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“Discretionary Function Immunity” Inapplicable to Alaska PO Duties
The Alaska Supreme Court has held that a parole officer’s day-to-day supervisory activities related to parolees are operational duties which are not entitled to discretionary function immunity.
On November 23, 1996, Alaskan prisoner Calvin McGrew was released on parole. He was generally compliant with his parole conditions until March 1998, when he absconded.
On May 13, 1999, McGrew was arrested, and he “admitted to five parole violations and presented a release plan proposing that he … live with” his girlfriend, Shila Davis. He was released on May 21, 1999.
On June 8, 1999, Davis sought a domestic abuse protective order against McGrew. Five days later she called 911 because McGrew hit her. On July 23, 1999, the court granted a second protective order against McGrew. The next day, “... McGrew shot Davis and himself. One or both of their bodies fell on their three-month-old twins. One of the twins survived, but the other suffocated.”
At the time of the murder/suicide, McGrew’s parole officer, Patricia Beckner, “was unaware that Davis had filed domestic violence petitions against McGrew or that the couple had separated.” Despite McGrew’s June 21, 1999 admission of having contact with police, Beckner failed to investigate the reason for the contact. Two days before the murder/suicide, McGrew failed to report – but Beckner took no action.
Per Department of Corrections (DOC) policy, in November 1996, Beckner completed an initial risk assessment to determine McGrew’s supervision level. She “failed to include McGrew’s prior juvenile convictions in the calculation of the risk score. She also incorrectly assigned McGrew a ‘medium’ supervision level even though the risk score total on the form corresponded to a ‘maximum’ supervision level.”
Beckner completed risk reassessments every six months, but “like her initial … assessment,” they were scored incorrectly. Beckner completed an assessment in August 1998 even though “McGrew had absconded … and she had not had contact with him for several months.” At the time of the murder/suicide, it had been ten months since McGrew’s last risk assessment.
Ebony Cowles, the personal representative of the Estate of Shila Davis and guardian of the surviving child, brought a negligent supervision action against the DOC and the municipality of Anchorage. The trial court denied the defendants’ motion for summary judgment, and they appealed.
The Alaska Supreme Court acknowledged that under the Alaska Tort Claims Act, the “discretionary function immunity” doctrine shields the state from liability for “claims based upon the discretionary function or duty….” The Court held that all decisions of the parole board were protected by discretionary function immunity. As such, it partially overruled its contrary holding in Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska 1986), to the extent that the formulation of a parole plan and selection of special parole conditions were entitled to immunity.
The Court agreed with Cowles, however, that “no immunity attaches to Beckner’s failure to accurately complete the risk assessments for McGrew and to follow up on the statement ... that the police had come to his house to arrest him. The day-to-day supervisory activities of a parole officer … are operational duties not entitled to immunity….
Discretionary function immunity does not apply to these activities because a parole officer is not required to choose between competing policy concerns in performing these duties, but merely to exercise some judgment in carrying out established DOC directives....
Accordingly, the State is not immune from suit based on Beckner’s alleged negligence in filling out the risk assessment forms.” Issues of material fact precluded summary judgment on Beckner’s failure to investigate the circumstances of McGrew’s police contact.
The Alaska Supreme Court rejected the state’s argument seeking to overrule Neakok completely by finding that the state owed no duty of care to the victims of crimes by parolees. Finally, the Court held that “material questions of fact preclude summary judgment for the state on the issue of causation.” Noting that the “decision requires the superior court to reexamine whether the state is entitled to discretionary function immunity for some of its allegedly negligent acts,” the Court remanded the case to the superior court “for a ruling on causation in light of its discretionary immunity rulings.” See: State Dept. of Corrections v. Cowles, 151 P.3d 353 (Alaska 2006).
On November 23, 1996, Alaskan prisoner Calvin McGrew was released on parole. He was generally compliant with his parole conditions until March 1998, when he absconded.
On May 13, 1999, McGrew was arrested, and he “admitted to five parole violations and presented a release plan proposing that he … live with” his girlfriend, Shila Davis. He was released on May 21, 1999.
On June 8, 1999, Davis sought a domestic abuse protective order against McGrew. Five days later she called 911 because McGrew hit her. On July 23, 1999, the court granted a second protective order against McGrew. The next day, “... McGrew shot Davis and himself. One or both of their bodies fell on their three-month-old twins. One of the twins survived, but the other suffocated.”
At the time of the murder/suicide, McGrew’s parole officer, Patricia Beckner, “was unaware that Davis had filed domestic violence petitions against McGrew or that the couple had separated.” Despite McGrew’s June 21, 1999 admission of having contact with police, Beckner failed to investigate the reason for the contact. Two days before the murder/suicide, McGrew failed to report – but Beckner took no action.
Per Department of Corrections (DOC) policy, in November 1996, Beckner completed an initial risk assessment to determine McGrew’s supervision level. She “failed to include McGrew’s prior juvenile convictions in the calculation of the risk score. She also incorrectly assigned McGrew a ‘medium’ supervision level even though the risk score total on the form corresponded to a ‘maximum’ supervision level.”
Beckner completed risk reassessments every six months, but “like her initial … assessment,” they were scored incorrectly. Beckner completed an assessment in August 1998 even though “McGrew had absconded … and she had not had contact with him for several months.” At the time of the murder/suicide, it had been ten months since McGrew’s last risk assessment.
Ebony Cowles, the personal representative of the Estate of Shila Davis and guardian of the surviving child, brought a negligent supervision action against the DOC and the municipality of Anchorage. The trial court denied the defendants’ motion for summary judgment, and they appealed.
The Alaska Supreme Court acknowledged that under the Alaska Tort Claims Act, the “discretionary function immunity” doctrine shields the state from liability for “claims based upon the discretionary function or duty….” The Court held that all decisions of the parole board were protected by discretionary function immunity. As such, it partially overruled its contrary holding in Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska 1986), to the extent that the formulation of a parole plan and selection of special parole conditions were entitled to immunity.
The Court agreed with Cowles, however, that “no immunity attaches to Beckner’s failure to accurately complete the risk assessments for McGrew and to follow up on the statement ... that the police had come to his house to arrest him. The day-to-day supervisory activities of a parole officer … are operational duties not entitled to immunity….
Discretionary function immunity does not apply to these activities because a parole officer is not required to choose between competing policy concerns in performing these duties, but merely to exercise some judgment in carrying out established DOC directives....
Accordingly, the State is not immune from suit based on Beckner’s alleged negligence in filling out the risk assessment forms.” Issues of material fact precluded summary judgment on Beckner’s failure to investigate the circumstances of McGrew’s police contact.
The Alaska Supreme Court rejected the state’s argument seeking to overrule Neakok completely by finding that the state owed no duty of care to the victims of crimes by parolees. Finally, the Court held that “material questions of fact preclude summary judgment for the state on the issue of causation.” Noting that the “decision requires the superior court to reexamine whether the state is entitled to discretionary function immunity for some of its allegedly negligent acts,” the Court remanded the case to the superior court “for a ruling on causation in light of its discretionary immunity rulings.” See: State Dept. of Corrections v. Cowles, 151 P.3d 353 (Alaska 2006).
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Related legal case
State Dept. of Corrections v. Cowles
| Year | 2006 |
|---|---|
| Cite | 151 P.3d 353 (Alaska 2006) |
| Level | State Supreme Court |
| Injunction Status | N/A |