Howell v. Municipality of Anchorage et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KELSEY HOWELL, as P.R. for
Estate of Dan Demott, Jr.,
Plaintiff,
v.
MUNICIPALITY OF ANCHORAGE,
et al.,
Defendants.
Case No. 3:20-cv-00301-SLG
ORDER RE MOTION FOR SUMMARY JUDGMENT
Before the Court at Docket 25 is Defendants Municipality of Anchorage
(Municipality), Luis Soto, and Steven E. Childers’ motion for summary judgment.
Plaintiff Kelsey Howell responded in opposition at Docket 36, and Defendants
replied at Docket 41. Oral argument was held on June 7, 2022.
BACKGROUND
This is a tragic case about the death of Dan Demott. The incident began on
November 5, 2018, when Kelsey Howell and her father, Demott, got in an
argument because Demott touched Howell’s baby’s face. 	Howell did not want
Demott touching her baby’s face because his hands were dirty. Demott got “really
angry,” and he “cornered” Howell. 	She put her hand in front of her face for fear
that he would hit her.1 Howell called 911 at approximately 6:30 p.m. and informed
1 Docket 25-1 at 15–16.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 1 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 2 of 61
the dispatcher that Demott was “crazy,” barricading the front door, “ripping the
curtains” down, and experiencing delusions that the police were watching him.2
She said that he needed to go to the Alaska Psychiatric Institute (API). Howell told
the dispatcher that Demott was diagnosed with bipolar disorder and manic
depression 	and 	had 	been 	to 	API 	before, 	but 	he 	was 	refusing 	to 	take 	his
medication.3 She also warned the dispatcher that Demott may not cooperate with
the police because he had attacked the police on one prior occasion approximately
four or five years prior.4
When the police arrived, officers observed Demott through a window with a
sword and what they initially thought was a rifle, although officers later said that
they were “confident it[] [was] a BB gun.”5 	Howell was able to safely exit the
residence with her children.6 Howell’s brother, Justin Charlie, was also outside the
residence.7 A man named Michael Girardin, however, remained in the residence
with Demott.8 	Girardin was homeless, and Demott had previously offered to let
2 Docket 25-1 at 22; Docket 36-8 at 2–3.
3 Docket 36-8 at 2–3.
4 Docket 25-1 at 22; Docket 36-8 at 3.
5 Docket 25-1 at 22–23.
6 Docket 25-1 at 15.
7 Docket 25-1 at 7.
8 Docket 25-1 at 7.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 2 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 3 of 61
him stay at his residence in exchange for mechanical help.9
At approximately 7:30 p.m., Charlie informed the police that his father had a
sword and a BB gun.10 	In addition, there was a .22 rifle and .22 handgun locked
in a safe inside the house, but Charlie said that his father had lost the key to the
safe and likely would not be able to find it because the residence was “extremely
messy.”11 	Charlie also told the police officers that the residence did not have a
landline or Wi-Fi and that Demott did not have a cell phone.12 	At approximately
7:40 p.m., the Computer Aided Dispatch entry states that the police began making
several announcements to the residence.13
The police obtained a search warrant of the residence and an arrest warrant
of Demott.14 The arrest warrant charged Demott with three violations of municipal
law.15 First, Demott was charged with “Assault – Fear of Imminent Injury” because
“by words or other conduct, [he] recklessly place[d] . . . [Howell] in fear of imminent
physical injury” in violation of Anchorage Municipal Code 8.10.010(B)(3). Second,
he was charged with “Crim[inal] Mischief 5 – Property Damage” because he
9 Docket 25-1 at 21.
10 Docket 25-1 at 7, 23.
11 Docket 25-1 at 7.
12 Docket 25-1 at 7.
13 Docket 25-1 at 24.
14 Docket 25-1 at 15.
15 Docket 25-5 at 1.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 3 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 4 of 61
“recklessly or intentionally injure[d] or destroy[ed] . . . real or personal property” in
violation of Anchorage Municipal Code 8.20.010.A.6.16 Third, he was charged with
delaying or obstructing his arrest by barricading himself in his home in violation of
Anchorage Municipal Code 8.30.010.A.3.17 The warrant classified the event as a
domestic violence incident.18
At approximately 8:20 p.m., a Special Weapons and Tactics (SWAT) team
began to arrive at the scene.19 	Both of the named Defendants in this case were
part of this SWAT team and arrived at that time.20 Defendant Soto was a sergeant
at the time whose role was to “coordinate and supervise the tactics implemented
by SWAT.” However, Soto “did not oversee SWAT’s implementation of any tactics
until they were approved and directed by the SWAT commander.” Soto remained
at the command center, which was located a few blocks away from the residence,
throughout the entire incident and “did not personally make the announcements,
fire projectiles or deploy chemical agents.”21
Defendant Childers was a sergeant at the time of the events described in
16 Docket 25-5 at 2.
17 Docket 25-5 at 3.
18 Docket 25-5 at 2.
19 Docket 25-1 at 25. By 9:30 p.m., the SWAT team had replaced all the officers at the scene.
Docket 25-1 at 26.
20 Docket 25-1 at 25.
21 Docket 25-7 at 2–3, ¶¶ 4, 7.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 4 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 5 of 61
this lawsuit. He was the “arrest team/entry team leader,” meaning that he was to
“guide and control the actual arrest of the suspect as safely as possible if they
exit[ed].” 	However, he did “not make the decisions as to which SWAT tactics to
use or when to use them.” 	Like Soto, he did not personally make any of the
announcements or deploy projectiles, but he did introduce chemical agents.22
The SWAT team made announcements via a loudspeaker, identifying
themselves as the Anchorage Police Department (APD). 	The SWAT team also
informed Demott over the loudspeaker that there was a warrant for his arrest and
a search warrant for his residence. 	The SWAT team warned that it would use
lethal or non-lethal force against Demott, including tasers, direct impact munitions,
gas, and K9s.23
Just before 11:00 p.m., the SWAT team deployed baton rounds and “knock-
knocks.”24 	Knock-knocks are “foam projectiles” that are deployed “against the
structure in order to gain the attention of the suspect.”25 	The baton rounds were
used to break a large window by the front door. The SWAT team then made more
announcements and, after receiving no response, deployed additional, “less lethal
rounds to hit the main entrance door and garage man door as agitation.”26
22 Docket 25-6 at 2, ¶¶ 3, 5–7.
23 Docket 25-1 at 3.
24 Docket 25-1 at 27.
25 Docket 25-7 at 3, ¶ 6(b).
26 Docket 25-1 at 3–4.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 5 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 6 of 61
According to the Computer Aided Dispatch report, an officer saw Demott at a
window just after the second deployment at approximately 11:00 p.m.; this was the
last time that Demott was reportedly seen alive. There is no indication that Demott
had a firearm at that time; he was noted to have moved away from the window.27
Shortly after 11:30 p.m., there was a report of loud banging coming from inside the
residence.28
Minutes later, at 11:36 p.m., the SWAT team deployed its first round of
chemical agents.29 These were placed “inside the residence and attached garage
in order to create an irritant sufficient to cause the barricaded suspect to exit the
structure.”30 	Childers successfully deployed a baffled Carbon Monosulfide (CS)
grenade through the window near the main entrance door.31 Minutes after the first
round of chemical agents was deployed, Girardin exited the residence. 	He had
not been harmed by Demott.32 	Shortly after Girardin left the residence, Childers
deployed another baffled CS grenade into the garage because the first attempt
had deflected off a window.33
27 Docket 25-1 at 27.
28 Docket 25-1 at 28.
29 Docket 25-1 at 28.
30 Docket 25-1 at 4; Docket 25-7 at 3, ¶ 6(3).
31 Docket 25-1 at 4.
32 Docket 25-1 at 4, 7, 18–19, 28.
33 Docket 25-1 at 4.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 6 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 7 of 61
Girardin spoke to at least two officers after he left the home about what had
happened in the residence, but his report is inconsistent. 	For example, Girardin
informed the officers that he did not hear the officers calling his name because he
had taken a couple of DayQuil pills.34 However, he also said that he did not leave
the residence because Demott threatened to shoot him if he left.35 But he also told
the police that he did not see any weapons in the home, except that he knew that
Demott had BB guns and that when the police broke the windows, Demott had two
swords but then dropped them.36 	Girardin further told police that Demott was
experiencing a Vietnam flashback.37 Additionally, Girardin informed the police that
he believed that Demott was going into the crawl space.38
Throughout this time, the SWAT team continued to deploy additional rounds
of tear gas into the residence but did not see any movement in the house.39
Additional rounds of tear gas were fired between 1:00 a.m. and 2:00 a.m., including
directly into the crawl space.40 In these rounds of deployment, Childers launched
tear gas into the garage man door window that had been previously broken. The
34 Docket 25-1 at 21.
35 Docket 25-1 at 18.
36 Docket 25-1 at 21.
37 Docket 36 at 9; Docket 36-2 at 13.
38 Docket 25-1 at 21.
39 Docket 25-1 at 29.
40 Docket 25-1 at 29-30.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 7 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 8 of 61
SWAT team made more announcements. At approximately 2:00 a.m., the SWAT
team decided to enter the residence. Childers was one of the SWAT team officers
who entered the residence. 	The SWAT team looked for Demott using a robot, a
K-9 police dog, and a pole-cam.41
The SWAT team found Demott’s body submerged in water inside the crawl
space at approximately 4:15 a.m.42 According to the autopsy report, Demott died
from either hypothermia or drowning. 	The ambient air temperature in the crawl
space when he was found was 15 degrees Fahrenheit. 	He had “abrasions and
contusions of flexor surfaces of extremities and on trunk,” but the report concluded
that the “trauma [was] insignificant to cause death.” 	His death was classified as
an accident.43
On November 4, 2020, Howell initiated this action in Alaska state court. With
respect to Soto and Childers, Howell brings a claim pursuant to 42 U.S.C. § 1983,
alleging that these Defendants used excessive force when attempting to arrest
Demott, violating Demott’s Fourth Amendment right under the United States
Constitution to be free from unreasonable seizure.44 Howell maintains further that
these Defendants “violat[ed] the rights of Dan Demott to be free from unreasonable
41 Docket 25-1 at 4.
42 Docket 25-1 at 31.
43 Docket 25-1 at 8.
44 Docket 4 at 12, ¶¶ 67–68.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 8 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 9 of 61
seizure guaranteed by the Alaska Constitution . . . .”45 Howell also alleges in the
complaint a state negligence claim for failure to exercise reasonable care and
failure to use reasonable de-escalation techniques when executing the arrest
warrant.46
With respect to the Municipality, Howell alleges that the Municipality is
vicariously liable for the violation of Demott’s Fourth Amendment right under the
United 	States 	Constitution 	and 	for 	the 	violation 	arising 	under 	the 	Alaska
Constitution.47 	Howell also contends that the Municipality is vicariously liable for
the negligence of its employees and directly liable for inadequately training or
supervising its employees.48
Defendants removed the case to federal court.49 	The parties conducted
discovery, and the deadlines for discovery and pre-trial motions have now all
passed.50 Defendants filed a motion for summary judgment, which is now before
the Court for determination.51
45 Docket 4 at 12, ¶ 68.
46 Docket 4 at 11, ¶¶ 57, 59–62.
47 Docket 4 at 11, ¶ 55; 12, ¶ 68.
48 Docket 4 at 11, ¶ 55; 13, ¶ 76.
49 Docket 1.
50 Docket 13 at 4 (“Fact discovery shall be completed on or before January 15, 2022.”); Docket
23 (extending deadline to file dispositive motions to March 16, 2022).
