Hyun Park v. City and County of Honolulu ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HYUN JU PARK, No. 18-16692
Plaintiff-Appellant,
D.C. No.
v. 1:17-cv-00142-ACK-
KSC
CITY AND COUNTY OF
HONOLULU; STERLING NAKI; OPINION
JOSHUA OMOSO,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Argued and Submitted October 22, 2019
Honolulu, Hawaii
Filed March 13, 2020
Before: Susan P. Graber, Milan D. Smith, Jr., and
Paul J. Watford, Circuit Judges.
Opinion by Judge Watford;
Partial Concurrence and Partial Dissent by
Judge Milan D. Smith, Jr.
2 PARK V. CITY & CTY. OF HONOLULU
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 against police
officers and the City and County of Honolulu alleging that
defendants violated plaintiff’s substantive due process right
to bodily integrity under the Fourteenth Amendment.
Plaintiff was shot while working as a bartender after an
off-duty police officer attempted, while intoxicated, to load
his already-loaded firearm, which accidentally discharged.
Plaintiff alleged that the officer’s reckless handling of his
firearm exhibited deliberate indifference to her personal
safety, and that two other off-duty police officers were liable
for failing to intervene to stop the dangerous conduct.
Plaintiff also alleged that Police Department policies or
customs caused her injuries. Plaintiff settled her claims
against the officer who shot her, and the district court
granted the remaining defendants’ motion to dismiss.
The panel first held that because the two off-duty officers
at the scene did not act or purport to act in the performance
of their official duties, they were not acting under color of
state law. The panel therefore affirmed district court’s
dismissal of plaintiff’s claims against the officers.
The panel affirmed the district court’s dismissal of
plaintiff’s § 1983 claim against the County, brought
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PARK V. CITY & CTY. OF HONOLULU 3
pursuant to Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978). The panel rejected plaintiff’s
assertions that the County was liable because the Chief of
Police failed to amend a Honolulu Police Department policy
to prohibit officers from carrying firearms whenever they
consumed alcohol in any amount. The panel also rejected
plaintiff’s assertion that the Chief of Police failed to
implement mandatory whistleblowing policies, which would
have rooted out a culture of silence. The panel concluded
that plaintiff had not plausibly alleged that the Chief of
Police had actual or constructive notice that his inaction
would likely result in the deprivation of plaintiff’s federally
protected rights.
Concurring in part and dissenting in part, Judge M.
Smith joined the majority opinion as applied to the two off-
duty officers and agreed that the § 1983 claims against them
should be dismissed for failure to plausibly allege that they
were acting under color of law. However, Judge M. Smith
respectfully disagreed with the majority’s analysis of
plaintiff’s Monell claim against the County.
COUNSEL
Eric A. Seitz (argued), Della A. Belatti, Gina Szeto-Wong,
and Kevin A. Yolken, Honolulu, Hawaii, for Plaintiff-
Appellant.
Robert M. Kohn (argued), Nicolette Winter, Traci R. Morita
and Tracy S. Fukui, Deputies Corporation Counsel,
Department of the Corporation Counsel, City and County of
Honolulu, Honolulu, Hawaii, for Defendant-Appellee City
and County of Honolulu.
4 PARK V. CITY & CTY. OF HONOLULU
Sterling Naki, Ewa Beach, Hawaii, pro se Defendant-
Appellee.
Joshua Omoso, Honolulu, Hawaii, pro se Defendant-
Appellee.
OPINION
WATFORD, Circuit Judge:
Hyun Ju Park used to work as a bartender at a sports bar
in Honolulu, Hawaii. Late one night, while Park was
working, three off-duty police officers employed by the
Honolulu Police Department stopped at the bar for drinks.
After consuming seven beers over the course of two hours,
one of the officers, Anson Kimura, decided to inspect his
personal revolver, which the department had authorized him
to carry. He apparently did so to ensure that it was loaded.
The other two officers, Sterling Naki and Joshua Omoso,
watched as their intoxicated colleague recklessly attempted
to load his already-loaded firearm. Kimura’s revolver
accidentally discharged, and a single bullet struck Park. She
suffered serious, life-threatening injuries as a result.
Park filed this action against the three officers and the
City and County of Honolulu under 42 U.S.C. § 1983 and
Hawaii state law. In her second amended complaint—the
operative complaint in this case—Park alleges that the
defendants violated her substantive due process right to
bodily integrity under the Fourteenth Amendment. As to the
individual officers, Park alleges that Kimura’s reckless
handling of his firearm exhibited deliberate indifference to
her personal safety, and that Naki and Omoso are liable for
failing to intervene to stop Kimura’s dangerous conduct.
