Lum v. Koles

• Decision Date: 21 September 2018
• Docket Number: Supreme Court No. S-16057
• Citation: 426 P.3d 1103
• Parties: Daniel LUM and Polly Lum, for themselves and for their minor children, Joseph Aveoganna, Elizabeth Hawley, Aiyanna Lum, and Jamie Lum, Appellants, v. Gwendolyn KOLES f/k/a Grimes, Jose Gutierrez, and North Slope Borough, Appellees.
• Court: Alaska Supreme Court

426 P.3d 1103

Daniel LUM and Polly Lum, for themselves and for their minor children, Joseph Aveoganna, Elizabeth Hawley, Aiyanna Lum, and Jamie Lum, Appellants,

v.Gwendolyn KOLES f/k/a Grimes, Jose Gutierrez, and North Slope Borough, Appellees.

Supreme Court No. S-16057

Supreme Court of Alaska.

September 21, 2018

Rehearing Denied November 14, 2018

Colleen A. Libbey, Libbey Law Offices, Anchorage, for Appellants Daniel and Polly Lum.

Lester K. Syren, Syren Law Offices, Anchorage, for Appellant Minor Children.

Brent R. Cole, Law Office of Brent R. Cole, P.C., Anchorage, for Appellees Gwendolyn Koles and Jose Gutierrez.

Peter C. Gamache, Law Office of Peter C. Gamache, Anchorage, for Appellee North Slope Borough.

Before: Stowers, Chief Justice, Winfree, Bolger, and Carney, Justices, and Eastaugh, Senior Justice.^* [Maassen, Justice, not participating.]

OPINION

CARNEY, Justice.

I. INTRODUCTION

The Lum family sued two police officers and the North Slope Borough for trespass and invasion of privacy after an allegedly unlawful entry into the Lums' home. The superior court dismissed both claims on summary judgment, reasoning that the officers were protected by qualified immunity under state law because the Lums had not produced sufficient evidence that the officers acted in bad faith. We reverse the superior court's decision because there are genuine issues of material fact as to whether they acted in bad faith.

II. FACTS AND PROCEEDINGS

A. Daniel Lum's Relationship With The Officers

In 2007 Daniel and Polly Lum and their children lived in Barrow. Officer Gwendolyn Grimes and Sergeant Jose Gutierrez were officers with the North Slope Borough Police Department.¹

Daniel first met Grimes in her official capacity on August 22, 2007 after he reported that someone had stolen his methadone medication. Grimes responded to the call and met Daniel and Polly at their apartment. Grimes later said she "felt bad for [Daniel] that he was a junkie, methadone user." She knew that Daniel worked by driving tourists around in his van, and had referred people to his business. Grimes was concerned that he might be driving under the influence of drugs, so she made a mental note to "keep an eye on him" while he was driving around town.

Daniel and Grimes met again in early September 2007 when they spoke about an incident purportedly involving a white man trying to abduct Native children. At that time Grimes was in her police vehicle and Daniel was on foot. Grimes later recalled that because the subject matter made Daniel visibly angry, she asked him "if everything was okay." Daniel remembered that she had asked what his problem was. Grimes recalled that Daniel then "just jumped down my throat and just started yelling and screaming at me," and said, "I'm not gonna talk to a meth dealer." In contrast Daniel said he told Grimes, "[M]y problem is your family is dealing meth in our village, that's my problem."

Grimes later said that she interpreted Daniel's response as an accusation that she was a meth dealer.² She said she did not pay much mind to Daniel's accusation, calling it "just ... one of [his] ranting and ravings." She said that she quickly terminated the encounter. Daniel recalled her departure as less friendly: Grimes telling him, "[Y]ou go with that Daniel, I'll see you on the street. And that wasn't a see you later, buddy, that was I'll see you on the street. ... I took it as a threat."

The following day Daniel was involved in a police chase ending at Point Barrow. When he reached the point and got out of his vehicle, he saw a police officer some distance away fire a gun in his direction. Daniel thought it was Grimes. He remained on the point until his negotiated surrender with the police.

