                                                                              FILED
                            NOT FOR PUBLICATION                               AUG 01 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CHERRY DIETZMANN, individually;                  No. 10-36098
J.A., II, minor, by and through his mother
and guardian Cherry Dietzmann; D.A.,             D.C. No. 3:09-cv-00019-RJB
minor, by and through her mother and
guardian, Cherry Dietzmann,
                                                 MEMORANDUM*
              Plaintiffs - Appellees,

  v.

WILLIAM HUTT, Sergeant; DAVID
SHEALY, Sergeant; STACY LUCK,
Officer,

              Defendants - Appellants,

  and

THE HOMER POLICE DEPARTMENT;
MARK ROBL, Homer Police Chief;
LAWRENCE KUHNS, Sergeant,

              Defendants,

  v.

UNITED STATES OF AMERICA;
UNITED STATES MARSHAL’S


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
OFFICE; KEVIN GUINN; JOHN
OLSON, Jr.,

               Defendants-third-party-
plaintiffs,

  and

CITY OF HOMER,

              Defendant-third-party-
plaintiff - Appellant,

  v.

JASON ANDERSON, Sr.,

               Third-party-defendant.


                    Appeal from the United States District Court
                               for the District of Alaska
                   Robert J. Bryan, Senior District Judge, Presiding

                         Argued and Submitted June 25, 2012
                                 Anchorage, Alaska

Before: GOODWIN, W. FLETCHER, and M. SMITH, Circuit Judges.

        This interlocutory appeal arises from the denial of qualified immunity to three

City of Homer, Alaska, police officers (the “Homer Defendants”) for claims brought

against them under 42 U.S.C. § 1983 and Alaska state law. The claims emanate from

events surrounding a shootout at the Homer airport during the attempted arrest of


                                           2
fugitive Jason Anderson. As the facts and procedural history are familiar to the

parties, we do not recite them here except as necessary to explain our disposition.

      We have jurisdiction as to the denial of qualified immunity on the federal

claims because after taking all inferences in the Plaintiffs’ favor, the issue on appeal

is whether the facts demonstrate a violation of Plaintiffs’ clearly established,

constitutional rights. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059–60 (9th Cir.

2006). We have jurisdiction as to the denial of qualified immunity on the Alaska state

law claims because under Alaska law qualified immunity “functions as an immunity

from suit” as opposed to a “defense to liability.” See Liberal v. Estrada, 632 F.3d

1064, 1074 (9th Cir. 2011); see also Olson v. City of Hooper Bay, 251 P.3d 1024,

1030–31 n.18 (Alaska 2011) (referencing the Alaska qualified immunity statute). The

district court concluded that there were genuine issues of material fact that precluded

granting qualified immunity to the Homer Defendants. We agree and affirm.

       The record reflects factual disputes including whether the children were

hostages in Anderson’s car at the time of the shootout, whether the Homer Defendants

had time to deliberate the decision to join the attempted arrest at the airport, and

whether their actions during the execution of that attempted arrest were a reasonable

use of force. As the district court concluded, these factual disputes require the denial

of summary judgment on qualified immunity.            See Mendocino Envtl. Ctr. v.


                                           3
Mendocino Cnty., 192 F.3d 1283, 1296 (9th Cir. 1999); Crawford v. Kemp, 139 P.3d

1249, 1256, 1259 (Alaska 2006).

AFFIRMED.




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