51 Docket 25.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 9 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 10 of 61
JURISDICTION
The Court has jurisdiction over Howell’s 42 U.S.C. § 1983 claims pursuant
to 28 U.S.C. § 1331. 	The Court exercises its supplemental jurisdiction over
Howell’s state claims pursuant to 28 U.S.C. § 1367.
LEGAL 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.” “The party moving
for summary judgment bears the initial burden of demonstrating the absence of a
genuine issue of fact for trial.”52 	However, “[w]hen the nonmoving party has the
burden of proof at trial, the moving party need only point out ‘that there is an
absence of evidence to support the nonmoving party’s case.’”53 	If the movant
meets 	their 	burden, 	the 	non-moving 	party 	must 	demonstrate 	“specific 	facts
showing that there is a genuine issue for trial.”54 	The non-moving party may not
rely on “mere allegations or denials”; rather, 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.”55 	In deciding a motion for summary judgment, a court views
52 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986)).
53 Id. (quoting Celotex Corp., 477 U.S. at 325).
54 Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
55 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986) (citations omitted).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 10 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 11 of 61
the facts in the light most favorable to the non-moving party and draws “all
justifiable inferences” in the non-moving party’s favor.56
DISCUSSION
I. 	Fourth Amendment Claim
a. Legal Principles
Defendants contend that Soto and Childers are entitled to qualified immunity
as to the federal constitutional claim.57 The doctrine of qualified immunity shields
government actors from civil liability under § 1983 if “their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.”58 	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.59 Qualified immunity applies
unless both prongs of the inquiry are satisfied.60
A court may “exercise [its] sound discretion in deciding which of the two
56 Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
57 Docket 25 at 11–19.
58 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted).
59 See Castro v. Cnty. of L.A., 833 F.3d 1060, 1066 (9th Cir. 2016) (citing Pearson v. Callahan,
555 U.S. 223, 232 (2009)).
60 See Pearson, 555 U.S. at 232.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 11 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 12 of 61
prongs of the qualified immunity analysis should be addressed first.”61 	However,
it “is often beneficial” to analyze the first and then the second prong because this
process “promotes the development of constitutional precedent and is especially
valuable with respect to questions that do not frequently arise in cases in which a
qualified immunity defense is unavailable.”62
Howell contends that Soto and Childers “violated Dan Demott’s Fourth
Amendment right to be free from unreasonable seizure by using excessive force
through unreasonabl[e] escalation of force.”63 	Howell asserts that Soto and
Childers were “indifferent to Dan Demott’s disability” and “tormented a mentally ill
person appearing to suffer from delusional Viet Nam flashbacks with threats and
chaotic bombardment of rounds and chemical agents, which were objectively
unreasonable, yet reasonably expected to cause severe unnecessary distress to
a disabled person.”64
“[A]ll claims that law enforcement officers have used excessive force—
deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a
free 	citizen 	should 	be 	analyzed 	under 	the 	Fourth 	Amendment 	and 	its
61 Id. at 236.
62 Id.
63 Docket 36 at 11.
64 Docket 36 at 13.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 12 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 13 of 61
‘reasonableness’ standard.”65 	“In Fourth Amendment excessive force cases, we
examine whether police officers’ actions are objectively reasonable given the
totality of the circumstances.”66
To determine the reasonableness of the force used, a court must consider
“the facts and circumstances of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the
officers 	or 	others, 	and 	whether 	[the 	suspect] 	is 	actively 	resisting 	arrest 	or
attempting to evade arrest by flight.”67 	Other circumstances to consider include
“the relationship between the need for the use of force and the amount of force
used; the extent of the plaintiff’s injury; any effort made by the officer to temper or
to limit the amount of force; the severity of the security problem at issue; [and] the
threat reasonably perceived by the officer.”68 	Additional relevant factors may
“include the availability of less intrusive alternatives to the force employed, whether
proper warnings were given and whether it should have been apparent to officers
that the person they used force against was emotionally disturbed.”69
65 Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis omitted).
66 Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019) (citations omitted).
67 Graham, 490 U.S. at 396 (citing Garner v. Garner, 471 U.S. 1, 8–9 (1985)).
68 Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241 (2021) (quoting Kingsley v. Hendrickson,
576 U.S. 389, 397 (2015)).
69 Glenn v. Wash. Cnty., 673 F. 3d 864, 872 (9th Cir. 2911); see also Deorle v. Rutherford, 272 F.
3d 1272, 1283 (9th Cir. 2001) (“Even when an emotionally disturbed individual is ‘acting out’ and
inviting officers to use deadly force to subdue him, the governmental interest in using such force
is diminished by the fact that the officers are confronted, not with a person who has committed a
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 13 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 14 of 61
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.”70 	“Only information known to the officer at the time the conduct
occurred is relevant.”71 	And while the availability of alternative measures to take
a suspect into custody may be a relevant consideration in some cases, officers
“need not avail themselves of the least intrusive means of responding to an exigent
situation; 	they 	need 	only 	act 	within 	that 	range 	of 	conduct 	we 	identify 	as
reasonable.”72
b. Integral-Participant Doctrine
First, the Court considers whether Soto and Childers may be held liable for
the alleged use of excessive force. This is because Soto did not personally deploy
the alleged excessive force, or any force at all.73 And Childers did not personally
make announcements or deploy less lethal projectiles, although he did deploy tear
gas.74 	The Ninth Circuit explained that “[u]nder our cases, an official whose
serious crime against others, but with a mentally ill individual.”).
70 Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)).
71 Nehad, 929 F.3d at 1132 (citations omitted).
72 Hughes v. Kisela, 841 F.3d 1081, 1087 (9th Cir. 2016), superseded on other grounds, Kisela v.
Hughes, 138 S.Ct. 1148 (2018).
73 Docket 25-7 at 3–4, ¶¶ 4, 7 (“Throughout the call, I was located at the command center, not at
Demott’s residence. The command center is actually located a few blocks away out of sight of
the residence. I was never at the residence . . . . I did not personally make the announcements,
fire projectiles or deploy chemical agents.”).
74 Docket 25-6 at 2, ¶¶ 5–8 (“I did not make any of the announcements . . . . 	I also did not
personally deploy projectiles as knock-knocks . . . . I did personally introduce chemical agents in
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 14 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 15 of 61
‘individual actions’ do ‘not themselves rise to the level of a constitutional violation’
may be held liable under section 1983 only if the official is an ‘integral participant’
in the unlawful act.”75 	The minimum level of involvement for liability under the
integral-participant doctrine occurs in two situations:
those in which (1) the defendant knows about and acquiesces in the
constitutionally defective conduct as part of a common plan with those
whose conduct constitutes the violation or (2) the defendant ‘set[s] in
motion a series of acts by others which [the defendant] knows or
reasonably should know would cause others to inflict the constitutional
injury.’76
With respect to the first category, the Ninth Circuit has held that officers are
integral participants if an “officer was aware of the decision to use the [force], did
not object to it, and participated in the [] operation knowing the [force] was to be
deployed.”77 	Simply being present at the scene is not enough; the officer must
have participated in either the planning or the execution of the unlawful use of
force.78 	In this case, both Soto and Childers participated in the planning and
execution of the use of force. 	Soto “coordinate[d] and supervise[d] the SWAT
the first round of deployment into the garage and to the left of the main door. But there were many
other people who deployed chemical agents in other locations in the residence at various times.”).
Docket 25-1 at 4 (In the second round, Childers deployed tear gas through the window of the
garage man door.).
75 Peck v. Montoya, 51 F.4th 877, 889 (9th Cir. 2022) (quoting Reynaga Hernandez v. Skinner,
969 F.3d 930, 941 (9th Cir. 2020)).
76 Id. (alterations in original) (quoting Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978)).
77 Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir. 2004).
78 See Peck, 51 F.4th at 889 (citing Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009)).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 15 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 16 of 61
team’s tactics so they were done in accordance with APD policies and procedures”
after “they were approved and directed by the SWAT commander.”79 And Childers
deployed chemical agents and did not object to their use by others.80 	The Court
concludes that both Soto and Childers can accordingly be held liable under the
integral-participant doctrine.
c. Analysis of the Relevant Factors
Having determined that both Soto and Childers could be liable for the
alleged Fourth Amendment violation, the Court turns to the first prong of qualified
immunity: to assess whether a reasonable jury could conclude that Soto and
Childers violated Demott’s constitutional right to be free from the use of excessive
force by analyzing all of the relevant factors that the Supreme Court and Ninth
Circuit have identified as appropriate. The Court first considers the severity of the
crime that the officers were responding to.81 In this case, APD was responding to
Howell’s report that she feared an imminent assault by her father—a form of
domestic violence. The Ninth Circuit has recognized that “[w]hen 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
79 Docket 25-7 at 2–3, ¶¶ 3, 7.
80 Docket 25-6 at 2, ¶ 7.
81 See Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8–9).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 16 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 17 of 61
calls than on any other type of call.”82 	Additionally, Alaska law provides that “[a]
peace officer, with or without a warrant, shall arrest a person if the officer has
probable cause to believe the person has, either in or outside the presence of the
officer, within the previous 12 hours . . . committed domestic violence . . . whether
the crime is a felony or a misdemeanor.”83 Because there was probable cause to
believe that Demott had committed a misdemeanor crime of domestic violence,
Childers and Soto were attempting to effectuate a mandatory arrest under Alaska
law.
The Ninth Circuit has also observed, however, that “the legitimate escalation
of an officer’s ‘concern[] about his or her safety’ is less salient ‘when the domestic
dispute is seemingly over by the time the officers begin their investigation.’”84
Here, Howell and her children had already left the house by the time that the SWAT
team arrived and used the chemical agents, less lethal rounds, and knock-
knocks.85 	Accordingly, the severity of the crime had substantially abated when
that force was applied.
The Court next considers the immediate threat to the safety of the police
82 Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011) (quoting United States v. Martinez, 406
F.3d 1160, 1164 (9th Cir. 2005)).
83 Alaska Stat. § 18.65.530(a)(1) (emphasis added).
84 George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013) (alterations in original) (quoting Mattos, 661
F.3d at 450).
85 Docket 25-1 at 15 (Howell and her children were outside the residence at approximately 7:15
p.m.); Docket 25-1 at 27 (first use of force at approximately 10:55 p.m.).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 17 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 18 of 61
officers and to others during the course of the incident.86 	The Ninth Circuit has
repeatedly emphasized that this factor is the most important.87 	When police
officers first arrived at the scene, they were concerned that Demott had a rifle, but
by 7:34 p.m., they were “confident” it was “a BB gun.”88 One police officer reported
hearing Demott say he “would shoot us through [the] window,” but the officer
confirmed that “no gun [was] seen.”89 Police officers were also aware that Demott
had access to a sword.90
Early on in the incident, Charlie informed the police officers that that there
was a .22 rifle and a .22 handgun locked in a safe in the home, but he also said
that Demott likely would not be able to access these weapons because Demott
had lost the key and his home was “extremely messy.”91 Indeed, at 7:34 p.m., the
Computer Aided Dispatch reported that “real rifles in [the] res[idence] should be in
[the] safe” and that “he does not have [the] key.”92 	And while the passage of time
86 See Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8–9); Lombardo, 141 S. Ct. at 2241
(quoting Kingsley, 576 U.S. at 397) (holding that courts should consider “the severity of the
security problem at issue” and the “threat reasonably perceived by the officer”).
