    Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
    Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
    303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
    corrections@appellate.courts.state.ak.us.



             THE SUPREME COURT OF THE STATE OF ALASKA


BRET F. MANESS,            )

                           )
                         Supreme Court No. S-14172
         Appellant,        )

                           )
                         Superior Court No. 3AN-03-08513 CI
     v.                    )
                           )                          OPINION
JOHN DAILY, ERIC SMITH,    )
TINAMARIE BUFFINGTON, THAD )                          No. 6807 – August 16, 2013
HAMILTON, ERIC SPITZER,    )
CLIFTON PECK, KEVIN EHM,   )
MUNICIPALITY OF ANCHORAGE, )
ANCHORAGE POLICE           )
DEPARTMENT, ALASKA STATE )
TROOPERS, ALASKA COURT     )
SYSTEM,                    )
                           )
         Appellees.        )
                           )

            Appeal from the Superior Court of the State of Alaska, Third
            Judicial District, Anchorage, John Suddock, Judge.

            Appearances: Bret F. Maness, pro se, Anchorage. Ruth
            Botstein, Assistant Attorney General, Anchorage, and
            Michael J. Geraghty, Attorney General, Juneau, for Appellees
            Hamilton, Spitzer, and the Alaska State Troopers. Robert P.
            Owens, Assistant Municipal Attorney, and Dennis A.
            Wheeler, Municipal Attorney, Anchorage, for Appellees
            Municipality of Anchorage, Daily, Peck, Ehm, and
            Anchorage Police Department.
              Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
              Bolger, Justices.

              STOWERS, Justice.

I.     INTRODUCTION
              In the early hours of June 28, 2001, Alaska State Troopers went to Bret
Maness’s home to take him into custody for psychological evaluation, pursuant to an
involuntary commitment order that had been issued by the superior court. When the
troopers arrived at his home, Maness threatened to kill the troopers then fled, first in his
RV, and later on foot. During the pursuit, Maness was shot by an Anchorage Police
Department officer and then arrested.
              Maness filed a civil action against many of the participants in the events
leading to his shooting and arrest. In 2008 we affirmed the superior court’s grant of
summary judgment with respect to all of Maness’s claims except those based on
excessive force.1 Maness then amended his complaint, adding numerous state tort claims
to his excessive force claims. The superior court again granted summary judgment to the
defendants, with the exception of the Anchorage police officer who actually shot
Maness. Maness’s excessive force claim against the police officer who shot him went
to trial, where the jury delivered a verdict for the police officer. Maness now appeals the
grant of summary judgment with respect to his claims against two of the Alaska State
Troopers who attempted to execute the civil commitment order. He also appeals the
superior court’s award of attorney’s fees to the defendants.




       1
              Maness v. Daily, 184 P.3d 1, 9 (Alaska 2008).

                                            -2-                                       6807
II.    FACTS AND PROCEEDINGS
       A.     Facts
              On June 27, 2001, Maness’s former girlfriend filed a petition for initiation
of involuntary commitment for Maness, alleging that Maness was confused, delusional,
and paranoid. At the ex parte proceeding for the commitment, the former girlfriend
stated that Maness likely had a gun with him. Based on her testimony, Superior Court
Judge Eric Smith ordered that Alaska State Troopers take Maness into temporary custody
and transport him to the Alaska Psychiatric Institute (API) for psychological evaluation
pursuant to AS 47.30.700. The court’s order stated in part that there is “probable cause
to believe that the respondent is mentally ill and . . . presents a likelihood of causing
serious harm to [himself] or others.”
              The Alaska State Troopers were informed of the basic facts underlying the
order, including that Maness was armed and could be dangerous. Troopers first
attempted to execute the order at Maness’s home in Wasilla during the evening of
April 27, but received no response when they knocked on the front door. When the next
shift came on duty that night, Shift Sergeant Randel McPherron sent three troopers —
Thad Hamilton, Eric Spitzer, and Kevin Yancey — to Maness’s home for a second
attempt.
              The three troopers arrived at Maness’s home in separate vehicles at
approximately 1:00 a.m. They parked on a side road, about 100 yards from Maness’s
home, and took separate paths up Maness’s driveway on foot. Trooper Hamilton
described this as a “stealth” approach intended to avoid a surprise attack and ensure
officer safety.
              Maness’s property included both a trailer home and an old Winnebago RV.
The troopers heard a dog barking inside the RV and could see a male figure through the
RV window. Hamilton approached the RV and exchanged words with the man, who

