OPINION

CHRISTEN, Justice.

I. INTRODUCTION

Hooper Bay police responded to a request for a welfare check at the home of Thomas Olson, Suzanne Smith, and their young children. The officers found Olson asleep. When they woke him, Olson became belligerent and the officers placed him in handcuffs to escort him out of the building. In the process, Olson and two of the officers slipped and fell to the floor. The situation escalated when the officers tried to get Olson onto his feet and remove him from the home. In the ensuing scuffle, the officers used their tasers on Olson numerous times. Olson filed a civil suit alleging excessive force, assault, and battery. The superior court granted summary judgment in favor of the defendants on the grounds of qualified immunity, and Olson appeals. We affirm the superior court's conclusion that existing case law and regulations did not provide notice to the officers that their use of tasers may have been excessive force. But because it was error for the court not to consider whether the Hooper Bay Police Department's policy on taser use or the nature of the officers' actions, alone, provided notice that the force they used may have been excessive, we reverse the grant of summary judgment and remand for further consideration.

II. FACTS AND PROCEEDINGS

A. Facts

Thomas Olson and Suzanne Smith live in Hooper Bay and have six children together. On Christmas night in 2006, Smith left Olson with the youngest four of their children, ranging in age from one month to five years, and went to visit her mother. Olson admitted drinking "a couple [of] cups of homebrew" that evening with his brother Peter. At 3:55 a.m. on December 26, Smith called the City of Hooper Bay Police and asked them to conduct a welfare check on the children because she was concerned that Olson was intoxicated and alone with them.1 Officers Dimitri Oaks and Nathan Joseph responded to the request and arrived at the Olson home approximately 10 minutes later.

The front door leading to the home's arctic entry was open despite an outside temperature of approximately five degrees Fahrenheit. The officers entered the living area, a large space with no internal dividing walls, and found Olson and his brother Peter. Both men appeared to be asleep and the officers noticed an odor of alcohol in the room. Olson admits to drinking that evening, but states that he "limited [his] drinking." No objective tests were performed to determine whether Olson was intoxicated. To simplify our discussion of the subsequent events, we analyze the sequence in four phases.

1. Phase One: Verbal interaction between Olson and the officers.

The officers woke Olson, and Joseph informed him that they were there to conduct a welfare check.2 They asked Olson to stand up for a "real quick test," and Olson responded by asking why the officers were trespassing in his house. Joseph continued to ask Olson to stand up, apparently without a positive response, and the officers placed Olson in handcuffs. Joseph explained to Olson that he was putting on the handcuffs "for safety reasons" and that "once we're done here we'll take the handcuffs off." Hooper Bay Police Department and the individual police officers assert that Joseph and Oaks were concerned about safety because they were familiar with Olson's "combative" history with the police.3 Olson affied that he knew that the officers had a bad reputation for violent and unnecessary behavior.

Olson stood up after he was handcuffed and began to yell and swear at Joseph and Oaks about their presence in his house. When Peter woke up, the officers placed him in handcuffs and told him that the handcuffs would be removed when they were done. Olson and Peter continued to express their shared opinion that the officers were trespassing, becoming increasingly vocal and angry. Joseph radioed headquarters to ask that another officer come to the scene.

After a brief period of relative calm, Olson resumed yelling and swearing and stated, "You can get shot for trespassing." Joseph asked, "Is that a threat? Are you threatening me?" Olson responded, "No, I'm telling you." Throughout Olson's interaction with the officers, Peter called out support and encouragement to his brother. About three to five minutes after Joseph radioed for assistance, Officer Simon entered the house.

2. Phase Two: The initial use of the taser.

Simon and Oaks began to escort Olson out of the home, but in the process of doing so, the three men fell to the floor.4 Olson affied that he did not struggle with the officers, that he did not know what was going on, and that he tried to get his feet underneath him and stand up again. But Joseph testified that after Oaks and Simon stood up, Olson began "kicking at" both officers. Oaks and Simon testified that Olson also attempted to bite Simon, a fact which Olson does not dispute. The arrest audio recorded the sounds of a scuffle, Joseph saying, "Get him out of here," and Olson continuing to scream and swear. Olson's hands remained handcuffed behind him throughout the interaction.