87 See, e.g., S.B. v. Cnty. of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017) (quoting George, 736
F.3d at 838) (“Of all of these factors, the ‘most important’ one is ‘whether the suspect posed an
immediate threat to the safety of the officers or others.’”).
88 Docket 25-1 at 23.
89 Docket 25-1 at 22.
90 Docket 25-1 at 22, 24.
91 Docket 25-1 at 7.
92 Docket 25-1 at 23.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 18 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 19 of 61
may have increased the risk that Demott would locate the key to the safe, when
Girardin left the residence at 11:30 p.m., he informed the officers that he had not
seen any firearms in the residence that evening.93
Police officers were also aware that Demott had some history of violence.
For example, Howell informed the police officers that Demott had attacked police
officers one time four or five years prior, although she did not provide any details
about that incident.94 	Howell also informed police officers that Demott had hit
Howell one time in the past but indicated it was with “a toy sword gently.”95
When the SWAT team deployed the less lethal rounds and the first round of
tear gas, Girardin was still in the house with Demott, increasing the nature of the
threat at that time because of the potential hostage situation.96 At this point in time,
this factor suggests that the use of force was reasonable. 	But after Girardin had
exited the residence safely, the nature of the threat that Demott posed to others
substantially decreased, as the SWAT team was no longer responding to a
93 Docket 25-1 at 21; cf. Alford, 785 F. Supp. 2d at 877 (“The passage of time increased [the
decedent’s] opportunity to find the rifle ammunition, which was not in a safe, and to locate the
other high-powered weapons and ammunition, and figure out a way to unlock the safe they were
in.”).
94 Docket 25-1 at 22.
95 Docket 36-5 at 23–24.
96 Compare Lock v. Jenkins, 641 F.2d 488, 496 (7th Cir. 1981) (holding that the use of tear gas
was not unjustified following the taking hostage of a prison warden and several others), with
Estate of Escobedo v. Bender, 600 F.3d 770, 782–84 (7th Cir. 2010) (Escobedo I) (holding that
the law was clearly established that the use of tear gas against an armed suicidal man barricaded
in his apartment violated the Fourth Amendment because, among other reasons, the man was
not holding hostages).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 19 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 20 of 61
potential hostage situation.97 And Girardin informed the SWAT team that Demott
was experiencing Vietnam flashbacks, did not have weapons, and was retreating
to the crawl space.98 	Accordingly, the SWAT team was then made aware that
Demott was an unarmed man experiencing a mental health crisis who was refusing
to leave his house. 	This factor, therefore, tips against the reasonableness of the
use of force after Girardin’s exit.
The Court next considers the fact that Demott was actively resisting arrest
by refusing to leave his home despite orders to do so.99 Demott was a “barricaded
individual” according to the 2014 International Association of Chiefs of Police
(IACP) Model Policy, upon which Howell relies, which defines a barricaded
individual as “[a]n individual who is the focus of a law enforcement intervention
effort, has taken a position in a physical location that does not allow immediate law
enforcement 	access, 	and 	is 	refusing 	law 	enforcement 	orders 	to 	exit.”100
Throughout the entire incident, Demott remained in his residence, a location that
prevented immediate law enforcement access, and refused to follow numerous
orders to exit.
97 See Escobedo I, 600 F.3d at 780–81.
98 Docket 25-1 at 21; Docket 36 at 9.
99 See Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8–9); Lombardo, 141 S. Ct. at 2241
(quoting Kingsley, 576 U.S. at 397) (holding that courts should consider “whether the plaintiff was
actively resisting”).
100 Docket 25-10 at 22.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 20 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 21 of 61
Moreover, when Howell first called 911, she informed the dispatcher that her
father had barricaded the front door with plywood, although she also said that she
thought she could take it down.101 	Howell was able to leave the residence,
although it is unclear from the record whether she removed the barricade or exited
from another door.102 	Indeed, the Computer Aided Dispatch suggests that the
police officers did not know whether the barricade remained in place.103 That being
said, when Girardin exited the residence, he informed the SWAT team that Demott
had the front entryway “barricaded well with anything and everything that he could
use.”104 	This factor accordingly weighs in favor of the reasonableness of the
deployment of force.
Another factor that the Court considers is how quickly the SWAT team
resorted to using force after encountering the individual. Indeed, in one case, the
Ninth Circuit held this was the “most important” factor in the Circuit’s decision that
excessive force may have been used because, viewing the facts in the light most
favorable to the plaintiff, a police officer “escalated to deadly force very quickly”
and shot at decedent “less than a minute” after the officer first came upon the
101 Docket 36-8 at 2.
102 Docket 25-1 at 15.
103 See Docket 25-1 at 25 (call log reports that Demott was “poss[ibly] barricading [him]self in”);
Docket 25-1 at 28 (call log reports that Demott “prob[ably] barricade[d] w[ith] stuff”).
104 Docket 25-1 at 21.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 21 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 22 of 61
decedent.105 	Particularly in the context of police officers’ response to someone
experiencing a mental health crisis, it is ordinarily best practice for responding
officers to take advantage of the time that they have to slow down and de-escalate
the situation.106
In this case, the SWAT team had time on its side because it had up to 12
hours to effectuate a mandatory arrest.107 This was not a case in which the police
officers were “forced to make split-second judgments” in a circumstance that was
“tense, uncertain, and rapidly evolving.”108 Police officers arrived on the scene at
approximately 6:45 p.m., and Howell safely left the residence at approximately
7:15 p.m.109 	The SWAT team first deployed projectiles at approximately 11:00
p.m. 	and 	began 	deploying 	chemical 	agents 	at 	approximately 	11:30 	p.m.110
Although the officers waited several hours before using non-lethal force against
Demott, they did not appear to have taken advantage of this time to pursue any
strategies to address Demott’s mental health crisis but simply continued to make
105 A.K.H. v. City of Tustin, 837 F.3d 1005, 1012 (9th Cir. 2016).
106 See, e.g., Glenn, 673 F.3d at 877 (expert’s opining that the “fundamental rules for approaching”
an individual experiencing a mental health crisis are: “1) Slow it down, 2) Do not increase the
subject’s level of anxiety or excitement, 3) Attempt to develop rapport, 4) Time is on the side of
the police”).
107 Alaska Stat. § 18.65.530(a)(1).
108 Tekle v. United States, 511 F.3d 839, 847 (9th Cir. 2006) (quotation omitted).
109 Docket 25-1 at 22.
110 Docket 25-1 at 27–28.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 22 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 23 of 61
announcements over the loudspeaker system that went unheeded. 	Hence, the
Court finds this factor is neutral.
Next the Court assesses the “quantum of force used.”111 	This is because
“[t]he gravity of the particular intrusion that a given use of force imposes upon an
individual’s liberty interest is measured with reference to ‘the type and amount of
force inflicted.’”112
Howell maintains that the police officers first used excessive force against
Demott when he was “tormented” with “threats” in the form of the loudspeaker
announcements.113 But these were not “threats”; they were instead the warnings
that officers should give, when feasible, before employing force.114 In accordance
with this requirement, Officer Gould informed Demott over the loudspeaker that
police officers were present and that they had an arrest warrant for Demott and a
search warrant for the residence. Officer Gould also warned Demott that if he did
not cooperate, officers would use lethal or less lethal force against him, including
“Taser, 40mm/ARWEN direct impact munitions, gas, and K9 uses of force.” Officer
111 Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005).
112 Young v. Cnty. of L.A., 655 F.3d 1156, 1161 (9th Cir. 2011) (quoting Deorle, 272 F.3d at 1279).
113 Docket 36 at 13.
114 See, e.g., Deorle, 272 F.3d at 1284 (“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
. . . .”); Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010) (quoting Deorle, 272 F.3d at 1284)
(“[P]olice officers normally provide such warnings where feasible, even when the force is less than
deadly” and “failure to give such warning is a factor to consider,” especially if “there was ‘ample
time to give that order or warning and no reason whatsoever not to do so.’”).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 23 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 24 of 61
Gould made so many announcements that there “were too many to . . . assign any
specific number of times they were made.”115 	There is no constitutional violation
when the police officers issued warnings pursuant to standard police practice and
in accordance with the requirements of the Fourth Amendment.116 	Rather, these
warnings 	weigh 	in 	favor 	of 	a 	determination 	that 	the 	force 	used 	was 	not
constitutionally excessive.
Howell also points to the “chaotic bombardment of rounds” as excessive
force.117 This is in reference to the “knock-knocks,” which “involve[d] deployment
of foam projectiles against [a] structure in order to gain the attention of a
suspect.”118 	Here, the projectiles were of such force as to break windows of the
residence.119 	In addition, the officers used tear gas. 	Chemical agents such as
tear gas are identified as “intermediate force” because they are “capable of
inflicting significant pain and causing serious injury” and “present a significant
intrusion upon an individual’s liberty interests,” although they are “less severe than
deadly force.”120 	Recent research shows that tear gas and pepper spray cause
115 Docket 25-1 at 3.
116 See Glenn, 673 F.3d at 872 (When analyzing “[t]he strength of the government’s interest in the
force used . . . [o]ther relevant factors include . . . whether proper warnings were given.”).
117 Docket 36 at 13.
118 Docket 25-7 at 3, ¶ 6(b).
119 Docket 25-1 at 3–4.
120 Young, 655 F.3d at 1161 (analyzing the quantum of force deployed by pepper spray and baton
blows); see also Spain v. Procunier, 600 F.2d 189, 196 (9th Cir. 1979) (“[U]se of potentially
dangerous 	quantities 	[of 	tear 	gas] 	is 	appropriately 	reserved 	for 	. 	. 	. 	narrowly 	defined
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 24 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 25 of 61
“acute 	respiratory symptoms” and 	“can 	cause 	serious 	and 	long-lasting 	lung
problems, skin burns, eye injuries and even death.”121 The use of chemical agents
in addition to less lethal projectiles are considered significant force.122 	In cases
such as this one, there was “sufficient notice of the need for caution when using .
. . aggressive tactics to subdue a mentally unstable individual who is resisting
arrest.”123
The Ninth Circuit has held that it may be constitutionally unreasonable to
use chemical agents and projectiles against individuals “who were suspected of
only minor criminal activity, offered only passive resistance, and posed little to no
threat of harm to others.”124 When all reasonable inferences are drawn in Howell’s
[circumstances].”).
121 Anti Police-Terror Project, 477 F. Supp. 3d at 1083.
122 Id. at 1086–87 (first citing Young, 655 F.3d at 1161; then citing Deorle, 272 F.3d at 1285)
(“[C]hemical agents [and] less lethal projectiles . . . constitute significant force.”).
