Anderson commenced a tort action against the defendants-respondents on theories of violation of his civil rights (afforded remedy under 42 U.S.C. § 1983), assault and battery, and negligence. The district court granted summary judgment to the respondents, but denied granting attorney’s fees to the respondents. Anderson appeals the former holding; respondents appeal the latter. We affirm the district court’s granting of summary judgment on all counts save the § 1983 claim against the officers. As to count § 1983, a genuine issue of material fact remains to be resolved.
I.
In the summary judgment proceedings, the record before the district court included the affidavits of Anderson, see infra, p. 176 n. 2, and his father, the affidavit of Lieutenant James H. Benham concerning the defendant officers’ training, see infra, p. 181, and the partial transcript of plaintiff Anderson’s criminal trial. As thus constituted, the record establishes the following factual setting and disputes.
At approximately 1:30 a.m. during the morning of October 18, 1982, Pocatello city police officers Ron Black and Bruce Gentillon were investigating an incident of alleged vandalism at 1117 South Fifth Avenue in Pocatello. They were greeted by the two individuals, Romriell and Nielson, who had reported the incident.
Romriell and Nielson related to the officers the following events. Earlier in the evening they had had a confrontation with a person with whom they were not previously acquainted, plaintiff Anderson, who lived in the basement apartment of a house adjacent to the apartment of Romriell and Nielson. They reported that Anderson, in an intoxicated state, had threatened one of them outside their apartment. They claimed he entered their apartment without invitation. They further claimed that when they told Anderson they were leaving for a party, Anderson attempted to invite himself along, first returning to his apartment to retrieve his cigarettes. Romriell and Nielson added that upon his departure, they quickly went on their way. On their return to their apartment several hours later, they found the windows and screen door broken out. Romriell and a friend had knocked on Anderson’s door without receiving a response.
Upon the conclusion of the foregoing narration, the officers checked the interior of the vandalized apartment and then proceeded to the stairwell leading to Anderson’s apartment. They knocked on his door several times, but received no answer. Anderson by deposition stated that he was awakened by persons first kicking and later pounding on his door without identifying themselves, and that he did not answer at first out of fear for his safety. The officers, in their testimony at the criminal trial, do not claim to have identified themselves. Having received no answer, *179the officers exited the stairwell where they were met by Romriell.
At this point, Anderson opened his door, audibly chambered a shell into his shotgun, and emerged. Anderson claims he carried the shotgun in self-defense, and chambered the shell to announce that he was coming out. The respondents claim he kicked open the door and charged out, shouting.
The officers claim they scrambled for cover. Anderson claims they were in hiding. Anderson claims he did not point the shotgun at anyone. The officers claim he pointed it at the fleeing Romriell. Nielson so testified at Anderson’s subsequent criminal trial. Officer Black shouted “freeze” to Anderson. The officers claim Anderson then turned and pointed the shotgun at them. Again, Nielson’s testimony supported this account. Anderson claims he was turning to return to his apartment. Gentillon commanded, “Drop it.” Anderson did not drop the gun. The officers claim Anderson continued the motion of pointing the shotgun at them, at which time they both fired almost simultaneously, each firing three rounds. Anderson claims that at the time he was shot, he had turned toward his door with the shotgun pointed straight up. Anderson was struck twice, once in the left side and once in the left buttocks.
Anderson continued to turn and ran back into his apartment. A few moments later he shouted that he was wounded and was coming out without his gun. Anderson was arrested for aggravated assault upon police officers in violation of I.C. § 18-915, and was transported to a hospital.
Anderson eventually was acquitted of aggravated assault upon police officers, and was convicted only of “intentionally, without malice” aiming a firearm at others in violation of I.C. § 18-3304.1 Such a violation is a misdemeanor punishable by a maximum fine of $50. Id.
As stated earlier, Anderson filed claims under both 42 U.S.C. § 1983 and state tort law. We first will address Anderson’s § 1983 claims and then his state law claims.