At some point while on the floor, Olson wrapped his legs around a vertical support pole in the living area; the arrest audio recorded one of the officers telling Olson to "stand up" several times, and Simon stating, "Boya, if you don't comply I am going to drive stun you; let go of the pole." In response, Joseph, who was standing apart from the group, deployed his taser two times from across the room. The taser prongs did not make a complete circuit and Olson responded by saying, "It feels like a vibrator." The officers continued to tell Olson to stand up, stop resisting, and comply with their efforts to remove him from the home. Olson responded with a string of protests and profanity. The officers then began to deploy their tasers in drive-stun mode.5

3. Phase Three: The officers repeatedly tase Olson.

The officers tased Olson numerous times in rapid succession. The arrest audio recorded use of the tasers in drive-stun mode repeatedly over the course of approximately 50 seconds. Olson affied that Simon began tasing him on his back, then reached around to tase him between his legs. Simon testified that he first tried two two-second stuns on Olson's back, followed by three two-second deployments on Olson's collarbone, and then two two-second deployments on Olson's inner-thigh.6 Joseph testified to deploying his taser in drive-stun mode approximately five or six times. Oaks was not armed with a taser and did not deploy one during the incident. Olson affied that, out of fear, he wrapped his legs around the support pole after the tasing began, and that his leg muscles "reacted" each time he was tased. His hands remained handcuffed behind him. The officers stated that Olson's actions appeared to be further attempts to kick them and to resist arrest.

4. Phase Four: The officers tase Olson while he is on his stomach.

The officers eventually rolled Olson onto his stomach and used their tasers in drive-stun mode at least twice as he lay in that position. They then repeated their request that Olson "stand up." Olson eventually complied and was escorted by the officers to police headquarters.

On January 26, 2007, Olson was examined by a physician at Yukon-Kuskokwim Health Corporation. The medical record from the examination appears to identify approximately 25 taser burns,7 but the superior court relied on estimates presented by Olson and Olson's expert witness, and found that "[v]iewing facts in the light most favorable to [Olson], [Olson] was [t]ased fifteen to eighteen times."

B. Proceedings

Olson filed suit against the City of Hooper Bay and officers Oaks, Simon, and Joseph (collectively, "Hooper Bay") alleging excessive force, assault, and battery. He requested compensatory and punitive damages.8 Hooper Bay denied the allegations and asserted affirmative defenses including qualified immunity. Hooper Bay then filed a motion for summary judgment on qualified immunity.9 The superior court heard argument on the motion, entered a written order granting it, and dismissed the case. The court found the initial taser deployments "objectively reasonable" because the officers "were faced with an immediate threat of bodily harm from [Olson] kicking and biting them in a rapidly deteriorating situation in the home." The court wrote that "[t]he use of the taser to subdue a suspect who repeatedly ignores police instructions and acts belligerently towards police is not excessive force." But the court also concluded that a genuine issue of material fact existed as to the objective reasonableness of the subsequent taser deployments. Thus, consistent with our case law on qualified immunity, the court considered whether the officers "might have reasonably believed their actions were reasonable."10 The superior court concluded that "the contours of Fourth Amendment jurisprudence on the claims of excessive force involving [t]asers was not sufficiently clear such that a reasonable law enforcement officer in the officers' position under these circumstances would have known that the multiple tasings of [Olson] violated his Fourth Amendment right to be free of excessive use of force." Final judgment was entered in favor of City of Hooper Bay, Oaks, Simon, and Joseph on September 9, 2008, and re-entered in conjunction with an award of attorney's fees on March 8, 2009.

Olson appeals the order granting summary judgment.11

III. STANDARD OF REVIEW

We review a grant of summary judgment "de novo, affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law."12 We "view the facts in the light most favorable to the non-moving party"13 and thus draw "all reasonable . . . inferences" in Olson's favor.14 Because this case raises the question of entitlement to qualified immunity, we "focus on the officers' perspectives and perceptions, as it is what reasonable officers in their position could have thought that is dispositive of this issue."15 We rely largely on the statement of facts of the superior court but also independently review the admissible evidence, including the audio recording of the arrest.

