Estate of Shane Tasi et al v. Municipality of Anchorage et al

Filing 106

ORDER: re Pending Motions: Motion for Summary Judgment 32 ; Motion for Summary Judgment 43 ; and Motion in Limine 51 . Signed by Judge Sharon L. Gleason on 01/28/2016. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ESTATE OF SHANE TASI, by and
through his Widow and Personal
Representative of Estate, Jean TaualoTasi, et al.,
Plaintiffs,
v.
MUNICIPALITY OF ANCHORAGE, et
al.,

Case No. 3:13-cv-00234-SLG

Defendants.
ORDER RE PENDING MOTIONS
Before the Court at Docket 32 is Defendant Officer Boaz Gionson’s Motion for
Summary Judgment. Plaintiffs opposed at Docket 71, and Defendant replied at Docket
93. Defendants Anchorage Police Department (APD), Municipality of Anchorage (MOA),
Officer Joshua Vance, and Officer James Williams also filed a Motion for Summary
Judgment at Docket 43. Plaintiffs opposed at Docket 73, and Defendants replied at
Docket 94. Oral argument on both of the summary judgment motions was held on
July 27, 2015.
Also pending before the Court is Plaintiffs’ Motion in Limine at Docket 51.
Defendants opposed at Docket 59, and Plaintiffs replied at Docket 66. Oral argument
was not requested and was not necessary to the Court’s determination of that motion.

FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the June 9, 2012 shooting death of Shane Tasi by APD
Officer Gionson. Viewed in the light most favorable to the non-moving party for the
purposes of these motions, the facts are as follows.
The day of the shooting, Mr. Tasi, his wife Jean Taualo-Tasi, and their three
children went to a party at Mr. Tasi’s cousin’s home. 1 Over the course of the day, Mr. Tasi
used Spice, smoked marijuana, and drank alcohol. By the time the family left the party
that evening at around 8:00 p.m., Mr. Tasi was very intoxicated. 2
Ms. Taualo-Tasi drove the family home.

Once the family reached their

neighborhood, Mr. Tasi climbed out of the passenger window of the vehicle. Ms. TaualoTasi left him to walk the remaining blocks home. 3 Immediately after leaving the vehicle,
Mr. Tasi began yelling at people on the street and in passing vehicles, and a witness
called 911. 4 Mr. Tasi also yelled at a dog in a neighbor’s yard, trying to get the dog to
fight with him. Neighbors again called 911, and Mr. Tasi moved on once he was told that
the police had been called. 5 Next Mr. Tasi attempted to get into the passenger side of

1

See Docket 34-1 (Ms. Taualo-Tasi Depo.) at Tr. 11–17, 28–36. The parties do not appear to
substantially dispute the background facts leading up to the shooting. The parties strenuously
dispute the majority of the facts beginning when Officer Gionson arrived at the apartment
complex.
2

Docket 34-1 (Ms. Taualo-Tasi Depo.) at Tr. 24, 36–42.

3

Docket 34-1 (Ms. Taualo-Tasi Depo.) at Tr. 41–56.

4

Docket 35-3 (Flores Depo.) at Tr. 12–15.

5

Docket 35-4 (Ham Depo.) at Tr. 11, 16–17; Docket 35-5 (Masalta Depo.) at Tr. 23–34; Docket
35-6 (Ms. Masalta Depo.) at Tr. 20–21.
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 2 of 49

another person’s car. 6 After these brief confrontations Mr. Tasi crossed the street and
rejoined Ms. Taualo-Tasi and the children, who had just exited the vehicle.
The following events surrounding the shooting were caught by various surveillance
video systems outside the apartment complex, but the time stamps on the videos do not
reflect the actual time of day. Thus, Mr. Tasi entered the apartment at roughly 13:19 on
the video feed, despite the fact that the events happened close to 10:00 p.m. 7
Dispatch issued reports on the two 911 calls. The first report stated that a Samoan
male wearing black shorts and no shirt was yelling at cars on Bunn Street; roughly a
minute later dispatch reported that the man was now yelling at people and attacking a
dog. 8 Office Gionson responded and drove around Mountain View trying to find the
subject of the reports. 9
Meanwhile, inside the apartment, Mr. Tasi began to throw objects through the
kitchen window. He also overturned the couch and the refrigerator. 10 Multiple witnesses
heard the noise that this generated. Bronson Birdsell, Jason Netter, and Willie Emry all
heard the commotion and ran to the apartment building at 13:29 on the video. 11

6

Docket 36-3 (Sagapolutele Depo.) at Tr. 20–23.

7

Docket 80-7 (Exh. 6, Channel 7) (the parties have labeled each camera at the scene a different
“channel”); Docket 32-2 (map of camera locations); Docket 34-1 (Ms. Taualo-Tasi Depo.) at Tr.
11.
8

Docket 37-2 (Incident Report) at 1.

9

Docket 37-1 (Gionson Depo.) at Tr. 27–28.

10

Docket 34-1 (Ms. Taualo-Tasi Depo.) at Tr. 68–74.

11

Docket 36-5 (Birdsell Depo.) at Tr. 13–15, 20; Docket 36-6 (Emry Depo.) at Tr. 14–16; Docket
80-7 (Exh. 6, Channel 7).
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 3 of 49

Mr. Birdsell looked inside through the apartment’s front door, which was ajar. He testified
that he saw a man holding a stick who had what looked like a bloody thumbprint on his
forehead. 12
The three men hailed Officer Gionson as he was driving by. Officer Gionson
parked his marked patrol car across the street from the apartment and exited the vehicle,
leaving his pepper spray behind. The officer was not carrying a Taser. The three men
told Officer Gionson that there was a man with a stick inside the apartment who was
“acting violent” and was bloody. Officer Gionson also learned that there were children in
the apartment, making the situation a possible incident of domestic violence. 13 At all
relevant times prior to the shooting, Officer Gionson was unaware that Mr. Tasi had been
drinking or had used drugs. 14
While talking to the three men, Officer Gionson drew his gun, at approximately
13:30:24 on the video. 15 At that time, Officer Gionson was standing behind a roughly
three-foot high chain-link fence, which separated the apartment complex from the
sidewalk. On the other side of the fence was a paved walkway, which abutted grass that
ran up to the apartments. Officer Gionson was approximately 30 feet from the entrance
to the Tasis’ apartment. 16

12

Docket 36-5 (Birdsell Depo.) at Tr. 17–19, 124–29.

13

Docket 71-2 (Gionson Interview) at Tr. 7–8, 16–17; Docket 37-1 (Gionson Depo.) at Tr. 29, 55,
58, 61, 209–12, 455–56; Docket 80-7 (Exh. 6, Channel 7).

14

See Docket 59 (Mot. in Limine Opp’n) at 2; Docket 71-2 (Gionson Interview) at Tr. 7–8; Docket
37-1 (Gionson Depo.) at Tr. 354.
15

Docket 80-7 (Exh. 6, Channel 7) at 13:30:23–24; Docket 80-2 (Sarna Report) at 3.

16

Docket 80-2 (Sarna Report) at 3, 23.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 4 of 49

Seconds later, at 13:30:37 on the video, Mr. Tasi exited the apartment. 17 There is
considerable conflicting testimony from the moment Mr. Tasi exited his apartment. For
purposes of these summary judgment motions, the Court reviews the evidence in the light
most favorable to Plaintiffs, and has reviewed and relied in part on the security camera
footage of the incident.
When Mr. Tasi walked out of his apartment, he was holding a broomstick from
which the broom portion had been removed. 18 He walked across the grass towards the
paved walkway on the opposite side of the fence from Officer Gionson. As Mr. Tasi
walked, he tapped the broomstick on the ground twice. 19 Once he reached the walkway,
roughly four seconds after exiting the apartment, Mr. Tasi walked along the walkway, still
on the opposite side of the fence from Officer Gionson. At this point Mr. Tasi was walking
in Officer Gionson’s direction, along a paved walkway behind the fence. At no point did
Mr. Tasi make eye contact with or look at Officer Gionson; instead he was focused on the
three men, one of whom had just attempted to enter his family’s apartment. 20 Mr. Tasi
then raised the broomstick over his head, grasped at both ends. 21 At this point two of the
men had run down the street and one may have retreated along a vehicle. 22 Officer

17

Docket 80-5 (Exh. 4, Channel 3); Docket 80-6 (Exh. 5, Channel 5).

18

Docket 80-2 (Sarna Report) at 1, 8; Docket 37-1 (Gionson Depo.) at Tr. 150.

19

Docket 80-5 (Exh. 4, Channel 3); Docket 80-2 (Sarna Report) at 16.

20

Docket 80-5 (Exh. 4, Channel 3); Docket 80-2 (Sarna Report) at 1, 5–6, 11, 14–15, 23; Docket
71-4 (Huntley Depo.) at Tr. 36, 104–108, 115, 120–21, 157–58.
21

Docket 80-5 (Exh. 4, Channel 3); Docket 80-2 (Sarna Report) at 16.

22

See Docket 42 (Gionson Mot.) at 36; Docket 71 (Opp’n) at 46; Docket 80-5 (Exh. 4, Channel
3).
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 5 of 49

Gionson twice stated a command along the lines of “drop the stick,” but Mr. Tasi did not
appear to hear and did not comply. 23
At this point, Officer Gionson—still behind the fence and outside of Mr. Tasi’s
striking distance with the broomstick—fired three shots at Mr. Tasi. 24 The shots were
fired approximately seven seconds after Mr. Tasi first emerged from the front door of the
apartment. 25 The three bullets entered Mr. Tasi’s body on the left side, indicating that he
was not facing Officer Gionson when he was shot. 26 When the shots were fired, Mr. Tasi
was roughly 11 feet from Officer Gionson and had not reached the end of the chain link
fence that ran between them. 27 Had Mr. Tasi reached the end of the fence, Mr. Tasi could
have turned and would have had an unobstructed path towards Officer Gionson.
Ms. Taualo-Tasi exited the apartment when she heard the shots. 28 Officers Vance
and Williams were among the officers that arrived on the scene immediately after the
shooting. Officer Vance testified that he did not think Ms. Taualo-Tasi needed to witness
the emotional scene, so he asked her to go back inside the apartment. 29 Ms. Taualo-

23

Docket 71-2 (Gionson Interview) at Tr. 10; Docket 71-1 (Gionson Depo.) at Tr. 42–43.

24

Docket 80-5 (Exh. 4, Channel 3); Docket 80-2 (Sarna Report) at 1, 5–6, 11, 14–15, 23–24;
Docket 71-4 (Huntley Depo.) at Tr. 36, 104–108, 115, 120–21, 157–58; Docket 71-1 (Gionson
Depo.) at Tr. 111.
25

See Docket 80-5 (Exh. 4, Channel 3); Docket 80-6 (Exh. 5, Channel 5).