                                           -3-                                      6807

identified himself as Maness. Hamilton saw a rifle in the RV, within Maness’s reach.
Hamilton tried the doorhandle and window of the RV to “make sure [Maness] wasn’t
going for any weapon,” but both were locked.
              The troopers continued to exchange words with Maness. At some point,
Spitzer turned on his shirt-pocket cassette tape recorder and recorded the troopers’
interactions with Maness. A transcript of the recording shows that Hamilton told Maness
that the troopers were concerned about his health and were not going to take Maness to
jail. Maness refused to come out of the RV and profanely exclaimed to the troopers that
they were going to die. When Hamilton again told Maness they were not going to take
him to jail, Maness responded, “No, you won’t, but somebody . . . else will and I ain’t
going back.” Maness then repeated his threat that the troopers would die if they did not
leave.
              The troopers returned to their vehicles, intending to set up a perimeter and
lay a spike strip to disable Maness’s RV if he tried to flee. Before they set up the strip,
they saw Maness’s RV leave the property. The troopers followed Maness in their
marked police vehicles with their lights and sirens on, with Spitzer in the lead, Yancey
second, and Hamilton third. As the troopers chased Maness, loud popping sounds
emanated from his RV. Spitzer and Hamilton believed that some of the popping sounds
were from the RV backfiring but that others sounded like gunshots and that Maness was
firing at them. Spitzer reported on his police radio that Maness was firing at the troopers
and that his car had been hit.
              Pursued by the troopers, Maness drove southbound on the Glenn Highway
toward Anchorage. Additional law enforcement, including members of the trooper’s
State Emergency Response Team (SERT) and the Anchorage Police Department (APD),
were called to assist with the pursuit. The vehicle pursuit ended when Maness’s RV hit
a spike strip that other troopers had placed on the road. Maness exited the RV and was

                                           -4-                                       6807

confronted by numerous law enforcement officers from several agencies. Maness claims
that he held his hands up and heard gunshots. Maness then ran back into the RV,
grabbed a rifle, a handgun, and ammunition, and fled into the woods.
              An extended manhunt through the woods ensued as law enforcement agents
pursued Maness for about five hours. Hamilton and Spitzer assisted in setting up a
perimeter to ensure Maness did not escape the area. Discussing the situation, Spitzer said
to Hamilton that he could not find a bullet hole in his car, but nevertheless believed that
something had hit his car during the chase. Hamilton told Spitzer that he had been close
to shooting Maness’s tires out and that he should have done so. While listening to police
radio reports of Maness’s movements through the woods, Spitzer commented to
Hamilton that Maness was going to run into the Inlet and then laughed before saying, “I
wish he would have.” After hearing further radio communications, Spitzer said to
Hamilton, “[W]eapon levels up, even if he’s . . . running with it.” Spitzer testified that
by this comment he meant that if the troopers saw Maness running with his weapon
pointed toward them, they should be prepared to shoot him.
              At about 4:30 a.m., two troopers (not Spitzer and Hamilton) encountered
Maness in the woods and ordered him to stop; Maness responded with a profane
comment and fled. At about 6:45 a.m., an APD-led canine tracking team consisting of
three APD officers, a police dog, and State Trooper Sgt. McPherron found Maness in a
small clearing. APD Officer Clinton Peck fired his weapon, hitting and injuring Maness.
At the time he was shot, Maness had in his hand a fully loaded rifle. There was a factual
dispute concerning whether Maness had pointed his gun at the team before the shooting.
Troopers Hamilton and Spitzer were not part of the canine tracking team and were not
present when Maness was shot.
              After Maness was shot, Spitzer’s car was thoroughly inspected; there was
no evidence of gunshot damage. Spitzer testified that even though he may have been

                                           -5-                                       6807

mistaken, he was right to make a “shots fired” report based on what he perceived at the
time. He stated that the road they were driving on was very bumpy and “apparently [his]
vehicle had bottomed out . . . right after the shot was heard,” leading him to believe it
was hit. Hamilton testified that he continued to trust his initial impressions that Maness
was shooting at the troopers, despite the lack of damage to the car.
              McPherron testified that the reason the SERT team was called in was
“partly” because of Spitzer’s report that Maness was shooting at them, but “the other
information that [Maness was] potentially armed and [was] . . . refusing to comply with
troopers’ orders to surrender” also informed the decision to call in SERT. McPherron
also stated that regardless of the report of shots fired, it was proper to continue the
pursuit of Maness because the troopers had a valid commitment order and Maness was
fleeing officers and committing traffic violations.
              Maness acknowledged that previous to the night of the incident he had
never met Hamilton or Spitzer and that he had no reason to believe they had a pre­
existing vendetta against him.
       B.     Proceedings
               1.    Maness’s initial complaint
              Maness, acting without legal counsel, filed a civil action against many of
the participants in the events leading to his shooting and arrest, including the Alaska
State Troopers and individual Troopers Hamilton and Spitzer. The complaint alleged
that Spitzer falsely reported to police dispatch that shots were fired at him and that his
car was hit. The complaint also alleged that after stopping but before pursuing Maness
into the woods, Spitzer and Hamilton inspected Spitzer’s vehicle and found no damage
yet negligently failed to report that Spitzer’s earlier report that shots had been fired was
untrue. The complaint also named the Municipality of Anchorage, the Anchorage Police
Department, and APD Officer Peck. The complaint alleged that Peck had shot Maness

