Mitchell v. Anchorage Police Department et al
Order on Motion for Extension of Time to File, Order on Motion for Reconsideration
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
DEPARTMENT and MUNICIPALITY
OF ANCHORAGE, et al.,
ORDER AND OPINION
Motions at Docket 77 and 79]
I. MOTION PRESENTED
The motion for extension of time to file motion for reconsideration is GRANTED.
At docket 79, defendants Municipality of Anchorage, Walt Monegan, and Officers
Henikman and Voss move for reconsideration of the court’s order dated December 26,
2007,1 granting plaintiff Carolyn Mitchell’s motion for reconsideration and finding as a
matter of law that defendants Henikman and Voss falsely arrested plaintiff on May 8,
2004. By order dated February 4, 2008,2 the court invited plaintiff to file a response to
defendants’ motion for reconsideration pursuant to D. Ak. LR 59.1(d). Plaintiff filed a
response at docket 85. The background facts in this matter are set forth in the court’s
order at docket 72.
II. PROCEDURAL HISTORY
The court briefly reviews the procedural history of this case as related to
plaintiff’s false arrest claim. At docket 50, defendants moved for summary judgment
dismissing plaintiff’s false arrest claim on the grounds that defendants restrained plaintiff
with proper legal authority. Defendants specifically argued that they had reasonable
cause to arrest plaintiff under AS 12.25.030(a)(3),3 which provides that a peace officer
without a warrant may arrest a person “when a felony has in fact been committed, and
the person making the arrest has reasonable cause for believing the person to have
By order dated October 30, 2007, the court denied defendants’ motion for
summary judgment on plaintiff’s false arrest claim . The court’s order states in pertinent
...”under AS 12.25.030(3) 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.”4 “In order to establish probable cause, there must exist facts and
circumstances known to the officer which would warrant a prudent person in
believing that an offense has been or is being committed.”5
Doc. 50 at 14-16.
McCoy v. State, 491 P.2d 127, 130 (Alaska 1971).
Here, Officers Voss and Henikman have conceded that they did not have
probable cause to arrest plaintiff.6 Moreover, the facts and circumstances known
to the officers at the time would not warrant a prudent person in believing that
plaintiff committed the robbery at the Wells Fargo Bank. For the above reasons,
defendants have failed to establish that they are entitled to judgment as a matter
of law on plaintiff’s false arrest claim.7
The court’s order further stated that “[t]he evidence on record...shows that the only real
physical similarity between plaintiff and the robbery suspect was the color of their skin.”8
The police dispatch described the robbery suspect as a heavy set black female,
about five feet nine inches tall, carrying a bag, and wearing a dark blue t-shirt, a
black headband or bandana, and dark sunglasses. Ms. Mitchell, who is an
African American female, is five feet four inches tall, and was wearing a white
jogging suit with a blue shirt underneath at the time police took her into custody.9
At docket 53, plaintiff cross moved for summary judgment on her false arrest
claim. In its order at docket 72, the court declined to grant plaintiff judgment as a matter
of law on her false arrest claim because “[b]ased on plaintiff’s briefing, it is unclear to
the court whether plaintiff is attempting to pursue a state law false arrest claim or
whether plaintiff is attempting to pursue an unlawful seizure claim under the Alaska
Constitution.”10 Plaintiff subsequently filed a motion for reconsideration affirming that
her request for partial summary judgment is limited to the issue of whether a false arrest
occurred on May 8, 2004, under Alaska state law.11
Doc. 53, exh. E at 2, exh. F at 2-3.
Doc. 72 at 8-9.
Doc. 72 at 7.
Doc. 72 at 2-3.
Doc. 72 at 10.
In response to plaintiff’s motion for reconsideration, defendants argued that they
restrained plaintiff’s freedom “‘on proper legal authority,’ with time, place and
appearance all giving rise to reasonable suspicion that Plaintiff could be the robber.”12
Defendants cited Deal v. State13 and Coleman v. State14 for the proposition that
defendants “had an affirmative legal duty to protect the lives and property of the public”
and “[w]here there is a duty to detain, there is ‘appropriate legal authority,’ and there
can be no cause of action for ‘false arrest.’”15
By order dated December 26, 2007, the court granted plaintiff’s motion for
reconsideration and found as a matter of law that defendants Henikman and Voss
falsely arrested plaintiff on May 8, 2004.16 In its order granting plaintiff’s motion for
reconsideration, the court distinguished Deal and Coleman from the case at bar, stating
in pertinent part:
In Deal, the Alaska Supreme Court ruled that “[a] police officer is under a
duty to protect the lives and property of the public.” Accordingly, “[w]here an
officer is aware that the operator of an unattended, unsecured vehicle will not be
returning to the vehicle in the near future, his entry of that vehicle for the limited
purpose of securing it is entirely justified.”17 In Coleman, the Alaska Supreme
Court ruled that in light of the facts known to the police officers, they had a right
and duty to stop and question the defendant who met the description of the
suspect in a recent robbery and rape. The Coleman decision, which involved a
Doc. 75 at 4, 5.
626 P.2d 1073 (Alaska 1980).
553 P.2d 40 (Alaska 1976).
Doc. 75 at 4.