Soon afterward Daniel began making accusations of police corruption. He spoke to the City of Barrow mayor about the incident at Point Barrow and attempted to speak to the North Slope Borough mayor. Grimes knew that there were accusations of police corruption but said that she did not know they were coming from Daniel.

Her colleague Gutierrez knew of Daniel and his tour business van. Gutierrez said that he knew "in general" that Daniel had been accusing police officers of being "dirty cops," but that he had no "direct knowledge" and knew only "scuttlebutt."

B. The Events Of September 18, 2007

About 8:00 p.m. on September 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.

Gutierrez arrived on the scene first, followed shortly by Grimes. Grimes realized after arriving that the apartment was the Lums' because Daniel's van was parked outside. Both Grimes and Gutierrez turned on their audio recorders and walked toward the apartment. They did not speak to one another as they approached.

Gutierrez later testified he had heard "shouting" or "yelling" inside the home as he approached. Grimes testified she did not remember hearing anything as she approached the house but heard yelling inside the house once she was in front of the door. Their audio recordings do not offer definitive support for this claim. Footsteps can be heard on Gutierrez's recording as he approaches the apartment building, as well as what might be voices in the background; distortion makes it difficult to draw any conclusions. Grimes's recording is no clearer. The officers concede that any argument they might have heard is "not audible on the recordings." The Lums concede that they were arguing, but claim that by the time the police arrived they had moved their argument into the bathroom and had resumed speaking in normal voices.

Gutierrez knocked on the exterior door of the apartment building and a young girl, approximately six to eight years old, opened it. A barking dog stood with her in the hallway. The girl told the officers to come in.

Gutierrez asked her where her parents were, and she responded "over there" pointing toward the interior door to the apartment. Gutierrez asked the child to "get him," meaning to "get a hold of the dog." The voices of a young girl and a young boy can then be heard on the recording attempting to introduce the officers to their dog, Mabel. The children's voices do not reveal any obvious signs of stress. The superior court's order noted that the children on the audio recording "did not sound stressed at the time."

Gutierrez opened the interior door and entered the apartment immediately after the children "got hold of the dog." Grimes followed. After entering, Grimes took out her pepper spray. She later stated she did this because she was concerned the dog might bite the officers.

Neither officer announced their identity as police officers or their purpose. Gutierrez said this was because it was not required when police respond to a domestic dispute that they can hear in progress: "You kick the door in ... if you deem it's an emergency." He explained that they did not send the children to fetch their parents, because "[t]hat would be putting the child at risk." Grimes said that they did not announce their presence because the argument that they heard outside the apartment created an "exigent circumstance" requiring their entry and investigation.

The officers entered the apartment and briefly looked into adjoining rooms before spotting Daniel, Polly, and an infant in the bathroom. Daniel did not know the police were there until he saw them from the bathroom. He told them to leave and accused Grimes of shooting at him, presumably referring to the earlier incident at Point Barrow.³ The officers ordered him to come out of the bathroom. Daniel tried to slam the door shut, but Gutierrez used his shoulder to keep it open. Gutierrez and Daniel struggled over the door until it was open enough for Grimes to see Daniel; she then sprayed him with the pepper spray. Polly and their infant were hit with some of the spray.

Daniel started to feel like he was choking and unable to breathe. He repeatedly called out for an ambulance and said he was having a heart attack

. The officers wrestled him out of the bathroom and put him in handcuffs. They then called an ambulance and one arrived about ten minutes later.⁴

C. Proceedings

In December 2007 the Lums filed suit against the officers, alleging excessive force and unlawful entry under the Alaska Constitution and AS 12.25.100, Alaska's "knock and announce" statute.⁵ They also sued the North Slope Borough for negligent training and supervision.⁶ In 2010 the superior court granted summary judgment dismissing the Lums' excessive force claims on qualified immunity grounds and dismissing their unlawful entry claims because "neither could support a claim for damages."⁷ The court dismissed the Lums' claims against the Borough because the direct claims against the officers had been dismissed.⁸ The Lums had raised trespass and...