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Alaska Supreme Court reverses lower court decision in stun gun case, sends matter back

Posted: July 23, 2011 - 11:42pm

JUNEAU — The Alaska Supreme Court on Friday reversed a judge’s finding that a Kotzebue police officer who used a stun gun on an 11-year-old should get immunity in the case brought by her mother.

The justices determined that a lower court had erred both in granting Lee Virg-In qualified immunity and dismissing Sandra Russell’s claims that the city had improperly and negligently trained or supervised Virg-In. The matter was sent back to a trial court.

Russell’s attorney welcomed the news, and an attorney for the city, Joe Evans, said he is prepared for trial. Evans said Virg-In is no longer employed by the city and is working as a teacher in North Pole.

The case dates to 2003, when, according to court papers, a then-11-year-old girl, identified as J.N., ran stop signs with an ATV, drove recklessly and ignored warnings — the use of overhead lights and a police car siren — to stop. At one point, the ATV stalled and the girl and her young passenger began running from Virg-In. J.N. ignored calls to stop but said she stopped “right away” when she ran into a group of teenagers on the street.

It was then, according to court papers, that she said she turned and saw the officer and he pulled out and twice used a stun gun on her. Virg-In described J.N. in an incident report as standing five feet tall, weighing 100 pounds and having a slender build.

She was arrested and later adjudicated for a misdemeanor of “failure to stop at the direction of a peace officer in the second degree.” In 2005, her mother, Russell, sued, alleging Virg-In used excessive force.

According to Friday’s ruling, a lower court found “triable issues” as to the reasonableness of Virg-In’s actions but ultimately determined there was no clear law that would have alerted him to the fact his actions were unlawful. The superior court found that in light of J.N.’s prior efforts to escape and her “reckless behavior,” it was “not so egregious or lacking in common sense” that he would have known it was excessive.

Justice Dana Fabe, writing for the high court, said issues such as whether J.N. was fully compliant and not fighting must be resolved at trial before a determination can be made on whether Virg-In’s actions were egregious or he’s entitled to qualified immunity.

The court also set aside an order that Russell be liable for about $43,000 in legal fees. In state court, winning parties can seek up to 20 percent of their attorney fees in cases where money is not at issue.

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