26

Docket 80-4 (Sarna Depo.) at 81.

27

Docket 80-2 (Sarna Report) at 8, 22 n.15.

28

Docket 73-4 (Video, Ms. Taualo-Tasi exits).

29

Docket 71-13 (Vance Depo.) at Tr. 70–71.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 6 of 49

Tasi answered, “No. I want to know if my husband’s alright.” 30 Nonetheless, the officers
led Ms. Taualo-Tasi back to the apartment.

But upon seeing the condition of the

apartment, the officers decided that it could be a crime scene such that Ms. Taualo-Tasi
should not remain in the apartment; they then asked her to move with the children to the
apartment building’s laundry room. Officer Williams told Ms. Taualo-Tasi that they “were
going to be interviewing you, each and every one of you,” and that it was “probably going
to be hours.”

Officer Williams testified that he told Ms. Taualo-Tasi that after he

interviewed her, she could leave if the Sergeant allowed it. 31 Both officers testified that
Ms. Taualo-Tasi was not free to leave during the exchange. 32

Ms. Taualo-Tasi’s

detention in the laundry room lasted approximately 10 minutes; the total time from the
shooting until Ms. Taualo-Tasi was taken to the police station was roughly 30 minutes,
which included the time in the apartment, the time moving between the various locations,
and the time spent transferring the children to a family member so that Ms. Taualo-Tasi
could go to the station. 33
When Officer Gionson gave his first statement—three days after the incident—he
stated that he shot Mr. Tasi after he had moved around the fence into the yard and
between Mr. Tasi and the three men, directly in Mr. Tasi’s path. In that statement Officer
Gionson also asserted that when he fired his gun, Mr. Tasi was so close to him that the

30

Docket 71-18 (Exh. 18, Audio) (second recording) at 00:30–00:44.

31

Docket 71-18 (Exh. 18, Audio) at 0:05–0:40, 03:20–03:50; Docket 71-13 (Vance Depo.) at Tr.
70–72.
32

Docket 71-13 (Vance Depo.) at Tr. 103–04; Docket 71-14 (Williams Depo.) at Tr. 72–73.

33

Docket 71-18 (Exh. 18, Audio).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 7 of 49

officer had to take a step back or Mr. Tasi would have fallen on him. 34

However, at

deposition about two years later, Officer Gionson admitted that these recollections of the
incident were not in accord with the videotapes, which showed that Officer Gionson had
not moved around the end of the fence and that there was considerably more distance
between him and Mr. Tasi at the time of the shooting. 35
Plaintiffs filed this suit on November 21, 2013 in Anchorage Superior Court. 36
Plaintiffs are Jean Taualo-Tasi, as representative of Mr. Tasi’s estate and individually,
and Mr. Tasi’s children. On December 23, 2013, Defendants filed a Notice of Removal
to this Court. 37 Plaintiffs filed a Corrected Amended Complaint on December 31, 2014. 38
After Defendants moved to add another child to the Complaint, Plaintiffs filed a Second
Amended Complaint (SAC) on March 27, 2015, which is the operative complaint for
purposes of the motions for summary judgment. 39
DISCUSSION
I.

Jurisdiction
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 because

the SAC alleges violations of Mr. Tasi’s, Ms. Taualo-Tasi’s, and the children’s federal

34

Docket 71-2 (Gionson Interview) at Tr. 11–12, 23, 27–28.

35

Docket 71-1 (Gionson Depo.) at Tr. 111–12, 179–80.

36

See Docket 1-1 (State Court Complaint).

37

Docket 1 (Notice of Removal).

38

Docket 27 (Corrected Amended Complaint).

39

Docket 44 (SAC); Docket 31 (Order); Docket 29 (Mot.).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 8 of 49

constitutional rights. The Court has supplemental jurisdiction over the state law claims
under 28 U.S.C. § 1367.
II.

Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” When considering a motion for
summary judgment, a court must accept as true all evidence presented by the nonmoving party and draw “all justifiable inferences” in the non-moving party’s favor. 40 The
burden of showing the absence of a genuine dispute of material fact initially lies with the
moving party. 41 If the moving party meets this burden, the non-moving party must present
specific evidence demonstrating the existence of a genuine issue of fact. 42 The nonmoving party may not rely on mere allegations or denials. To reach the level of a genuine
dispute, the evidence must be such “that a reasonable jury could return a verdict for the
non-moving party.” 43

If the evidence provided by the non-moving party is “merely

colorable” or “not significantly probative,” summary judgment to the moving party is
appropriate. 44

40

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158–59 (1970)).
41

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); In re Oracle Corp. Sec. Litig., 627 F.3d 376,
387 (9th Cir. 2010).
42

Anderson, 477 U.S. at 250; Oracle, 627 F.3d at 387.

43

Anderson, 477 U.S. at 248.

44

Id. at 249–50 (citing Dombrowski v. Eastland, 387 U.S. 82, 84–85 (1967); First Nat’l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 9 of 49

III.

Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for

civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” 45 The purpose of
qualified immunity is to “balance[] two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” 46
Government officials are not entitled to qualified immunity on summary judgment
if (1) the facts taken in the light most favorable to the plaintiff show that the officials’
conduct violated a constitutional right, and (2) that right was clearly established at the
time of the alleged violation. 47 Both prongs of the analysis must be satisfied, so that if a
court determines that one prong is not met, qualified immunity applies. A court may
consider either prong first. 48
“For a constitutional right to be clearly established, its contours ‘must be
sufficiently clear that a reasonable official would understand that what he is doing violates

45

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)).
46

Pearson, 555 U.S. at 231.

47

Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from by Pearson, 555 U.S. at 232–36.

48

Pearson, 555 U.S. at 236 (“The judges of the district courts and the courts of appeals should
be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.”).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 10 of 49

that right.’” 49 Courts should not define clearly established law at a high level of generality;
otherwise, qualified immunity becomes no immunity at all if the only prerequisite is a
constitutional violation. 50
IV.

Officer Gionson’s Motion for Summary Judgment at Docket 32
Plaintiffs’ SAC includes Officer Gionson in Counts One, Two, Three, Five, Seven,

and Eight. 51 Counts One and Two allege § 1983 claims related to the excessive force
allegedly used on Mr. Tasi under the Fourth, Fifth, and Fourteenth Amendments. “To
state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation
was committed by a person acting under color of state law.” 52 In Count Three Plaintiffs
allege a claim related to the excessive force allegedly used on Mr. Tasi under Article I,
§ 7 and § 14 of the Alaska Constitution. 53 Count Five is a claim for violations of the Fifth
and Fourteenth Amendments of the United States Constitution and Article 1, § 14 of the
Alaska Constitution. Count Seven alleges a tort claim under state law for “False Arrest

49

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
50

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011).

51

Officer Gionson is named in the body of Count Nine, but based on that count’s heading it
appears the claim was intended for Officers Vance and Williams.
52

West v. Atkins, 487 U.S. 42, 48 (1988).

53

Count Three references § 1983, but under that statute, the violated right must be a federal one,
not a state constitutional violation. See West, 487 U.S. at 48.
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 11 of 49

and/or Imprisonment” against all “Defendants.” Finally, Count Eight alleges “State Law
Negligence” claims against Officer Gionson. 54
The Court will first address Plaintiffs’ Fourteenth and Fifth Amendment claims
contained in Counts One, Two, and Five. Counts One and Two allege violations of those
two Constitutional Amendments, as well as a violation of the Fourth Amendment, all
based on Officer Gionson’s use of allegedly excessive force against Mr. Tasi. “Because
the Fourth Amendment provides an explicit textual source of constitutional protection
against this sort of physically intrusive governmental conduct, that Amendment, not the
more generalized notion of ‘substantive due process,’ must be the guide for analyzing
these claims.” 55 Accordingly, the Court will grant summary judgment to Officer Gionson
on the Fourteenth and Fifth Amendment claims in Counts One and Two and focus on the
Fourth Amendment claims. Plaintiffs do not dispute this in their opposition. 56 Count Five
appears to allege a substantive due process claim against Officer Gionson by Ms. TaualoTasi and the children for loss of companionship under the Fourteenth Amendment. 57
Although Defendant’s motion is directed at “all claims,” Defendant’s briefing does not
discuss these Fourteenth Amendment claims, so the issue is not before the Court. 58 The

54

Docket 44 (SAC) at 10–15.

55

Graham v. Connor, 490 U.S. 386, 393–95 (1989) (holding that the first step in § 1983 analysis
should be “identifying the specific constitutional right allegedly infringed,” which will usually be the
Fourth Amendment or the Eighth Amendment).

56

Compare Docket 42 (Gionson Mot.) at 15 (addressing summary judgment of Fifth and
Fourteenth Amendment claims), with Docket 71 (Plaintiffs Opp’n) (absence).
57

See Docket 44 (SAC) at 12.

58

See Docket 42 (Gionson Mot.) at 15–17.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 12 of 49

Court will deny summary judgment as to the Fourteenth Amendment claims in Count
Five. 59
With regard to the claims under the Alaska Constitution, Alaska has not recognized
a Bivens-type private right of action for constitutional torts under its constitution. The
Alaska Supreme Court has indicated that a state constitutional claim for damages will not
be allowed except in cases of flagrant constitutional violations where little or no alternative
remedies are available. 60 In this case, Plaintiffs have ample alternative remedies and
have pled such in their SAC. Accordingly, the Court will grant summary judgment to
Officer Gionson on the Alaska Constitutional claims pled in Counts Three and Five. As
with the Fifth and Fourteenth Amendment claims in Counts One and Two, Plaintiffs do
not dispute that summary judgment in that regard is appropriate in their opposition
briefing. 61
Regarding the two state law tort claims, Officer Gionson reads Count Seven as
applying to Officers Vance and Williams, not Officer Gionson. 62 Plaintiffs do not dispute
this reading in their opposition brief. 63 As the weight of Plaintiffs’ allegations against
Officers Vance and Williams go to Ms. Taualo-Tasi’s alleged unreasonable detention and

59

The Court will grant summary judgment on the Fifth Amendment claim in Count Five because
Plaintiffs allege no facts relevant to self-incrimination or a coerced confession. See Crowe v. Cty.
of San Diego, 608 F.3d 406, 427 (9th Cir. 2010).
60

Larson v. State, Dep’t of Corr., 284 P.3d 1, 10 (Alaska 2012).

61

Compare Docket 42 (Gionson Mot.) at 16–17 (addressing summary judgment of Alaska
Constitutional claims), with Docket 71 (Plaintiffs Opp’n) (absence).
62

Docket 42 (Gionson Mot.) at 16.

