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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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