We review questions of law using the de novo standard, "apply[ing] our independent judgment to questions of law, adopting `the rule of law most persuasive in light of precedent, reason, and policy.'"16

IV. DISCUSSION

A. The Law Of Qualified Immunity And Excessive Force In Alaska

In Alaska, questions concerning qualified immunity for claims of excessive force are governed both by the Fourth Amendment17 and by state statute.18 We considered the question of qualified immunity for a claim of excessive force in Samaniego v. City of Kodiak,19 where we concluded that "[r]egardless of whether the individual officer actually believed that his use of force was reasonable—and regardless of the reasonableness of that belief—the officer is not privileged to use an objectively unreasonable level of force in making an arrest."20 Samaniego relied upon the federal test for qualified immunity first adopted by Breck v. Ulmer.21 But in 2001 the United States Supreme Court created a new federal standard for qualified immunity when it decided Saucier v. Katz.22 Saucier held that a ruling on qualified immunity is a question entirely distinct from whether or not excessive force was used in an arrest, and that "a ruling on [qualified immunity] should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive."23 The Court also characterized qualified immunity as "an entitlement not to stand trial or face the other burdens of litigation" and held that "[t]he privilege is `an immunity from suit rather than a mere defense to liability; and like an absolute immunity, [the privilege] is effectively lost if a case is erroneously permitted to go to a trial.'"24

Saucier set out a two-part test for determining entitlement to qualified immunity. The "initial inquiry" is: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?"25 The second inquiry, necessary only if the first query is answered in the affirmative, is "whether the right was clearly established."26 In other words, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."27 "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate."28 The Supreme Court also emphasized the order of the excessive force analysis, concluding that the violation of a constitutional right must be established as the threshold question before a court moves on to consider whether it was "clear to a reasonable officer that his conduct was unlawful."29

Seven years later, in Sheldon v. City of Ambler, our court again addressed qualified immunity as a defense to an excessive force claim under Alaska law.30 We noted in Sheldon that we "usually follow[] federal case law in the area of qualified immunity" but also that "we are not bound to follow federal law in designing our own judicial standard for excessive force."31 Sheldon did not entirely overrule Samaniego, but it recognized a revised test for qualified immunity in Alaska: Samaniego as modified by the two-part analysis of Saucier. Under the rule that emerged from Sheldon, a police officer in Alaska is entitled to qualified immunity in an excessive force case if the officer's conduct was objectively reasonable or the officer reasonably believed that the conduct was lawful, even if it was not.32 On the latter prong of the test we stressed that "merely subjective beliefs about reasonableness are not enough; the beliefs must also be ones a reasonable officer could have had about the legality of his [or her] actions."33

Sheldon rejected the idea that AS 11.81.370 and AS 12.25.070 provide sufficient notice to an officer of the legality or illegality of the officer's actions.34 We stated that courts inquiring into the presence of notice should "look to our own jurisdiction and other jurisdictions to see if there are any cases, laws, or regulations which would suggest that the type of action taken by the officer is considered unlawful."35 Notice can be imputed from the presence of relevant laws or regulations, as can lack of notice from a dearth of relevant authority.36 Alternatively, notice can also be assumed if the officer's conduct is "so egregious, so excessive, that he [or she] should have known it was unlawful, that the nature of the act gave sufficient warning that [the actions taken] were excessive means to restrain someone. One should not let the lack of explicit law in an area be a substitute for the reasonable officer's common sense."37 Saucier established an ordered two-step analysis on questions of excessive force in which consideration of whether a constitutional right was violated necessarily preceded the question of whether or not it would have been clear to a reasonable officer that the conduct at issue was unlawful.38 But we have never required Saucier's sequential analysis of excessive force in Alaska. In fact, in Sheldon, we deferred to the superior court's finding that a genuine issue of material fact persisted as to whether the officer's use of force was excessive, but affirmed its grant of qualified immunity at the summary judgment level on the grounds that the officer could have reasonably believed his use of a "bear hug" to subdue a citizen was lawful.39

We have reached no substantive conclusions on when use of a taser is excessive force in the context of an arrest. But multiple federal courts have reached conclusions about taser usage and excessive force, and we refer to those decisions for guidance in our discussion below.

