, we relied on the information included in an anonymous
5
911 call to support an officer's decision to stop a couple suspected of domestic violence.
This conclusion was consistent with the larger principle that the police are " 'entitled to
act' upon the strength of a communication through official channels directing or
6
requesting that an arrest or search be made." For example,
when evidence is uncovered during a search incident to an
arrest in reliance merely on a flyer or bulletin, its
admissibility turns on whether the officers who issued the
flyer possessed probable cause to make the arrest. It does not
3 See City of Nome v. Ailak, 570 P.2d 162, 167 (Alaska 1977) (holding that
police officers could not be liable for trespass because they "had a reasonable belief as
to the existence of an emergency which justified their unauthorized entry").
4
See Greywolf v. Carroll, 151 P.3d 1234, 1245 (Alaska 2007) (holding that
"the invasion of privacy principle cannot shield a person from [an] investigation[] by the
police unless the investigation is carried out in an offensive manner").
5
207 P.3d 541, 547-49 (Alaska 2009); see id. at 548 ("[R]elevant
information known to a police dispatcher may be 'imputed' to a police officer who
conducts an investigative stop and so may be considered for purposes of evaluating
whether the stop was supported by a reasonable suspicion." (quoting State v. Prater, 958
P.2d 1110, 1110 (Alaska App. 1998))).
6 2 WAYNE R. LAFAVE , SEARCH & SEIZURE : A TREATISE ON THE FOURTH
AMENDMENT § 3.5(b), at 338 (5th ed. 2012) (quoting Whiteley v. Warden, Wyo. State
Penitentiary , 401 U.S. 560, 568 (1971)); see also Mattern v. State, 500 P.2d 228, 232-33
(Alaska 1972) (relying on information conveyed to a police dispatcher to justify a
warrantless arrest).
-25- 7302
----------------------- Page 26-----------------------
turn on whether those relying on the flyer were themselves
aware of the specific facts which led their colleagues to seek
[7]
their assistance.
The Alaska Court of Appeals has relied on the collective knowledge doctrine to analyze
8
both the reasonable suspicion supporting a traffic stop and the probable cause
9
supporting a warrantless search. Likewise, other courts considering the question have
held that the collective knowledge of fellow officers should be considered to determine
whether an entry is justified by exigent circumstances, such as a need for emergency
aid.10
7 United States v. Hensley, 469 U.S. 221, 231 (1985).
8 State v. Prater, 958 P.2d 1110, 1113 (Alaska App. 1998) (stating that "an
investigative stop made in objective reliance on a police dispatcher's bulletin is justified
if the dispatcher who broadcast the bulletin possessed reasonable suspicion of imminent
public danger justifying the stop").
9
Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992) (stating that "the
collective knowledge of the officers participating in the case may be considered in
determining probable cause"); see generally 22 C.J.S. Criminal Procedure and Rights
of Accused § 78 (2018); 79 C.J.S. Searches and Seizures § 71 (2018).
10
See Schoolcraft v. City of New York, 103 F. Supp. 3d 465, 502 (S.D.N.Y.)
("[T]he collective knowledge doctrine may be applied to exigent circumstance analysis,
just as it applied to warrantless searches and seizures."), reconsideration granted in part,
133 F. Supp. 3d 563 (S.D.N.Y. 2015); James v. Chavez , 830 F. Supp. 2d 1208, 1260-62
(D.N.M. 2011) ("[T]he collective-knowledge doctrine can be used to impute knowledge
of exigent circumstances."), aff'd, 511 F. App'x 742 (10th Cir. 2013); United States v.
Christy, 810 F. Supp. 2d 1219, 1261-63 (D.N.M. 2011) (same), aff'd, 739 F.3d 534 (10th
Cir. 2014); Stricker v. Cambridge Twp ., No. 10-14424, 2011 WL 3319727, at *17
(E.D. Mich. Aug. 1, 2011) (concluding that police officers "were entitled to rely on their
collective knowledge" in deciding to enter residence to provide aid to overdose victim),
aff'd sub nom. Stricker v. Twp. of Cambridge, 710 F.3d 350 (6th Cir. 2013); Mitchell v.