63

Docket 71 (Plaintiffs Opp’n) (absence).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 13 of 49

the weight of Plaintiffs’ allegations against Officer Gionson go to excessive force, the
Court will accept this uncontested reading of the SAC. Thus, the Court grants summary
judgment on any residual claims against Officer Gionson in Count Seven.

Officer

Gionson asserts that Count Eight is a state law claim for excessive force that is mislabeled
as a negligence claim. 64 Plaintiffs do not clarify this in their opposition. 65 This reading of
the count is logical, so the Court will accept the interpretation.
Thus, the remaining claims against Officer Gionson are the § 1983 claims in
Counts One and Two for the alleged violation of Mr. Tasi’s Fourth Amendment rights, the
Alaska state law claim for excessive force at Count Eight, and the Fourteenth Amendment
claim at Count Five that is not currently before the Court. With respect to the excessive
force claims, the central issue presented by Officer Gionson’s motion is whether Officer
Gionson is entitled to qualified immunity.
As discussed above, Officer Gionson is entitled to qualified immunity on summary
judgment on the two § 1983 claims if he can demonstrate—under the facts taken in the
light most favorable to Plaintiffs—that either (1) he did not violate Mr. Tasi’s Fourth
Amendment rights, or that (2) at the time of the violation it was not clearly established that
he was violating Mr. Tasi’s rights.

Alaska’s qualified immunity doctrine follows a

functionally similar analysis for excessive force claims. 66 The Court will address the
federal constitutional claims first.

64

Docket 42 (Gionson Mot.) at 16.

65

See Docket 71 (Plaintiffs Opp’n).

66

See Maness v. Daily, 307 P.3d 894, 901 (Alaska 2013) (Alaska “chose to follow federal
precedent for determining whether qualified immunity should be conferred for [official] acts alleged
to contravene a statutory or constitutional mandate.” (alteration in original) (internal quotation

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 14 of 49

Plaintiffs’ federal constitutional claims of excessive force are analyzed under the
Fourth Amendment’s prohibition on unreasonable seizures. 67 “Determining whether the
force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment
requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s
Fourth Amendment interests’ against the countervailing governmental interests at
stake.”68 In weighing these interests, courts consider “the government’s interests by
assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat
to the officers’ or public’s safety; and (3) whether the suspect was resisting arrest or
attempting to escape.” 69

The officer’s actions are measured against an objective

reasonableness standard, so a court should consider whether a reasonable officer would
have believed that the suspect was an imminent threat to the officer or a bystander. 70
The Supreme Court has also considered the suspect’s culpability in relation to innocent
bystanders. 71 And “an officer’s failure to warn, when it is plausible to do so, weighs in

marks omitted)); see also Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 802–04 (Alaska 2011)
(discussing and applying qualified immunity standard).
67

Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001); see also Graham v. Connor, 490
U.S. 386, 388 (1989).
68

Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal
quotation marks omitted).
69

Espinosa v. City of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); see also Graham, 490
U.S. at 396 (holding that imminent threat factor is the most important in the inquiry).

70

Deorle, 272 F.3d at 1279 (citing Graham, 490 U.S. at 397); see also Espinosa, 598 F.3d at 537.

71

See, e.g., Scott v. Harris, 550 U.S. 372, 384 (2007) (considering culpability of defendant in
creating situation where innocent bystanders, with no culpability, could be hurt).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 15 of 49

favor of finding a constitutional violation.”72 Courts also “consider whether there were
less intrusive means of force that might have been used.” This includes considering what
other means are available, and if there was a clear, reasonable, less intrusive
alternative. 73 Finally, because situations involving domestic violence are unpredictable,
this should factor into a court’s decision. 74 “When officers respond to a domestic abuse
call, they understand that violence may be lurking and explode with little warning. Indeed,
more officers are killed or injured on domestic violence calls than on any other type of
call.” 75
Officer Gionson asserts that his decision to use deadly force was not unreasonable
because Mr. Tasi (1) was culpable because he had violated his terms of probation by
using alcohol and drugs; (2) was an imminent threat to Officer Gionson and the three
men; (3) was resisting Officer Gionson’s directives to drop the broomstick; and (4) was
committing felony assault on either Officer Gionson or the three men. Officer Gionson
does not maintain that he told Mr. Tasi that he was a police officer. Rather, he asserts
that either there was insufficient time to state that he was a police officer or that it was
unnecessary because Mr. Tasi could see his officer’s badge and marked police vehicle.

72

Mattos v. Agarano, 661 F.3d 433, 451 (9th Cir. 2011); see also Glenn v. Wash. Cty., 673 F.3d
864, 876 (9th Cir. 2011) (“Appropriate warnings comport with actual police practice and such
warnings should be given, when feasible, if the use of force may result in serious injury.” (quoting
Deorle, 272 F.3d at 1284) (internal quotation marks omitted)).
73

Glenn, 673 F.3d at 876.

74

Marquez v. City of Phoenix, 693 F.3d 1167, 1175 (9th Cir. 2012).

75

United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) (citation omitted) (quoting
Fletcher v. Clinton, 196 F.3d 41, 50 (1st Cir.1999); Hearings before Senate Judiciary Committee,
1994 WL 530624 (F.D.C.H.) (Sept. 13, 1994) (statement on behalf of National Task Force on
Domestic Violence)).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 16 of 49

And Officer Gionson asserts that because he believed this was a potential domestic
violence situation, the situation was inherently more volatile. 76
Plaintiffs assert that Officer Gionson had the time to give a warning that he was
about to use deadly force and such a warning was crucial because the evidence shows
that Mr. Tasi may not have been aware of Officer Gionson’s presence. 77 From the video,
it is not clear if Mr. Tasi looked at or even saw the officer. 78 Viewing the evidence in the
light most favorable to Plaintiffs, Officer Gionson had time to issue a warning as to his
intended use of deadly force in the seven seconds that Mr. Tasi was walking towards him,
and a reasonable officer would have done so. 79 In an excessive force case involving
Tasers, the Ninth Circuit held that “the fact that [the officer] gave no warning to [the
plaintiff] before tasing her pushes this use of force far beyond the pale.”80 This factor
weighs in favor of finding that a constitutional violation occurred in this case.
Officer Gionson asserts that Mr. Tasi is culpable because he was drinking and
using Spice in violation of his probation conditions. 81 In Mattos v. Agarano, the Ninth
Circuit noted that when “weighing the Graham governmental interests in a situation where
someone is likely to get hurt—either a fleeing suspect or innocent bystanders—it is

76

Docket 42 (Gionson Mot.) at 46–58.

77

Docket 71 (Plaintiffs Opp’n) at 4.

78

See Docket 80-5 (Exh. 4, Channel 3); Docket 80-2 (Sarna Report) at 1, 5–6, 11, 14–15, 23;
Docket 71-4 (Huntley Depo.) at Tr. 36, 104–108, 115, 120–21, 157–58.
79

Docket 80-2 (Sarna Report) at 24.

80

Mattos v. Agarano, 661 F.3d 433, 451 (9th Cir. 2011).

81

Docket 42 (Gionson Mot.) at 57.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 17 of 49

‘appropriate in this process to take into account . . . relative culpability.’” 82 Here, had the
three men stayed at the end of the fence they might have been within Mr. Tasi’s striking
range, but the facts favorable to Plaintiffs show that those three men appeared to be
retreating such that Mr. Tasi did not pose a threat to them. 83 And it is undisputed that the
probation violation that Officer Gionson asks the Court to consider was not within Officer
Gionson’s knowledge at the time of the incident. 84 Thus, it cannot have any bearing on
whether his decision, based on what he knew at the time, was reasonable. The Court
declines to weigh Mr. Tasi’s culpability heavily.
Officer Gionson’s remaining arguments relate to possible domestic violence,
Mr. Tasi resisting, and consideration of the crime that Mr. Tasi was suspected of
committing. The Court agrees that the information known to Officer Gionson would have
been viewed by a reasonable officer as a probable incident of domestic violence within
the home. Officer Gionson knew that there were children inside and that a man in the
apartment was acting violently and was bloody. 85 This factor weighs in favor of finding
that the use of deadly force was reasonable. And yet, Mr. Tasi was leaving the premises
when he was shot, such that there was no ongoing domestic violence at that time. Officer
Gionson concedes that Mr. Tasi was not actively resisting arrest but still asks the Court

82

Mattos, 661 F.3d at 450 (quoting Scott v. Harris, 550 U.S. 372, 384 (2007)) (omission in
original).

83

Docket 80-5 (Exh. 4, Channel 3); Docket 80-2 (Sarna Report) at 24.

84

See Docket 59 (Mot. in Limine Opp’n) at 2; Docket 37-1 (Gionson Depo.) at Tr. 354.

85

Docket 71-2 (Gionson Interview) at Tr. 7–8, 16–17; Docket 37-1 (Gionson Depo.) at Tr. 29, 55,
58, 61, 209–12, 455–56.
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 18 of 49

to hold that failing to follow a police command is a sufficient basis for a finding that
Mr. Tasi was resisting in some sense. But here the officer was not in close quarters with
an actively resisting individual, subjecting the officer to more danger. Finally, Officer
Gionson asserts that Mr. Tasi was committing a serious crime—felony assault. 86 But
even if Mr. Tasi’s conduct could constitute felony assault, 87 the facts, when viewed in the
light most favorable to Plaintiffs, do not present high risk conduct by Mr. Tasi that placed
other individuals at clear risk. Mr. Tasi was wielding a broomstick; he was not, for
example, brandishing a firearm or driving a motor vehicle in a high speed car chase.
Turning to imminent threat, Plaintiffs assert that Mr. Tasi was not a threat to the
three men because the three men had retreated as Mr. Tasi came towards them, and a
reasonable officer would have been aware of this fact. 88 Plaintiffs’ use of force expert,
Peter Sarna, testified that a reasonable officer would have been aware of the three men’s
movements, and the video shows two of the men running away. 89 It is unclear where the
third man moves, but Plaintiffs allege that he retreated along a parked vehicle. 90
Additionally, the video shows that Mr. Tasi did not break into a run as he left his home to

86

Docket 42 (Gionson Mot.) at 48–49.

87

See AS 11.41.220(a) (“A person commits the crime of assault in the third degree if that person
(1) recklessly (A) places another person in fear of imminent serious physical injury by means of a
dangerous instrument . . . .”).

88

Docket 71 (Plaintiffs Opp’n) at 39, 42–43.

89

Docket 80-5 (Exh. 4, Channel 3); Docket 80-2 (Sarna Report) at 24.