123 Alford v. Humboldt Cnty., 785 F. Supp. 2d 867, 882 (N.D. Cal. 2011) (concluding that there was
a genuine issue of material fact on reasonableness when an officer deployed a pyrotechnic device
into a home where a man experiencing a mental health crisis had barricaded himself).
124 Nelson v. City of Davis, 685 F.3d 867, 885 (9th Cir. 2012); see also Black Lives Matter Seattle-
King Cnty., 466 F. Supp. 3d at 1214–15 (holding that the plaintiffs established a likelihood of
success on their Fourth Amendment claim for purposes of a preliminary injunction where police
used tear gas, pepper spray, and flash bang grenades against peaceful protesters); Young, 655
F.3d at 1165 (taking the facts in the light most favorable to the plaintiff, the use of pepper spray
and a baton against an individual who disobeyed a police officer’s order to enter vehicle could
constitute a violation of the Fourth Amendment); Headwaters Forest Def. v. Cnty. of Humboldt,
276 F.3d 1125, 1131 (9th Cir. 2002) (viewing the facts in the light most favorable to the plaintiffs,
the use of pepper spray against nonviolent protestors who disobeyed an order, but otherwise
posed no threat “was plainly in excess of the force necessary under the circumstances, and no
reasonable officer could have concluded otherwise”), vacated on other grounds, 534 U.S. 801
(2001); Madriz v. King Cnty. Police Dep’t, No. 5:13-cv-05096-EJD, 2015 WL 8527517, at *1, *5–
6 (N.D. Cal. Dec. 11, 2015) (denying summary judgment because the deployment of “chemical
agents and projectile force” while executing a “high risk Narcotic search warrant” against
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 25 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 26 of 61
favor, a reasonable jury could conclude that this factor warrants a finding that this
use of force was unreasonable.
Another factor that the Court considers is “whether there were less intrusive
means of force that might have been used before officers resorted to” additional
chemical agents and less lethal rounds.125 	A police officer is not required to use
“the least intrusive means of responding to an exigent situation”; instead, the officer
“need only act within that range of conduct we identify as reasonable.”126 And yet
in determining whether the use of force was reasonable, a court may consider the
availability of less intrusive alternatives to the force employed.127 This is because
police officers are “required to consider ‘what other tactics if any were available’ to
effectuate their arrest.”128 	“[I]f there were ‘clear, reasonable and less intrusive
alternatives’ to the force employed, that ‘militate[s] against finding [the] use of force
reasonable.’”129
In this case, a reasonable jury could find that the SWAT team could have
individuals sleeping in a house could constitute excessive force).
125 Glenn, 673 F.3d at 876; Lombardo, 141 S. Ct. at 2241 (quoting Kingsley, 576 U.S. at 397)
(holding that courts should consider “any effort made by the officer to temper or to limit the amount
of force”).
126 Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).
127 See Glenn, 673 F.3d at 876.
128 Headwaters Forest Def., 240 F.3d at 1204 (alterations omitted) (quoting Chew v. Gates, 27
F.3d 1432, 1367 (9th Cir. 1994)).
129 Glenn, 673 F.3d at 876 (quoting Bryan, 630 F.3d at 828, 831).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 26 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 27 of 61
used less intrusive alternatives. 	For example, because they were aware that
Demott did not have access to a phone or Wi-Fi in his house, a reasonable jury
could find that the SWAT team could have used a throw phone to try to contact
him, particularly after their repeated announcements over the loudspeaker had
gone unheeded.130 Additionally, a reasonable jury could conclude that the SWAT
team 	could 	have 	consulted 	with 	mental 	health 	professionals, 	such 	as 	the
psychiatrists who had previously treated Demott at API or CIT-certified officers.131
Howell’s expert, Dennis Waller, identified numerous other alternatives that he
concludes could have been used.132 The Court does not suggest that the SWAT
team was required to attempt any of these less intrusive alternatives to the
chemical agents and less lethal rounds, but the availability of lesser alternatives
that were not employed suggests that a reasonable jury could find that the
deployment of force in this case did not fall within the constitutionally required
range of conduct.
The Court also considers the number of lives at risk when the SWAT team
130 Alford, 785 F. Supp. 2d at 878 (“A jury could find unreasonable [the officer’s] failure to . . .
deliver a throw phone or other communication device into the . . . residence before ordering the
use of force . . . [by deploying] a substantial number of tear gas canisters.”); see also Docket 36-
2 at 42 (“I’ve known numerous incidents where people didn’t have . . . a means of communicating,
so they put in a bag phone or something . . . . [I]t would appear to me that the APD SWAT team
was very well-equipped, and so they had robots.”).
131 See Docket 36-2 at 5 (“I mean, they were aware that he had recently been released from API,
a psychiatric institution. 	You have resources there. 	What is the best way to deal with this?”);
Docket 36-2 at 37 (“[B]ecause there’s no documentation that [a CIT trained officer] . . . was ever
consulted, and I would expect that they would or should have been.”).
132 See e.g., Docket 36-2 at 14–18.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 27 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 28 of 61
deployed force.133 This is because the Supreme Court has recognized that “[w]e
think it appropriate in this process [of determining reasonableness] to take into
account . . . the number of lives at risk . . . .”134 If a decedent “intentionally placed
himself [or herself] and the public in danger by unlawfully engaging in [reckless
conduct,]” this factor would suggest that police officers used reasonable force to
address that threat.135 	In this case, when the SWAT team deployed less lethal
rounds and tear gas while Girardin remained in the residence, the SWAT team
could reasonably have been of the view that Girardin’s life was at risk. 	But once
Girardin exited the house unharmed by Demott, there did not appear to be any
innocent members of the public who were then at risk of harm.
Additionally, the Court considers that it should have been apparent to the
SWAT team that Demott was experiencing a mental health crisis when they used
force against him.136 “The problems posed by, and thus the tactics to be employed
against, 	an 	unarmed, 	emotionally 	distraught 	individual 	who 	is 	creating 	a
disturbance or resisting arrest are ordinarily different from those involved in law
133 See Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (citing Scott v. Harris, 550 U.S. 372,
384 (2007)); Williamson v. City of National City, 23 F.4th 1146, 1153 (9th Cir. 2022) (citing Scott,
550 U.S. at 384) (“Where an arrestee’s conduct risks the lives or safety of innocent bystanders,
the court also considers her [or his] relative culpability . . . .”).
134 Scott, 550 U.S. at 384.
135 Id.
136 Deorle, 272 F.3d at 1283 (“[W]e emphasize that where it is or should be apparent to the officers
that the individual involved is emotionally disturbed, this is a factor that must be considered in
determining . . . the reasonableness of the force employed.”).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 28 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 29 of 61
enforcement efforts to subdue an armed and dangerous criminal who has recently
committed a serious offense.”137 	When possible, “the use of officers and others
trained in the art of counseling is ordinarily advisable.”138 	“This is because when
dealing with a disturbed individual, ‘increasing the use of force may . . . exacerbate
the situation,’ unlike when dealing with a criminal, where increased force is more
likely to ‘bring[] a dangerous situation to a swift end.’”139 	And “[e]ven when an
emotionally disturbed individual is ‘acting out’ and inviting officers to use deadly
force to subdue him, the governmental interest in using such force is diminished
by the fact that the officers are confronted, not with a person who has committed
a serious crime against others, but with a mentally ill individual.”140 	This is not to
say, however, that there is “a per se rule establishing two different classifications
of suspects: mentally disabled persons and serious criminals.”141 Instead, “where
it is or should be apparent to the officers that the individual involved is emotionally
disturbed, that is a factor that must be considered in determining . . . the
reasonableness of the force employed.”142
In this case, the SWAT team knew that Demott was acting “crazy” and had
137 Id. at 1282–83.
138 Id. at 1283.
139 Glenn, 673 F.3d at 877 (alterations in original) (quoting Deorle, 272 F.3d at 1283).
140 Deorle, 272 F.3d at 1283.
141 Id.
142 Id.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 29 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 30 of 61
been diagnosed with bipolar disorder and manic depression but was refusing to
take his medication. 	The SWAT team also was later informed by Girardin that
Demott 	was 	experiencing 	Vietnam 	flashbacks. 	Moreover, 	Demott 	had 	not
physically harmed anyone.143 	Despite these facts, which show that Demott’s
mental health condition diminished the government’s interest in using force against
him, Howell contends that the SWAT team did not take any action to address
Demott’s mental health in violation of the APD Crisis Intervention Training (CIT)
policy.144
APD’s CIT policy provides that it is for “internal use only and does not
enlarge an employee’s civil liability in any way.”145 	It explains further that “[a]
violation of this policy, if proven, can only form the basis of a complaint by this
department for non-judicial administrative action.”146 	Nonetheless, the Ninth
Circuit has held that “[a]lthough [police department use of force] training materials
are 	not 	dispositive, 	we 	may 	certainly 	consider 	a 	police 	department’s 	own
guidelines when evaluating whether a particular use of force is constitutionally
unreasonable.”147
143 Docket 25-1 at 15–16; Docket 36-8 at 2–3; Docket 36-12 at 8.
144 Docket 36 at 3–4; see Docket 36-3 (APD’s CIT Policy).
145 Docket 36-3 at 1.
146 Docket 36-3 at 1.
147 Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003), cert.
denied, 542 U.S. 918 (2004).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 30 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 31 of 61
The evidence in the record suggests that responding police officers and the
SWAT team did not take any action to address Demott’s mental health crisis.
Although 11 APD officers at the scene had participated in a 40-hour critical
intervention training, and members of the Crisis Negotiation Team were at the
scene as well, there is no evidence that the officers consulted their expertise to
create or implement a mental health intervention.148 	Defendants’ expert stated
that these officers’ training “[could not] be utilized until a 2-way dialogue ha[d] been
established between officers and the suspect” and they did not get to use their
crisis intervention training because “Demott refused to engage in dialogue and he
exhibited no willingness to converse with officers.”149 Childers also explained that
the SWAT team’s response on the night in question was “almost textbook of a
SWAT callout,” implying that the SWAT team made no accommodations for
Demott’s mental health.150 	Indeed, both Childers and Soto erroneously believed
that the CIT policy did not apply when an individual in crisis is suspected of
committing a crime.151
Several District Courts have found that it is unreasonable for police officers
148 Docket 25-10 at 22–23. 	However, it appears that members of the Crisis Negotiation Team
interviewed Howell, Charlie, and Girardin and forwarded what they learned to the command post.
Id.
149 Docket 25-10 at 23.
150 Docket 36-6 at 30.
151 Docket 36 at 4; Docket 25-6 at 2–3, ¶ 8; Docket 25-7 at, ¶ 9. The CIT policy does not state that
it does not apply where an individual in crisis has committed a crime. See Docket 36-3.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 31 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 32 of 61
to use force against an individual experiencing a mental health crisis without first
attempting to address that individual’s mental health. For example, in Conatser v.