As a preliminary matter, we restate the standards of review pertaining to motions for summary judgment. A motion for summary judgment is proper only when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” I.R. C.P. 56(c). When the motion is supported by depositions or affidavits, the adverse party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” I.R.C.P. 56(e). The latter requirement, however, does not change the standards applicable to the summary judgment motion. Central Idaho Agency, Inc. v. Turner, 92 Idaho 306, 310, 442 P.2d 442, 446 (1968). Those standards require the district court, and this Court upon review, to liberally construe the facts in the existing record in favor of the nonmoving party, and to draw all reasonable inferences from the record in favor of the nonmoving party. Anderson v. Ethington, 103 Idaho 658, 660, 651 P.2d 923, 925 (1982). In this process the Court must look to the “totality of the motions, affidavits, depositions, pleadings, and attached exhibits,” not merely to portions of the record in isolation. Central Idaho Agency, supra, 92 Idaho at 310, 442 P.2d at 446. Circumstantial evidence can create a genuine issue of material fact. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 868-69, 452 P.2d 362, 365-66 (1969). “[A]ll doubts are to be resolved against the moving party.” Ashby v. Hubbard, 100 Idaho 67, 69, 593 P.2d 402, 404 (1979). The motion must be denied “if the evidence is such that conflicting inferences can be drawn therefrom and if reasonable *180[people] might reach different conclusions." Id.
II.
ANDERSON’S CLAIMS UNDER
42 U.S.C. § 1983
In his complaint, Anderson alleged that the officers, under color of state law, used unreasonable force against him. This conduct, Anderson alleged, “deprived the plaintiff of liberty and property, and the privileges and immunity of a United States citizen, without due process of law, in violation of the Fourteenth Amendment of the United States Constitution, and 42 U.S.C. § 1983.” R., p. 4. Anderson alleged that “Defendant City of Pocatello was further negligent in their failure to properly screen, hire, train and supervise its police officers.” R., p. 5. We first turn to Anderson’s claims against the officers.
A. Section 1983 Claims Against the Officers.
In Sprague v. City of Burley, 109 Idaho 656, 664, 710 P.2d 566, 574 (1985), we observed:
It is well-established that a police officer can be found liable for damages under 42 U.S.C. § 1983 for the use of unreasonable force in effecting an arrest. Schiller v. Strangis, 540 F.Supp. 605, 619 (D.Mass.1982); see Landrigan v. City of Warwick, 628 F.2d 736, 741-42 (1st Cir. 1980); Collum v. Butler, 421 F.2d 1257, 1259 (7th Cir.1970).
In response to the claim that they used unreasonable force, the officers, in their pleadings, raised the defense of good faith immunity. One court described that defense as follows:
The defense of qualified immunity, which is available to local, state and federal law enforcement officers, .would protect the individual officers from liability for damages if they acted with a good faith belief based upon reasonable grounds that the measures they took were necessary. Butz v. Economou, 438 U.S. 478, 497-98, 98 S.Ct. 2894, 2906, 57 L.Ed.2d 895 (1978); Maiorana v. MacDonald, 596 F.2d 1072 (1st Cir.1979). Jordan v. Five Unnamed Police Officers and Agents, 528 F.Supp. 507, 511 (E.D.La.1981).
We perceive two circumstances in which summary judgment for defendant police officers would be appropriate. The first is where the officers acted with good faith in a manner not clearly established as unlawful at the time of their actions. The United States Supreme Court explained:
On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 [102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396] (1982) (emphasis added) (footnote omitted).
The record before us provides no suggestion this circumstance existed here.
The second circumstance is where there is simply no factual dispute that the officers acted “with a good faith belief based upon reasonable grounds that the measures they took were necessary.” Jordan, supra, 528 F.Supp. at 511. It was on this basis that the district court granted summary judgment.
*181The record certainly contains an abundance of evidence supporting the contention that the officers’ conduct was within the boundaries of this second circumstance. The officers and witnesses Romriell and Nielson all testified that Anderson suddenly ran out of his apartment toward them. Officer Black and Nielson both testified that Anderson pointed the shotgun at the fleeing Romriell. After Officer Black yelled “freeze” and as Officer Gentillon yelled “drop it,” Officer Black, Officer Gentillon and Nielson all testified that Anderson immediately turned and pointed the shot gun at them. At this point, all three testified that the officers fired at Anderson. As above stated, Anderson subsequently was convicted of aiming a firearm at others.