                                            -6-                                       6807

in the back without warning, essentially stating a claim that excessive force was used to
arrest Maness.
              The superior court dismissed a number of Maness’s claims, including his
excessive force claims.2 Maness appealed. We affirmed the superior court’s grant of
summary judgment with respect to all of Maness’s claims except those based on
excessive force and remanded those claims for further proceedings.3
              2.     Maness’s amended complaint
              On remand, Maness amended his complaint, adding constitutional claims
under 42 U.S.C. § 1983 as well as a number of common law tort claims, including causes
of action against Troopers Hamilton and Spitzer for burglary, trespass, and conspiracy.
Superior Court Judge John Suddock granted the State Defendants’ motion for summary
judgment in an oral ruling. The court focused on Maness’s excessive force claims
against the troopers, finding that the case was “at its heart an excessive force case.” The
court found that Maness “does nothing to pierce [the troopers’] mantle as state police
servants for a qualified immunity acting in good faith without malice” and that therefore
the troopers were entitled to summary judgment on all of Maness’s claims. The court
adduced several reasons for this conclusion.
              First, the court found that the troopers were lawfully present at Maness’s
home and “did nothing unlawful at the scene.” Second, the court rejected Maness’s
argument, based on Ninth Circuit precedent, that the troopers “provoked a course of
action that foreseeably led to bloodshed.” The court found that the troopers were
“simply . . . coming to serve a mundane warrant . . . . And the unforeseeable,

       2
              See id. at 4-5. Maness’s remaining claims against the State and
Municipality were resolved by stipulation. Id. at 5. The stipulation reserved Maness’s
right to appeal the dismissal of his excessive force claims. Id.
       3
              Id. at 9.

                                            -7-                                      6807
unpredictable response, the violent response, the unreasonable response is all generated
by Mr. Maness within [the RV].” The court concluded that nothing the troopers did “can
reasonably be construed to be the sort of action which provokes an armed response.”
Further, the court found that after Maness threatened the troopers and fled, “the only
reasonable response of the [troopers was] to stay with him [and] pursue him,” in light of
the fact that they knew Maness was armed, angry, and possibly mentally unstable.
Finally, the court found that the “ultimate shooting happened independently of the
troopers. . . . [N]othing they did hours earlier . . . can reasonably be construed to be the
sort of action which provokes an armed response.”
              With respect to the troopers’ good faith, the court found that Maness “cites
no preexisting grudge or hatred, no reason for particular animus, no desire to get back
at [Maness].” The court found that the troopers’ report of shots fired was made in “the
fog of war” and in any event was ultimately “irrelevant” to the pursuit of Maness because
it “adds no useful information to the task at hand for the officers who all on good and
sufficient information” knew that Maness was dangerous. Moreover, the court found
that even if the troopers were negligent in reporting that shots were fired or in failing to
retract the report once they discovered no damage to their vehicles, “there’s nothing to
suggest in the remotest sense that it was maliciously so or in bad faith . . . . There’s
absolutely no information to that effect.” In short, “there’s no evidence that anything
happened that pierced the qualified immunity of the state actors.”
              The court also granted summary judgment to the Municipality, but denied
summary judgment to APD Officer Peck, the officer who fired the shots, finding that
there was a factual issue concerning the circumstances of the shooting. Maness’s claim
against Peck proceeded to trial. The jury rendered a defense verdict, finding that it was
“more likely true than not that Officer Peck reasonably believed the use of deadly force



                                            -8-                                       6807

was necessary to make an arrest of a person he reasonably believed may otherwise
endanger life . . . or inflict serious physical injury, unless arrested without delay.”
              The State and Municipal defendants moved for attorney’s fees pursuant to
Alaska Civil Rule 82. The court applied Rule 82’s fee schedule, awarding prevailing-
party attorney’s fees in the defendants’ favor.
              Maness appeals the grant of summary judgment to the troopers and the
award of attorney’s fees against him.
III.   STANDARD OF REVIEW
              We review a grant of summary judgment “de novo, reading the record in
the light most favorable to the non-moving party and making all reasonable inferences
in its favor.”4 We “will affirm a grant of summary judgment when there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law.”5
“The applicability of both state and federal immunity are questions of law that are . . .
subject to de novo review.”6 Under the de novo standard of review, we will “apply our
independent judgment to questions of law, adopting the rule of law most persuasive in
light of precedent, reason, and policy.”7 “Because this case raises the question of
entitlement to qualified immunity, we ‘focus on the officers’ perspectives and
perceptions, as it is what reasonable officers in their position could have thought that is
dispositive of this issue.’ ”8


       4
              Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 801 (Alaska 2011). 

       5
              Id. at 801-02. 

       6

              Id. at 802 (quoting Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008)).
       7
              Id.
       8
              Olson v. City of Hooper Bay, 251 P.3d 1024, 1030 (Alaska 2011) (quoting
                                                                        (continued...)