City of North Las Vegas, police were informed that the decedent, named Phillip,
“was violent, suicidal, and had a history of mental illness.”152 The police were also
told he had a knife and a Taser.153 	Shortly after police officers arrived on the
scene, Phillip exited the residence and said something along the lines of “go
ahead, shoot me, shoot me.”154 	When Phillip turned to walk back into the
residence, a police officer fired a beanbag round and a Taser at him.155 Phillip fell
to the ground. 	As he was getting up, the police officer saw that he had a knife.
Although the facts were largely in dispute, the parties seemed to agree that police
officers then deployed another round of less lethal beanbags against Phillip and
also sprayed an entire can of mace in his face, even though Phillip had not then
brandished a weapon or threatened the officers. 	The parties disputed whether
several seconds later, Phillip moved toward the officers with a knife or approached
them calmly. He was then fatally shot.156
The Court found that viewing the evidence in the light most favorable to
152 No. 2:06-CV-01236-PMP-LRL, 2009 WL 10679150, at *1 (D. Nev. Nov. 9, 2009).
153 Conatser, 2009 WL 10679150, at *1.
154 Id. at *2. The commanding officer at the scene recalled Phillip using profanity in these remarks,
but the case was before the Court on summary judgment, where Plaintiff’s plausibly alleged facts
are assumed to be true. Id.
155 Id.
156 Id. at *3–4.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 32 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 33 of 61
Phillip, a reasonable jury could find that the police officers violated his Fourth
Amendment rights, explaining that:
[A] reasonable jury could find the degree of force used by officers in
the 	events 	leading 	up 	to 	Phillip 	allegedly 	charging 	the 	officers
objectively was unreasonable given that Phillip was mentally ill and
attempting to reenter the residence when officers used less lethal
beanbag rounds and the taser on him, thereby exacerbating the
situation with a mentally ill individual.157
Conatser has similarities to this case. 	Although there were CIT-trained
police officers at Demott’s residence, their expertise was not called upon to
implement a mental health intervention, just as CIT-trained officers were not called
to help Phillip. 	Instead of attempting a mental health intervention, in each case,
officers exacerbated the situation with a mentally ill individual by applying less
lethal force. 	Conatser suggests that a reasonable jury could find that it was
unreasonable 	for 	Childers 	and 	Soto 	to 	apply 	less 	lethal 	force 	without 	first
attempting a mental health intervention, particularly after Girardin had left the
residence and a reasonable jury could find that Demott did not pose an immediate
threat to anyone.
Similarly, in Funke v. Hatten, the District Court granted summary judgment
to the plaintiff, finding on undisputed facts that the officer’s conduct was objectively
unreasonable because the officer “chose to deploy ‘deadly force’ against an
157 Id. at *7.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 33 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 34 of 61
‘emotionally disturbed’ man despite having the time and opportunity to engage in
some type of mental health intervention,” such as requesting the assistance of a
crisis 	intervention 	team 	member 	or 	an 	officer 	trained 	in 	mental 	health
interventions.158
However, the Ninth Circuit reversed another District Court’s finding that a
reasonable jury could conclude that police officers’ use of lethal force was
unreasonable where the officers “ignor[ed] the CIT protocol” and made a “hasty
decision to shoot . . . before the other CIT officers had more than a minute to speak
[to the deceased.]”159 The Ninth Circuit explained that a videotape of the incident
showed “that at the time [the officer] fired the shot, [the decedent] appeared to be
holding a knife to [his mother’s] throat” and it was “reasonable for an officer to use
deadly force to stop someone who the officer reasonably believes poses a threat
of serious physical harm to others.”160
These three cases taken together show that a reasonable jury could find that
a police officer’s failure to take a person’s mental health crisis into account before
using intermediate force against that person could be unreasonable unless the
158 No. 2:19-cv-01335-RFB-EBJ, 2021 WL 2346003, at *5–6 (D. Nev. June 8, 2021) (quoting
Glenn, 673 F.3d at 872).
159 Oquendo v. Las Vegas Metro. Police Dep’t, No. 2:11-cv-00698-MMD-PAL, 2013 WL 1314886,
at *6 (D. Nev. March 28, 2013).
160 Oquendo v. Las Vegas Metro. Police Dep’t, 611 Fed.Appx. 474, 474 (9th Cir. 2015) (citing
Blanford v. Sacramento Cnty., 406 F.3d 1110, 1119 (9th Cir. 2005)).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 34 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 35 of 61
individual experiencing the mental health crisis poses an immediate threat of
serious physical harm to others. In this case, as discussed above, Demott posed
a threat to Girardin’s safety while Girardin remained in the house. 	But after
Girardin had left the house unharmed, Demott was a lone individual experiencing
a mental health crisis in his home. 	This factor accordingly suggests that after
Girardin had left the house, a reasonable jury could find that Childers and Soto
were constitutionally required to have considered a mental health intervention or
other less invasive alternatives before deploying additional less lethal force against
Demott.
d. Objective Reasonableness
Having considered all of the factors that are relevant to this case, the Court
concludes its analysis of whether the force used against Demott was objectively
reasonable by balancing “the gravity of the intrusion on the individual against the
government’s need for that intrusion.”161 	It is instructive to consider how other
courts have balanced these factors in similar cases.
Defendants rely on Bayer v. City of Simi Valley to contend that the use of
force in this case was reasonable.162 	But Bayer is an unpublished decision from
the Ninth Circuit; as such, it is not precedent. Moreover, Bayer was issued before
161 Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003).
162 43 Fed. Appx. 36 (9th Cir. 2002); see Docket 25 at 14–19.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 35 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 36 of 61
January 1, 2007, so it should not even have been cited to this Court.163 That being
said, Howell did not cite to any cases with facts similar to the case at hand.164
Accordingly, the Court has independently identified the following cases that shed
light on the objective reasonableness analysis in this case:
In Estate of Smith v. Marasco, the Third Circuit reversed in part the District
Court’s grant of summary judgment to police officers.165 	There, the police were
responding to a minor complaint and knew the decedent, Smith, had Post-
Traumatic Stress Disorder and was mentally unstable. 	The police officers tried
and failed to contact Smith, so they went to the backyard of the house to search
for him. One of the responding officers saw a red light from inside the house and
believed it might be a laser firearm that Smith was directing at a police officer.
Thereafter, the officers engaged the special emergency response team to deploy
tear gas and flash bang grenades into the decedent’s house.166 The Third Circuit
held that the police officers had probable cause to seek an arrest warrant because
the officers had an objectively reasonable belief that Smith had targeted them with
a laser-sighted firearm.167 	Even so, the Circuit held that there was sufficient
163 9th Cir. R. 36–3(a), (c). Bayer does not appear to fall within one of the enumerated exceptions
that would allow a party to cite to it. Id.
164 See Docket 36 at 12–13.
165 318 F.3d 497, 501 (3d Cir. 2003).
166 Id. at 501–04.
167 Id. at 513–15.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 36 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 37 of 61
evidence that the use of force was unreasonable to warrant the case going to a
jury and remanded the case to the District Court to decide whether the officers had
qualified immunity.168 In its decision, the Third Circuit quoted a decision from the
Tenth Circuit:
The decision to deploy a SWAT team to execute a warrant necessarily
involves the decision to make an overwhelming show of force—force
far greater than that normally 	applied in 	police encounters 	with
citizens. 	Indeed, 	it 	is 	the 	SWAT 	team’s 	extraordinary 	and
overwhelming show of force that makes ‘dynamic entry’ a viable law
enforcement 	tactic 	in 	dealing 	with 	difficult 	and 	dangerous
situations.169
The Third Circuit explained that the District Court had erred in granting
summary judgment to the police officers by “failing to take into account . . . the
severity of the threat to which officers were responding.”170 	Specifically, “[t]here
was no indication that [the decedent] had been using a gun recently or that [the
decedent] ever ha[d] used a gun in a violent manner,” and “there [wa]s no
indication in the record that [the decedent] had any history of violence of which the
officers may have been aware.”171 	Like the decedent in Smith, there was no
evidence in this case that Demott had used a gun recently, and Demott did not
have a history of using a gun in a violent manner. 	Although Howell informed the
168 Id. at 515–18.
169 Id. at 517–18 (quoting Holland v. Harrington, 268 F.3d 1179, 1190–95 (10th Cir. 2001)).
170 Id. at 516.
171 See Id. at 516–17.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 37 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 38 of 61
police in the 911 call that her father had attacked police approximately four or five
years ago, there was no indication that Demott had used a gun during that
incident.172 Moreover, unlike Smith, Demott did not appear to have pointed a gun
at the responding police officers, suggesting that Demott posed considerably less
of a threat to the officers. The Third Circuit’s decision accordingly indicates that a
reasonable 	jury 	could 	conclude 	that 	the 	use 	of 	force 	against 	Demott 	was
unreasonable.
In Alford v. Humboldt County, police officers performed a welfare check
because 	a 	man 	named 	Peter 	Stewart 	had 	entered 	a 	family 	friend’s 	home
unannounced “in an agitated state, wearing a wetsuit top and long coat on a warm
summer day” and “speaking delusionally” by communicating with people who did
not exist and talking about harming others.173 	Thereafter, all of the residents of
the house left the home safely.174 	When the officers arrived, Stewart pulled out
two butter knives and screamed “Welcome to the Dragon, motherf * * * ers” before
running into the house. Stewart then repeatedly “dry-fired” a .22 rifle at the officers.
The owner of the home was outside with the police and informed them that he had
several other guns locked in a safe, but the ammunition for the .22 rifle was not in
the safe. 	No negotiations took place between the officers and Stewart. 	Many
172 Docket 25-2 at 1:18–1:38; Docket 36-8 at 2.
173 785 F. Supp. 2d at 870.
