Dillon Bracken v. Kinchung Chung
2017 U.S. App. LEXIS 16105
| 9th Cir. | 2017Background
- On New Year’s Eve 2009, Dillon Bracken entered a hotel party and was confronted for lacking a wristband; Kyo-ya hotel security decided to issue an internal one-year "trespass" warning.
- Honolulu PD Officer Kinchung Chung was hired and paid by the hotel as an off‑duty "special duty" officer; he wore his uniform and used his badge while assisting hotel security.
- Chung helped stop and detain Bracken, repeatedly demanded ID, and prevented Bracken from leaving; other hotel guards then tackled and allegedly assaulted Bracken, causing injuries.
- Bracken recorded part of the encounter (video and audio); Chung remained present throughout and, per audio, did not intervene while Bracken screamed for them to stop.
- Bracken sued under 42 U.S.C. § 1983 alleging a Fourteenth Amendment due‑process failure‑to‑intercede claim; the district court granted Chung summary judgment on the merits and on qualified immunity.
- The Ninth Circuit vacated and remanded, holding (1) Chung could not claim qualified immunity because he acted for a private employer, and (2) a reasonable jury could find Chung created a foreseeable danger and acted with deliberate indifference by failing to intercede.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether qualified immunity applies to an off‑duty officer acting as private security | Chung was acting under color of state law and thus entitled to qualified immunity | Chung acted under color of law but qualified immunity should not apply because he served a private employer | Qualified immunity not available: historical tradition and purposes of doctrine do not support immunity when officer acts to serve private, non‑governmental aims |
| Whether Chung’s conduct triggered a duty to intercede under the danger‑creation exception | Chung’s affirmative conduct (detaining Bracken) exposed him to foreseeable harm, creating duty to intervene | Chung had no duty because he was off‑duty and not acting as a fellow officer; no deliberate indifference shown | Duty triggered: fact issues exist; reasonable jury could find Chung created foreseeable danger and then acted with deliberate indifference by not stopping the assault |
| Whether summary judgment was appropriate on failure‑to‑intercede claim | Bracken argued material facts show deliberate indifference and presence during assault | Chung argued lack of liability and asserted qualified immunity and merits defenses | Summary judgment improper on § 1983 due‑process failure‑to‑intercede claim; remanded for trial |
| Availability of qualified immunity precedent for off‑duty officers | Bracken argued no firmly rooted tradition or policy supports immunity here | Chung contended courts should extend immunity when officer invokes badge and acts under color of law | Court held no established historical tradition and immunity policies do not justify shielding officer paid by private entity |
Key Cases Cited
- Wyatt v. Cole, 504 U.S. 158 (qualified immunity protects government functions and safeguards government interests)
- Richardson v. McKnight, 521 U.S. 399 (no automatic immunity for privately employed guards carrying out non‑governmental aims)
- Filarsky v. Delia, 566 U.S. 377 (historical inquiry into immunity for private individuals performing public service)
- L.W. v. Grubbs, 92 F.3d 894 (danger‑creation exception and deliberate indifference standard for due‑process failure to intercede)
- Jensen v. Lane County, 222 F.3d 570 (qualified immunity two‑step analysis and availability inquiry)
- Wood v. Ostrander, 879 F.2d 583 (affirmative conduct exposing plaintiff to foreseeable danger can trigger duty to protect)
- Kennedy v. City of Ridgefield, 439 F.3d 1055 (deliberate indifference in creating or responding to danger can support § 1983 liability)