Nevertheless, Anderson gives a different account in his affidavit.2 He asserts (without contradiction from the defendants) that those he confronted that night never identified themselves as police officers. He alleges he racked the shell into the shotgun, and then walked — not ran — outside. He denies ever pointing the shotgun at anyone during the incident. Further, he claims that even if the alleged aiming had occurred, it had ceased before he was shot. He alleges that as he walked out, someone shouted “freeze,” and that he turned to return to his apartment with the shotgun in the port-arms position (pointed diagonally *182upward). He alleges that then someone, unseen by Anderson, shouted “drop it” as he attempted to walk back towards the door, now with the shotgun pointed straight up. At this point, according to Anderson, the officers shot him in the back and side. Anderson’s account quite obviously conflicts with the officers’ claim that their belief that their actions were necessary was based on reasonable grounds. The fact that Anderson was shot in the back and side inferentially supports his claim that he had turned back toward his door at the time he was shot. The fact that the officers never identified themselves also supports his claim that the officers had not acted reasonably. A jury could believe Anderson’s testimony, and disbelieve the testimony of all others present.
Although the district court did not so rule, the defendants argue that Anderson's criminal misdemeanor conviction for aiming a firearm at others operates to collaterally estop him from asserting to the contrary in this action. The question of whether a prior criminal conviction can act as collateral estoppel, or issue preclusion, in a subsequent civil action is a question of first impression before this Court. The closest this Court has come to the question was in Mattson v. Bryan, 92 Idaho 587, 591, 448 P.2d 201, 205 (1968), in which this Court held that a plea of guilty to the crime of involuntary manslaughter is admissible in a civil action involving the same factual situation.
The question of whether a conviction can act as collateral estoppel in a subsequent civil action is distinct from and unaffected by the question of whether a guilty plea or conviction is admissible. As Professor Wigmore explained:
The theory of the use of judgments is not a matter to be lightly dogmatized about; yet it seems clear that the operation of recognizing it, when produced from another court, in support of a plaintiff or in defense of a defendant, is upon analysis not at all an employment of evidence. It is rather the lending of the court’s executive aid, on certain terms, to a claimant or a defendant, without investigation of the merits of fact. 4 Wigmore, Evidence § 1346 (Chadbourn rev.1972) (emphasis original); accord, Note, Judgments as Evidence, 46 Iowa L.Rev. 400 (1961); J. Weinstein and M. Berger, 4 Weinstein’s Evidence para. 803(22) [01] (1984).
Collateral estoppel is a rule of the general doctrine of res judicata.3 Under the general doctrine, “the [former] judgment establishes legal barriers against relitigating the matters involved in the action.” Fleming and Hazard, supra, § 11.1, p. 529. Under the specific rule of collateral estoppel, in actions involving different claims than those involved in a former judgment, in some circumstances the former judgment can “operate[] as an estoppel as to those matters in issue or points controverted, upon the determination of which the finding or verdict [is] rendered.” Cromwell v. County of Sac, 4 Otto 351, 353, 94 U.S. 351, 353, 24 L.Ed. 195 (1877). Because this rule of collateral estoppel involves the effect of a prior judgment on a subsequent action as a matter of substantive law, the admissibility of the prior judgment itself in the subsequent action is not in question. E. Cleary, McCormick on Evidence, § 318, p. 894 (3d ed. 1984). We turn now to the question of whether the rule of collateral estoppel is applicable here.
In times past, courts were reluctant to permit prior criminal convictions to act as collateral estoppel in subsequent civil suits involving the same issues. See generally 46 Am.Jur.2d, Judgments, § 614. The primary reasons given were the different standards of proof in criminal and civil actions, and the absence of mutuality in the effect of the estoppel. See Chantangco v. Abaroa, 218 U.S. 476, 481, 31 S.Ct. 34, 35, *18354 L.Ed. 1116 (1910); see generally 1B Moore’s Federal Practice para. 0.418[1] (2d ed. 1984).