PARK V. CITY & CTY. OF HONOLULU 5
As a basis for establishing the County’s liability under
Monell v. New York City Department of Social Services, 436
U.S. 658 (1978), Park alleges that two Honolulu Police
Department policies or customs caused her injuries. First,
Park alleges that, at the time of the incident, Honolulu Police
Department Policy 2.38 required off-duty officers to carry a
firearm at all times, except when an officer’s “physical
and/or mental processes are impaired because of
consumption or use of alcohol.” According to Park, this
policy required Kimura to possess his firearm when he
entered the bar to begin drinking, and prohibited him from
carrying it only when he had consumed enough alcohol to
render his physical or mental processes impaired—at which
point he posed an immediate danger to anyone in his
vicinity. Park contends that the policy was deficient for the
further reason that it failed to instruct officers how to
determine when they had become impaired and what to do
with their firearms in the event of impairment.
Second, Park alleges that the Honolulu Police
Department tacitly promoted a “brotherhood culture of
silence” that condoned police misconduct and affirmatively
discouraged officers from reporting their colleagues’
transgressions. She asserts that this well-established custom
within the department “emboldened” Kimura to act with
impunity, even when doing so put others in danger.
Park settled her claims against Kimura early on, and he
is no longer a party to these proceedings. The remaining
defendants (Naki, Omoso, and the County) moved to dismiss
Park’s second amended complaint under Federal Rule of
Civil Procedure 12(b)(6). The district court granted their
motion as to the § 1983 claims and declined to exercise
supplemental jurisdiction over Park’s state-law claims. On
appeal, Park urges us to reinstate her § 1983 claims.
6 PARK V. CITY & CTY. OF HONOLULU
I
We review de novo the dismissal of a complaint under
Rule 12(b)(6). Vega v. United States, 881 F.3d 1146, 1152
(9th Cir. 2018). We begin with Park’s claims against Naki
and Omoso. Section 1983 provides a cause of action against
“[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws” of the United States. To state a claim under this
provision, Park must allege that she suffered the deprivation
of a federally protected right and that “the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The
district court properly dismissed Park’s claims against Naki
and Omoso because, even assuming that their conduct
violated Park’s Fourteenth Amendment right to bodily
integrity, she has not plausibly alleged that the officers
committed the deprivation while acting under color of state
law.
Our circuit has developed a three-part test for
determining when a police officer, although not on duty, has
acted under color of state law. The officer must have: (1)
acted or pretended to act in the performance of his official
duties; (2) invoked his status as a law enforcement officer
with the purpose and effect of influencing the behavior of
others; and (3) engaged in conduct that “related in some
meaningful way either to the officer’s governmental status
or to the performance of his duties.” Anderson v. Warner,
451 F.3d 1063, 1068–69 (9th Cir. 2006) (internal quotation
marks omitted).
PARK V. CITY & CTY. OF HONOLULU 7
Park’s claims against Naki and Omoso fail at the first
step. The complaint does not plausibly allege that either
officer was exercising, or purporting to exercise, his official
responsibilities during the events that led to her injuries.
Both officers were off-duty and dressed in plain clothes,
drinking and socializing at the bar in their capacity as private
citizens. They never identified themselves as officers,
displayed their badges, or “specifically associated” their
actions with their law enforcement duties. Naffe v. Frey, 789
F.3d 1030, 1038 (9th Cir. 2015). Thus, even accepting
Park’s allegations as true, there is no sense in which Naki
and Omoso performed or purported to perform their official
duties on the night in question.
Park alleges that, although Naki and Omoso were off-
duty and present at the bar in their capacity as private
citizens, everything changed when they saw Kimura pull out
his firearm. According to the complaint, Naki and Omoso
became “effectively on-duty” at that moment, as the
Honolulu Police Department requires even its off-duty
officers to affirmatively protect the community when a
dangerous situation arises in their presence. But as our cases
make clear, the critical question is not whether the officers
were technically on or off duty, but instead whether they
exhibited sufficient indicia of state authority for us to
conclude that they were acting in an official capacity. See,
e.g., Van Ort v. Estate of Stanewich, 92 F.3d 831, 838–39
(9th Cir. 1996). For instance, in Van Ort, we held that an
officer did not act under color of state law when he robbed a
house that he had searched a few days earlier while on duty.
Id. at 839–40. We did not rest our decision on the fact that
the officer was off-duty when he returned to the house;
rather, we emphasized that he was not in uniform, did not
identify himself as a policeman, and did not pretend to
exercise his official responsibilities in any way. Id. at 838–
8 PARK V. CITY & CTY. OF HONOLULU
40. The same analysis applies here. Because Naki and
Omoso did not act or purport to act in the performance of
their official duties, they were not acting under color of state
law. We accordingly affirm the district court’s dismissal of
Park’s claims against Naki and Omoso.