B. It Was Error To Grant Summary Judgment On The Issue Of Notice.

On appeal, Olson asserts that the superior court (1) erred "in finding that Alaska law in the field of qualified immunity is identical to federal law as codified in Saucier and its progeny," (2) "clearly failed" to interpret conflicting factual evidence in his favor, (3) erred in failing to find that any use of the taser by the officers constituted excessive force, and (4) erred in concluding that the officers were not on notice from existing case law and regulations that their use of force was excessive. We review a grant of summary judgment de novo40 and "view the facts in the light most favorable to the non-moving party."41 We rely largely on the undisputed facts identified by the superior court, but because the record includes an audio recording of the actual events, we also rely upon our independent review of the audio recording and the superior court's written record.

1. Olson failed to adequately brief his argument about the differences between state and federal law; this argument is waived on appeal.

In his "issues presented for review" Olson unambiguously raises the argument that Alaska law on qualified immunity differs from federal law on qualified immunity. And his brief outlines the Sheldon test in detail. But Olson's brief does not present any substantive argument to the effect that the superior court conflated state and federal law on qualified immunity. Thus, we consider Olson's first argument waived.42

2. The superior court did not fail to interpret conflicting evidence in Olson's favor.

Olson's second argument is that the superior court failed to construe the facts in his favor as required on a motion for summary judgment. Specifically, Olson sets out a series of factual findings he argues the superior court should have reached.43

We agree with Olson that in ruling on a motion for summary judgment, the superior court must "draw all reasonable inferences in favor of" the non-moving party.44 But this case is unlike many others because an audio recording exists that captured the events. Having reviewed the audio recording and the rest of the superior court's written record, we conclude that the superior court did not fail to construe contested facts in Olson's favor.

We first observe that several of Olson's assertions regarding the superior court's factual conclusions are not supported by the record. For example, Olson argues that the superior court should have determined that he was tased fifteen to eighteen times, all while handcuffed and sitting or lying on the ground. But the court in fact did conclude that "[Olson] was [t]ased fifteen to eighteen times," all while he was either "seated" or "prone on the ground on his stomach," and that "at least some" of the tasings took place while he was in the latter position. Olson also asserts that the superior court erroneously determined that the officers knew of Olson's history with the police. But the court found only that the "officers stated in their deposition testimony that they knew the plaintiff's aggressive past history with police," (emphasis added) not that they unequivocally knew of such a history. The court cited to passages in the officers' sworn depositions in which such statements are indeed made.

Olson's remaining arguments are, essentially, variations on a challenge to the superior court's findings that he: (1) "actively resisted arrest"; (2) "refused to comply with numerous verbal commands and remained belligerent throughout the initial encounter, before any force was applied"; and (3) "kicked at and attempted to bite the officers while on the floor, prior to the [t]aser deployment." The superior court cited to admissible testimony and portions of the audio recording that clearly support all of these findings. Even construing all reasonable facts in Olson's favor, the record does not support his assertion that he only began moving his legs in a kicking motion after being tased; the audio recording reflects one of the officers telling Olson to stop kicking before he was tased. It is also uncontested that he attempted to bite the officers before they deployed their tasers. We conclude that the superior court did not fail to construe contested facts in Olson's favor when it ruled on the subject summary judgment motion.