However, of more recent times, courts have come to recognize the fallacy of these concerns. As Professor Moore explains regarding the concern over varying standards of proof, the defendant in a criminal action resulting in conviction “is surrounded by greater safeguards than in civil litigation, and the standard of proof to which the complainant is held is higher____” 1B Moore’s Federal Practice, supra.4
The doctrine of mutuality in this context is equally illfounded. Under that doctrine, “neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326-27, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). The premise for this was that “it is somehow unfair to allow a party to use a prior judgment when he himself would not be so bound____” Id. at 327, 99 S.Ct. at 649. This doctrine “provided a party who had litigated and lost in a previous action an opportunity to relitigate identical issues with new parties.” Id.
Courts and commentators generally have criticized and discarded the mutuality doctrine. E.g., B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 600, 225 N.E.2d 195, 198 (1967) (mutuality of estoppel “is a dead letter.”). As Justice Traynor observed: Collateral estoppel serves the purposes “of protecting litigants from the burden of re-litigating an identical issue with the same party or his privy[,] of promoting judicial economy by preventing needless litigation,” Parklane Hosiery, supra, 439 U.S. at 326, 99 S.Ct. at 649; see also Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971), of preventing inconsistent decisions, and of encouraging reliance on adjudications. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). To permit relitigation of an issue that was fully and fairly litigated and lost in a prior action undermines the worthwhile purposes of the collateral estoppel rule without serving any other recognizable good purpose. This is particularly true when the party sought to be estopped was the defendant in a prior criminal action resulting in conviction, where the safeguards and burden of proof favored the defendant. See Allen, supra.
No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. See 7 Bemtham’s Works, Bowring’s Ed., 171. Bernhard v. Bank of America Nat. Trust & Savings Ass’n, 19 Cal.2d 807, 122 P.2d 892, 895 (1942).
The more appropriate test for whether collateral estoppel should apply includes the following: (1) Did the party “against whom the earlier decision is asserted ... have a ‘full and fair opportunity to litigate that issue in the earlier case.’ ” Allen, supra, 449 U.S. at 95, 101 S.Ct. at 415, citing Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979) and Blonder-Tongue, supra, 402 U.S. at 328-29, 91 S.Ct. at 1442-43. (2) Was the issue decided in the prior litigation “identical with the one presented in the action in question?” Bernhard, supra, 122 P.2d at 895, quoted in Blonder-Tongue, supra, 402 U.S. at 323, 91 S.Ct. at 1440. (3) Was the issue actually decided in the prior litigation? This may be dependent on whether deciding the issue was “necessary to [the prior] judgment.” Allen, supra, 449 U.S. at 94,101 S.Ct. at 414; citing Montana, supra, 440 U.S. at 153, 99 S.Ct. at 973; Rajspic v. Nationwide Mutual Insurance Co., 104 Idaho 662, 665, 662 *184P.2d 534, 537 (1983); Pocatello Industrial Park v. Steel West, Inc., 101 Idaho 783, 786, 621 P.2d 399, 402 (1980) (“In order for the doctrine of collateral estoppel to apply, the issue in question must have actually been litigated and resolved in the prior suit.” (Emphasis in original; citations omitted.)). (4) “Was there a final judgment on the merits?” Bernhard, supra, 122 P.2d at 895; quoted in Blonder-Tongue, supra, 402 U.S. at 323, 91 S.Ct. at 1440. (5)“Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” Bernhard, supra, 122 P.2d at 895, quoted in Blonder-Tongue, supra, 402 U.S. at 323-24, 91 S.Ct. at 1440.
In accordance with the modern and better view, we are constrained to hold that under the conditions described above, collateral estoppel bars the relitigation of an issue determined in a criminal proceeding in which the party sought to be estopped had a full and fair opportunity to litigate that issue. See Allen, supra, 449 U.S. at 102-05, 101 S.Ct. at 419-21; Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 413, 95 L.Ed. 534 (1951), reh. denied, 341 U.S. 906, 71 S.Ct. 610, 95 L.Ed. 1345 (“It is well established that a prior criminal conviction may work an estoppel in favor of the Government in a subsequent civil proceeding.”); Fontneau v. United States, 654 F.2d 8, 10 (1st Cir.1981); McNally v. Pulitzer Publishing Co., 532 F.2d 69, 76 (8th Cir.1976), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131; United States v. Pennsylvania State Police, 548 F.Supp. 9, 13 (E.D.Pa.1982); Engleman v. Harvey, 518 F.Supp. 655, 656 (E.D.Mo.1981); Securities and Exchange Commission v. Everest Management Corp., 466 F.Supp. 167, 172-73 (S.D.N.Y.1979); Wolfson v. Baker, 444 F.Supp. 1124, 1127 (M.D.Fla.1978), affd, 623 F.2d 1074 (5th Cir.1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1483, 67 L.Ed.2d 615 (1981); S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938, 940-43, 298 N.E.2d 105, 107-08 (1973); Read v. Sacco, 49 A.D.2d 471, 375 N.Y.S.2d 371, 374 (1975); see generally Moore’s Federal Practice para. 0.418[1] (2d ed. 1984). This is specifically the case when the subsequent civil action is pursuant to § 1983. Allen, supra.