90

Docket 80-2 (Sarna Report) at 6, 10, 24.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 19 of 49

begin chasing the three men when they retreated. 91 Under the facts when viewed most
favorable to Plaintiffs, Mr. Tasi was not an imminent threat to the three men.
Plaintiffs also assert that Mr. Tasi was not an imminent threat to Officer Gionson.
The video appears to show that Officer Gionson was positioned behind the three-foot high
fence and possibly out of Mr. Tasi’s striking distance. A reasonable jury could find that
Mr. Tasi was not looking at Officer Gionson and thus not advancing on him. Mr. Sarna
testified that due to the fence barrier, Mr. Tasi would not become an imminent threat to
Officer Gionson until he made some indication that he planned to attack the officer. 92 A
reasonable jury could credit this testimony and find from the video and other evidence
that Mr. Tasi had made no such move to attack. Officer Gionson argues that there was
no way to use the fence as a barrier without retreating, but a reasonable jury could find
otherwise. The Court concludes that under the facts viewed in the light most favorable to
Plaintiffs, Mr. Tasi was not an imminent threat to Officer Gionson when Officer Gionson
made the decision to shoot.
The Ninth Circuit has held that summary judgment is appropriate when “the
material, historical facts are not in dispute, and the only disputes involve what inferences
properly may be drawn from those historical facts.” 93 This is not such a case. Many of
the material historical facts are in dispute, including where Mr. Tasi was located when the
decision to shoot was made, what Mr. Tasi’s movements with the stick signified, and

91

Docket 80-5 (Exh. 4, Channel 3).

92

Docket 80-2 (Sarna Report) at 23.

93

Conner v. Heiman, 672 F.3d 1126, 1131 (9th Cir. 2012) (quoting Peng v. Mei Chin Penghu,
335 F.3d 970, 979–80 (9th Cir. 2003), cert. denied 540 U.S. 1218 (2004)).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 20 of 49

where he was looking and facing as he was walking. Resolving all of these disputes
favorably to Plaintiffs as required on a defendant’s motion for summary judgment, a
reasonable jury could find that Officer Gionson’s use of force was constitutionally
impermissible under the circumstances.
Having concluded that a reasonable jury could find a constitutional violation, the
Court must consider whether Officer Gionson is still entitled to qualified immunity because
it was not clearly established that he was violating Mr. Tasi’s rights. Officer Gionson
asserts that the law was not clearly established in June 2012 that he could not use deadly
force when Mr. Tasi “attacked [him] and the three men with [the broomstick] by
brandishing it and position[ing] himself to swing it.” 94
Officer Gionson cites to DeLuna v. City of Rockford. 95 In DeLuna, a police officer
responded to a 911 call from DeLuna’s residence. The officer had responded to a call
from the same home eight days earlier, and from that call had learned that DeLuna was
very violent, was known to carry weapons and sell weapons, had an extensive arrest
history, and that a minor lived in the home. When the officer arrived at the residence the
second time, he did not immediately see DeLuna, but then saw “movements in the dark”
at a corner of the house.

DeLuna then walked towards the officer with his arms

outstretched stating, “I’ve got something for you. You are going to have to kill me.”
DeLuna continued walking towards the officer, not heeding the officer’s commands to
“stop,” while the officer backed up approximately 40 feet. The officer finally shot DeLuna

94

Docket 42 (Gionson Mot.) at 59.

95

447 F.3d 1008 (7th Cir. 2006).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 21 of 49

after the officer stumbled over a pipe and DeLuna “lunged” at him at the same time. The
Seventh Circuit held that “[t]he facts undisputed by [the decedent’s wife] are themselves
sufficient to establish imminent danger to [the officer] so as to render deadly force
reasonable.” The court relied heavily on the officer’s knowledge of DeLuna’s history,
DeLuna’s statement that he “had something [for him],” the fact that DeLuna backed the
officer up until the officer stumbled, and that DeLuna then lunged at the officer in a
possible attempt to get his weapon. 96
DeLuna is readily distinguishable from this case. Here, it was not “clear that the
suspect was advancing on the officer in what reasonably appeared to be an effort to get
his weapon.”97 And Officer Gionson had no knowledge that Mr. Tasi was habitually violent
or prone to carrying weapons, and no knowledge of any prior drinking or drug use; Officer
Gionson did know that Mr. Tasi (1) may have been the man involved in the earlier
dispatches that day; (2) was carrying a broomstick; (3) was “acting violent” and was
bloody; and that (4) there were children in the apartment. DeLuna had backed the officer
up for 40 feet and had then lunged towards the officer, whereas under Plaintiffs’ rendition
of the facts here, Mr. Tasi never walked directly towards Officer Gionson and did not lunge
at or otherwise make any direct action towards the officer. Therefore, DeLuna is not on
point.
The cases that Plaintiffs cite are also not directly on point in showing a
constitutional violation based on facts similar to those at issue in this case such that the

96

DeLuna, 447 F.3d at 1010–13.

97

Id. at 1013 (citing Blossom v. Yarbrough, 429 F.3d 963 (10th Cir. 2005)).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 22 of 49

violation could be clearly established. And yet, although the facts in each case are
different, certain aspects of them are helpful. Moreover, an officer should not always
escape liability when a constitutional violation has occurred, but that violation is novel.
Rather, if an officer’s conduct is obviously unconstitutional, then qualified immunity should
be denied. 98 Plaintiffs’ cases discuss as relevant that the suspect was not facing towards
the officer when shot. 99 Others discuss that the suspect was simply walking towards the
officer at a steady gait and not charging. 100 Deorle v. Rutherford, cited by Plaintiffs, noted
that the officer “was stationed in a secure position behind a tree, [and] his line of retreat
was clear.” 101 Many of Plaintiffs’ cases note that the suspect was not given a warning
that force was about to be used, even though there was sufficient time to do so. 102
The Court holds that under the circumstances of this case, it was clearly
established that a constitutional violation occurred when Officer Gionson shot Mr. Tasi if
98

Deorle v. Rutherford, 272 F.3d 1272, 1274–75 (9th Cir. 2001) (“[N]otwithstanding the absence
of direct precedent, the law may be, as it was here, clearly established. Otherwise, officers would
escape responsibility for the most egregious forms of conduct simply because there was no case
on all fours prohibiting that particular manifestation of unconstitutional conduct.” (citation
omitted)). In Deorle, the officer shot the plaintiff in the face with a “beanbag” round even though
the officer was safe behind a tree and Deorle had made no attempt to attack or touch any of the
officers, despite yelling at them that he would “kick [the officer’s] ass” and asking the officers to
kill him. Id. at 1276–77, 1286–86. A “beanbag” round is lead-filled round that is less lethal than a
traditional bullet. Id. at 1272.
99

Bryan v. MacPherson, 630 F.3d 805, 827 (9th Cir. 2010); Curnow v. Ridgecrest Police, 952
F.2d 321, 325 (9th Cir. 1991).

100

Deorle, 272 F.3d at 1277 (noting officer testimony that Mr. Deorle “walk[ed] directly at me at a
steady gate [sic] . . . . He didn’t run at me, he didn’t take his time getting to me, it was just a steady
walk directly at me” (alterations in original)); Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1234
(9th Cir. 2013) (“[Hayes’s girlfriend] stated that Hayes was not charging Deputy King and
described Hayes’s expression as ‘clueless’ when walking towards the deputies.”).
101

Deorle, 272 F.3d at 1282.

102

Id. at 1278; Mattos v. Agarano, 661 F.3d 433, 451 (9th Cir. 2011).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 23 of 49

the facts are viewed in the light most favorable to Plaintiffs: with Mr. Tasi wielding only a
broomstick, with Mr. Tasi not facing or charging towards the officer, with the three men in
retreat, with Officer Gionson having a tactical advantage of being behind a fence and
outside of striking distance, and with no warning that deadly force was going to be used.
For the foregoing reasons, Officer Gionson has not established that as a matter of
law he is entitled to qualified immunity. Accordingly, the Court denies summary judgment
to Officer Gionson with respect to the § 1983 claims in Counts One and Two.
Turning to the state law excessive force claim at Count Eight, the use of excessive
force is a statutory violation under Alaska law. Alaska Statute 12.25.070 provides that
“[a] peace officer or private person may not subject a person arrested to greater restraint
than is necessary and proper for the arrest and detention of the person.” Alaska employs
a test that is functionally equivalent to the federal qualified immunity analysis for this type
of statutorily based claim. 103 The Alaska Supreme Court has “observed that [its] approach
to qualified immunity in excessive force cases ‘comports in all essential respects’ with that
of the United States Supreme Court.” 104

103

See Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 803 (Alaska 2011). After the United States
Supreme Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001), Alaska reshaped its test to
ask “if the officer’s conduct was objectively reasonable or the officer reasonably believed that the
conduct was lawful, even if it was not.” Olson v. City of Hooper Bay, 251 P.3d 1024, 1032 (Alaska
2011). Like federal law, Alaska law requires the court to look to law in its own jurisdiction and
others to determine whether the officer could have had a reasonable belief his conduct was lawful.
Id. The Alaska Supreme Court has held that its decisions “comport[] in all essential respects with
the Supreme Court’s decision in Saucier, especially in its concern to grant immunity in cases
where an officer might have reasonably believed that his conduct was lawful.” Sheldon v. City of
Ambler, 178 P.3d 459, 466 (Alaska 2008).
104

Maness, 307 P.3d at 902 (quoting Sheldon, 178 P.3d at 466).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 24 of 49

Applying the same federal qualified immunity concepts to the state law claim, the
Court finds that Officer Gionson has also failed to prove that he is entitled to summary
judgment on the state law excessive force claim. Viewing the facts in the light most
favorable to the non-moving party, a reasonable jury could find that Officer Gionson’s
actions were not objectively reasonable, and he could not have reasonably believed that
they were lawful. 105 Accordingly, the Court will deny summary judgment to Officer
Gionson on the state law excessive force claim at Count Eight.
V.

Defendants’ Motion for Summary Judgment at Docket 43
Defendants filed a combined summary judgment motion encompassing the claims

against Officer Vance, Officer Williams, MOA, and APD.
A.

Claims against Officers Vance and Williams

The SAC clearly includes Officers Vance and Williams in Counts Three, Seven,
Nine, and Ten. 106 Count Nine appears to be directed at Officers Vance and Williams, but
references Officer Gionson in the text. The count is best read a one for vicarious liability
for MOA in the event that Officers Vance and Williams are found to have violated any

105

See Olson, 251 P.3d at 1032.