3. The superior court correctly concluded that some taser use was permissible in this case.

Olson's third argument is that any use of the tasers was excessive force because "the officers used their tasers to gain compliance from a restrained, seated, and later prone arrestee, and not to neutralize a threat to their safety." Olson specifically argues that: (1) his actions did not amount to resisting arrest, or that if they did, his resistance was not dangerous to the officers; and (2) the officers tased him to gain compliance or to punish him, and that the use of a taser, even a single time, on a subject solely to gain compliance or for a punitive purpose constitutes excessive force. Olson contends that the officers wrongfully "interpret[ed] his confusion as non-compliance inviting an electric shock," that his perceived kicking was an involuntary reaction to the taser, that because of his position and restraints he was not a threat to the officers, and that the officers tased him because they were frustrated and wanted to force him to comply with their orders, not because they were concerned for their safety.

The superior court concluded that the initial deployments of the taser, during Phase Two, were objectively reasonable because the officers "were faced with an immediate threat of bodily harm from [Olson] kicking and biting them in a rapidly deteriorating situation in the home." This conclusion comports with federal law on the use of tasers during an arrest.45 Construing the facts in Olson's favor, we conclude that the superior court did not err when it determined that Olson was resisting arrest and that his behavior represented "an immediate threat of bodily harm" to officers Oaks, Simon, and Joseph, at least through Phase Two.

The audio recording of the arrest provides imperfect insight into the events of the evening, but it makes objectively clear that there was "a rapidly deteriorating situation in the home." The recording supports the consistent testimony of the officers that Olson appeared to attempt to both kick and bite the police before the tasers were deployed. Olson never denied trying to bite the officers during this phase, and at oral argument before the superior court Olson's counsel seemed to acknowledge that Olson may have been resisting by biting and kicking while the officers were on the ground.46 An objectively reasonable officer could have construed Olson's actions as violent physical resistance to their attempts to arrest him. In fact, Olson's counsel conceded at oral argument on the motion for summary judgment before the trial court that "[p]erhaps the first few [taser deployments], under Sheldon, arguably, may have been permitted."

It is admittedly troubling that Olson was handcuffed and seated at the time the police allege he was a threat to their safety. However, as courts in other jurisdictions have concluded, Olson's position—even handcuffed and sitting on the floor—did not necessarily mean he was not a threat.47 Olson was actively struggling with the officers in Phase Two in a deteriorating situation. The superior court's conclusion that he presented a danger to the arresting officers and that the use of the taser was objectively reasonable is supported by the uncontested facts.

Olson also argues that the police officers' conduct constituted excessive force because the taser deployments were impermissibly motivated. Olson views the facts of his case as analogous to either Orem v. Rephann,48 where the Fourth Circuit Court of Appeals found the use of a taser to constitute excessive force when used for the purpose of punishment, or to Hickey v. Reeder,49 where the Eighth Circuit Court of Appeals found a prison guard's use of a taser unlawful because the taser was executed to compel the prisoner to comply with an order to sweep his cell.

In Orem, a police officer used his taser multiple times on a woman who was handcuffed, in a foot restraint device, and locked in the back seat of a police car.50 Orem was alone in the company of three police officers; she weighed 100 pounds, and the officer who tased her weighed 280 pounds.51 Moreover, relying upon an audio and video recording of the interaction between Orem and the police officer,52 the court concluded that the officer's purpose in deploying the taser was illegitimate. The court concluded that the officer used the taser to "punish or intimidate" Orem, not to protect the officers or Orem herself from harm, stating: "[V]iewed in a light most favorable to Orem, [the facts] evidence that [the officer's] use of the taser gun was wanton, sadistic, and not a good faith effort to restore discipline."53 The officers who arrested Olson may have been mistaken about the degree of force that was permissible, but the evidence does not support a conclusion that they were motivated by a wanton, sadistic, or punitive purpose. The audio tape convinces us that the facts of this case are not analogous to the facts in Orem.