Deal, 626 P.2d at 1080.
claim under the Fourth Amendment and not a state law false arrest claim, states
in pertinent part:
We do not believe that our rule permitting temporary detention for
questioning in certain cases, i.e., cases where the police officer has a
reasonable suspicion that imminent public danger exists or serious harm
to persons or property has recently occurred, conflicts with the Fourth
Amendment of the State Constitution.
It strikes a balance between a person’s interest in immunity from police
interference and the community’s interest in law enforcement. It wards off
pressure to equate reasonable cause to investigate with reasonable cause
to arrest, thus protecting the innocent from the risk of arrest when no more
than reasonable investigation is justified.
The Coleman court also pointed out that Alaska does not have a statute
authorizing the police to forcibly stop a citizen on less than probable cause to
Unlike Coleman, the facts of this case do not involve the mere stopping
and questioning of plaintiff. Here, it is undisputed that defendants held plaintiff at
gunpoint, handcuffed her, searched her person and belongings, and kept her in
custody for about 30 minutes, without asking her any questions related to the
investigation of the armed robbery. It is also undisputed that plaintiff was
cooperative and was not perceived as a safety concern by the defendants.
The facts of this case amount to an arrest, not an investigative stop, and
although defendants Voss and Henikman may have had reasonable cause to
investigate, they have conceded that they did not have probable cause to arrest
plaintiff.18 Moreover, as discussed in the court’s order at docket 72, the facts and
circumstances known to the defendant officers at the time would not warrant a
reasonable person in believing that plaintiff committed the armed robbery at
issue. For the above reasons, plaintiff has met her burden of showing that there
are no genuine disputes of material fact and she is entitled to judgment as a
matter of law finding that defendants Henikman and Voss falsely arrested her on
May 8, 2004.19
Doc. 53, exh. E at 2, exh. F at 2-3.
Doc. 76 at 3-4.
Defendants now move for reconsideration of the court’s order granting plaintiff
summary judgment on her false arrest claim. The Ninth Circuit has ruled that
“[r]econsideration is appropriate if the district court is presented with newly discovered
evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if
there is an intervening change in controlling law.”20
It is undisputed that under Alaska law, the elements of the tort of false arrest are
“(1) a restraint upon the plaintiff’s freedom, (2) without proper legal authority.”21 In
support of their motion, defendants now argue that the restraint on plaintiff’s freedom
“was with proper legal authority, as an investigatory stop.”22 In support of this
proposition, defendants cite the five-factor test set forth in Howard v. State for
distinguishing between an investigatory stop and a custodial arrest under the Fourth
Amendment. The court points out that defendants previously cited the five-factor test in
Howard in support their motion for summary judgment as to plaintiff’s claims under
42 U.S.C. § 1983, but not as to plaintiff’s false arrest tort claim. Rather, defendants first
argued that they had legal authority to restrain plaintiff under AS 12.25.030(a)(3), and
then argued on reconsideration that defendants had legal authority to restrain plaintiff
under Deal and Coleman . The court expressly rejected defendants’ arguments in its
orders at dockets 72 and 76. Defendants have failed to make any showing that the
School Dist. No. 1J, Multnomah County, Or. v. AcandS, 5 F.3d 1255, 1263 (9th Cir.
Waskey v. Municipality of Anchorage, 909 P.2d 342, 345 (Alaska 1996).
Doc. 79 at 2.
court committed clear error in rejecting defendants’ arguments. Nor have defendants
shown an intervening change in controlling law
In their motion for reconsideration, defendants argue that “[i]n finding an ‘arrest,’
the Court overlooked undisputed facts in the record and failed to analyze the difference
between an ‘investigatory stop’ and an ‘arrest’ under Alaska and federal law.”23
Defendants do not, however, point to any undisputed facts that the court overlooked.
Moreover, contrary to defendants’ assertion, the court fully analyzed the difference
between an investigatory stop and an arrest in its order at docket 72 in discussing
plaintiff’s claim under 42 U.S.C. § 1983 that defendants violated her Fourth Amendment
right to be free from unreasonable search and seizure.24
In support of their motion for reconsideration, defendants file for the first time the
affidavits of Captain Bill Miller, Trooper Major Matt Leveque, Officer John Daily, and FBI
Special Agent Steven Payne, stating their opinions that an investigatory stop, and not a
false arrest, occurred. “The overwhelming weight of authority is that the failure to file
documents in an original motion or opposition does not turn the late filed documents into
‘newly discovered evidence.’”25 Here, the affidavits filed in support of defendants’
motion for reconsideration are clearly not “newly discovered evidence” warranting
reconsideration of the court’s order granting plaintiff summary judgment on her false
arrest claim. Because defendants have failed to present any newly discovered
Doc. 79 at 2.
Doc. 72 at 4-7.
evidence or to show that the court committed clear error, or the initial decision was
manifestly unjust, or there is an intervening change in controlling law, the court will deny
defendants’ motion for reconsideration.
For the reasons set out above, it is hereby ORDERED that defendants’ motion
for reconsideration at docket 79 is DENIED.
DATED at Anchorage, Alaska, this 4th day of March 2008.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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