Russell v. Corporal Lee Virg–in

• Decision Date: 22 July 2011
• Docket Number: No. S–13537.,S–13537.
• Citation: 258 P.3d 795
• Parties: Sandra RUSSELL, for and on behalf of J.N., a Minor Child, Appellant,v.Corporal Lee VIRG–IN and The City of Kotzebue, Appellees.
• Court: Alaska Supreme Court

258 P.3d 795

Sandra RUSSELL, for and on behalf of J.N., a Minor Child, Appellant,

v.Corporal Lee VIRG–IN and The City of Kotzebue, Appellees.

No. S–13537.

Supreme Court of Alaska.

July 22, 2011.

Ted Stepovich, Law Office of Ted Stepovich, Anchorage, for Appellant.

Joseph W. Evans, Law Offices of Joseph W. Evans, Bremerton, Washington, for Appellees.Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

OPINION

FABE, Justice.I. INTRODUCTION

In July 2003 Officer Lee Virg–In used a taser two times on J.N., an 11–year–old girl. J.N. had been driving an ATV through the streets of Kotzebue with another young passenger. J.N. ran several stop signs and was otherwise driving dangerously, and Officer Virg–In used overhead lights and a siren to signal to J.N. to stop. J.N. refused to stop, first trying to escape on the ATV and later fleeing on foot. Officer Virg–In chased J.N. on foot and caught up with her. According to J.N., she was never aggressive or threatening towards Officer Virg–In, and she had already stopped running and was no longer attempting to flee when Officer Virg–In deployed his taser. He first shot the probes and caught them on J.N.'s jacket and then grabbed J.N. by the elbow and shocked J.N. on the shoulder with the taser as he held onto her elbow. Officer Virg–In then handcuffed J.N. and took her to the police station.

J.N., through her mother Sandra Russell, filed a complaint against Officer Virg–In, alleging that his use of the taser constituted excessive force. J.N. also sued the City of Kotzebue, claiming improper and negligent supervision or training. Officer Virg–In defended the reasonableness of his actions and argued that he was immune from suit. On summary judgment, the superior court found that Officer Virg–In was entitled to qualified immunity because a reasonable officer might not have known that the use of a taser under the circumstances would be an excessive use of force. The superior court also dismissed J.N.'s claims against the City based on Officer Virg–In's entitlement to qualified immunity. Finally, the superior court awarded attorney's fees and costs to Officer Virg–In and the City, assessing the fees and costs against Russell.

We conclude that it was error to grant Officer Virg–In qualified immunity on summary judgment because if a police officer used a taser multiple times on an 11–year–old girl who was suspected of traffic violations, was compliant, and was not posing a threat to the officer or others, that conduct could be so egregious that any reasonable officer would have known that the conduct was an excessive use of force. We also reverse the grant of summary judgment dismissing J.N.'s improper and negligent training or supervision claims against the City of Kotzebue.

II. FACTS AND PROCEEDINGSA. Factual History¹

On the night of July 29, 2003,² Kotzebue police officer Corporal Lee Virg–In used an Advanced Taser (taser) while arresting 11–year–old J.N. The incident began earlier in the evening when, while driving in a marked police department vehicle, Officer Virg–In and his partner Officer Eric Swisher saw J.N. driving an ATV at approximately 30–35 m.p.h. through the streets of Kotzebue with a young female passenger. Officer Virg–In's incident report states that J.N. was five feet tall and weighed 100 pounds, which the report describes as a “slender” build. The officers saw J.N. run a stop sign and turned on their overhead lights and siren to signal to J.N. to stop. J.N.'s passenger turned and saw the police vehicle, but J.N. drove off, eluding the officers. About an hour later, the officers again spotted J.N. on the ATV, saw her go through a stop sign, and turned on their overhead lights and siren. J.N. again drove away from the officers, going an estimated 35–40 m.p.h. and failing to stop at two more stop signs. J.N. then drove the ATV off the street and through a field, emerging from behind a building and nearly hitting the officers' police vehicle head on—both vehicles veered around each other to prevent a collision. J.N. drove back onto the street, but her ATV stalled. Both girls left the ATV and started running away from Officer Virg–In on foot. Officer Virg–In got out of his vehicle, began chasing the girls, and yelled for them to stop. J.N. continued to run, and Officer Virg–In continued to chase her and yell for her to stop.