II
The remaining question is whether Park has plausibly
alleged a claim against the County. A municipality may be
held liable as a “person” under 42 U.S.C.
§ 1983 when it maintains a policy or custom that causes the
deprivation of a plaintiff’s federally protected rights.
Monell, 436 U.S. at 694. To state such a claim, a plaintiff
must allege either that (1) “a particular municipal action
itself violates federal law, or directs an employee to do so”;
or (2) the municipality, through inaction, failed to implement
adequate policies or procedures to safeguard its community
members’ federally protected rights. Board of
Commissioners of Bryan County v. Brown, 520 U.S. 397,
404, 407–08 (1997); see also Tsao v. Desert Palace, Inc.,
698 F.3d 1128, 1143 (9th Cir. 2012). When, as here, a
plaintiff pursues liability based on a failure to act, she must
allege that the municipality exhibited deliberate indifference
to the violation of her federally protected rights. Tsao, 698
F.3d at 1143. We agree with the district court that Park’s
Monell claim must be dismissed because she has not
plausibly alleged that the County’s inaction reflected
deliberate indifference to her Fourteenth Amendment right
to bodily integrity. 1
1
To hold a municipality liable for its inaction, a plaintiff must allege
that a municipal employee violated her federally protected rights while
acting under color of state law. See Gibson v. County of Washoe, 290
PARK V. CITY & CTY. OF HONOLULU 9
Deliberate indifference is “a stringent standard of fault,
requiring proof that a municipal actor disregarded a known
or obvious consequence of his action.” Brown, 520 U.S. at
410. Deliberate indifference exists when the need “for more
or different” action “is so obvious, and the inadequacy [of
existing practice] so likely to result in the violation of
constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to
the need.” City of Canton v. Harris, 489 U.S. 378, 390 &
n.10 (1989). A plaintiff can meet this standard in one of two
ways. In some circumstances, the policy may be so facially
deficient that any reasonable policymaker would recognize
the need to take action. Brown, 520 U.S. at 409. When that
is the case, a plaintiff need point only to the policy itself to
establish that the municipality’s policymakers were on
notice that the plaintiff’s federally protected rights would
likely be violated if they failed to act. See id. Alternatively,
if the policy is not obviously, facially deficient, a plaintiff
must ordinarily point to a pattern of prior, similar violations
of federally protected rights, of which the relevant
policymakers had actual or constructive notice. Connick v.
Thompson, 563 U.S. 51, 62 (2011); Clouthier v. County of
Contra Costa, 591 F.3d 1232, 1253 (9th Cir. 2010),
overruled on other grounds by Castro, 883 F.3d at 1070.
Park premises her claim against the County on the failure
of the relevant policymaker—here, the Chief of Police—to
address deficiencies in the two Honolulu Police Department
F.3d 1175, 1194 (9th Cir. 2002), overruled on other grounds by Castro
v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc);
Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998).
For purposes of this analysis, we assume that Kimura was acting under
color of state law when he attempted to load his firearm and that his
conduct violated Park’s Fourteenth Amendment right to bodily integrity.
10 PARK V. CITY & CTY. OF HONOLULU
policies or customs mentioned earlier. As to Policy 2.38,
Park contends that the Chief of Police failed to amend the
policy to prohibit officers from carrying firearms whenever
they consumed alcohol in any amount. As to the
“brotherhood culture of silence,” Park alleges that the Chief
of Police failed to implement mandatory whistleblowing
policies, which would have rooted out the culture of silence.
Even accepting those allegations as true, Park has not
plausibly alleged that the Chief of Police had actual or
constructive notice that his inaction would likely result in the
deprivation of her federally protected rights.
Park’s allegations concerning Policy 2.38 assert that the
policy’s facial deficiencies were so obvious that any
reasonable policymaker would have recognized the need for
reform. As Park reads the policy, it required off-duty
officers to carry a firearm while consuming alcohol up until
the point of impairment—a situation that would almost
certainly endanger the safety of anyone in the officer’s
immediate surroundings. We do not think that the policy can
sensibly be read in that way. 2 First, the policy required that
officers possess holstered pistols, which does not encompass
taking out a firearm when doing so is unnecessary. Second,
2
The policy states in relevant part:
All officers . . . shall be in possession of the . . .
holstered pistol . . . at all times unless otherwise
specified by directive, law, or the situation below:
Police officers whose physical and/or mental
processes are impaired because of consumption or use
of alcohol, medication, or any other substance which
could impair a person’s physical or mental processes,
are prohibited from carrying firearms while in such an
impaired condition.