                                            -9-                                       6807

             We “exercise our independent judgment in reviewing whether a trial court
has applied the appropriate legal standard in making its prevailing party determination.”9
But we “review a superior court’s determination of prevailing party status and attorney’s
fees for abuse of discretion” and “will overturn such determinations only if they are
manifestly unreasonable.”10
IV.	   DISCUSSION
       A.	   The Superior Court Properly Granted Troopers Hamilton And Spitzer
             Summary Judgment On Maness’s Excessive Force Claims.
             The use of excessive force is a statutory violation under Alaska law 11 and
“may also run afoul of the Fourth Amendment to the United States Constitution and
article I, section 14 of the Alaska Constitution, both of which grant citizens a right ‘to




       8
      (...continued)
Samaniego v. City of Kodiak, 2 P.3d 78, 80 (Alaska 2000)) (emphasis in original).
       9
              State v. Jacob, 214 P.3d 353, 358 (Alaska 2009) (quoting Halloran v. State,
Div. of Elections, 115 P.3d 547, 550 (Alaska 2005)) (internal quotation marks omitted).
       10
              Id. (quoting Braun v. Denali Borough, 193 P.3d 719, 726 (Alaska 2008))
(internal quotation marks omitted).
       11
              AS 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.” AS 11.81.370(a) provides in part that a peace officer “may
use nondeadly force and may threaten to use deadly force when and to the extent the
officer reasonably believes it necessary to make an arrest, to terminate an escape or
attempted escape from custody, or to make a lawful stop.”

                                          -10-	                                     6807

be secure in their persons’ and protect against ‘unreasonable searches and seizures.’ ”12
We have explained:
             Pursuant to federal law, whether a police officer uses
             excessive force in making an arrest depends on the gravity of
             the intrusion (the type and amount of force inflicted)
             balanced against the government’s need for that intrusion (as
             measured by the severity of the crime, whether the suspect
             posed an immediate threat to the officer’s or the public’s
             safety, and whether the suspect was resisting arrest or
             attempting to escape). The standard for excessive force in
             Alaska is nearly identical — the three considerations that
             frame the excessive force inquiry are the severity of the
             crime, whether the suspect immediately threatens the safety
             of the police or others, and whether the suspect is actively
             resisting or fleeing arrest.[13]
             “Police officers, like other public officials, are protected by qualified
immunity when they exercise discretionary functions.”14 In 1987, in Breck v. Ulmer, we
first addressed the question of “what standard should be applied to determine whether
qualified immunity exists when a public official is alleged to have violated a statute or


      12
              Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 802 (Alaska 2011). Maness’s
briefing does not clearly differentiate between his excessive force claims under state law
and his excessive force claims under federal law (42 U.S.C. § 1983). However, “[l]ike
most courts, we do not require litigants to specify that they are suing under § 1983.” Id.
at 800 n.5. See Fairbanks Corr. Ctr. Inmates v. Williamson, 600 P.2d 743, 747 (Alaska
1979) (concluding that a complaint stated a cause of action under § 1983 based on
“[c]ombining the broad purposes of 42 U.S.C. § 1983 to provide a cause of action upon
allegations of facts constituting deprivation under color of state authority of federal
constitutional rights with the liberal pleading provisions of Alaska Rule of Civil
Procedure 8”).
      13
             Russell, 258 P.3d at 802 (citations omitted).
      14
             Id. at 803 (citing Samaniego v. City of Kodiak, 2 P.3d 78, 83 (Alaska
2000)).

                                          -11-                                      6807

the Alaska Constitution.”15 We chose “to follow federal precedent for determining
whether qualified immunity should be conferred for [official] acts alleged to contravene
a statutory or constitutional mandate.”16 Specifically, we adopted a test established by
the United States Supreme Court in Harlow v. Fitzgerald.17 Under this standard,
qualified immunity shields public officials from civil liability “insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”18
              Applying this framework to the specific situation of excessive force claims,
we have held that “an officer is entitled to qualified immunity if the officer’s conduct was
an objectively reasonable use of force or the officer reasonably believed that the conduct
was lawful.”19 “Under the second part of the inquiry, the reasonableness of an officer’s
belief that his conduct was lawful depends on whether a reasonable officer would have
been ‘on notice’ that his particular use of force would be unlawful.”20 Courts inquiring
into the presence of notice should “look to our own jurisdiction and other jurisdictions
to see if there are any cases, laws, or regulations which would suggest that the type of




       15
              745 P.2d 66, 71 (Alaska 1987).
       16
              Id. at 71-72.
       17
              Id. (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
       18
              Harlow, 457 U.S. at 818.
       19
              Russell, 258 P.3d at 803; see also Olson v. City of Hooper Bay, 251 P.3d
1024, 1032 (Alaska 2011) (stating that “a police officer in Alaska is entitled to qualified
immunity in an excessive force case if the officer’s conduct was objectively reasonable
or the officer reasonably believed that the conduct was lawful, even if it was not”).
       20
              Russell, 258 P.3d at 803.