Whether or not the party against whom estoppel is attempted had a full and fair opportunity to litigate the issue which is the subject of estoppel comes into question when the offense involved was minor.5 Defendants in actions involving criminal misdemeanors or traffic infractions may lack incentive to vigorously defend. McCormick, supra, pp. 894-95. The resulting conviction thus may not derive from a full and fair litigation. Id. For this reason, in most circumstances a conviction for a relatively minor matter such as a lesser misdemeanor, traffic infraction, or matter of like import should not act as collateral estoppel in a subsequent civil action. Gilberg, supra, 441 N.Y.S.2d at 52, 423 N.E.2d at 810 (conviction for petit offense of harassment does not estop defendant from denying assault in subsequent civil action); Kirkendall v. Korseberg, 247 Or. 75, 427 P.2d 418, 419 (1967) (judgment forfeiting bail after traffic citation inadmissible in subsequent civil action for personal injuries); Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768, 769 (1966) (conviction for failure to drive on the right half of highway is inadmissible in subsequent civil action for personal injuries, though felony conviction would be); Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624, 627 (1965), cert. denied, 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684 (conviction for minor offense, including traffic violations and lesser misdemeanors is not conclusive in subsequent civil action).
In this case, although Anderson was convicted of a misdemeanor, he was charged with and tried for the felony offense of aggravated assault on police offi*185cers, and would be expected to have a strong motive for resisting the action. In fact, Anderson did vigorously defend against the felony charge, and also the lesser included offense of aiming a firearm at someone, which he denied. Tr., pp. 136, 142. Clearly he was afforded a full and fair opportunity to defend against that charge, and utilized it. The criminal action culminated in a jury verdict and final judgment of conviction on the merits. That conviction was not appealed.
The key question before us is what the prior judgment decided and the import on the instant civil action of that which was decided at the criminal trial. What was decided “must be determined ... upon an examination of the record, including the pleadings, the evidence submitted, the instructions under which the jury arrived at its verdict, and any opinions of the courts.” Emich Motors, supra, 340 U.S. at 569, 71 S.Ct. at 414. An examination of the transcript of Anderson’s trial demonstrates that the reasonableness of the conduct of the officers was not put in issue, and hence was not necessarily decided. The factual issue decided in the criminal trial was that Anderson had pointed his shotgun at someone, at some point in time. That much he should be held estopped from denying.
In the criminal trial there was testimony that Anderson had pointed his shotgun in the direction of all persons present, and there was Anderson’s contrary testimony that he had not aimed the shotgun at anyone, although he may have accidentally pointed it at someone at some point. Thus, the jury could have determined that Anderson initially had pointed the shotgun at Romriell or the officers, but that he had ceased pointing the shotgun at anyone at the time the officers shot him. Clearly, it cannot be said that the jury necessarily decided that Anderson was pointing the shotgun at anyone at the time he was shot. Accordingly, Anderson’s conviction for having aimed his shotgun at someone at some point does not estop him from denying, as he does in his affidavit, that he was not pointing the shotgun at anyone at the time the officers shot him. Nor is he estopped from alleging as he does that the officers acted without a good faith belief based upon reasonable grounds that the measures they took were necessary. Pocatello Industrial Park, supra, 101 Idaho at 786, 621 P.2d at 402.