PARK V. CITY & CTY. OF HONOLULU 11
the policy’s explicit purpose was to prohibit officers from
carrying firearms while in an impaired condition. It in no
way directed off-duty officers like Kimura to carry their
firearms with them when going to a bar to drink—an activity
that could obviously result in one’s “physical and/or mental
processes” becoming impaired “because of consumption or
use of alcohol.” Even if Kimura somehow interpreted the
policy to require such action, it is far from obvious that any
reasonable officer would have interpreted the policy in that
fashion. Thus, Park has not plausibly alleged that this is a
situation in which “the need for more or different” action
was “so obvious” that we can infer deliberate indifference
from the text of the policy alone. City of Canton, 489 U.S.
at 390.
Park has not plausibly alleged that the Chief of Police
was aware of prior, similar incidents in which off-duty
officers mishandled their firearms while drinking. In her
complaint, she alleges only that, on two prior occasions, she
witnessed Kimura drunkenly brandish his firearm in the
presence of Naki and Omoso while drinking at the bar. As
Park acknowledges, however, the Chief of Police did not
learn of those incidents before her injury, and she alleges no
other prior incidents that would have alerted the Chief of
Police that officers were interpreting Policy 2.38 to require
conduct that endangered members of the public. Instead, she
asserts that the Chief of Police knew or should have known
of Policy 2.38’s foreseeable consequences because the
Honolulu Police Department referenced on its website a
Hawaii statute prohibiting individuals with alcohol-abuse
disorders from possessing firearms. That allegation falls far
short of establishing deliberate indifference.
Park’s allegations concerning the “brotherhood culture
of silence” fare no better. Park asserts that the Chief of
12 PARK V. CITY & CTY. OF HONOLULU
Police had actual notice of the foreseeable consequences of
his inaction because he knew about three prior instances in
which officers attempted to conceal each other’s
misconduct. But Park offers no details about the type of
misconduct allegedly committed by these officers or the
extent to which their actions implicated community
members’ federally protected rights. Without any
information about the nature of the prior incidents, we
cannot reasonably infer that the Chief of Police knew or
should have known that the culture of silence would likely
result in the deprivation of Park’s constitutional rights. For
instance, Park does not even allege that those prior incidents
involved the deprivation of an individual’s federally
protected rights, as opposed to more minor transgressions
such as the violation of department overtime policies or the
misuse of a police vehicle for personal pursuits. Unless the
Chief of Police had reason to know that the culture of silence
extended to concealment of misconduct involving the
deprivation of federally protected rights, he cannot be said
to have been deliberately indifferent to a foreseeable risk that
Park’s own rights would be violated. See Tsao, 698 F.3d at
1145. 3
3
Even if Park had alleged that these prior incidents involved the
deprivation of federally protected rights, more would be required to
establish deliberate indifference. Park does not describe how the
Honolulu Police Department responded to the three incidents or whether
the officers involved in the cover-ups faced any repercussions for their
behavior. Park alleges only that the Chief of Police knew about the
incidents and failed to implement whistleblowing policies. But whether
the Chief of Police’s failure to implement such policies exhibited
deliberate indifference to Park’s constitutional rights depends, at least in
part, on whether he took other measures to address the officers’
misconduct.
PARK V. CITY & CTY. OF HONOLULU 13
Finally, although Park frames Policy 2.38 and the
“brotherhood culture of silence” as separate theories of
liability, we do not think that she can salvage her claim by
combining the two sets of allegations. Park asserts that the
Chief of Police would have known about Kimura’s prior
incidents of drunkenly brandishing his firearm (and thus
would have become aware of the deficiencies in Policy 2.38)
had he addressed the culture of silence by mandating that
officers report their colleagues’ transgressions. At most,
however, this assertion suggests that Park’s injuries could
have been avoided if: (1) the Chief of Police had
implemented mandatory whistleblowing policies; (2) Naki
and Omoso had reported Kimura’s behavior pursuant to
those policies; and (3) the Chief of Police had taken
appropriate steps to deter Kimura from committing such
misconduct again in the future. Whether the Chief of Police
could have prevented Park’s injuries goes to the issue of
causation, a separate question from whether his inaction
reflected deliberate indifference to Park’s federally
protected rights. The Chief of Police’s failure to address the
culture of silence could establish his deliberate indifference
to the risk posed by Kimura’s conduct only if he knew that
the culture of silence extended to incidents involving the
deprivation of community members’ federally protected
rights and still turned a blind eye. As just explained, Park’s
complaint fails to plausibly allege that fundamental premise.
Because Park has not plausibly alleged that the Chief of
Police’s inaction exhibited deliberate indifference to her
federally protected rights, we affirm the district court’s
dismissal of her § 1983 claim against the County.
AFFIRMED.