                                           -12-                                       6807

action taken by the officer is considered unlawful.”21 “Alternatively, notice can also be
assumed if the officer’s conduct is ‘so egregious, so excessive, that he . . . should have
known it was unlawful.’ ”22
              We have also observed that our approach to qualified immunity in
excessive force cases “comports in all essential respects” with that of the United States
Supreme Court.23 In particular we have clarified that under both Alaska law and federal
law “qualified immunity can be conferred when an officer could have reasonably
believed that his conduct was lawful (even if it was not).”24
              Under both Alaska law and federal law, Maness’s excessive force claims
are unsupported, and the troopers are entitled to qualified immunity. First, as a matter
of fact and law there was no excessive force applied to Maness. The only force that was
applied to Maness was applied by APD Officer Peck when he shot Maness, and in
Maness’s lawsuit against Peck, the jury found that Peck’s use of force was reasonable.
Therefore, all of the alleged torts of the troopers that occurred hours before and miles
away, which Maness claims set in motion the ultimate act of his being shot, did not in
fact cause (or result in) excessive force.
              In his briefing before the superior court, Maness relied in part on a theory
of excessive force liability set forth in a line of cases from the Ninth Circuit holding that
“where an officer intentionally or recklessly provokes a violent confrontation, if the

       21
            Olson, 251 P.3d at 1032 (quoting Sheldon v. City of Ambler, 178 P.3d 459,
466 (Alaska 2008)).
       22
              Id. (quoting Sheldon, 178 P.3d at 467).
       23
             Sheldon, 178 P.3d at 466; see also Russell, 258 P.3d at 802-04 and Olson,
251 P.3d at1031-32 (discussing federal and state law with respect to excessive force and
qualified immunity).
       24
              Sheldon, 178 P.3d at 464.

                                             -13-                                      6807

provocation is an independent Fourth Amendment violation, he may be held liable for
his otherwise defensive use of deadly force.”25 Maness argued that Troopers Hamilton
and Spitzer were liable for intentionally or recklessly provoking “a verbally violent
response from Mr. Maness and escalat[ing] the situation that ultimately resulted in
Mr. Maness being shot by law enforcement.”
              Maness’s argument fails because the provocation-of-violence theory he
proposes is not “clearly established” in Alaska law. Alaska has never accepted such a
theory and, as the Ninth Circuit has acknowledged, the federal circuits have split on the
validity of similar provocation-of-violence theories.26 “Where no controlling authority
specifically prohibits a defendant’s conduct, and when the federal circuit courts are split
on the issue, the law cannot be said to be clearly established.”27 In short, because Maness
cannot show pursuant to his theory of liability that the troopers violated any of his clearly
established rights, the troopers are protected by qualified immunity from Maness’s
excessive force claims.
              Further, even if the provocation-of-violence theory asserted by Maness
were clearly established, his excessive force claims would still fail. The Ninth Circuit
has made clear that an officer may be held liable under the provocation-of-violence




       25
             Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002) (discussing
Alexander v. City and Cnty. of S.F., 29 F.3d 1355 (9th Cir.1994)).
       26
             Billington, 292 F.3d at 1186-88 (comparing Allen v. Muskogee, Okla., 119
F.3d 837 (10th Cir. 1997) with Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992),
Gardner v. Buerger, 82 F.3d 248, 254 (8th Cir. 1996), and Greenidge v. Ruffin, 927 F.2d
789, 792 (4th Cir. 1991)).
       27
            Feis v. King Cnty. Sheriff’s Dep’t, 267 P.3d 1022, 1033 (Wash. App. 2011)
(quoting Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011)).

                                            -14-                                       6807

theory only if there is an “independent Fourth Amendment violation.”28 Here, the
troopers were acting under a valid court order establishing that “there is probable cause
to believe that the respondent . . . presents a likelihood of causing serious harm to
[himself] or others” and requiring the troopers to take Maness into custody. Maness’s
flight prevented the troopers from carrying out the order, but in their attempt to do so the
troopers never touched Maness, much less searched or seized him; nor did they search,
seize, or enter Maness’s RV. In other words, they did nothing to infringe upon Maness’s
Fourth Amendment rights.
              Finally, there is no evidence that the troopers recklessly or intentionally
“provoked violence” by their actions. There was a time lag of six hours, including a
police chase and an extended manhunt in the woods, between the troopers’ conduct at
Maness’s residence and the shooting. Maness has not cited any authority holding that
such an attenuated chain of causation can create excessive force liability.29 As the
superior court found, nothing the troopers did “can reasonably be construed to be the sort
of action which provokes an armed response.”
              In sum, the troopers did not violate any clearly established right of
Maness’s when they attempted to serve the involuntary commitment order. On the
contrary, as the superior court found, the troopers acted in an objectively reasonable
fashion throughout the encounter. Accordingly, the superior court correctly ruled that
under the doctrine of qualified immunity the troopers were entitled to summary judgment
on Maness’s excessive force claims.