Because the evidence renders conflicting inferences, a genuine issue of material fact remains as to whether the officers acted with a good faith belief based upon reasonable grounds that the measures they took were necessary. Ashby, supra, 100 Idaho at 69, 593 P.2d at 404. Some doubt remains as to whether the officers had reasonable grounds for their actions, and all doubts are to be resolved against the moving party. Id. Accordingly, we must reverse the district court on this issue.
B. Section 1983 Claims Against the City of Pocatello.
Under 42 U.S.C. 1983, the City of Pocatello cannot be held liable for the actions of the officers upon a theory of respondeat superior. Sprague, supra, 109 Idaho at 661, 710 P.2d at 571, citing Monell v. New York City Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). However, Anderson alleges that the city’s liability flowed from its negligent “failure to properly screen, hire, train and supervise its police officers.” R., p. 5. As we noted under identical circumstances in Sprague:
Hence, his claim did not rest on the mere fact that the officers were employees or agents of the City but rather was premised on the assertion that the City itself had, through its allegedly inadequate training of its officers, created the situation that proximately caused his injuries. This may be sufficient notice pleading to meet the requirement set out in Monell, that a plaintiff allege the constitutional harm was caused by a “policy statement, ordinance, regulation, or decision promulgated or adopted by” the municipality. Sprague, supra, 109 Idaho at 662, 710 P.2d at 572 (emphasis original).
*186In support of its motion for summary judgment, the city submitted the affidavit of James H. Benham, the lieutenant in charge of training for the Pocatello City Police Department. Lieutenant Benham testified:
2. Included within my duties is the monitoring of all police training and record keeping regarding the training of police officers.
3. All Pocatello police officers are required to become “POST” (Police Officers Standards and Training Academy) certified within their first year of employment with the Pocatello City Police Department. In order to become POST certified, the officers must attend the academy course in Boise which lasts approximately five weeks.
4. An officer cannot become POST certified until he has completed the POST program and has spent a year on the police force. Included within the POST training are courses and instruction regarding the firing of weapons and the use of deadly force on the job.
5. In addition, the City of Pocatello Police Department gives instruction to its officers not to use deadly force unless necessary to defend the officers or others from serious injury. Each officer is given a copy of the entire City Manual regarding police officer procedures at the time of their employment.
6. While employed as police officers for the City of Pocatello, each officer is required to attend numerous training seminars on an on-going basis to increase the officers’ skills in performing their duties. During the year 1983, the Pocatello City Police Officers completed approximately 6,500 total hours of in-service training. This amounted to approximately eighty hours of in-service training per officer in the police department.
7. The officers specifically named in this lawsuit both received POST academy training prior to the incident at issue. Officer Bruce Gentillon received his POST training from October 15, 1979 through November, 1979. Each year the officers are required to meet department qualifications which include a “N.R.A.” short course, a stress course, and a metal target course. Officer Gentillon, prior to the occurrence at issue, last completed the re-qualification course for the department in September of 1981, having received POST training several years before the incident at issue. The officer passed all tests.
8. Officer Ron Black was employed by the Pocatello Police Department on July 27,1981. He was explained the City of Pocatello police procedures by Steve Wilkey on July 28, 1981.
9. From August 31, 1981 to October 2,1981, officer Black was assigned to the Post Academy in Boise. While in Boise he received instruction there regarding firearms use and use of deadly force. Officer Black was also required to pass the police department’s examination regarding the use of his firearm on the firing range.
10. Both officers were properly instructed and trained in the use of their firearms and the use of deadly force, as are all officers in the Pocatello City Police Department.
In short, Lieutenant Benham testified that the police department thoroughly trains, tests, and supervises its officers in the use of deadly force.
Anderson offers nothing to contradict this account. His affidavit did not relate in any way to his allegations concerning negligent hiring, screening, training, and supervising. The single incident standing by itself is not enough to support an inference that the city had an official policy or practice which led to Anderson’s injuries. City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 2435-36, 85 L.Ed.2d 791 (1985).
In his reply brief, Anderson related the following:
Plaintiff sought to engage in discovery to establish the facts underlying this claim. However, discovery was denied, on the basis that the individual police officers had been dismissed out on their *187good faith immunity defense. Appellant’s Reply Brief, pp. 7-8.
Inexplicably, Anderson failed to raise as an issue on appeal the denial of his discovery motion.