14 PARK V. CITY & CTY. OF HONOLULU
M. SMITH, Circuit Judge, concurring in part and dissenting
in part:
I join the majority opinion as applied to Officers Naki
and Omoso, and agree that the § 1983 claims against them
should be dismissed for failure to plausibly allege that they
were acting under color of law. However, I respectfully
disagree with the majority’s analysis of Park’s Monell claim
against the County.
I. Officer Kimura
The majority assumes for purposes of its Monell analysis
that Park plausibly alleges that Officer Kimura acted under
color of law and violated Park’s Fourteenth Amendment
right to bodily integrity. Because I would find that Park has
also plausibly alleged deliberate indifference on the part of
the County, as discussed below, it is necessary for me to
explain why I think the majority’s assumption about Officer
Kimura indeed reflects the correct legal result.
The facts alleged in Park’s Second Amended Complaint
(SAC) plausibly demonstrate that Officer Kimura was acting
under color of law in two respects. First, “a state employee
who . . . exercises his official responsibilities in an off-duty
encounter, typically acts under color of state law.” Naffe v.
Frey, 789 F.3d 1030, 1037 (9th Cir. 2015). Park alleges that
Officer Kimura’s purpose for handling his firearm at the
time of the shooting was to exercise his official
responsibilities. Specifically, Honolulu Police Department
(HPD) Policy No. 2.38 required HPD officers to carry a
pistol at all times, even when not scheduled for work, except
when “impaired” by alcohol. Park alleges that Officer
Kimura was carrying and attempted to reload his revolver
that night for purposes of compliance with HPD Policy No.
2.38.
PARK V. CITY & CTY. OF HONOLULU 15
This is “typically” enough to find action under color of
law, and I see no reason to stray from the general rule here.
Id. at 1037. It is irrelevant that Officer Kimura technically
violated HPD Policy No. 2.38 by possessing his firearm
while impaired by alcohol. See Screws v. United States, 325
U.S. 91, 111 (1945) (“Acts of officers who undertake to
perform their official duties are included whether they hew
to the line of their authority or overstep it.”). Defendants do
not offer a counter-explanation for Officer Kimura’s firearm
handling, let alone one “so convincing” as to make Park’s
explanation “implausible.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011).
The color of law test we articulated in Anderson v.
Warner, 451 F.3d 1063 (9th Cir. 2006), fits poorly in the
circumstances here. We developed the second prong of that
test—“the officer’s pretense of acting in the performance of
his duties must have had the purpose and effect of
influencing the behavior of others,” id. at 1069—to address
circumstances in which an off-duty officer was neither
exercising nor even attempting to exercise his official duties.
See id. at 1065–66 (off-duty county jail custodial officer
assaulted plaintiff after plaintiff accidentally rear-ended
officer’s personal truck); Van Ort v. Estate of Stanewich, 92
F.3d 831, 833–34 (9th Cir. 1996) (off-duty sheriff’s deputy
attempted to rob plaintiffs at gunpoint); Naffe, 789 F.3d at
1033 (off-duty county prosecutor published derogatory
statements about plaintiff on prosecutor’s personal blog and
Twitter). As alleged in the SAC, Officer Kimura was
similarly off duty but was attempting to exercise his official
duties, his failure to properly heed HPD’s impairment policy
notwithstanding. I do not believe we need look for a purpose
of invoking official status to influence others when we have
the more direct purpose of exercising official duties for
official ends. See Naffe, 789 F.3d at 1037 (distinguishing
16 PARK V. CITY & CTY. OF HONOLULU
cases involving “a state employee who . . . exercises his
official responsibilities in an off-duty encounter,” from “[a]
state employee who is [entirely] off duty,” and applying the
Anderson test only to the latter). As we acknowledged in
Anderson, “[t]here is no ‘rigid formula’ for determining
whether a state or local law official is acting under color of
state law.” 451 F.3d at 1068 (quoting Ouzts v. Md. Nat’l Ins.
Co., 505 F.2d 547, 550 (9th Cir. 1974) (en banc)).
Based on this analysis, Park plausibly alleges that
Officer Kimura handled his revolver on the night in question
for HPD reasons, not personal reasons. Construing the facts
in Park’s favor, Officer Kimura therefore acted under color
of law. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); Naffe, 789 F.3d at 1037.
Second, even if we were to apply the Anderson test, it is
satisfied when we consider Park’s allegations regarding
Officer Kimura’s prior conduct. The law of our circuit does
not per se proscribe consideration of prior conduct. I would
find that the prior conduct alleged here bears a sufficient
nexus to the conduct on the night of the shooting to include
it within the scope of our color of law analysis.