       28
              Billington, 292 F.3d at 1189.
       29
             To the contrary, the Tenth Circuit has held that a provocation-of-violence
theory of excessive force can be successful only where the police conduct arguably
creating the need for force is “immediately connected” with the Fourth Amendment
violation. Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001).

                                           -15-                                       6807

       B.	    The Superior Court Properly Granted Troopers Hamilton And Spitzer
              Summary Judgment On Maness’s State Tort Claims.
              Maness’s amended complaint asserted a variety of tort claims, including
negligence, trespass, defamation, intentional infliction of emotional distress, conspiracy,
aiding and abetting attempted murder, and assault and battery. Maness’s briefing before
this court does not distinguish among these various claims. Rather, Maness’s briefing
focuses on the issue of qualified immunity and argues that Hamilton and Spitzer acted
in bad faith, especially with respect to their reports of gunshots by Maness, and that they
therefore are not entitled to immunity from Maness’s tort claims.
              1.	    Sources of the troopers’ qualified immunity
              The troopers are eligible for qualified immunity from Maness’s common
law tort claims under the three-step analysis set out in Aspen Exploration Corp. v.
Sheffield30	 and Alpine Industries, Inc. v. Feyk.31 Alternatively, the troopers are eligible
for qualified immunity under AS 47.30.815(b), which gives peace officers qualified
immunity for their actions in execution of mental-health orders.
                     a.     Common law qualified immunity
              In Aspen Exploration Corp. v. Sheffield, we addressed the scope of
immunity to be conferred for official acts alleged to have violated common law rights.32
As later summarized in Alpine Industries, Inc. v. Feyk, the Aspen test for official



       30
              739 P.2d 150 (Alaska 1987).
       31
              22 P.3d 445 (Alaska 2001).
       32
              739 P.2d 150 (Alaska 1987). In Aspen, we noted that our opinion “is
limited solely to situations where a plaintiff’s common law rights are involved. We
express no opinion as to situations where a public official violates clearly established
statutory or constitutional rights.” Id. at 160 n.23. We first addressed this latter situation
in Breck v. Ulmer, 745 P.2d 66 (Alaska 1987). See supra Part IV.A.

                                            -16-	                                       6807

immunity from a common law tort claim asks three questions: “First, does the doctrine
of official immunity apply to the state official’s conduct? Second, if it does apply, is the
immunity absolute or qualified? And third, if it is only a qualified immunity, did the
state official act corruptly, maliciously, or in bad faith?”33
              In Prentzel v. State, Department of Public Safety, we applied the Aspen test
and held that state troopers were entitled to qualified immunity when a plaintiff brought
suit alleging false arrest, false imprisonment, trespass to chattels, conversion, and
negligence.34 With respect to the first question of the Aspen test, we observed that
“official immunity applies to an official’s conduct if (1) it is within the scope of the
official’s authority, and (2) it is a discretionary act.”35 Applying these criteria to the facts
of Prentzel, we held that “making arrests and seizing property incident to arrests is
conduct that falls within the troopers’ usual authority,” and that Alaska law provided for
such authority.36 Similarly here, the execution of civil commitment orders falls within
the troopers’ usual authority as established in AS 47.30.700, which provides that a judge
“may direct that a peace officer take the respondent into custody and deliver the
respondent to the nearest appropriate facility for emergency examination or treatment.”
              The second question of the Aspen test asks whether the immunity should
be absolute or qualified. In Prentzel, we concluded that qualified immunity rather than
absolute immunity should apply to the troopers’ “discretionary act of making arrests and




       33
              22 P.3d 445, 447-48 (Alaska 2001) (citations omitted).
       34
              169 P.3d 573, 583, 586 (Alaska 2007).
       35
              Id. at 583.
       36
              Id. at 584.

                                             -17-                                         6807

seizing contraband in the course of arrest.”37 Similarly here, qualified rather than
absolute immunity applies to the troopers’ discretionary act of executing the court order.
             The third and final question of the Aspen test asks whether the official acted
in bad faith. We discuss this question in section 2 below.
                    b.     Qualified immunity under AS 47.30.815(b)
             Alaska Statute 47.30.815(b) provides an alternative ground for qualified
immunity in this case. This statute provides that “a peace officer . . . responsible for
detaining or transporting a person” under an involuntary civil commitment order “may
not be held civilly or criminally liable for detaining a person . . . if the persons have
performed their duties in good faith and without gross negligence.”38 There is no
question that the troopers were engaged in an attempt to detain and transport Maness
pursuant to an involuntary commitment order. We shall now turn to the “good faith” and
“gross negligence” inquiries.
             2.     Application of qualified immunity standards
             Both Aspen and AS 47.30.815(b) require that the troopers have acted in
good faith in order to be eligible for qualified immunity. In addition, AS 47.30.815(b)
also requires an absence of gross negligence. We examine each of these requirements
in turn.