174 Id. at 870–71.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 38 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 39 of 61
hours after arriving on the scene, the officers started deploying CS gas into the
home.175 	When Stewart failed to exit the home in response to the tear gas, the
police began deploying grenades that “produced more tear gas and smoke.”176
There was evidence that the officer who deployed the grenades may have known
it was a pyrotechnic device, deployed in contravention of existing orders and
policy. About ten minutes after the final grenade was deployed, a fire ignited in the
house, which eventually killed Stewart.177
The District Court first addressed whether a reasonable jury could find that
the defendant police officer who served as the incident commander violated the
Constitution by failing to deliver a throw phone or other means of communication
before launching tear gas into the residence. The District Court observed that the
officers had approached to within two to three feet of the residence to launch the
chemical grenades into the windows and determined that “[a] jury could find
unreasonable [the commander’s] failure to take similar steps to deliver a throw
phone or other communication device into the . . . residence before ordering the
use of force.”178
175 Id. at 871–72.
176 Id. at 873.
177 Id.
178 Id. at 878. But on this topic the court granted qualified immunity to the commander defendant
because it found that “no pre-existing authority established that it was unreasonable for law
enforcement officers to fail to deploy a throw phone as part of their efforts to negotiate a peaceful
end to a standoff.” Id. at 882.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 39 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 40 of 61
The District Court then addressed the use of the pyrotechnic grenades. On
this 	issue, 	the 	District 	Court 	held 	that 	there 	was 	sufficient 	evidence 	for 	a
reasonable jury to find that the defendant who had deployed the pyrotechnic
grenades into the house had violated the Constitution.179
The instant case is similar to Alford. In both cases, the responding officers
were aware that a person was undergoing a mental health crisis. And in the hours
leading up to the alleged use of excessive force, both Stewart and Demott acted
erratically and threatened violence against others. In this case, Demott was ripping
down curtains and went towards Howell in a manner that caused Howell to fear
that Demott would hurt her.180 Stewart arguably presented more of a threat before
barricading himself in his family friend’s house because Stewart had dry-fired a .22
rifle at the officers several times. Nonetheless, the court in Alford determined that
when the officer decided to deploy a pyrotechnic device against an unstable
individual who was resisting arrest, a reasonable jury could find a constitutional
violation because Stewart no longer posed an immediate threat to anyone’s
safety.181
The key difference between the two cases is that in this case, when the
SWAT team deployed the knock-knocks and the first round of tear gas, Girardin
179 Id. at 882.
180 Docket 25-1 at 15–16.
181 785 F. Supp. 2d at 882.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 40 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 41 of 61
was still in the house.182 	As with the ammunition in Alford, each passing hour
increased the likelihood that Demott would gain access to the safe with guns
inside;183 but in this case, if Demott had accessed the guns, he could have then
posed an immediate threat to Girardin’s safety. The SWAT team had not had any
communication with Demott or Girardin over the course of many hours, so they
may have believed they were addressing a potential hostage situation. 	And yet
Demott was seen alone and unarmed at a window at approximately 11:00 p.m.—
shortly before the first round of tear gas was deployed.184
When Girardin left the house at approximately 11:45 p.m., the need to use
intermediate force against Demott substantially decreased.185 	Girardin had not
been harmed by Demott. And Girardin had informed the SWAT team that Demott
did not have any weapons other than a BB gun.186 Girardin had also told the SWAT
team that Demott was having a “Vietnam flashback” and encouraging Girardin to
get in the crawl space, which Demott referred to as a “bunker,” but Girardin
declined to do so because it was too cold in the crawl space.187 The Ninth Circuit
has repeatedly warned that police officers should be wary of the use of force
182 Docket 25-1 at 27–28.
183 785 F. Supp. 2d at 877.
184 Docket 25-1 at 27.
185 Docket 25-1 at 28.
186 Docket 25-1 at 21.
187 Docket 4 at 8, ¶ 34.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 41 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 42 of 61
against someone who is experiencing a mental health crisis and who does not
pose an immediate threat to others.188
Viewing the facts in the light most favorable to Howell, a reasonable jury
could find that Demott did not pose any immediate threat to others after Girardin
left the residence. But instead of attempting to address Demott’s mental health at
that time,189 the SWAT team continued to deploy tear gas into the residence,
including into the crawl space.190 	This is a significant use of force; courts have
recognized that “while it has been claimed that tear gas . . . produce[s] only
temporary irritation and discomfort, recent studies document that [tear gas] can
cause serious and long-lasting lung problems, skin burns, eye injuries and even
death.”191 And Howell’s expert testified that the specific danger posed by the tear
gas was to escalate the situation. 	He explained: “why would you [deploy gas] to
aggravate the situation more, I mean, to the point where this guy actually puts
himself in a position where he can’t survive, he dies.”192
The Court concludes that there is sufficient evidence such that a reasonable
jury could find that, particularly after Girardin had safely left the residence, the
188 See e.g., Deorle, 272 F.3d at 1283; Glenn, 673 F.3d at 877.
189 For example, the SWAT team could have tried to use a throw phone to put Demott in contact
with the Crisis Negotiation Team. See, e.g., Alford, 785 F. Supp. 2d at 878.
190 Docket 25-1 at 30.
191 Anti Police-Terror Project, 477 F. Supp. 3d at 1083 (citations and alterations omitted).
192 Docket 36-2 at 54–55.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 42 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 43 of 61
officers’ continued use of tear gas against Demott violated his Fourth Amendment
rights.
d. Clearly Established Law
The Court now turns to the question of whether the law was clearly
established at the time of the alleged constitutional violation such that a reasonable
officer then would have known that the use of tear gas against Demott, particularly
after Girardin had left the residence, could constitute a violation of Demott’s
constitutional right to be free from the use of excessive force. 	The Supreme Court
has held that “[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.”193 While there
need not be “a case directly on point, [] existing precedent must have placed the
statutory or constitutional question beyond debate.”194
Howell maintains that the law is clearly established by referencing the 1980s
Memphis Model, the 2014 IACP Model Policy for Persons Affected by Mental
Illness or in Crisis Model, and the Police Executive Research Forum, all of which
together, according to Howell, create national standards for police conduct.195
However, to determine whether the law is clearly established for purposes of
qualified immunity, a court looks to judicial decisions issued prior to the date of the
193 Anderson v. Creighton, 483 U.S. 635, 640 (1987).
194 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citing Creighton, 483 U.S. at 640).
195 Docket 36 at 13–15.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 43 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 44 of 61
alleged violation.196 A court in this circuit looks first to binding precedent issued by
the Supreme Court and the Ninth Circuit.197 “‘In the absence of binding precedent,
a court should look to whatever decisional law is available to ascertain whether the
law is clearly established’ for qualified immunity purposes, ‘including decisions of
state courts, other circuits, and district courts.’”198 	Notably, the Ninth Circuit has
not identified models for police conduct as a source of authority on clearly
established law. 	The Court therefore looks only to judicial decisions issued prior
to November 5, 2018, the date of this incident.
A review of the decisional law at that time indicates that it was clearly
established then that “where no immediate threat to the safety of others exists, law
enforcement officers are required to consider less intrusive tactics” before using
“aggressive tactics to subdue a mentally unstable individual who is resisting
arrest.”199
In Estate of Escobedo, for example, the Seventh Circuit held that taking the
facts in the light most favorable to the estate, officers were on notice that their use
of an excessive amount of tear gas and flash bang grenades against an individual
196 See Ballentine v. Tucker, 28 F.4th 54, 64 (9th Cir. 2022).
197 Boyd, 374 F.3d at 781 (citations omitted) (“In the Ninth Circuit, we begin our inquiry by looking
to binding precedent . . . . If the right is clearly established by decisional authority of the Supreme
Court or this Circuit, our inquiry should come to an end.”).
198 Drummond, 343 F.3d at 1060 (alterations omitted) (quoting Malik v. Brown, 71 F.3d 724, 727
(9th Cir. 1995)).
199 Alford, 785 F. Supp. 2d at 882.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 44 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 45 of 61
experiencing a mental health crisis could be unconstitutional.200 	To reach this
conclusion, the Seventh Circuit relied on cases from several circuits holding that
“the use of [tear gas against prisoners] should be strictly limited to circumstances
presenting the utmost degree of danger and loss of control” and emphasized that
the use of tear gas against a prisoner is not appropriate when that person does
“not constitute an actual threat.”201 	Applying that reasoning to non-prisoners, the
Seventh Circuit explained that “[b]ased on controlling precedent from this Circuit
and the clear trend in the law from our sister circuits, the clearly established law as
of July 19, 2005, established that the use of tear gas is unreasonable” when
numerous factors are present, several of which are relevant to this case, including
(1) “attempting to subdue individuals as opposed to mass crowds”; (2) “when the
individual does not pose an actual threat”; (3) “when the individual is not holding
hostages” and (4) “when the individual is incapacitated in some form.”202
The Seventh Circuit further relied on Estate of Smith, discussed supra,203 to
show that the law was clearly established in 2010 that the use of tear gas by law
enforcement officers is subject to constitutional limits.204 The Court explained that
200 600 F.3d at 783–86.
201 See Id. at 781–82 (emphasis in original); but see Estate of Escobedo v. Bender, 702 F.3d 388,
404–05 (7th Cir. 2012) (Escobedo II) (upholding the grant of qualified immunity as to officers after
a jury trial where the jury found as a matter of fact that the decedent posed a threat to officers).
202 Id. at 783.
203 See discussion supra pp. 36–38.
204 600 F.3d at 782 (citing Estate of Smith, 318 F.3d 497 (3d Cir. 2003)).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 45 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 46 of 61
“[t]he similarity of the facts [i]n the [Smith] case and of Escobedo’s situation placed
the Officers on notice that their entry was possibly unconstitutional.”205 The same
is true in this case. The similarity of the facts in Smith and Escobedo is such that
the police officers at Demott’s residence were on notice that their use of tear gas
against 	Demott, 	particularly 	after 	Girardin 	had 	left 	the 	house, 	could 	be
unconstitutional.
However, “when there are disputed factual issues that are necessary to a
qualified immunity decision, these issues must first be determined by the jury
before the court can rule on qualified immunity.”206 	Here, a jury must determine
whether Demott posed an actual and immediate threat to the officers, particularly
after Girardin had left the residence.207
e. The Failure to Train Claim
Howell contends that the Municipality is subject to liability for the officers’
excessive force based on a failure to train its officers.208 A local governing body is
not liable under § 1983 “unless action pursuant to official municipal policy of some
205 Id. at 783 (citations omitted).
206 Morales v. Fry, 873 F.3d 817, 824 (9th Cir. 2017) (alteration omitted) (quoting Ninth Circuit
Model Civil Jury Instruction 9.34 (2017)).
207 See, e.g., Escobedo II, 702 F.3d at 404–05 (upholding the grant of qualified immunity as to
officers after a jury trial where the jury found as a matter of fact that the decedent posed a threat
to officers).
208 Docket 36 at 15–17.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 46 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 47 of 61
nature caused a constitutional tort.”209 	The municipal policy or practice must be
“the moving force of the constitutional violation.”210
To allege a claim on the basis of failure to train, Howell must show that (1)
Demott was “deprived of a constitutional right”; (2) the Municipality’s training policy
“‘amounts to deliberate indifference to the constitutional rights of the persons[]’
[experiencing a mental health crisis] with whom its police officers are likely to come
into contact”; and (3) the “constitutional injury would have been avoided had the
[Municipality] 	properly 	trained 	those 	officers.”211 	The 	Supreme 	Court 	has
explained that “[a] municipality’s culpability for a deprivation of rights is at its most
tenuous where 	a claim 	turns on 	a 	failure 	to train.”212 	This 	is because 	“a
municipality’s failure to train its employees in a relevant respect must amount to
‘deliberate indifference to the rights of persons with whom the untrained employees
came 	into 	contact.’”213 	Moreover, 	the 	policymakers 	must 	be 	“on 	actual 	or
constructive notice that a particular omission in their training program causes city
employees to violate citizens’ constitutional rights.”214
209 Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978).
210 Id. at 694.
211 Blakenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (alterations omitted) (quoting
Lee v. City of Los Angles, 250 F.3d 668, 681 (9th Cir. 2001)).
212 Connick v. Thompson, 563 U.S. 51, 61 (9th Cir. 2011) (citing Oklahoma City v. Tuttle, 471 U.S.
808, 822-23 (1985)).