Moreover, the record does not contain the denial of Anderson’s motion. Anderson’s motion is contained, as is the defendants' motion for a protective order, but the disposition of the district court is absent. “The appellant has the initial burden of presenting a record sufficient to enable an appellate court to decide the case.” State ex rel. Hodges v. Hodges, 103 Idaho 765, 653 P.2d 1177 (1982). Here, Anderson failed his burden. This Court is unable to find error in an order of the district court which is not in the record. For all this Court knows, the denial of discovery might have been well justified.
The resulting record provides uncontroverted evidence that the city was not negligent as alleged. This Court is bound by the existing record on appeal. There appearing no genuine issue as to the negligence of the city, the motion for summary judgment in favor of the city was properly granted. As in Hodges, “[i]n the absence of an adequate record, or a sufficient reason for the failure to produce a record, we affirm the trial court.” Id. at 766, 653 P.2d at 1178.
III.
ANDERSON’S STATE LAW CLAIMS
A. Negligence Claim Against the City of Pocatello.
As just explained, the city offered testimony that it was not negligent in its training and supervision of its officers, which testimony Anderson failed to contradict. Anderson further failed to allege as error the denial of his discovery motion, and failed to present a record containing any basis for this Court to consider the disposition of the discovery motion. The motion for summary judgment was properly granted. Id.
B. Assault and Battery Claim Against the Officers.
Anderson stated a claim for assault and battery against the officers.6 The district court ruled that his claim was barred by I.C. § 6-904(4), which provides:
Exceptions to governmental liability — A Governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent shall not be liable for any claim which:
4. Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.
There is no allegation that the officers acted outside the course and scope of their employment, or with criminal intent. In his brief, Anderson argues only that whether the officers acted with malice is a jury question. The presence of malice would render inapplicable the assault and battery exception. I.C. § 6-904.
The term malice has been variously defined. See generally 52 Am. Jur.2d, Malice, § 1. At a minimum, malice involves the intentional commission of a wrongful or unlawful act without legal justification or excuse, whether or not the injury was intended. Tinker v. Colwell, 193 U.S. 473, 485-86, 24 S.Ct. 505, 508, 48 L.Ed. 754 (1903). This is referred to as “legal” malice. 52 Am.Jur.2d, Malice, § 1. However, the use of the disjunctive term “or” in the phrase “without malice or criminal intent” indicates that malice as used here qualitatively differs from criminal intent. I.C. § 6-904. Criminal intent closely equates to the above definition of “legal” malice. Thus, the term malice as used in § 6-904 must refer to more than mere “legal” malice. Malice here must refer to “actual malice.” Accord, Ladnier v. Mur*188ray, 572 F.Supp. 544, 549-50 (D.C.Md.1983), reversed in part on other grounds, 769 F.2d 195 (4th Cir.1985). “Actual” malice encompasses the common meaning of the word, which connotes ill will. 52 Am. Jur.2d, Malice, § 1. We conclude and hold that malice here means “actual” malice, which we define as the intentional commission of a wrongful or unlawful act, without legal justification or excuse and with ill will, whether or not injury was intended.
An examination of the record belies the complaint’s bare allegation of malice.7 It is true that Anderson alleged facts concerning the circumstances of the shooting which make the question of whether the officers’ actions were based on reasonable grounds an issue of fact for the jury. See part H.A., supra. However, Anderson alleges nothing in his affidavit, nor did he testify to anything at his criminal trial, from which one could reasonably infer any ill will on the part of the officers. The record reflects without dispute that the officers were responding (reasonably or unreasonably) to a rapidly evolving situation with apparent and imminent danger. In the face of this record, Anderson was not entitled to rest upon the allegation of malice in his pleadings but was required to “set forth specific facts showing that there is a genuine issue for trial.” I.R.C.P. 56(e). Anderson having failed in this regard, the district court properly granted the motion for summary judgment as to the assault and battery claim pursuant to I.C. § 6-904(4). Accordingly, the district court is affirmed on this issue.
The judgment of the district court is affirmed in all respects save the § 1983 claim against the officers. That claim is remanded to the district court.
There shall be no award of costs or attorney’s fees.