(continued...)
-26- 7302
----------------------- Page 27-----------------------
The court's opinion downplays the importance of Polly's friend's report to
the dispatcher, noting that the record, construed in the light most favorable to the Lums,
indicates that the officers did not see or hear a domestic dispute when they arrived at the
11
In
Lums' residence. But we have recognized the danger that such reasoning invites.
Miller we cited statistics on domestic violence in Alaska and the nation:
A study issued in September 2005 ranked Alaska first in the
nation for the rate of intimate partner violence ending in
homicide. Nationally, for homicides in which the victim-to-
offender relationship could be identified, ninety-two percent
of female victims were murdered by someone they knew, and
10 (...continued)
State, 742 S.W.2d 895, 898-99 (Ark. 1988) ("Regardless of what [the police officer]
personally knew, he is charged with the collective knowledge of the police department
at the time [of the emergency aid search]."); Evans v. United States , 122 A.3d 876, 881-
82 (D.C. 2015) (considering whether collective knowledge of responding officers
justified an emergency aid search); Oliver v. United States, 656 A.2d 1159, 1166-67 &
n.14 (D.C. 1995) (reasoning that information in police case file should be imputed to
officers in assessing whether they had reasonable grounds to believe there was an
emergency); People v. Nichols , 964 N.E.2d 1190, 1208 (Ill. App. 2012) (stating that "it
is the collective knowledge of the officers that is the criterion" when addressing whether
exigent circumstances exist (emphasis in original)); State v. Lemieux, 726 N.W.2d 783,
789 (Minn. 2007) ("When assessing the reasonableness of an emergency-aid search, the
officer who conducts the search is imputed with knowledge of all facts known by other
officers involved in the investigation . . . ."); see also United States v. Russell, 436 F.3d
1086, 1094-95 (9th Cir. 2006) (Thomas, J., concurring in part and dissenting in part)
("We analyze the 'reasonable grounds to believe that there is an emergency at hand,' on
an objective basis, taking into consideration the collective knowledge of the officers at
the time." (quoting United States v. Cervantes, 219 F.3d 882, 888 (9th Cir. 2000),
overruled on other grounds by Brigham City v. Stuart, 547 U.S. 398 (2006))).
11
See State v. Miller, 207 P.3d 541, 545 (Alaska 2009) (noting "the danger
that a report of a verbal domestic dispute portends"). Polly's friend's call indicated that
the dispute in this case had already escalated to violence.
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----------------------- Page 28-----------------------
sixty-two percent were killed by husbands, ex-husbands, or
[12]
boyfriends.
Requiring responding police officers to develop independent knowledge about an
emergency may reward an attacker who can use violence or threats to silence his victim.
And disregarding the collective knowledge doctrine may thus hamstring the police
response to a serious emergency.
In my opinion, we should apply the collective knowledge doctrine to this
case: we should consider the call from Polly's best friend to determine whether the
responding officers acted reasonably. Considering this call, the superior court properly
concluded that the emergency aid doctrine authorized the officers to enter the residence
to prevent further injury to Polly Lum. I would affirm the superior court's decision to
dismiss the Lums' claims for trespass and breach of privacy.
12 Id. (footnote omitted). Alaska has continued to have the highest rate of
homicides involving female victims and male perpetrators, according to a more recent
edition of the report cited in Miller . See VIOLENCE POLICY CTR ., WHEN MEN MURDER
W O M E N : AN A N A L Y S I S O F 2 0 1 5 H O M I C I D E D A T A 4 ( 2 0 1 7 ) ,
http://www.vpc.org/studies/wmmw2017.pdf. In 2015 all of Alaska's female homicide
victims were killed by male perpetrators whom they knew; 60 percent were killed by an
intimate partner or former intimate partner. Id. at 11.
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