On Park’s alleged facts, Officer Kimura plausibly
“pretend[ed] to act under color of law” on previous
occasions by flaunting his officer status, as well as by
brandishing his firearm. Naffe, 789 F.3d at 1037. His
pretense plausibly had the “purpose and effect of influencing
the behavior of” Park so that she would tolerate his
dangerous and drunken misbehavior at her bar, whenever he
appeared. Id. He did not need to assert his officer status on
every occasion in order to have this effect; asserting it
regularly served the purpose well enough. The harm he
inflicted on Plaintiff “related in some meaningful way” to
his officer status, id., in that he “used ‘the badge of [his]
PARK V. CITY & CTY. OF HONOLULU 17
authority’” to ensure his impaired firearm handling would be
tolerated, Anderson, 451 F.3d at 1069 (quoting McDade v.
West, 223 F.3d 1135, 1139 (9th Cir. 2000)). If he had not
had the protection of purported state authority, he would
likely have been banned from the bar or indeed arrested for
his conduct. 1 And Park would not have ended up shot. 2
Our decision in Huffman v. County of Los Angeles, 147
F.3d 1054 (9th Cir. 1998), though facially similar, is
distinguishable. See id. at 1058 (plainclothes, off-duty
police officer did not act under color of state law when he
inadvertently shot opponent during bar brawl). First, the
officer in Huffman had a personal purpose for handling his
firearm, namely securing his loose gun during a personal
brawl. See id. at 1056. By contrast, Officer Kimura
1
Hawaii law allows open carry of a loaded handgun only with a
license, which an applicant can obtain “only ‘[w]here the urgency or the
need has been sufficiently indicated’ and the applicant ‘is engaged in the
protection of life and property.’” Young v. Hawaii, 896 F.3d 1044, 1048
(9th Cir. 2018), reh’g en banc granted, 915 F.3d 681 (9th Cir. 2019)
(quoting H.R.S. § 134-9).
2
The Fourth Circuit’s reasoning in Rossignol v. Voorhaar, 316 F.3d
516 (4th Cir. 2003), is persuasive. In that case, off-duty deputy sheriffs
went to various stores to buy out all copies of a newspaper that criticized
their department. Id. at 520. The officers were out of uniform, not
wearing badges, and using their personal vehicles. Id. They were,
however, “carrying their state-issued firearms, and some of those
firearms were visible during the evening.” Id. at 526. The Fourth Circuit
highlighted the fact that, despite being out of uniform and making no
overt threats, the officers “were recognized as police officers by store
employees throughout the county,” and, according to one store clerk,
“basically came off real intimidating.” Id. Since “[p]roprietors of small
stores often feel a keen need to stay on the right side of local law
enforcement,” the Fourth Circuit found that the officers’ “status as
sheriff’s deputies enabled them to execute their scheme in a manner that
private citizens never could have.” Id.
18 PARK V. CITY & CTY. OF HONOLULU
plausibly had an official purpose for handling his firearm.
Cf. McDade, 223 F.3d at 1141 (distinguishing Huffman
because the county employee in McDade was “committ[ing]
an act that was related to her official duties”). Second, the
officer in Huffman not only “never identified himself as a
sheriff’s deputy on the evening of the shooting,” id. at 1058,
but he also attempted to disguise his status by telling the
victim he “owned an air conditioning company,” id. at 1056.
Officer Kimura made no attempt to disguise his officer
status, and indeed had engaged in a pattern of behavior
designed to ensure his officer status would be recognized,
and respected, whether he asserted it or not. Cf. McDade,
223 F.3d at 1141 (distinguishing Huffman because the
county employee in McDade acted under pretense of state
authority by entering her state passcode into a database of
private information). 3
Our decision in Van Ort is also distinguishable. See 92
F.3d at 838–39 (off-duty police officer did not act under
color of state law when he tortured and attempted to rob the
residents of a home he had previously entered while on
duty). As in Huffman, the officer in Van Ort had a personal
purpose for handling his firearm, in this case robbing his
victims at gunpoint. See id. at 834. As in Huffman, the
3
In McDade, we considered a § 1983 lawsuit against a clerical
employee at a county District Attorney’s office. 223 F.3d at 1137. The
employee had used her official access to a state medical database to
locate her husband’s ex-wife at a battered women’s shelter. Id. The
employee’s purpose was to enable her husband to serve papers on his ex-
wife relating to child custody issues. Id. We held that the employee
acted under color of law, despite being engaged in a purely personal
pursuit, because she “acted under the pretense of state employment by
asserting her state-authorized passcode to enter into the database.” Id. at
1141. Notably, we did not rely on the fact that the employee accessed
the database during her scheduled work hours.