Hickey v. Reeder involved a prisoner at the Pulaski County Jail who was awaiting transfer to the state penitentiary.54 A guard ordered the prisoner to sweep his cell, a part of the daily routine in that jail, but the prisoner refused.55 Additional guards were then called, one of whom shot Hickey with a stun gun.56 Hickey recovered from the stun and swept his cell,57 but he pursued a claim arising from the incident. The Eighth Circuit held that "the use of a stun gun to enforce the order to sweep [the floor] was both an exaggerated response to Hickey's misconduct and a summary corporal punishment that violated Hickey's Eighth Amendment right to be free of cruel and unusual punishment."58 The court relied upon the officers' testimony to conclude that they did not use the stun gun out of a concern for safety but, rather, as a consequence for Hickey's refusal to sweep his cell.59

Here, the officers tased Olson when he failed to comply with their orders, but the orders they gave were to "stop trying to kick, stop trying to bite and comply [with arrest]." In other words, the officers directed Olson to (1) stop trying to harm them, and (2) stop resisting arrest. This is a fundamentally different situation than that of a prisoner locked in a cell who non-violently refuses to comply with an order to sweep the floor. The latter does not present a safety concern to any third party, nor does it present the need for an exigent response. We conclude the superior court correctly decided that Hooper Bay's taser use, through Phase Two, was objectively reasonable and not unlawfully punitive.

4. The superior court correctly considered the tasings in sequence and concluded under Sheldon that it was not required to conclusively decide whether the total force used was excessive.

Olson argues that, even if the officers were justified in tasing him, the number of tasings requires that the total force applied be deemed undeniably excessive.

The superior court analyzed the progression of events during Olson's arrest and, relying on Beaver v. City of Federal Way, concluded that "the [excessive force] issue becomes less clear with each application of the [t]aser."60 The court found that there was a genuine issue of material fact regarding whether the Phase Three and Phase Four tasings were objectively reasonable. But rather than denying summary judgment due to unresolved issues of fact, the superior court considered whether the officers could have been reasonably mistaken about their use of force. On appeal, Olson seems to argue that the superior court should have concluded that these tasings were excessive force as a matter of law: "Whether or not the officers' first electric shocks to Mr. Olson were excessive, there simply can be no debate that their repeated tasings of Mr. Olson became excessive." We disagree.

Where the question of excessive force turns on the number of times non-deadly force is applied, a trial court should consider each sequential application of force, to the extent the evidence permits such analysis.61 And where issues of fact prevent a trial court from deciding as a matter of law whether each successive application of force was permissible, the court should still reach the question of qualified immunity. Failure to establish entitlement to qualified immunity in the pre-trial phase of a case defeats a primary purpose of the claim—to avoid trial. But another primary purpose—immunity from damages—remains attainable if the claim of qualified immunity is established at trial.62

In Sheldon, we affirmed the superior court's decision to grant qualified immunity to a police officer without first conclusively determining whether excessive force was used.63 Here, the superior court correctly concluded that whether the officers' use of force became excessive at some point in Phase Three or Phase Four was a genuine issue of material fact, but it did not deny summary judgment on that basis. Instead, the superior court moved on to consider whether the officers reasonably believed that the force they used was permissible, even if they were mistaken and actually used excessive force.64 This is consistent with the Saucier "reasonable but mistaken belief" element we adopted in Sheldon. As we stated in Sheldon, an officer who reasonably believes that his or her use of force is lawful, and lacks warning that such conduct is in fact unlawful, is protected from suit by qualified immunity.65

Having carefully reviewed the superior court's detailed order, we conclude the court correctly considered the tasings in sequence, and correctly concluded that it did not need to decide whether the total force used was excessive before reaching the question of qualified immunity.

5. The superior court correctly decided that existing case law did not provide the officers with notice that the force used was excessive.

Olson's fourth argument is that the superior court erred in concluding that the officers did not have notice that their conduct was unlawful. The order granting summary judgment concluded that, as of December 2006, Fourth Amendment case law concerning the use of tasers was not clear enough to provide notice to the officers regarding the legality of their conduct. But Olson argues that the officers should have been "on notice" that their actions were unlawful because of unpublished case law on the use of tasers and published case law on the use of other types of non-deadly force. We agree with the superior court's conclusion that neither of these sources was sufficient, as of December 2006, to provide notice to the officers that their taser use may have been excessive.