213 Id. (alteration omitted) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
214 Id. (citing Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 47 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 48 of 61
Howell contends that the “Municipality’s 2009 Crisis Intervention Team (CIT)
policy still in effect in 2018 reflects deliberate indifference to the rights of mentally
ill people in crisis when compared to the 2014 [IACP] Model Policy for Responding
to Persons Affected by Mental Illness or in Crisis which is the national standard of
care.”215 	However, Howell does not explain how these two policies are different
and why this difference renders APD’s policy constitutionally inadequate. 	As
several District Courts have recognized, the fact that the IACP Model Policy “may
be 	an 	appropriate 	or 	even 	ideal 	model 	for 	dealing 	with 	mentally 	unstable
individuals does not mandate that all other training, policies, and procedures are
inadequate.”216
Howell also alleges that the Municipality’s failure to train is evidenced by the
fact that several of its employees failed to follow the CIT policy in response to
Howell’s 911 call.217 For example, the 911 call taker and dispatcher did not send
someone who was CIT certified to perform the initial response to the scene.218
215 Docket 36 at 16 (internal citations omitted).
216 Spears v. Gautreaux, No. 17-105-JWD-EWD, 2020 WL 3271993, at *24 (M.D. La. June 17,
2020) (granting summary judgment to sheriff defendant on a § 1983 failure to train claim that
alleged that the sheriff’s training policies failed to comply with the Memphis Model); see also
Estate of Jaquez ex rel. Public Adm’r of Bronx Cnty. v. City of New York, No. 10 Civ. 2881(KBF),
2014 WL 2696567, at *6 n.6 (S.D.N.Y. June 9, 2014) (“The Court also notes that plaintiffs do not
point to any cases in which failure to adopt a particular type of training has been found actionable
. . . the question is not whether more effective models exist, but whether the City’s current training
was so insufficient—and the City was on notice that it was so insufficient—that the City’s failure
to use a different training model amounted to a constitutional violation.”).
217 Docket 36 at 16.
218 Note that the 911 call taker and dispatcher were not named in the Complaint. See Docket 4.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 48 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 49 of 61
Additionally, Howell alleges inadequate training is demonstrated by Childers and
Soto’s failure to employ de-escalation techniques, as each officer erroneously
believed that the CIT Policy was not applicable because Demott was subject to
arrest.219
The Supreme Court has explained, however, that “[a] pattern of similar
constitutional 	violations 	by 	untrained 	employees 	is 	‘ordinarily 	necessary’ 	to
demonstrate 	deliberate 	indifference 	for 	purposes 	of 	failure 	to 	train.”220 	As
Defendants point out, Howell has not demonstrated that there is a pattern of
constitutional violations because Howell has not identified any other occasion
when police officers at APD have violated the CIT policy in a manner that would
have put the Municipality on notice that its training was inadequate.221 And “absent
evidence of a ‘program-wide inadequacy in training,’ any shortfall in a single
officer’s [or two officers’] training ‘can only be classified as negligence on the part
of the municipal defendant—a much lower standard of fault than deliberate
indifference.’”222 	Although the Ninth Circuit has identified a few exceptional
situations in which an isolated constitutional violation would be sufficient, Howell
219 Docket 36 at 16.
220 Connick, 563 U.S. at 62 (quoting Bd. of Comm’rs of Bryan Cnty., 520 U.S. at 410).
221 Docket 25 at 20.
222 Blakenhorn, 485 F.3d at 485 (quoting Alexander v. City of San Francisco, 29 F.3d 1355, 1367
(9th Cir. 1994)).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 49 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 50 of 61
has not alleged any facts to show that these exceptions are relevant in this case.223
For the foregoing reasons, the Municipality is entitled to summary judgment
on the § 1983 failure to train claim. 	Additionally, “a municipality cannot be held
liable under § 1983 on a respondeat superior theory.”224 	Therefore, the Court
grants summary judgment to the Municipality on this basis as well.
II. 	Alaska Constitutional Claim
Howell’s complaint alleges that Soto and Childers are liable for violating the
right of Demott to be free from unreasonable seizure guaranteed by Article I,
Section 14 of the Alaska Constitution.225 	Defendants contend that they are entitled
to qualified immunity as to this state constitutional claim because they are so
entitled under federal law and “Alaska usually follows federal case law with respect
to qualified immunity.”226
However, 	Howell’s 	complaint 	alleges 	a 	state 	constitutional 	claim 	for
damages.227 	The Alaska Supreme Court has held that it “will not imply a private
223 Christie v. Iopa, 176 F.3d 1231, 1235, 1238, 1240 (9th Cir. 1999) (identifying three situations
in which isolated violations may be sufficient to establish a municipal “policy:” (1) the person
causing the violation has final policymaking authority; (2) the final policymaker ratified a
subordinate’s actions; (3) a municipal actor disregarded a known or obvious consequence of his
or her action demonstrating deliberate indifference).
224 Monell, 436 U.S. at 691; see also Connick, 563 U.S. at 60 (citing Pembaur v. Cincinnati, 475
U.S. 469, 479 (1986)).
225 Docket 4 at 12, ¶ 68.
226 Docket 25 at 13.
227 Howell makes one request for injunctive relief, but this request is related to the Monell claim
under § 1983. 	Docket 4 at 14–15, ¶ 82 (“The plaintiff requests injunctive relief compelling the
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 50 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 51 of 61
cause of action for damages under the Alaska Constitution ‘except in cases of
flagrant 	constitutional 	violations 	where 	little 	or 	no 	alternative 	remedies 	are
available.’”228 	Howell has not alleged that the facts of this case constitute a
flagrant 	constitutional 	violation. 	Moreover, 	there 	are 	alternative 	remedies
available, including Howell’s claim for damages under § 1983 and Howell’s
negligence claim. The Court accordingly grants summary judgment to Defendants
on Howell’s state constitutional claim.
III. 	Negligence
Howell’s complaint alleges that Soto and Childers are liable for negligence
and that the Municipality is liable for the negligence of its employees under theories
of vicarious liability and respondeat superior.229 	The Court focuses on Soto and
Childers’ alleged negligence, although Howell’s opposition to the motion for
summary 	judgment 	appears 	to 	focus 	exclusively 	on 	the 	Municipality’s
negligence.230 	“To make out a prima facie case of negligence,” Howell must
“present evidence on each of the following elements: duty, breach of that duty,
defendants to implement improved training and/or policies and/or procedures regarding crisis
situations with people suffering from mental illness, including but not limited to enlisting friends,
family, and/or medical providers and alternatives to unreasonable escalation of force.”).
228 Larson v. State, Dep’t of Corr., 284 P. 3d 1, 10 (Alaska 2012) (quoting Hertz v. Beach, 211 P.
3d 688, 677 n.12 (Alaska 2009)).
229 Docket 4 at 11, ¶ 55, 62.
230 Docket 36 at 17–19.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 51 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 52 of 61
proximate cause and damages.”231
Beginning with the first element, Howell seems to allege that Soto and
Childers were subject to several different duties of care. In the complaint, Howell
alleges that “defendants owed a duty to exercise reasonable care toward Dan
Demott.”232 	And in the opposition to the motion for summary judgment, Howell
relies on the Restatement (Second) of Torts §§ 321-323 to contend that the
defendants had a duty to “use reasonable care” to “prevent [a] risk from taking
effect” 	and 	to 	“prevent 	further 	harm.”233 	Howell 	also 	contends 	that 	“[t]he
Municipality’s employees assumed a duty to act without negligence when they
responded to the call for assistance and when they later created the risk of harm
to Dan Demott through unreasonable escalation of force on a mentally ill person
in crisis.”234
Howell 	also 	alleges 	in 	the 	complaint 	that 	“defendants 	failed 	to 	use
reasonable 	de-escalation 	techniques,” 	“unreasonably 	escalated 	force,” 	and
“unreasonably disregarded known risks,” suggesting that Soto and Childers were
subject to a duty to de-escalate.235 To the extent that Howell may have alleged in
231 Lindsey v. E&E Auto. & Tire Serv., Inc., 241 P.3d 880, 885 (Alaska 2010) (quoting Wickwire v.
Arctic Circle Air Servs., 722 P.2d 930, 932 (Alaska 1986)).
232 Docket 4 at 11, ¶ 57.
233 Docket 36 at 17.
234 Docket 36 at 18.
235 Docket 4 at 11, ¶¶ 59–61.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 52 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 53 of 61
the complaint that Defendants violated a duty to de-escalate, Howell did not
develop this argument in the opposition to the motion for summary judgment, so
the issue is not before the Court.236
In response, Defendants point to several statutory provisions that they
contend establish the required standard of care in this case. Indeed, under Alaska
law, “where the legislature has considered and resolved conflicting policies by
clearly enunciating a duty in a statute, the relevant statute should be considered
and, in a proper case, adopted as the appropriate standard of care.”237 Defendants
contend that Alaska Statute § 18.65.530(a) provides the appropriate standard of
care, which provides that “[a] peace officer, with or without a warrant, shall arrest
a person if the officer has probable cause to believe the person has, either in or
outside the presence of the officer, within the previous 12 hours . . . committed
domestic violence.” 	Defendants accordingly contend that they had a duty to
effectuate a mandatory arrest.238 	However, the Alaska Supreme Court has held
that this statute does not create any actionable duty to arrest because “it expressly
236 See, e.g., Copart, Inc. v. Sparta Consulting, Inc., 339 F. Supp. 3d 959, 974 (E.D. Cal. 2018)
(“At summary judgment, a party can waive an argument . . . by failing to brief an issue.”); see also
Witte v. Wisconsin Dept. of Corrections, 434 F.3d 1031, 1038 (7th Cir. 2006) (“By failing to raise
[the argument] in his brief opposing summary judgment, he lost the opportunity to urge it in both
the district court and this court.”), rev’d on other grounds, Hill v. Tangherlini, 742 F.3d 965, 967
n.1 (7th Cir. 2013).
237 Busby v. Mun. of Anchorage, 741 P.2d 230, 233 (Alaska 1987) (citations omitted).
238 Docket 25–26.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 53 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 54 of 61
does not permit civil actions for the police’s failure to arrest.”239
Rather, the Court finds that the appropriate standard of care has been
recognized by the Alaska Supreme Court as set forth in two other state statutes:
Alaska Statutes § 12.25.070 and § 11.81.370(a).240 	Together, these statutes
provide that a police officer “may not subject a person arrested to greater restraint
than is necessary and proper for the arrest and detention of the person” and allow
an officer to “use nondeadly force and [] threaten to use deadly force when and to
the extent the officer believes it necessary to make an arrest.”
The Court next considers breach. 	If a jury were to find the use of force
excessive in violation of the federal Constitution, then the use of force would also
violate Alaska Statute § 12.25.070 because the restraint used was greater than
necessary to effectuate an arrest; likewise, the use of constitutionally excessive
force would violate Alaska Statute § 11.81.370(a) because the officers could not
have “reasonably believe[d]” that the force used was “necessary to make an
arrest.”241
With respect to causation, Alaska follows the “substantial factor test,”
requiring “the plaintiff to show that the accident would not have happened ‘but for’
239 Dore v. City of Fairbanks, 31 P.3d 788, 792–93 (Alaska 2001) (citing Alaska Stat. §
18.65.530(a) & (f)).