PARK V. CITY & CTY. OF HONOLULU 19
officer in Van Ort attempted to disguise his official status
during his crime. See id. at 838–39; cf. McDade, 223 F.3d
at 1141 (distinguishing Van Ort for the same reasons as
Huffman). Thus, it was not enough in Van Ort that the victim
alleged he recognized the officer on account of a previous
on-duty visit, because the officer “did not use his authority
to gain entry to the home or to induce [the victim] to open
his front door,” nor did the officer “purport to be acting as a
policeman.” Id. at 839. By contrast, Officer Kimura’s
identity as an officer was not just incidentally recognized by
Park. Officer Kimura ensured Park would recognize his
officer status by regularly flaunting it and by demonstrating
his authority to wield a weapon in her bar without
consequence.
Thus, contrary to the County’s arguments, I conclude
that prior conduct is potentially relevant to our under color
of law analysis, and is in fact dispositive in this case. On the
facts plausibly alleged in the SAC, I have no doubt that
Officer Kimura’s drunken wielding of his revolver in a bar
full of people was an abuse of power “possessed by virtue of
state law and made possible only because the wrongdoer is
clothed with the authority of state law.” Naffe, 789 F.3d at
1036 (quoting United States v. Classic, 313 U.S. 299, 326
(1941)). Thus, I believe that the majority’s assumption that
Officer Kimura acted under color of law in fact reflects the
correct result. I therefore also have no doubt that Park has
plausibly alleged a Fourteenth Amendment violation of her
right to bodily integrity, given the plausible allegation of a
state actor, and of deliberate indifference by the County as I
20 PARK V. CITY & CTY. OF HONOLULU
discuss below. 4 See P.B. v. Koch, 96 F.3d 1298, 1302–04
(9th Cir. 1996).
II. Monell Liability
Contrary to the majority, I would find that the facts in the
SAC plausibly give rise to § 1983 liability for the County
under Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978), on the basis of the County’s
role in causing Officer Kimura’s actions. To state a Monell
claim, a plaintiff must allege “that the government ‘had a
deliberate policy, custom, or practice that was the “moving
force” behind the constitutional violation.’” Gravelet-
Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013)
(quoting Galen v. Cty. of L.A., 477 F.3d 652, 667 (9th Cir.
2007)). In addition, the plaintiff must demonstrate that the
municipality acted with “deliberate indifference” to her
constitutional rights. Castro v. Cty. of L.A., 833 F.3d 1060,
1076 (9th Cir. 2016) (en banc).
The “moving force” showing requires both causation-in-
fact and proximate causation. Gravelet-Blondin, 728 F.3d at
1096. To demonstrate causation-in-fact, a plaintiff must
plausibly “establish ‘that the injury would have been
4
Park likely alleges a plausible Fourteenth Amendment violation by
Officer Kimura himself, in terms of unconstitutionally excessive use of
force—it was likely “objectively unreasonable” for Officer Kimura to
wield (or attempt to reload) his gun while drunk in a bar full of people.
Gordon v. Cty. of Orange, 888 F.3d 1118, 1122–24 (9th Cir. 2018). Cf.
Robinson v. Solano County, 278 F.3d 1007, 1014 (9th Cir. 2002) (en
banc) (merely pointing a gun may constitute Fourteenth Amendment
excessive force). But this is unnecessary to resolve for Monell purposes.
See, e.g., Castro v. Cty. of L.A., 833 F.3d 1060, 1073 (9th Cir. 2016) (en
banc) (“[A] municipality may not be held liable for a § 1983 violation
under a theory of respondeat superior for the actions of its
subordinates.”).
PARK V. CITY & CTY. OF HONOLULU 21
avoided’ had proper policies been implemented.” Long v.
Cty. of L.A., 442 F.3d 1178, 1190 (9th Cir. 2006) (quoting
Gibson v. Cty. of Washoe, 290 F.3d 1175, 1196 (9th Cir.
2002), overruled on other grounds by Castro, 833 F.3d at
1076). Park points to many policy corrections that plausibly
would have prevented her injuries, including a prohibition
on firearm possession while consuming alcohol in any
amount, guidance regarding assessing impairment and
preventing firearm misuse by impaired officers, mandatory
reporting of officer misconduct, and whistleblower
protections for reporting officers. I would reject
Defendants’ suggestion that a policy prohibiting firearm
carrying while “drinking” would have been just as
ineffective as the actual policy—prohibiting firearm
carrying while “impaired”—because “impairment starts
with the first sip.” Most people do not consider themselves
impaired after “one sip.” Similarly, I disagree with the
majority’s conclusion that HPD Policy No. 2.38 did not
require HPD officers to carry their firearms with them to a
bar. It is unclear when exactly the majority reads the policy
to direct (or even permit) officers to dispossess themselves
of their holstered pistols in relation to a plan to drink at a bar,
nor is it clear what the officers should then do with the pistol.
Officers who fail to carry their pistol while at a bar but not
impaired would violate the policy’s plain terms. Officers
who become impaired while carrying a holstered pistol are
dangerous.