a. Unpublished case law

Under Sheldon, a court must consider if a reasonable officer, using force which may or may not have been objectively unreasonable, was "on notice" that his behavior was unreasonable.66 We said in Sheldon that to determine whether an officer was reasonably on notice, courts should "look to our own jurisdiction and other jurisdictions to see if there are any cases, laws, or regulations which would suggest that the type of action taken by the officer is considered unlawful."67 General excessive force statutes are insufficient to provide this notice; cases that deal with the specific actions taken by police officers are persuasive.68

Hooper Bay argues that an unpublished summary judgment order issued by the superior court in Kotzebue69 may have served as notice that the use of a taser on a handcuffed but resisting arrestee was lawful. Olson argues, in turn, that several unreported cases from outside Alaska put the police officers on notice that their conduct was illegal. The superior court "reject[ed] that unpublished orders from the federal district courts in Washington and California would give notice to officers in Hooper Bay Alaska, of the unlawfulness of their conduct" and also rejected the argument that the unpublished superior court order would provide notice that the officers' conduct was legal. Collectively, the court stated that "[n]one of these cases are examples of citable authority that give guidance to practitioners."

Olson argues on appeal that the superior court's refusal to include unpublished materials in its notice analysis "is contrary to persuasive federal precedent" and "makes little sense" if published cases are deemed to constitute notice. Olson cites to numerous unreported cases in which the use of a taser or other police weapon was deemed objectively unreasonable because the subject was not an immediate threat to the police or to others.70 He cites these cases as support for the proposition that "unpublished decisions of district courts may inform [a court's] qualified immunity analysis."71 We decline to adopt this approach and instead hold that unpublished decisions generally do not provide notice regarding appropriate levels of force.72

b. Published excessive force cases

Olson cites to published excessive force cases not involving tasers,73 relying on Landis v. Cardoza, where a Michigan district court held that it is "appropriate to draw a parallel" between tasers and pepper spray because "[b]oth instruments temporarily incapacitate individuals by causing pain and are intended to permit law enforcement officers to take resisting individuals into custody without having to resort to lethal force."74 But Landis was decided in 2007, a year after Olson was arrested. Olson also seems to suggest that Hickey v. Reeder may have provided notice.75 As noted above,76 that case does involve a taser, but the prisoner in Hickey was not resisting arrest; he was in jail and was tased for refusing to comply with an order to sweep his cell.77 The Eighth Circuit's holding on the distinguishable facts of Hickey provided no guidance to the officers attempting to arrest Olson.

Ultimately, both Olson and Hooper Bay acknowledge that there was a lack of published case law on the objective reasonableness of taser usage prior to December 26, 2006. We agree with the superior court that jurisprudence on "claims of excessive force involving [t]asers" was either unclear or nonexistent at the time of Olson's arrest.78

6. It was error to hold that Hooper Bay's policy on taser use was "irrelevant."

Olson also argues that both Hooper Bay Police Department regulations (found in the Hooper Bay Police Department General Order) and the guidelines for taser usage published in January of 2005 by the International Association of Chiefs of Police (IACP) provided notice to Simon and Joseph of the unlawfulness of their conduct.79 The superior court determined that the IACP guidelines did not provide notice because "[Olson] has offered no evidence that this model policy has been adopted by any police agency within Alaska" and that, even if adopted, the policy "limits the use of [a] [t]aser to situations like the case at bar." The superior court also found the Hooper Bay Police Department General Order "irrelevant" to the notice question in its qualified immunity analysis, reasoning that reliance on internal police policies may have a perverse impact on the types of regulations adopted by police departments. The superior court also observed that Sheldon likely did not signal that "internal department regulations of the department being sued should be the piece of `probative evidence that there was some kind of "notice."'"