According to J.N., she ran between three female teenagers on the street and was stopped by one of them. She testified that she “stopped right away” and was “face to face” with Officer Virg–In, “wait[ing] for him” as he came within two or three feet of her and deployed the taser's probes.³ J.N. described the incident:

I went around [the senior center buildings] and ... [another girl] grabbed me. I stopped. I was tired. Virg–In was right behind me. I turned around and I saw him. He pulled out his gun, and a whole—a couple of wires came out, you know, a couple strings. One caught my coat. The other—the other one caught my chest. I asked him what he did that for and then he shocked me. The first one happened so fast, but then the second time he put it to my shoulder.

J.N.'s passenger confirmed in an affidavit that she saw Officer Virg–In “shoot” J.N. with the taser and then “walk up to [J.N.] and touch [t]aser [J.N.] again and she fell to the ground.” The passenger agreed with J.N.'s testimony that J.N. was “not running away at the time that Officer Virg–In used the [t]aser on [J.N.].” Officer Virg–In acknowledged that when he used the taser the second time he was holding onto J.N.'s elbow and was also shocked by the current when he touch-tasered J.N.

Officer Virg–In then handcuffed J.N. and took her to the Kotzebue police station. Another officer examined J.N. and noted that her coat had one taser probe still embedded in it and that there was a small red mark on J.N.'s upper right chest. J.N. was later adjudicated a delinquent minor for the misdemeanor offense of “failure to stop at the direction of a peace officer in the second degree.”

As to her injuries, J.N. testified that when the taser probes hit her she “got really stiff” and when Officer Virg–In touched her with the taser, she “collapsed.” She stated that she was shocked with the taser “for a good minute ... you could feel it ... pulsing.” J.N. described that after she was touched with the taser, “[i]t burned at first” and then she “could see [her] vein come out. It was darker.” She elaborated that she hurt for a “couple of days” and that she had trouble sleeping on the night of the incident because she woke up with nightmares. J.N. admitted that after a “couple” of days she was “okay” and that the pain “slowed down” and was gone after three or four days. But J.N. still had nightmares and trouble sleeping that occurred “once in a while” over the next three years. In these nightmares, J.N. testified, she would see “a guy in a uniform” who would chase her as she ran from him; sometimes the figure in the dream would handcuff her and leave her on the ground and once she dreamed that she was taken to jail. J.N. never took any medication for her sleeping issues and never saw a counselor or doctor for the problem.⁴

J.N. maintained that Officer Virg–In knew who she was and knew where she lived and thus “could have easily avoided the use of force by waiting and picking her up at home.” She noted that “Kotzebue is a very small place, it is isolated.” Moreover, J.N. argued that she was not “wanted because of a serious or violent felony crime.”

B. Proceedings

On February 17, 2005, J.N.'s mother Sandra Russell filed a complaint “by and for” J.N. as a minor child. The complaint alleged that Officer Virg–In “apprehended and arrested [J.N.] using excessive unnecessary force, stunning [J.N.] twice with a stun gun with no justification for the use of such excessive force ... causing her injury and great pain.” ⁵ J.N. also alleged that the City “improperly and negligently supervised or trained” Officer Virg–In in the appropriate use of force. J.N. sought damages against Officer Virg–In and the City, “jointly and severally for the same injury” plus costs, interest, and attorney's fees, and requested punitive damages against Officer Virg–In. Officer Virg–In and the City answered J.N.'s complaint, denying J.N.'s allegations and raising several defenses. Among other assertions, Officer Virg–In claimed that he had “a qualified privilege to use reasonable force in making an arrest ... [and] immunity based upon objective reasonableness.”

On August 27, 2008, Officer Virg–In and the City moved to dismiss all of J.N.'s claims on summary judgment.⁶ Citing post–2003 case law, Officer Virg–In argued that “[t]he use of a [t]aser to subdue an unruly, fleeing juvenile is a proper use of force and does not constitute excessive force.” In addition, Officer Virg–In contended that he was entitled to qualified immunity because “no cognizable legal precedent” would have put him “on notice that the use of a [t]aser in this situation was prohibited, unlawful conduct for a police officer.” Officer Virg–In and the City also maintained that J.N.'s claim against the City should be dismissed based on Officer Virg–In's entitlement to qualified immunity and on the merits.

J.N. opposed the summary judgment motion on September 29, 2008. She responded that “there is no requirement that there be a specific case on point that would have led Officer Virg–In to believe that use of a [t]aser in this situation was excessive.” J.N. maintained that the law “was clearly established in July 2003” that “it would be [ ] excessive use of force to use a [t]aser on a juvenile that posed little or no threat to the Officer or third parties.” J.N. also argued that there were issues of fact precluding summary judgment as to “whether the City failed to properly train Virg–In by having a written policy governing [t]aser use and reviewing that written policy with its officers” and also regarding “whether Virg–In violated ...