To demonstrate proximate causation, a plaintiff must
plausibly establish that any “intervening actions were within
the scope of the original risk and therefore foreseeable.” Van
Ort, 92 F.3d at 837 (quoting Dodd v. City of Norwich, 827
F.2d 1, 6 (2d Cir. 1987)). Park plausibly alleges that HPD
Policy No. 2.38 created a foreseeable risk that an officer
would carry his gun while drinking; that HPD’s
22 PARK V. CITY & CTY. OF HONOLULU
“brotherhood culture of silence” created the foreseeable risk
that he would not be reported if he then misused his gun
while drinking; and that the lack of reporting created the
foreseeable risk that his misuse would continue until he
accidentally shot someone. 5 Accordingly, Park plausibly
alleges that HPD’s policies were the “moving force” behind
her injuries.
The “deliberate indifference” inquiry is an objective one,
concerning whether the need for different policies or
procedures was “so obvious, and the inadequacy so likely to
result in the violation of constitutional rights,” that the
municipality “can reasonably be said to have been
deliberately indifferent to the need.” Castro, 833 F.3d at
1076. The set of inferences just described as plausibly
demonstrating foreseeability for purposes of proximate
causation also plausibly demonstrate “obvious[ness]” for
purposes of deliberate indifference. 6 Id.
5
Huffman is again distinguishable. See 147 F.3d at 1061 (policy
requiring deputies to carry guns at all times, without warning about
dangers of carrying guns while intoxicated, albeit “bad policy,” was not
the proximate cause of shooting because “County could not have
foreseen [officer’s] actions”). In Huffman, the officer was not acting
under color of law, the bar brawl was an unforeseeable intervening event
between carrying a gun while drinking and the act of discharging the
gun, and the department had no knowledge of—nor was there any
allegation of—past incidents involving the defendant officer. See id. at
1060.
6
Three recent district court decisions—each of which allowed a
similar Monell claim to go forward even when the relevant officer was
not acting under color of law—are persuasive regarding the
foreseeability and obviousness here:
PARK V. CITY & CTY. OF HONOLULU 23
A municipality must also have had “actual or
constructive notice” of the substantial certainty of a
constitutional violation, which likewise invites an objective
inquiry. Id. (emphasis in original) (quoting City of Canton
v. Harris, 489 U.S. 378, 396 (1989) (O’Connor, J.,
concurring in part and dissenting in part)). I disagree with
the majority’s conclusion that Park has failed to plausibly
allege that the County had notice here. Officer Kimura’s
repeated engagement in drunken and dangerous weapons
handling occurred in the presence of other HPD officers.
This put the County on at least “constructive” notice of the
substantial risk of harm, whether on account of its policies
generally or on account of its policies’ effects on Officer
In Wagner v. Cook County Sheriff’s Office, 378 F. Supp. 3d 713
(N.D. Ill. 2019), the district court allowed a Monell claim against the
county where an intoxicated off-duty officer, not acting under color of
law, physically attacked and held a knife to the head of a bartender. Id.
at 714–15. The plaintiff alleged that the officer had a history of
misconduct involving excessive force and intoxication, and that the
county had a policy or custom of insufficiently investigating or
disciplining its officers. Id. at 714.
In Falcon v. City of Chicago, No. 17-C-5991, 2018 WL 2716286
(N.D. Ill. June 6, 2018), an intoxicated off-duty police officer, not acting
under color of law, accidentally discharged her gun at her friend’s home
and killed her friend. Id. at *1, *3. The district court allowed a Monell
claim against the city for failure to properly train officers and failure to
adequately enforce its regulations regarding the handling of guns while
drinking. Id. at *6.
And in LaPorta v. City of Chicago, 277 F. Supp. 3d 969 (N.D. Ill.
2017), an intoxicated off-duty officer’s friend suffered a paralyzing
bullet wound from the officer’s gun, either after the friend shot himself
in an attempted suicide or after the officer shot him. Id. at 974. The
district court found that fact issues precluded summary judgment for the
city on the friend’s Monell claim premised on the city’s “code of silence”
and failure to discipline officers for misconduct. Id. at 991–93.
24 PARK V. CITY & CTY. OF HONOLULU
Kimura specifically. I certainly would not shield the County
from being charged with “constructive notice” of Officer
Kimura’s past behavior where the very reason individual
policymakers may not have had “actual” notice was the
offending brotherhood culture of silence. To the extent that
the majority identifies additional facts that, if alleged, would
have made out a more compelling case for constructive or
actual notice, Park should be given leave to amend.
For the foregoing reasons, I respectfully dissent as to the
dismissal of Park’s Monell claims against the County. I
would reverse the district court and allow that portion of
Park’s lawsuit to proceed.