240 See, e.g., Maness v. Daily, 307 P.3d 894, 900-01 n.11 (Alaska 2013); Russell v. Virg-In, 258
P. 3d 795, 802 (Alaska 2011).
241 Alaska Stat. § 11.81.370(a).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 54 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 55 of 61
the defendant’s negligence and that the negligent act was so important in bringing
about the injury that reasonable individuals would regard it as a cause and attach
responsibility to it.”242 	The question of proximate cause is usually a question of
fact for the jury; it “becomes a matter of law only where reasonable minds cannot
differ.”243
In this case, Defendants contend that “[n]o evidence at all shows that
Demott’s death was a result of actions taken by the police.”244 	Howell responds
that 	Demott 	died 	from 	exposure 	and 	that 	police 	officers 	made 	the 	house
unreasonably cold by blowing out the windows on an evening in November when
temperatures were below freezing.245 However, it is not entirely clear what impact
the blown-out window by the main entrance and any other holes in the house that
were caused by the deployment of force had on the temperature inside the
house.246 	For example, Childers testified that the residence was likely “much
warmer” than outside because the structure “automatically blocks any kind of wind”
and the “insulation, residual heat and the fact that heating systems . . . continued
242 Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007) (citing Vincent by Staton v. Fairbanks
Mem’l Hosp., 862 P.2d 847, 851 (Alaska 1993)).
243 Id. at 148 (citing P.G. v. State, 4 P.3d 326, 334 (Alaska 2000)).
244 Docket 25 at 27.
245 Docket 36 at 18; see also Docket 4 at 6, ¶ 18 (“The weather was below freezing.”).
246 Docket 25-1 at 3–4 (Childers reported that the window by the main entrance was blown open).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 55 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 56 of 61
to stay on” helped maintain the interior temperature of the house.247 Whether the
SWAT 	team made the house unreasonably 	cold 	by 	blowing holes 	into the
residence remains a question of fact for the jury.
That being said, Girardin informed the SWAT team at approximately 11:30
p.m. that he believed that Demott was in the crawl space and that Girardin had
refused to go in the crawl space with Demott because it was “too cold.”248 Indeed,
the autopsy report stated that the temperature in the crawl space that night was 15
degrees Fahrenheit.249 	Drawing all reasonable inferences in the light most
favorable to Howell, a reasonable jury could find that the SWAT team’s use of the
tear gas, particularly after Girardin had left the residence, was a substantial factor
in causing Demott to enter and remain in the crawl space where he died. In sum,
the Court finds that on causation, this is not a case where “reasonable minds
cannot differ,” so it is instead a question for the jury.250
Turning to damages, Defendants’ contention that “there simply are [no
damages]” is disingenuous because a man lost his life.251 Alaska law provides in
relevant part that a decedent’s children may recover damages “when the death of
247 Docket 36-6 at 25–26.
248 Docket 4 at 8, ¶ 34; Docket 25-1 at 28.
249 Docket 25-1 at 8.
250 See Winschel, 171 P.3d at 142 (citing P.G., 4 P.3d at 334).
251 Docket 25 at 27.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 56 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 57 of 61
a person is caused by the wrongful act or omission of another.”252 	In this case,
both of Demott’s adult children, Howell and Charlie, are seeking damages.253
In 2012, this Court held that adult children of a decedent are statutory
beneficiaries only when they are dependent on the decedent.254 	Since then,
several Alaska Superior Court decisions have concluded otherwise.255 The Court
need not revisit the issue at this time, because even if dependence is required for
an adult child to recover damages under Alaska’s wrongful death statute, Howell
and Charlie have adequately alleged such dependence.256 The Alaska Supreme
Court has held that “[d]ependency is a question of fact” and it “is appropriate for
summary judgment only if there is no genuine factual dispute over the extent of
[Howell’s and Charlie’s] reliance on [Demott].”257 	Here, Howell and Charlie have
alleged that they lived with their father and relied on him to pay several of their
252 Alaska Stat. § 09.55.580(a).
253 Docket 36 at 19–20.
254 Millo v. Delius, 872 F. Supp. 2d 867, 878–79 (D. Alaska 2012).
255 Docket 36-13 (citing Jensen-Toft v. Schmidt, Case No. 3AN-07-09206CI, at *8 (Alaska Super.
Ct. April 14, 2011) (“The wrongful death statute . . . prefers surviving spouses and children over
the estate. That selection suggests that the legislature did not intend to favor the estate once a
surviving child reached adulthood or was no longer dependent upon the decedent.”), cert. denied
sub nom. State v. Jensen-Toft, Case No. S-14282 (Alaska June 3, 2011); Docket 36-14 (citing
Gray v. Jones, Case No. 3AN-09-05573CI, at *1 (Alaska Super. Ct. July 7, 2010) (deciding that
adult children had a viable legal claim for damages under Alaska Stat. 09.55.580 as a result of
the death of their mother).
256 Docket 25-8 at 4–5.
257 Millo, 872 F. Supp. 2d at 879 (quoting Greer Tank & Welding, Inc. v. Boettger, 609 P.2d 548,
551 (Alaska 1980)).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 57 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 58 of 61
living expenses at the time of his death.258 They have sufficiently demonstrated
dependence, if indeed such a showing is required by adult children, to seek
damages pursuant to the Alaska wrongful death statute.259
Defendants also contend that Howell cannot recover pain and suffering
damages 	pursuant 	to 	Alaska 	Statute 	§ 	9.55.570 	because 	Howell 	has 	not
introduced any evidence to show that Demott experienced pain and suffering prior
to his death.260 There can be little doubt that death from hypothermia or drowning
causes pain and suffering, so the amount of damages recoverable pursuant to this
statute is properly reserved for the jury.261
The Court next considers whether the Municipality would be vicariously
liable for the officers’ negligence. 	Under Alaska law, an employer is vicariously
liable for the negligent conduct of its employees if that conduct occurred when the
employee was acting within the scope of employment.262 	And courts applying
Alaska law have repeatedly held that police officers are acting within the scope of
258 Docket 36 at 10–11, 19.
259 North Slope Borough v. Brower, 215 P.3d 308, 310, 314 (Alaska 2009) (upholding jury
damages award to surviving mother of adult son as “other dependent” under the statute because
of her dependence on son’s subsistence and non-market support).
260 Docket 25 at 32.
261 Cf. N. Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1190–91 (Alaska 1977) (holding that the
superior court properly instructed the jury to consider the question of the pain and suffering that
a decedent suffered before their death).
262 Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 346 (Alaska 1990).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 58 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 59 of 61
their employment when they are making an arrest.263 	Accordingly, if a jury finds
that Soto and Childers were negligent, the Municipality would be vicariously liable
for the damages caused by that negligence.
For the first time in the opposition to the motion for summary judgment,
Howell appears to assert two new theories of negligence. 	First, Howell contends
that although she informed the 911 call taker about her father’s mental health
diagnoses and requested help getting her father to API, the 911 call taker failed to
include the code “CTX” in the call log in accordance with the requirements of APD
CIT policy.264 Second, Howell’s opposition asserts that even though the CIT policy
provides that “[a] CIT officer will be dispatched to handle these calls whenever
possible,” Officer Perez, who sought the arrest warrant for Demott, was not CIT
certified, although he did complete 40 hours of CIT training.265 	Howell contends
further that Perez failed to consider Demott’s mental health or seek a mental health
263 See, e.g., Prentzel v. State, Dep’t of Pub. Safety, 169 P.3d 573, 584 (Alaska 2007) (“[M]aking
arrests . . . is conduct that falls within the troopers’ usual authority.”); Nolte v. Mun. of Anchorage,
No. 3:07-cv-002110TMB, 2010 WL 11519451, at *8 (D. Alaska Sept. 24, 2010) (finding that a
municipality could be vicariously liable for the negligent conduct of its police officer and that its
police officer was acting within the scope of his employment when he made a warrantless arrest);
Mulligan v. Mun. of Anchorage, No. S-17635, 2021 WL 4191118, at *3 (Alaska Sept. 15, 2021)
(“[Plaintiff] may pursue her claim for damages from the Municipality for the excessive force of its
officers so long as the force was used within the scope of their employment, which the facts
alleged appear to suggest.”).
264 Docket 36 at 3–4; Docket 36-8 (911 call); Docket 36-4 (call log). Compare to APD’s CIT Policy
at Docket 36-3 at 3 (“[I]f there is an element of mental illness involved with the call . . . the call
taker should indicate those circumstances in the details of the call, both in the narrative form and
by adding the three letter code ‘CTX’ in the text of the call.”).
265 Docket 36-3 at 3; Docket 36-5 at 1–2.
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 59 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 60 of 61
consultation when making the decision to seek an arrest warrant in violation of the
requirement that “[o]fficers, whether CIT-trained or not . . . [give consideration to]
the need to possibly provide mental health services for the individual.”266
Neither of these arguments were pleaded in the complaint and are not
properly before the Court. Indeed, the complaint does not name either the 911 call
taker or Perez as a defendant. Moreover, neither of the named Defendants in this
case, Childers and Soto, was involved in the initial response to the 911 call or the
decision to seek an arrest warrant.267 Childers and Soto did not arrive on the scene
until 8:20 p.m.—nearly two hours after the 911 call and over an hour after Perez
arrived on scene.268 The Court will not consider these arguments.
CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendants Municipality of
Anchorage, Luis Soto, and Steven E. Childers’ Motion for Summary Judgment at
Docket 25 is GRANTED IN PART and DENIED IN PART as follows:
266 Docket 36 at 3–4, 8; Docket 36-3 at 4.
267 See Docket 25-1 at 13–16 (Perez’s Police Report describes the process by which he sought
an arrest warrant and does not mention Soto or Childers.).
268 Docket 25-1 at 22, 25 (Call log reports that the 911 call was at 18:34, Perez arrived on scene
at 19:13, SWAT was dispatched at 20:17, and both Childers and Soto arrived on the scene at
20:20). In addition, Howell’s argument that the 911 call taker acted negligently by failing to include
the CTX code suffers from a fatal causation issue: 	The responding officers were aware of
Demott’s mental health condition even though the 911 call taker did not include the CTX code in
the call log. 	See, e.g., Docket 36-2 at 1 (“[T]he APD personnel were aware from the very
beginning that they were dealing with a mentally ill person in crisis.”).
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 60 of 61

Case No. 3:20-cv-00301-SLG, Howell v. Municipality of Anchorage, et al.
Order re Motion for Summary Judgment
Page 61 of 61
• 	Summary judgment is GRANTED to Defendants with respect to Plaintiff’s §
1983 claim that the Municipality of Anchorage is liable for its failure to train
and failure to supervise its police officers.
• 	Summary judgment is GRANTED to Defendants with respect to Plaintiff’s
claim that the Municipality of Anchorage is liable for its employees’
violation of the Fourth Amendment of the United States Constitution
because there is no vicarious liability under § 1983.
• 	Summary judgment is GRANTED to Defendants with respect to Plaintiff’s
claim brought pursuant to the Alaska Constitution.
• 	Summary judgment is DENIED with respect to all remaining claims,
including the claim against the individual Defendants alleging a violation of
the Fourth Amendment of the United States Constitution and Plaintiff’s
common law negligence claim with respect to all Defendants.
DATED this 16th day of December, 2022 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:20-cv-00301-SLG Document 46 Filed 12/16/22 Page 61 of 61