106

Officers Vance and Williams may also be included in Count One, because the SAC states that
it applies to “Officer(s),” but that count does not include any allegations specific to Officers Vance
and Williams; all of the allegations are directed towards Officer Gionson. See Docket 44 (SAC) at
10–11. Because the SAC fails to lay out any specific allegations as to Officers Vance and Williams
in Count One, the Court will grant summary judgment to those two officers on that count. Count
Five is styled against “Defendants,” but is a Fourteenth Amendment claim by Ms. Taualo-Tasi
and the children for loss of Mr. Tasi’s companionship. Id. at 12–13. Plaintiffs do not allege that
Officers Vance and Williams are responsible for Mr. Tasi’s death. The Court will grant summary
judgment to Defendants on any claims against Officers Vance and Williams in Count Five.
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 25 of 49

common law rights. 107 Otherwise, Count Nine would be redundant with Count Seven.
And, as discussed above, the proper vehicle for the resolution of the alleged federal
constitutional violations in this case is the Fourth Amendment. 108 Accordingly, the Court
will grant summary judgment to Officers Vance and Williams on Plaintiffs’ Fifth and
Fourteenth Amendment claims in Count Ten. The Court also grants summary judgment
to Defendants on the claims under the Alaska Constitution (Count Three) because, as
discussed above, there is no private right of action for a violation of the Alaska
Constitution when alternative remedies exist. 109 As in the briefing on Officer Gionson’s
motion, Plaintiffs do not dispute the foreclosure of these claims. 110 Thus, the Court is left
with Count Seven (state law claims for false imprisonment/arrest) and Count Ten (§ 1983
action for unlawful seizure).
Defendants assert that Jean Taualo-Tasi and the children were not seized under
the Fourth Amendment in the laundry room because Ms. Taualo-Tasi went there
voluntarily and the officers did not have to use force. Alternatively, Defendants argue that
if these Plaintiffs were seized, Officers Vance and Williams are protected by qualified
immunity. 111

107

See Docket 44 (SAC) at 15 (“The Defendants MOA and APD are therefore liable to
compensate all the Plaintiffs for the damages described above, and punitive damages as set out
below.”).

108

Graham v. Connor, 490 U.S. 386, 393–95 (1989).

109

Larson v. State, Dep’t of Corr., 284 P.3d 1, 10 (Alaska 2012).

110

See Docket 73 (Plaintiffs Opp’n) (absence).

111

Docket 50 (Defendants Mot.) at 26–27.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 26 of 49

“[N]ot all personal intercourse between policemen and citizens involves ‘seizures'
of persons.” 112 Under the Fourth Amendment, a seizure occurs “[o]nly when the officer,
by means of physical force or show of authority, has in some way restrained the liberty of
a citizen.” 113 A seizure can be found if a reasonable person would believe that she was
not free to leave. 114 Similarly, under Alaska law, false imprisonment requires a restraint
upon a plaintiff’s freedom. 115
Viewing the facts in the light most favorable to Plaintiffs, a reasonable jury could
find that Ms. Taualo-Tasi and the children were seized for purposes of the Fourth
Amendment and Alaska state law false imprisonment when they were held in the laundry
room.

Immediately after the shooting, Ms. Taualo-Tasi was asked to go back into the

apartment by Officer Vance, to which she replied, “No. I want to know if my husband’s
alright.” 116 Ms. Taualo-Tasi was then moved, over this objection, to the apartment and
then into the laundry room with her children. Once in the laundry room, Officer Williams
told Ms. Taualo-Tasi that she could leave once he was done questioning her only “if that’s

112

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

113

Id.

114

California v. Hodari D., 499 U.S. 621, 628 (1991).

115

Waskey v. Municipality of Anchorage, 909 P.2d 342, 345 (Alaska 1996) (“False arrest and
false imprisonment are not separate torts. A false arrest is one way to commit false imprisonment;
since an arrest involves restraint, it always involves imprisonment.” (quoting City of Nome v. Ailak,
570 P.2d 162, 168 (Alaska 1977))).

116

Docket 71-18 (Exh. 18, Audio) (second recording) at 00:30–00:44.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 27 of 49

what [the] Sergeant allowe[d].” 117 And both Officer Vance and Officer Williams testified
that Ms. Taualo-Tasi was not free to leave during their contacts with her. 118
If Ms. Taualo-Tasi and the children were seized when kept in the laundry room,
Officers Vance and Williams could still be entitled to qualified immunity so long as either
the seizure was reasonable or it was not clearly established that by seizing Ms. TaualoTasi and the children the officers were violating the law. 119 The Fourth Amendment allows
officers to detain non-suspect witnesses on a temporary basis, but any such detention
must be reasonable. 120 “[I]n judging reasonableness, [a court] look[s] to ‘the gravity of
the public concerns served by the seizure, the degree to which the seizure advances the
public interest, and the severity of the interference with individual liberty.’” 121 “Although
detention of witnesses for investigative purposes can be reasonable in certain
circumstances, such detentions must be minimally intrusive.” This is because “in the
hierarchy of state interests justifying detention, the interest in detaining witnesses for
information is of relatively low value.” 122

117

Docket 71-18 (Exh. 18, Audio) at 03:40–03:50.

118

Docket 71-13 (Vance Depo.) at Tr. 103–04; Docket 71-14 (Williams Depo.) at Tr. 72–73.

119

See Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from by Pearson, 555 U.S. at 232–
36.

120

Illinois v. Lidster, 540 U.S. 419, 426–27 (2004); see also United States v. Ward, 488 F.2d 162
(9th Cir.1973).

121

Lidster, 540 U.S. at 427 (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)); see also Maxwell
v. Cnty. of San Diego, 708 F.3d 1075, 1083 (9th Cir. 2013).
122

Maxwell, 708 F.3d at 1083–84.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 28 of 49

In Maxwell v. County of San Diego, the Ninth Circuit noted that the Supreme Court,
when considering a detention without suspicion of criminal activity, had found that a
particular detention was reasonable because “[t]he overall delay was ‘a very few minutes
at most,’ contact with the police ‘lasted only a few seconds,’ and the contact ‘consisted
simply of a request for information and the distribution of a flyer.’” 123 That Supreme Court
case—Illinois v. Lidster—analyzed a police checkpoint that was set up to gather
information about an accident that had happened the previous week. 124
When viewing the facts in the light most favorable to Plaintiffs for purposes of this
summary judgment motion, the Court holds that a reasonable jury could find that the
seizure of Ms. Taualo-Tasi and the children in the laundry room was unreasonable, and
therefore would have violated their Fourth Amendment rights. 125 Ms. Taualo-Tasi was
not suspected of committing any crime and she had not witnessed the shooting.
Ms. Taualo-Tasi was prevented from going to her husband in the final moments of his life
and prevented from following him to the hospital in order to be near him. Nor was she
informed of his condition when held in the laundry room. While the alleged 10 minute
seizure in the laundry room may not have been for a long duration, it was by no means
“minimal” in light of the timing of the seizure relative to the shooting of her spouse.
Although clearly there is a public interest in thoroughly investigating a shooting, it may not
outweigh the severe intrusion on Ms. Taualo-Tasi’s liberty in these circumstances.

123

Id. at 1084 (quoting Lidster, 540 U.S. at 427–28).

124

Lidster, 540 U.S. at 421–22.

125

See U.S. CONST. amend. IV.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 29 of 49

Particularly as Ms. Taualo-Tasi did not witness the shooting, a reasonable jury could
conclude that the seizure did not advance the public interest in crime investigation to any
great degree.
Defendants argue that it was of vital importance for Ms. Taualo-Tasi to be
interviewed immediately because she was one of the only people present at the
apartment. 126 But this argument is undercut by the fact that Officer Gionson, arguably
the witness with the most relevant information, was not interviewed at the scene. Instead,
he was not interviewed until a few days after the shooting. The Court holds that when
viewing the facts in the light most favorable to Plaintiffs, a reasonable jury could find that
Officers Vance and Williams violated Ms. Taualo-Tasi and the children’s constitutional
right to be free from an unreasonable seizure when they were held in the laundry room.
The Court must then determine whether, despite this possible constitutional
violation, qualified immunity applies because the law was not clearly established. Both
parties cite to Maxwell v. County of San Diego. 127 In that case, Kristin Maxwell-Bruce
was shot in the jaw by her husband in her parents’ home. Kristin was transported to a
waiting air taxi but died en route. Her parents repeatedly asked to be able to follow Kristin
to the hospital, but they were instead separated and interrogated for roughly five hours.
Kristin’s parents sued, arguing that their detention violated the Fourth Amendment’s
prohibition on unreasonable seizures. The Ninth Circuit observed that there was a dearth
of cases examining the detention of witnesses for only investigative purposes, and opined

126

Docket 50 (Defendants Mot.) at 27.

127

708 F.3d 1075 (9th Cir. 2013).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 30 of 49

that this fact alone would ordinarily compel a grant of qualified immunity. But the Circuit
Court held that “in an obvious case, [general] standards can clearly establish the answer,
even without a body of relevant case law.” 128
The Ninth Circuit held that Maxwell was this type of “obvious case” to which
qualified immunity would not apply because the detention was not minimally intrusive as
required by Illinois v. Lidster. 129 The court concluded that after Lidster, the officers “were
on notice that they could not detain, separate, and interrogate the Maxwells for hours.”130
The court reasoned that even had the crime not been “solved,” the officers still could not
compel the Maxwells to stay and answer questions as they did. The court distinguished
Walker v. City of Orem, 131 a Tenth Circuit case that found qualified immunity after holding
that there was no precedent to put officers on notice that they could not interrogate a
man’s family for 90 minutes after the officers had shot him. The Ninth Circuit noted that
unlike Walker, the events in Maxwell occurred after the Supreme Court’s 2004 holding in
Lidster, so the officers should have been on notice in 2006 that witness detentions were
subject to the Fourth Amendment’s reasonableness test. In sum, the Ninth Circuit held

128

Id. at 1079–83 (alteration in original) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004))
(internal quotation marks omitted).

129

Id. at 1084 (citing Lidster, 540 U.S. at 427–28). In Lidster, the Supreme Court considered a
highway checkpoint set up to ask drivers about a recent hit-and-run accident. Lidster, 540 U.S. at
421–22. The checkpoint yielded the arrest of Mr. Lidster, who nearly hit an officer as he swerved
at the stop. Id. at 422. Mr. Lidster appealed his conviction for driving under the influence, arguing
that the evidence gathering checkpoint was unlawful. Id. at 422–23. The Court upheld his
conviction, finding that the seizure was reasonable because the delay was “a very few minutes at
most,” police contact “lasted only a few seconds,” and the contact “consisted simply of a request
for information and the distribution of a flyer.” Id. at 427–28.
130

Maxwell, 708 F.3d at 1084.