We agree that the IACP guidelines did not provide notice to the officers that their use of force may have been excessive, but we disagree with the superior court's conclusion that the Hooper Bay Police Department General Order was irrelevant. The General Order provides:

The superior court's concern was that reliance on local police department policies in the notice component of a qualified immunity analysis could, if taken to the extreme, circumvent the authority of the Alaska and United States Constitutions and state statute.80 We acknowledge the superior court's concern, but the facts of this case do not present an extreme scenario. The Hooper Bay Police Department's General Order established a standard that was uncontested— Olson did not dispute that taser usage is appropriate where an arrestee's conduct threatens immediate harm to police officers —and the policy was not shown to be inconsistent with federal guidelines for taser use.81 We cannot agree with the superior court that concerns about possible misuse of police department policies in other cases prevented consideration of Hooper Bay's internal policies as a potential source of notice in this case.

We held in Sheldon that notice can arise from "cases, laws, or regulations."82 In Champion v. Outlook Nashville, Inc., the Sixth Circuit incorporated police training into its notice analysis where officers had been clearly, unequivocally instructed that the specific actions they later took were unlawful.83 Here, the General Order established that tasers "shall not be used on a restrained . . . subject" except under specified circumstances. The superior court's ruling that Olson's conduct during Phase Two posed a threat to the officers and justified some taser use is supported by the uncontested facts. But whether those circumstances were present in Phases Three and Four (i.e., whether Olson presented an immediate threat of harm or injury to himself or others) is a question of fact. The superior court acknowledged as much by finding a genuine issue of material fact as to the reasonableness of the officers' conduct during Phases Three and Four— presumably because it could not determine as a matter of law whether Olson was resisting in a potentially dangerous manner.84 This outstanding question of fact should have barred entry of summary judgment. Accordingly, we remand for consideration of whether the police department's General Order put the officers on notice that they were not permitted to tase Olson after handcuffing him.85

C. It Was Plain Error For The Superior Court Not To Consider Whether The Nature Of The Officers' Actions Provided Notice That The Force Used Was Excessive.

Olson's final argument is that the officers were on notice that their use of force was excessive because their "conduct was so egregious that they should have known it was unlawful." In Sheldon, we held that even if existing law does not provide notice to officers that their conduct is unlawful, "the nature of the act [can give] sufficient warning" if it is sufficiently egregious and excessive.86 On appeal, Olson draws our attention to federal excessive force cases that reach the same conclusion,87 and argues that "the officers' own common sense and society's common standards of decency should have caused the officers to realize their application of force was excessive." Olson was tased in drive-stun mode fifteen to eighteen times in approximately 50 seconds. Evidence admitted in conjunction with the summary judgment motion suggests that deployment of a taser in drive-stun mode can cause a subject to become immobilized and disoriented. The record does not contain factual recitations addressing whether the taser temporarily interfered with Olson's ability to comply with the officers' orders, or whether the officers permitted enough time to elapse between tasings for Olson to respond and comply.

We acknowledge that Olson did not make the argument expressly addressing the final prong of the Sheldon test in opposition to Hooper Bay's motion for summary judgment, and we do not consider arguments raised for the first time on appeal, absent plain error.88 But Sheldon unambiguously explains that the final prong of Alaska's qualified immunity test requires the superior court to consider whether the nature of the officers' actions, alone, provided notice that the force they used became excessive at some point in the sequence of events.89 The superior court did not address this question, and we conclude the failure to do so was plain error.

We affirm the superior court's conclusion that the officers' actions during Phase One and Phase Two of their interaction with Olson were objectively reasonable. And we agree with the superior court that the situation became less clear with each successive use of the taser. In Phase Three, when Olson was handcuffed and seated on the floor, and in Phase Four, when Olson was handcuffed and on his stomach, the need for force changed. The officers tased Olson at least fifteen to eighteen times; some of these tases occurred after Olson was handcuffed, on his stomach, and under the control of the freely mobile police officers. It is possible that the relatively rapid and continued application of the taser in Phase Three or Phase Four provided intrinsic notice that the force used was excessive, but the superior court's order does not address this final part of the Sheldon test. Because we cannot say as a matter of law that the nature of the officers' actions did not put them on notice that their use of force may have been excessive, we reverse the court's grant of summary judgment on the issue of qualified immunity. On remand, the court should address the final prong of the Sheldon test.

V. CONCLUSION

We REVERSE the order granting summary judgment and REMAND for proceedings consistent with this decision.