       37
               Id. at 584-85. We reached this conclusion by weighing three factors
identified in Aspen: (1) the nature and importance of the function the officer performed;
(2) the likelihood the officer will be subjected to frequent accusations of wrongful
motives and how easily the officer can defend against these allegations; and (3) the
availability to the injured party of other remedies.
       38
             AS 47.30.815(b).

                                          -18-                                       6807

                     a.     Good faith
              Maness acknowledges that Troopers Hamilton and Spitzer did not have any
malice towards him before they arrived at his home. However, Maness alleges that
Hamilton and Spitzer began to act in bad faith against him after he “scared them into
running away” from his home, thereby “injuring their egos.” According to Maness, the
troopers then “maliciously and in bad faith conspired to provide false information . . .
that [Maness] had shot at them, when they knew this was not true.” Maness offers
several arguments in support of this claim. First, he argues that the physical evidence
“undeniably proves” that he did not fire any shots. Second, he argues that Hamilton and
Spitzer “displayed a hostile and dishonest demeanor at deposition . . . and they seemed
disappointed and angry that [Maness had] survived to file a lawsuit against them.”
Third, Spitzer “made incredible allegations over police radio that [Maness] had a gun
rigged on [his] motor home to fire backwards while [Maness] was driving.” (Emphasis
in original.) Fourth, “Hamilton and Spitzer’s general demeanor at deposition and a
cassette recording of the incident show a hostility and desire to retaliate against [Maness]
for scaring them into running away from [his] property . . . including an expressed desire
to shoot [him] on sight, lamentation for failure to shoot [his] tires out, and a desire that
[he] would have run into the inlet.” Fifth, Spitzer “has a long history of retaliatory and
vindictive behavior on the job.” Sixth, Hamilton’s and Spitzer’s testimony “was not
believable to anyone objectively assessing their credibility.” Seventh, Maness argues
that other law enforcement witnesses were present who “did not report any shots fired.”
              In Prentzel, we observed that “before malice can become a disputed
question of fact” sufficient to defeat a motion for summary judgment, “the record must
contain at least some objective evidence establishing facts capable of supporting an




                                           -19-                                       6807

inference of malice.”39 Moreover, “the need for a non-conclusory factual basis is
especially important when . . . the ultimate question involves immunity; as we have
emphasized on other occasions, official immunity shields government officials ‘not just
from liability, but from suit.’ ”40 We also emphasized that “although the existence or
absence of malice is generally a question of fact for the jury, when this question has been
removed from the case by uncontroverted affidavits and/or depositions, summary
judgment may be granted.”41 Accordingly, in Prentzel we concluded that the plaintiff’s
“conclusory statements describing his subjective impressions [did] not raise disputed
questions of material fact.”42 In particular, we explained that when the plaintiff’s
“subjective conclusion that the troopers enjoyed arresting him finds no objective support
from the facts in the record,” that conclusion “fails to raise a genuine issue of material
fact disputing the strong evidence tending to show that the troopers acted without
malice.”43 We also observed that there was “ample record evidence that the troopers
acted without malice, and, in fact, did everything they could to ensure that Prentzel’s
arrest was appropriate.”44
              Maness’s affidavit consists largely of the type of conclusory statements and
subjective impressions that we found insufficient to create a genuine issue of material


      39
              Prentzel v. State, Dep’t of Pub. Safety, 169 P.3d 573, 585 (Alaska 2007).
       40
            Id. (quoting Karen L. v. State, Dep’t of Health & Soc. Servs., Div. of Family
& Youth Servs., 953 P.2d 871, 879 (Alaska 1998)) (emphasis in original).
       41
            Id. (quoting Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 160 n.24
(Alaska 1987)).
       42
              Id.
       43
              Id. at 586.
       44
              Id. at 585.

                                           -20-                                      6807

fact in Prentzel. Further, Maness provides no “objective evidence establishing facts
capable of supporting an inference of malice,” as required by Prentzel.45 Although
Maness points to some “objective facts” — such as the fact that the troopers’ car did not
show any evidence of gunshot damage and some stray comments made by the troopers
during their stakeout — these facts do not support an inference of malice even if viewed
in the light most favorable to Maness. Rather, there is “ample record evidence”46 that
everything the troopers did — from the moment they arrived at Maness’s home through
the pursuit when Maness fled — was aimed at effectuating the court’s lawful order to
take Maness into custody and deliver him to API. Accordingly, the superior court
properly ruled that Maness “[did] nothing to pierce [the troopers’] mantle as state police
servants for a qualified immunity acting in good faith without malice.”
                    b.     Gross negligence
             Finally, the troopers’ qualified immunity under AS 47.30.815(b) requires
not only good faith but also an absence of gross negligence.47 We have defined gross
negligence as requiring “a major departure from the standard of care.”48 Our holding
above that the troopers’ conduct was objectively reasonable necessarily compels the
conclusion that they acted without gross negligence. Accordingly, the troopers are
protected by qualified immunity under AS 47.30.815(b).