131

451 F.3d 1139 (10th Cir. 2006).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 31 of 49

that it was obvious that the right was clearly established in December 2006, when the
events in Maxwell transpired. 132
The events of this case occurred in June of 2012—before Maxwell was published
but long after Lidster. Thus, the Maxwell decision itself could not have given notice to
Officers Vance and Williams that it could be constitutionally impermissible to hold
Ms. Taualo-Tasi and the children in the laundry room. But if the facts here are sufficiently
analogous to Maxwell, then Defendants should have been on notice that there was a
constitutional violation: the Ninth Circuit held that the facts of Maxwell constituted an
obvious violation in 2006, and the events here occurred in 2012. 133
Plaintiffs argue that Maxwell is analogous because the officers here detained and
interrogated Ms. Taualo-Tasi even when she did not witness the shooting and the officers
already knew who had shot Mr. Tasi. Plaintiffs argue that there was no crime to be solved
and it should have been obvious, as in Maxwell, that the officers could not interrogate
Ms. Taualo-Tasi for a long period of time while her husband lay dying. 134 Defendants

132

Maxwell, 708 F.3d at 1079, 1084–85. The first Maxwell opinion was issued in September 2012.
See Maxwell v. Cnty. of San Diego, 697 F.3d 941 (2012). This opinion contained the same
analysis as to the seizure issue as the 2013 opinion. Compare Maxwell, 697 F.3d at 949–51, with
Maxwell, 708 F.3d at 1083–85. The Ninth Circuit denied the petition for rehearing but released
the amended opinion in September 2013. Maxwell, 708 F.3d at 1079.
133

Maxwell held that the conduct at issue was clearly established to be a violation in 2006. See
Maxwell, 708 F.3d at 1083–85. The Court notes that the Supreme Court has never explicitly held
that a circuit court decision is sufficient to create clearly established law. See, e.g., City of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015) (“[E]ven if ‘a controlling circuit precedent
could constitute clearly established federal law in these circumstances,’ it does not do so here.”
(emphasis added) (citation omitted)). Even if the Supreme Court were to hold that circuit court
decisions cannot create clearly established law, the Court bases its decision on the obviousness
of the violation, not the issuance of the Maxwell decision itself.
134

Docket 73 (Plaintiffs Opp’n) at 41–43.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 32 of 49

distinguish Maxwell by arguing that here the crime had not been “solved,” they needed a
search warrant, and the detention was not as long as in Maxwell. 135
The Court finds that the facts of this case are considerably closer to Maxwell than
Defendants maintain. In both cases, the officers’ actions prevented the witnesses from
being with their loved ones during a critical time. In both cases, witnesses who had not
viewed the events firsthand were detained. And here there is the added fact that the
officer who shot the decedent was allowed to leave without being interviewed. While the
laundry room portion of Ms. Taualo-Tasi’s detention that is at issue in this case was much
shorter than the detention in Maxwell, it was still intrusive. Defendants also do not explain
how detaining Ms. Taualo-Tasi would have furthered their effort to get a search warrant.
Accordingly, the Court holds that when viewing the facts in the light most favorable
to Plaintiffs, a reasonable jury could find that the alleged seizure of Ms. Taualo-Tasi and
the children in the laundry room was unreasonable and that reasonable officers would
have known they were violating clearly established law by their conduct. Therefore, the
Court will deny Defendants’ Motion for Summary Judgment on Count Ten as to Officers
Vance and Williams.
Turning to the state law claim, in Alaska, immunity for false arrest/false
imprisonment is analyzed differently than immunity from a state law claim of excessive
force. 136 A state law excessive force claim is a claim that the public official violated a

135

Docket 50 (Defendants Mot.) at 29.

136

Both Plaintiffs and Defendants analyze the state law claim as one with the § 1983 analysis,
but in the Court’s view this is incorrect. See Crawford v. Kemp, 139 P.3d 1249, 1255–56, 1258–
59 (Alaska 2006) (noting that alleged constitutional and statutory violations evaluated using
federal analysis, while state law tort claims analyzed under a subjective standard); Maness v.
Daily, 307 P.3d 894, 903 (Alaska 2013) (citing Prentzel v. State, Dep’t of Pub. Safety, 169 P.3d

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 33 of 49

statute—AS 12.25.070. The Alaska Supreme Court has addressed immunity in the
context of statutory violations under a federal-type analysis. 137 But for the violation of
common law rights, Alaska courts apply the qualified immunity contained in AS 09.65.070
pursuant to a test laid out in Aspen Exploration Corp. v. Sheffield. 138 In Count Seven,
Plaintiffs are alleging a common law claim of false arrest/false imprisonment.
Alaska Statute 09.65.070(d)(2) provides that “[a]n action for damages may not be
brought against a municipality or any of its agents, officers, or employees if the claim . . .
is based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty by a municipality or its agents, officers, or employees,
whether or not the discretion involved is abused.” Discretionary acts under discretionary
function official immunity are acts “that require personal deliberation, decision, and
judgment.” 139

They “refer[] to decisions involving questions of policy, that is, the

evaluation of factors such as the financial, political, economic, and social effects of a given
plan or policy.” 140 “[A] public official is shielded from liability . . . when discretionary acts

573, 586 (2007)) (noting that the court applied the test from Aspen Exploration Corp. v. Sheffield,
739 P.2d 150 (Alaska 1987), to allegations of false arrest and false imprisonment).
137

Breck v. Ulmer, 745 P.2d 66, 71–72 (Alaska 1987); see also Maness, 307 P.3d at 903 n.32.

138

Maness, 307 P.3d at 903; see also Aspen Exploration Corp. v. Sheffield, 739 P.2d 150 (Alaska
1987).
139

Pauley v. Anchorage Sch. Dist., 31 P.3d 1284, 1286 (Alaska 2001) (quoting Samaniego v.
City of Kodiak, 2 P.3d 78, 83 (Alaska 2000)) (internal quotation marks omitted). Discretionary
function official immunity is different from discretionary function sovereign immunity. See Aspen
Expl. Corp., 739 P.2d at 155, for a discussion of the two tests applied to these different types of
immunity.

140

State v. Abbott, 498 P.2d 712, 720 (Alaska 1972).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 34 of 49

within the scope of the official’s authority are done in good faith and are not malicious or
corrupt.” 141
The decision to detain Ms. Taualo-Tasi and the children was a discretionary
decision made within the scope of the officers’ employment. 142 To make out a claim,
Plaintiffs must demonstrate a triable issue of material fact that the decision to detain
Ms. Taualo-Tasi and the children was not done in good faith or was corrupt or malicious.
They have failed to do so. Accordingly, the Court will grant summary judgment to Officers
Vance and Williams on Count Seven.
B.

Claims Against MOA and APD

Plaintiffs have included MOA and APD in all ten counts of the Complaint. The
parties have briefed the case as though MOA and APD are one entity, and the Court shall
refer to them both as MOA. 143
The Supreme Court has held that municipal entities may be subject to § 1983
liability, but not on the basis of respondeat superior. 144 Rather, “a plaintiff seeking to
impose liability on a municipality under § 1983 [must] identify a municipal policy or custom

141

Estate of Logusak ex rel. Logusak v. City of Togiak, 185 P.3d 103, 109 (Alaska 2008) (quoting
Pauley, 31 P.3d at 1286).
142

See Prentzel, 169 P.3d at 583–84 (making arrest is discretionary and within scope of
employment, even when alleged to be unconstitutional).
143

APD has also been sued as an independent entity in Alaska. See, e.g., Grant v. Anchorage
Police Dep’t, 20 P.3d 553 (Alaska 2001) (suing APD).

144

Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978) (“[A] local government may not be
sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when
execution of a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983.”).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 35 of 49

that caused the plaintiff’s injury.” 145 Therefore, to state a viable § 1983 cause of action
against these Defendants, Plaintiffs must specifically allege an independent basis for
MOA liability in each § 1983 count. Plaintiffs allege no such independent cause of action
in Counts One, Two, Three, Five, and Ten. Accordingly, the Court will grant summary
judgment to MOA on each of these counts. Counts Four, Six, Seven, Eight, and Nine
remain. Counts Four and Six are denominated Monell Actions under § 1983 for failure to
train, supervise, equip, or for ratification. Counts Seven through Nine are state law
claims. 146
A municipality can be liable under § 1983 if there is a violation of a federal right
and the violation is due to a municipal policy or practice. 147 But the municipal policy or
practice must be “the moving force of the constitutional violation.” 148 For an allegation of
failure to train, a plaintiff “must show that (1) he was deprived of a constitutional right; (2)
the City had a training policy that ‘amounts to deliberate indifference to the [constitutional]
rights of the persons’ with whom [its police officers] are likely to come into contact’; and
(3) his constitutional injury would have been avoided had the City properly trained those
officers.” 149 “A municipality’s culpability for a deprivation of rights is at its most tenuous

145

Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232–33 (9th Cir. 2011) (quoting Bd. of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 403 (1997)) (internal quotation marks omitted).
146

See Docket 44 (SAC) at 12–15.

147

Collins v. City of Harker Heights, 503 U.S. 115, 120–22 (1992).

148

Monell, 436 U.S. at 694.

149

Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (quoting Lee v. City of Los
Angeles, 250 F.3d 668, 681 (9th Cir. 2001)) (internal quotation marks omitted); see also City of
Canton v. Harris, 489 U.S. 378, 388 (1989).
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 36 of 49

where a claim turns on a failure to train.”150 “[A]bsent evidence of a ‘program-wide
inadequacy in training,’ any shortfall in a single officer’s training ‘can only be classified as
negligence on the part of the municipal defendant—a much lower standard of fault than
deliberate indifference.’” 151 The policy makers must be on “actual or constructive notice
that a particular omission in their training program causes city employees to violate
citizens’ constitutional rights.” 152
Plaintiffs advance two grounds for their failure to train claims: that at the time of
the shooting MOA policy did not require officers to identify themselves as police officers
and give a warning before using force, and that MOA was training its officers to perceive
an imminent threat before there actually was one. 153 Mr. Sarna equivocated regarding
whether the training violated industry standards, but he stated that (1) the formulation of
an imminent threat as testified to by APD’s lead weapons trainer, Sergeant Henry, would
be “a cause for great concern,” and (2) the lack of a directive in MOA policy to verbally
identify oneself as a police officer and give a warning such as “stop or I’ll shoot” did not
accord with standard police practices. 154 The Court will consider each training issue in
turn.

150

Connick v. Thompson, 563 U.S. 51, 61 (2011).

151

Blankenhorn, 485 F.3d at 485 (quoting Alexander v. City of San Francisco, 29 F.3d 1355, 1367
(9th Cir. 1994)).
152

Connick, 563 U.S. at 61.

153

Docket 73 (Plaintiffs Opp’n) at 34–36.

