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3 Alaska Just. F. 1 (1979)

handle is hein.journals/aljufor3 and id is 1 raw text is: Alask11a F ullS lIC 1740.1II Ill IN THIS ISSUE: * Carlson's Ruling . Parole Guidelines * Check Program Vol. 3, No. 1 January 1979 __________________________________________________I Carlson's Ruling on Guns AS 12.15.080 MEANS TO EFFECT RESISTED ARREST. If the person being arrested either flees or forcibly resists after notice of intention to make the arrest, the peace officer may use all the necessary and proper means to effect the arrest. On Nov. 24, Anchorage Superior Court Judge Victor D. Carlson declared AS 12.15.080 unconstitutional to the ex- tent that it permits a peace officer to use deadly force to apprehend a suspect who is not a threat to the life of the officer, a bystander, a victim or any other person. This ruling was in response to a motion by Russel Sundberg to suppress the fruits of his arrest for burglary in a dwelling on the grounds that excessive force was used in his arrest, thereby making the arrest unlawful. He had been shot and wounded last May while seen running from the scene of a reported burglary carrying a pillow case as a sack. Prior to the shooting, the officer had shouted the command Hold it, but the defendant continued his flight. The ruling is being appealed to the Alaska Supreme Court by the Depart- ment of Law. Because of the interest and the signifi- cance of the issues involved, the following summary of Carlson's Memorandum of Decision is presented. It is presented without comment and does not reflect any expression of opinion on the issues involved. It is presented only for the purposes of information. While the Alaska Supreme Court has never addressed directly the issue of a peace officer's use of deadly force in making an arrest, Judge Carlson said the court has indicated that an officer's use of force is not unlimited. In Gray v. State, 463 P.2d 897 (Alaska 1970), as interpreted by Judge Carlson, the su- preme court said state statutes require a finding of necessity before a homicide can be considered justified. A mere show- ing that a suspect has committed a felony is not sufficient to support a finding of necessity where deadly force was used unless a dangerous situation exists. When a dangerous situation can't be shown, the shooting of the defendant would be a violation of AS 12.25.080, Judge Carlson ruled. Since, in the instant case there was no showing of necessity- the police officer did not demonstrate a reasonable belief that the defendant was a threat to either the police officer or others-his actions were unconstitutional. However, if this analysis of the Gray holding is not correct and AS 12.25.080 does permit the use of deadly force in the absence of any threat to others, then Judge Carlson found the statute to be in violation of Art. 1, Secs. 7 and 14 of the Alaska Constitution: Creating violations of due process of law and of a person's constitutional protection against unrea- sonable search and seizure. Citing the Alaska Supreme Court decision in Zehrung v. State, 569 P.2d 189, 199 (Alaska 1977), Judge Carlson found the court stated that it is a basic premise of the law of search and seizure that governmental intrusions must have a justifiable purpose in order to be recog- nized as reasonable. While this premise was considered in the context of the reasonableness of a search under Art. 1, Sec. 14 of the Alaska Constitution, Judge Carlson found it logi- cal to extent it to a determination of the reasonableness of a seizure (or arrest) as well. Thus, confronted with the necessity to determine if the seizure, or arrest in this case, was unreasonable due to the use of excessive force, Judge Carlson noted that while no court had ever specifically found force necessary to make an arrest to be unreasonable under the Fourth Amend- ment of the U.S. Constitution, courts have found forcible searches to be unreasonable. Applying this reasoning, Judge Carlson found that the fact that the defendant may have escaped if he had not been shot, does not make the use of deadly force reasonable under Fourth Amend- ment standards, nor under Art. 1, Sec. 14, of the Alaska Constitution. Judge Carlson found further support for this approach in the Alaska Supreme Court decision in State v. Glass, Opinion No. 1724, in which the court held that effec- tive law enforcement is'not a sufficient justification for the violation of a defend- ant's constitutional rights. A Test for Reasonableness Judge Carlson then proceeded to de- velop a three-step test to determine the requirements of reasonableness relating to (Continued on Page 5)

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