      45
             Id.
      46
             Id.
      47
             AS 47.30.815(b) (stating that officers and other specified persons “may not
be held civilly or criminally liable for detaining a person under
AS 47.30.700-47.30.915 . . . if the persons have performed their duties in good faith and
without gross negligence”).
      48
            Storrs v. Lutheran Hosp. & Homes Soc. of Am., Inc., 661 P.2d 632, 634
(Alaska 1983).

                                          -21-                                      6807

       C.     Attorney’s Fees
              The superior court granted the defendants’ motions for attorney’s fees
pursuant to Alaska Civil Rule 82. Maness argues that the superior court’s award of
attorney’s fees was “clearly erroneous” under AS 09.60.010(c)49 and AS 09.60.010(e).50
He also argues that under federal law a prevailing defendant may be awarded attorney’s
fees “only if the plaintiff’s underlying claim was frivolous, unreasonable, or groundless.”
              1.     Maness is not a public interest litigant.
              As the State correctly observes, AS 09.60.010(c) and (e) do not apply to
Maness’s claims. Those sections apply “to all civil actions and appeals filed on or after
the effective date of this Act,” which was September 11, 2003.51 Maness filed his lawsuit
on June 16, 2003, before the act took effect.




       49
              AS 09.60.010(c) provides:
              In a civil action or appeal concerning the establishment,
              protection, or enforcement of a right under the United States
              Constitution or the Constitution of the State of Alaska, the
              court . . . may not order a claimant to pay the attorney fees of
              the opposing party devoted to claims concerning
              constitutional rights if the claimant . . . did not prevail in
              asserting the right, the action or appeal asserting the right was
              not frivolous, and the claimant did not have sufficient
              economic incentive to bring the action or appeal regardless of
              the constitutional claims involved.
       50
               AS 09.60.010(e) provides that “[t]he court, in its discretion, may abate . . .
an award of attorney fees and costs otherwise payable under (c) and (d) of this section
if the court finds . . . that the full imposition of the award would inflict a substantial and
undue hardship upon the party ordered to pay the fees and costs.”
       51
              Ch. 86, § 4, SLA 2003.

                                            -22-                                        6807

              The standard applicable to Maness’s claim is set forth in a series of cases
beginning with Gilbert v. State.52 Gilbert and its progeny established that Rule 82 fees
could not be awarded against a losing public interest litigant.53 Public-interest-litigant
status is determined by application of four criteria: (1) whether the litigation sought to
effectuate strong public policies; (2) whether numerous people would benefit from the
litigation; (3) whether only a private party could have been expected to bring the action;
and (4) whether the litigant had sufficient economic incentive to bring the lawsuit.54
              Maness does not argue that he meets any of these criteria, nor is there
reason to believe that he does. In particular, it is clear that Maness’s suit will not benefit
numerous people. Because Maness is not a public interest litigant, we affirm the superior
court’s determination that the defendants were prevailing parties entitled to a Rule 82
attorney’s fee award with respect to Maness’s state law claims.
              2.     Remand is required for reconsideration of § 1983 attorney’s fees.
              Alaska courts “do not award attorney’s fees against section 1983 plaintiffs
for that portion of the prevailing party’s attorney’s fees incurred defending against the
section 1983 action, unless the 1983 action was ‘frivolous, unreasonable or without
foundation.’ ”55 Because the superior court did not make a finding whether Maness’s
§ 1983 excessive force claims were “frivolous, unreasonable, or without foundation,” we
remand for further proceedings on this point. Additionally, because the “record at



       52
              526 P.2d 1131, 1136 (Alaska 1974).
       53
             See State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 394 (Alaska 2007)
(discussing Gilbert, 526 P.2d at 1136).
       54
              Id.
       55
              City of N. Pole v. Zabek, 934 P.2d 1292, 1301 (Alaska 1997) (citing Lyman
v. State, 824 P.2d 703, 707 (Alaska 1992)).

                                            -23-                                        6807

present does not include enough information to determine which costs and attorney’s
fees derive from defending the state law claim[s] as distinguished from the federal law
claim[],” a “remand on allocation of attorney’s fees and costs to the state law claim and
the federal law claims . . . is therefore required.”56 On remand, “the [S]tate has the
burden of identifying and segregating the state law claim costs,” and the superior court
“can order the [S]tate’s counsel to itemize the hours and nature of the work spent on the
case.”57
IV.    CONCLUSION
             We AFFIRM the superior court’s order granting summary judgment and
all other rulings encompassed in its final judgment except the award of attorney’s fees
pertaining to Maness’s §1983 claim. We VACATE that fee award and REMAND for
further proceedings on attorney’s fees consistent with this opinion.




       56
             Lyman, 824 P.2d at 707.
       57
             Id.

                                          -24-                                     6807