154

Docket 80-2 (Sarna Report) at 9, 24; Docket 40-4 (Sarna Depo.) at Tr. 29, 48, 168–70, 212–
14.
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 37 of 49

Sergeant Henry was deposed as MOA’s 30(b)(6) witness. 155 He testified—in the
original deposition—that Mr. Tasi was an imminent threat the moment he stepped outside
the apartment. Sergeant Henry also testified that this view was consistent with APD
training policy. 156 When asked whether “it was the policy and procedure of APD at the
time of the shooting that [when] Mr. Tasi first came out of the apartment with a broomstick,
there was a sufficient threat of imminent deadly – imminent death or bodily injury that the
officer could have shot,” Sergeant Henry answered, “Yes. It is consistent with policy and
training, yes.” 157

Plaintiffs assert that Officer Gionson articulated the same

155

Docket 94-1 (Henry Depo.) at 1. Under Federal Rule of Civil Procedure 30(b)(6), after a party
directs a deposition request at a governmental agency, “[t]he named organization must then
designate one or more officers, directors, or managing agents, or designate other persons who
consent to testify on its behalf; and it may set out the matters on which each person designated
will testify.”
156

Docket 71-10 (Henry Depo.) Tr. 22–24. The Court notes that Sergeant Henry later changed
this deposition testimony. Under Civil Rule 30(e), “[o]n request by the deponent or a party before
the deposition is completed, the deponent must be allowed 30 days after being notified by the
officer that the transcript or recording is available in which: (A) to review the transcript or recording;
and, (B) if there are changes in form or substance, to sign a statement listing the changes and
the reasons for making them.” Here, the deposition was taken on October 30, 2014, and changed
on January 9, 2015, far beyond the 30-day deadline, even had MOA requested that changes be
allowed. Docket 94-1 at 1, 9. Moreover, “[w]hile the language of FRCP 30(e) permits corrections
‘in form or substance,’ this permission does not properly include changes offered solely to create
a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.”
Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005)
(analogizing to sham affidavits to hold that district court did not abuse discretion by striking
correction). The same limitation should apply to a party seeking summary judgment, as is the
case here. A proposed change may be only “corrective,” not “contradictory.” Id. at 1226. The
Court finds that this change goes beyond a corrective nature. Accordingly, Defendants’ argument
that the Court should not accord weight to the original sworn testimony is without merit.

157

Docket 71-10 (Henry Depo.) at Tr. 22–24. Sergeant Henry’s testimony as to MOA’s training
is excerpted below:
A. . . . . I can tell you from what I saw in the video, that from the minute I first saw
Mr. Tasi appear in the video, he was an imminent threat to the officer based on the
distance that was there and his behavior.
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 38 of 49

understanding, which would be consistent with being trained in that manner. 158 Mr. Sarna
testified that if Sergeant Henry was training officers consistently with his formulation of
imminent threat it would be “a cause for great concern.” 159

Q. Okay. So its your testimony then, as a 30(b)(6) witness, as the policies and
procedures of APD at the time of the shooting, that Mr. Tasi could have been shot
as soon as you first saw him in the video?
....
A. Yes. From everything in the video and the distance involved and his speed and
the assaultive nature of him in the video, . . . that’s the thing, you don’t know what
would happen, they’re all hypotheticals, but I never saw from when he first appears
in the video until the end of what I saw, I never saw a time when he wasn’t an
imminent threat to the officer.
....
Q. So apparently then, if I understand you correctly then, its your testimony that,
as a 30(b)(6) witness, that it was the policy and procedure of APD at the time of
the shooting that [when] Mr. Tasi first came out of the apartment with a broomstick,
there was a sufficient threat of imminent deadly – imminent death or bodily injury
that the officer could have shot?
....
A. Yes. It is consistent with policy and training, yes.
158

Docket 73 (Plaintiffs Opp’n) at 34–35.

159

Docket 80-2 (Sarna Report) at 24; Docket 40-4 (Sarna Depo.) at Tr. 212–14. The deposition
exchange is repeated below:
A: [Sergeant Henry] didn’t use the term “shootable.” He said he was an immediate
threat which impliedly says that you can use deadly force against an immediate
threat. I read his deposition and what concerns me most about his recanting is that
in the deposition he is asked repeatedly and he says repeatedly so this isn’t some
offhand remark, this is -- he is questioned about it and he repeats his
understanding more than once.
Q. He was in the capacity as testifying as the most knowledgeable person on
training in that regard?
A. As I understand his role.
Q. If a jury was to find that the Anchorage Police Department was training officers
in accord with Mr. Henry’s opinion, would that give you some information to the
effect that the Anchorage Police Department, that is, the Municipality of
Anchorage, bears responsibility in that regard?
....
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 39 of 49

While Plaintiffs have presented evidence that could lead a reasonable jury to find
that in this case Officer Gionson was incorrectly trained, that is insufficient to demonstrate
Monell liability. Instead, Plaintiffs must show “deliberate indifference,” which requires a
showing that policy makers were on “actual or constructive notice that a particular
omission in their training program causes city employees to violate citizens’ constitutional
rights.” 160 And “absent evidence of a ‘program-wide inadequacy in training,’ any shortfall
in a single officer’s training ‘can only be classified as negligence on the part of the
municipal defendant—a much lower standard of fault than deliberate indifference.’”161
Even taking the evidence in the light most favorable to Plaintiffs, there is insufficient
evidence for a jury to find MOA liable for its training on imminent threat. Had Sergeant
Henry’s characterization of APD training policy been the moving force behind Officer
Gionson’s alleged constitutional violation, Officer Gionson would have shot Mr. Tasi as
soon as he exited the apartment building. Instead, he waited until Mr. Tasi advanced
upon him. More importantly, Plaintiffs have presented no evidence that Sergeant Henry’s
alleged deficient training has actually resulted in a pattern of unconstitutional use of force
within the Department and that policy makers were on actual or constructive notice that

A. It would be a cause for great concern.
Q. And why would it be a cause for great concern if a jury was to find or a judge
was to find there was evidence that the Anchorage Police Department was
propounding the policy as expressed by Mr. Henry?
A. Because the policy as being expressed . . . is inaccurate. It misrepresents the
law, it basically informs officers that they can use deadly force when, in fact, they
can’t by law. The fact that Officer Gionson articulated the same understanding in
his deposition as a former police chief would be of great concern to me.
160

Connick, 563 U.S. at 61.

161

Blankenhorn, 485 F.3d at 485 (quoting Alexander, 29 F.3d at 1367).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 40 of 49

his training caused APD officers to violate citizens’ constitutional rights. Thus, the Court
will grant MOA’s motion for summary judgment on this basis.
Plaintiffs’ next basis for Monell liability is the APD verbal warning policy. The APD
policy on verbal warnings at the time of Mr. Tasi’s death stated, “When possible, officers
should continue to attempt to gain compliance by means of verbal directives or
commands.”162 After these events APD policy was amended to state, “[W]hen tactically
feasible, an officer will identify himself or herself as a police officer and issue verbal
commands and warnings prior to the use of force.” 163 Mr. Sarna stated that he believed
the policy in place at the time of the shooting should have required the officer to identify
himself and issue a warning if feasible. He also stated that these warnings work, so it
would not be speculation that a proper warning would have affected this case. 164 But
Plaintiffs have not provided any evidence that policy makers were on “actual or
constructive notice that [this] particular omission in their training program causes city
employees to violate citizens’ constitutional rights.” 165 And the statement of Mr. Sarna,
alone—that warnings work—does not establish that the warning policy then in place was
the driving force behind the alleged constitutional violation. 166

162

Docket 39-10 (Training Policy) at 1.

163

Docket 94-1 (Henry Depo.) at 3 (emphasis added).

164

Docket 40-4 (Sarna Depo.) at Tr. 214–15, 225–30.

165

Connick, 563 U.S. at 61.

166

Defendants assert that Plaintiffs’ expert, Mr. Sarna, did not explicitly testify that the APD
training fell below industry standards. Defendants assert that without expert testimony, Plaintiffs
cannot show any deficiency in training. Because the Court holds that Plaintiffs have failed to
provide sufficient facts to support an independent basis for MOA liability, the Court does not reach
this issue.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 41 of 49

Plaintiffs also allege MOA liability for failure to equip its officers with Tasers or
mandate they carry pepper spray. 167

However, Plaintiffs’ own use-of-force expert,

Mr. Sarna, testified that he believed that Officer Gionson’s decision to point the gun at
Mr. Tasi was reasonable under the circumstances. 168 And Plaintiffs have not introduced
other evidence that would show Officer Gionson used deadly force because he did not
have a Taser or his pepper spray. The opposite is true: Officer Gionson testified that he
would not have considered using less deadly alternatives. 169 Thus, the failure to issue a
Taser or to require officers to carry pepper spray on their persons cannot be the driving
force behind the alleged constitutional violation because Officer Gionson would not have
used them in these circumstances even had he been carrying them.
For the foregoing reasons, the Court will grant summary judgment on the § 1983
claims against MOA for failure to train and failure to equip.
The Court will now turn to the state law claims against MOA. Count Nine appears
to be a vicarious liability claim for the actions of Officers Vance and Williams. 170 Because

167

Docket 73 (Plaintiffs Opp’n) at 36–37. Plaintiffs also allege a supervisory basis for MOA’s
liability in their complaint. Docket 44 (SAC) at 12–13. For a supervisory basis of liability under
§ 1983, Plaintiffs must show that the supervisor “set in motion a series of acts by others, or
knowingly refused to terminate a series of acts by others, which he knew or reasonably should
have known, would cause others to inflict the constitutional injury.” Blankenhorn, 485 F.3d at 485
(quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998)) (internal quotation marks
omitted). This claim usually pertains to a supervisor’s failure to dismiss an officer after receiving
prior excessive force complaints. See, e.g., Id. (alleging supervisor failed to dismiss officer after
three prior excessive force complaints). Plaintiffs have provided no evidence pertinent to a
supervisory basis for MOA’s liability, and MOA is entitled to summary judgment on this basis as
well.
168

Docket 40-4 (Sarna Depo.) at Tr. 173.

169

Docket 71-3 (Gionson Second Interview) at Tr. 35–37.

170

See Docket 44 (SAC) at 15. Under Alaska law, a municipality may be subject to vicarious
liability for the actions of its employees, agents, or officers if that individual was acting within the
3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 42 of 49

the Court found that Officers Vance and Williams are entitled to summary judgment for
the claim of state law false imprisonment/false arrest at Count Seven, there can be no
vicarious liability for MOA stemming from this claim. Thus, the Court will grant summary
judgment on any vicarious liability claim Plaintiffs have against MOA for the actions of
Officers Vance and Williams. Count Eight appears to also include a vicarious liability
claim under state law for Officer Gionson’s actions. Because the Court denied Officer
Gionson’s motion for summary judgment that qualified immunity applies to his alleged
violation of AS 12.25.070, the vicarious liability claim against MOA under state law at
Count Eight will also survive summary judgment.
The SAC is unclear regarding what independent state law claims are alleged
against MOA. 171

Plaintiffs assert in their briefing that although MOA’s equipment

decisions may have been “discretionary decisions,” they needed to be implemented “nonnegligently,” and MOA has identified Counts Seven though Nine as independent claims
against MOA for failure to equip or train Officer Gionson. 172 Thus, in an abundance of
caution, the Court will address these potential claims.
As laid out above, AS 09.65.070(d)(2) provides that “[a]n action for damages may
not be brought against a municipality . . . if the claim (2) is based on the exercise or

scope of his employment. Taranto v. N. Slope Borough, 909 P.2d 354, 358 (Alaska 1996).
Although Officer Gionson is named in the body of the claim, it appears from the inclusion of
Officers Vance and Williams in the title of Count Nine that this claim may have been intended as
a vicarious liability claim for Officers Vance and Williams.
171

See Docket 44 (SAC).