DONALDSON, C.J., and HUNTLEY, J., concur. SHEPARD, J., dissents without opinion.. I.C. § 18-3304 provides:
Aiming firearms at others. — Any person who shall intentionally, without malice, point or aim any firearm at or toward any other person shall be guilty of a misdemeanor and shall be subject to a fine of not more than $50.00 and not less than $5.00.
.Anderson’s affidavit reads as follows:
I, Michael Anderson, hereby depose and state as follows:
1. On October 18, 1981, in the early morning hours, I was at home in bed asleep, when someone awakened me by trying to kick in my door. The person did not identify himself. I did not respond, out of fear for my safety. Later, someone came and knocked forcefully on the door, without identifying himself. Still I did not respond. Finally, when someone came a third time and rapped on the glass of the window in the door, I got my shotgun to defend myself and stepped outside.
2. I racked the gun before coming out to announce that I was coming out. I thought that, if the people were police (though they had not previously been acting like police), they would identify themselves. No one responded as I stepped outside.
3. Once I was outside, I saw one person running off to the left and did not point the shotgun at anyone. As I walked out, I heard someone shout, "Freeze!” I was frightened, and turned to walk back into my apartment.
4. Then someone shouted, “Drop it.” At that point, my shotgun was at port-arms position, i.e., pointed diagonally upwards. Since the voice still did not identify the speaker, and I saw no one, I attempted to walk back into my apartment for safety. I did not believe, nor did I have any reason to believe, that the person shouting at me was a policeman.
5. As I stepped toward the door, I moved the shotgun from port arms toward a straight up position.
6. At that point, the Defendants fired at me numerous times, and I was shot in the side and back.
7. Later, Officer Black and Gentillon arrested me and admitted that they had shot me. They admitted at my preliminary hearing and my trial that they had not identified themselves as policemen, nor had they worn identifying hats or other insignias which I had any opportunity to see.
8. The officers testified at my trial, as they stated here, that I had pointed the shotgun at Mr. Romriel. I deny this. But this was the basis for my conviction of a misdemeanor charge of pointing a firearm at someone. I was acquitted of any assault on the police officers.
The alleged aiming of the gun at Mr. Romriel, according to the officers testimony, had previously ceased. And I certainly posed no threat to Mr. Romriel at the time I was repeatedly shot by the officers.
9. I never aimed a firearm at the officers, discharged a firearm, or made threatening statements to the officers. As a veteran, I can state that there was no reasonable basis for the officers to believe that they were in danger.
10. The officers could easily have disarmed me as I came out of my apartment, had they not taken cover and assumed firing positions instead.
11. If the officers had identified themselves, I would certainly have dropped the shotgun and cooperated fully.
12. It would not have been possible for me to fire a shotgun, at all accurately from the waist-level position where they claim I was holding the gun.
13. At the time I was shot, I was trying to do nothing except reenter my apartment.
14. The foregoing statements are based on my personal knowledge and statements made by the Defendant policemen in my presence. I have no personal knowledge as to the content of the officer’s training and the selection process; and so cannot establish these facts unless I am allowed to do discovery.
. The general doctrine of res judicata is not to be confused with the specific rule of res judicata, or claim preclusion, which is "the effect of the former judgment where the latter action proceeds on all or part of the very claim which was the subject of the former." J. Fleming and G. Hazard, Civil Procedure § 11.3, p. 532 (2d ed. 1977) (hereinafter Fleming and Hazard, supra).
. Conversely, a judgment of acquittal only demonstrates that the prosecution failed its heavy burden of proof beyond a reasonable doubt. The same proof might satisfy the lighter burden in a civil action. Consequently, a judgment of acquittal does not conclude any issues as to civil liability. Id.; Taylor v. Taylor, 275 N.C. 130, 125 S.E.2d 373, 375 (1962).
. For a thorough discussion of the various factors concerning whether a party had a full and fair opportunity to litigate a prior determination, see Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49, 51-53, 423 N.E.2d 807, 809-10 (1981).
. Anderson also alleged the officers’ conduct was negligent as well as an assault and battery. Even if this is so, such negligence did not proximately cause his injuries. Rather, the alleged intentional assault and battery caused his injuries.
. In fact, it required a generous construction of Anderson’s pleadings to derive the allegation of malice itself.