172

Docket 73 (Plaintiffs Opp’n) at 38–39; Docket 50 (Defendants Mot.) at 16, 25–26. Plaintiffs
have not alleged any claims as to any MOA failure to train or equip Officers Vance and Williams.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 43 of 49

performance or the failure to exercise or perform a discretionary function or duty by a
municipality . . . whether or not the discretion is abused.” 173 Discretionary acts “refer[] to
decisions involving questions of policy, that is, the evaluation of factors such as the
financial, political, economic, and social effects of a given plan or policy.” 174 In contrast,
ministerial acts are acts “amounting ‘only to obedience of orders, or the performance of a
duty in which the officer is left with no choice of his own.’” 175 Under Alaska law, a
municipality is shielded from liability for state law claims stemming from discretionary acts
so long as such acts are “done in good faith and are not malicious or corrupt.”176
Plaintiffs assert that because at the time of events MOA had a policy directing
officers to first try lesser force alternatives, it was not discretionary for MOA to provide
less lethal instrumentalities like Tasers and pepper spray. 177 Plaintiffs’ arguments are
unpersuasive. The choice of equipment is discretionary because it involves “questions
of policy, that is, the evaluation of factors such as the financial, political, economic, and

173

The Court applies this statute because, for the violation of common law rights, the Alaska
courts apply the qualified immunity contained in AS 09.65.070, which applies to municipalities.
Maness v. Daily, 307 P.3d 894, 903 (Alaska 2013); see also Aspen Expl. Corp. v. Sheffield, 739
P.2d 150 (Alaska 1987). Here, Plaintiffs are alleging common law negligence against MOA, so
the statutory immunity provided by AS 09.65.070 under the Aspen test would be appropriate. See
Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 809 & n.75 (Alaska 2011).
174

State v. Abbott, 498 P.2d 712, 720 (Alaska 1972) (quoting Swanson v. United States, 229
F.Supp. 217, 220 (N.D. Cal. 1964)).

175

Aspen Expl. Corp., 739 P.2d at 155 (quoting State v. Haley, 687 P.2d 305, 316 (Alaska 1984))
(internal quotation marks omitted).

176

Estate of Logusak ex rel. Logusak v. City of Togiak, 185 P.3d 103, 109 (Alaska 2008) (quoting
Pauley v. Anchorage Sch. Dist., 31 P.3d 1284, 1286 (Alaska 2001)).
177

Docket 73 (Plaintiffs Opp’n) at 38–39.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 44 of 49

social effects of a given plan or policy.” 178 Plaintiffs presented no evidence that the failure
to issue Tasers or require officers to wear pepper spray was motivated by bad faith or
was malicious or corrupt. 179 And the APD training policies are replete with lesser force
alternatives, including the use of a baton and different types of holds. 180 To the extent
that Plaintiffs are also alleging state law claims for deficiencies in training, they have also
failed to allege or present any evidence that APD’s training on the use of lethal force was
conducted in bad faith or was malicious or corrupt. Accordingly, the Court will grant
summary judgment to MOA on any independent state law claims.
VI.

Plaintiffs’ Motion in Limine at Docket 51
Plaintiffs have moved to exclude certain evidence at the upcoming trial. They ask

the Court to exclude evidence of (1) Mr. Tasi’s use of alcohol, marijuana, and Spice on
the day of the shooting; (2) the condition of the apartment at the time of the shooting; and
(3) Mr. Tasi’s prior arrests and convictions.

Plaintiffs argue that none of these

considerations were relevant to Officer Gionson when he decided to shoot Mr. Tasi and,
as such, the prejudice to Mr. Tasi would substantially outweigh any probative value. 181
Federal Rule of Evidence 402 allows the admission of relevant evidence. Under
Rule 401, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less

178

Abbott, 498 P.2d at 720 (quoting Swanson, 229 F.Supp. at 220); see Regner v. N. Star
Volunteer Fire Dep’t, Inc., 323 P.3d 16, 22 (Alaska 2014) (holding that the amount of equipment
to purchase was a discretionary decision).

179

See Estate of Logusak, 185 P.3d at 109.

180

Docket 39-10 (Training Policy) at 3–4.

181

Docket 51 (Mot. in Limine) at 2–4.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 45 of 49

probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Rule 403 provides a restriction on the admission of relevant
evidence, providing that a court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”
Officer Gionson did not have knowledge of Mr. Tasi’s intoxication or the state of
the apartment. Nonetheless, some evidence of these facts will be permitted because it
is necessary to give the jury a complete picture of events. 182 Otherwise it would be difficult
to explain the three men’s conduct in hailing Officer Gionson, Mr. Tasi’s apparent lack of
reaction to Officer Gionson’s commands, or the officers’ decision to place Ms. TaualoTasi in the laundry room. Moreover, the evidence of intoxication may be relevant to any
apportionment of fault. 183 There is a danger of prejudice to Plaintiffs, but that danger does
not substantially outweigh the probative value of this evidence, and it may be contained
through the use of a limiting instruction as warranted. The Court will deny the motion in
limine insofar as it seeks to preclude all evidence of intoxication and the condition of the
apartment. 184
The Court will grant Plaintiffs’ motion with regard to the evidence of Mr. Tasi’s

182

See Menjivar v. Trophy Properties IV DE, LLC, No. C 06-03086 SI, 2006 WL 2884396, at *22
(N.D. Cal. Oct. 10, 2006) (“The Court is not convinced that any resulting prejudice to defendants
outweighs the value of presenting a complete picture of the dispute.”).

183

See Docket 59 (Defendants Opp’n) at 2–3.

184

The Court, however, is not according to Defendants the right to present unlimited evidence on
these topics. Rather, the Court will permit Defendants to use this evidence as necessary and
warranted to describe the events of the day to the jury. If Plaintiffs become of the view that
Defendants are overusing the evidence, they may motion the Court to limit its use at trial pursuant
to Rule 403.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 46 of 49

probation status and any prior arrests or convictions. This evidence was not within
Officer Gionson’s knowledge and is only marginally relevant to the jury’s determination.
Admitting evidence of Mr. Tasi’s probation status and criminal record would be very
prejudicial to Plaintiffs. Here the danger of prejudice substantially outweighs the marginal
relevance of this evidence, and the Court will exclude it.
If either party seeks to revisit these rulings during trial, that party may do so, but
shall make application outside the presence of the jury.
CONCLUSION
Based on the foregoing, IT IS ORDERED that Plaintiffs’ Motion in Limine at Docket
51 is GRANTED with respect to evidence of Mr. Tasi’s probation status and prior arrests
or convictions and is DENIED with respect to evidence of his intoxication and the condition
of the apartment.
The motions for summary judgment—at Docket 32 and 43—are GRANTED in part
and DENIED in part, as follows:
With respect to Officer Gionson:
1. The Court GRANTS summary judgment to Officer Gionson on the Fifth and
Fourteenth Amendment excessive force claims (in Counts 1 and 2).
2. The Court DENIES summary judgment to Officer Gionson on the Fourth
Amendment § 1983 claims (in Counts 1 and 2).
3. The Court GRANTS summary judgment to Officer Gionson on the state
constitutional claims (Counts 3 and 5).
4. The Court DENIES summary judgment to Officer Gionson on the Fourteenth
Amendment loss of companionship claim (Count 5).
5. The Court GRANTS summary judgment to Officer Gionson on the Fifth
Amendment claims in Count 5.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 47 of 49

6. The Court GRANTS summary judgment to Officer Gionson on any claims brought
against Officer Gionson for false arrest/false imprisonment under state law (Count
7).
7. The Court DENIES summary judgment to Officer Gionson on the state law
excessive force claim (Count 8).

With respect to Officers Vance and Williams:
1. The Court GRANTS summary judgment to Officers Vance and Williams on any
excessive force claim against them in Count 1.
2. The Court GRANTS summary judgment to Officers Vance and Williams on the
state constitutional claims (Count 3).
3. The Court GRANTS summary judgment to Officers Vance and Williams on any
claims relating to them in the Fourteenth Amendment loss of companionship claim
(Count 5).
4. The Court GRANTS summary judgment to Officers Vance and Williams on the
state law false arrest/false imprisonment claim (Count 7) and any claims against
them personally in Count 9.
5. The Court GRANTS summary judgment to Officers Vance and Williams on the
Fifth and Fourteenth Amendment detention claims (in Count 10).
6. The Court DENIES summary judgment to Officers Vance and Williams on the
Fourth Amendment § 1983 claim (in Count 10).

With respect to MOA and APD:
1. The Court GRANTS summary judgment to MOA and APD on the § 1983 counts
that fail to allege an independent basis for liability (Counts 1, 2, 3, 5, and 10).
2. The Court GRANTS summary judgment to MOA and APD on the Monell claims
(Counts 4 and 6).

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 48 of 49

3. The Court GRANTS summary judgment to MOA and APD on any claims against
MOA and APD for false arrest/false imprisonment or vicarious liability for the same
(Counts 7 and 9).
4. The Court DENIES summary judgment on the vicarious liability claim for Officer
Gionson’s actions under state law. (Count 8).
5. The Court GRANTS summary judgment on any independent claims asserted
against MOA and APD not explicitly pled in the SAC.

As a result of the foregoing, the following claims remain in the case:
1. The § 1983 claims against Officer Gionson for his alleged use of excessive force
against Mr. Tasi under the Fourth Amendment (Counts 1 and 2).
2. The state law excessive force claim against Officer Gionson and the related
vicarious liability claim against MOA and APD (Count 8).
3. The § 1983 claim against Officer Gionson under the Fourteenth Amendment for
loss of companionship (Count 5).
4. The § 1983 claim against Officers Vance and Williams for the alleged violation of
Ms. Taualo-Tasi and the children’s Fourth Amendment rights (Count 10).
5. The claims for punitive damages. 185
DATED this 28th day of January, 2016.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

185

Although MOA and the officers have directed the briefing at “all claims,” Docket 42 at 15,
neither party mentioned punitive damages in the briefs, and the Court declines to reach the issue.

3:13-cv-00234-SLG, Estate of Tasi, et al. v. Municipality of Anchorage, et al.
Order re Pending Motions
Page 49 of 49