292 F. Supp. 3d 1080
D. Haw.2018Background
- Plaintiff Hyun Ju Park alleges she was shot by off-duty HPD officer Anson Kimura in a bar; Kimura took out an HPD-issued firearm while drinking and a bullet struck Plaintiff. Kimura later was dismissed from the case by stipulation.
- Plaintiff sues City and County of Honolulu (Honolulu) and officers Sterling Naki and Joshua Omoso (individual and official capacities) alleging §1983 claims (Fourth and Fourteenth Amendments), and state law torts (assault/battery, IIED, negligence); Counts 4–5 (assault/IIED) were later dismissed by stipulation.
- FAC alleges Naki and Omoso were off-duty, present and drinking with Kimura, observed his reckless firearm handling, and failed to intercede; alleges HPD policies (2.38 and 2.21), a “brotherhood” code of silence, and failure-to-train/supervise theories against Honolulu.
- Procedurally: Honolulu moved to dismiss the First Amended Complaint; Naki and Omoso joined. The court previously dismissed official-capacity claims against officers as duplicative of municipal claims.
- Court applied Rule 12(b)(6) / Twombly–Iqbal plausibility standards and dismissed Counts 1–3 (§1983) and Count 6 (negligence) as to Honolulu, Naki, and Omoso without prejudice; official-capacity claims against the officers were dismissed with prejudice.
- Plaintiff was given 30 days to amend to cure deficiencies or face judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Official-capacity claims against officers | Official-capacity claims are proper alternate pleading against the officers | Official-capacity claims duplicate the municipal claim and should be treated as claims against the City | Dismissed with prejudice (duplicate of suit against City) |
| Whether officers acted under color of state law for §1983 | Off-duty conduct while armed and known to be police created state action | Officers were off-duty, socializing, not acting or pretending to perform official duties; no facts showing exercise of authority | FAC fails to plausibly allege color of state law; §1983 counts dismissed without prejudice |
| Municipal liability (Monell) — policy/custom/failure to train | HPD policies (2.38 permitting firearms while drinking), a code-of-silence, and inadequate training caused/reasonably foresaw harm | Policies not deliberately indifferent; allegations are conclusory and causally tenuous; precedent rejects liability for private off-duty acts absent special relationship or danger-creation | Monell theories inadequately pleaded (no deliberate indifference, no moving force, no pattern or obvious training deficiency); dismissed without prejudice |
| State-law negligence and respondeat superior | City negligent in training/supervision and vicariously liable for officers’ acts | Officers acted outside scope of employment; City not liable under respondeat superior; training/supervision allegations conclusory | Negligence claims against Naki/Omoso and against Honolulu dismissed without prejudice; respondeat superior fails because acts were off-duty and not within scope |
Key Cases Cited
- Hafer v. Melo, 502 U.S. 21 (1991) (distinguishing personal- and official-capacity suits)
- Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (municipal liability requires policy or custom)
- Kentucky v. Graham, 473 U.S. 159 (1985) (official-capacity suits are suits against the entity)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Bell Atlantic v. Twombly, 550 U.S. 544 (2007) (plausibility standard)
- Brower v. County of Inyo, 489 U.S. 593 (1989) (seizure requires intentional governmental termination of movement)
- County of Sacramento v. Lewis, 523 U.S. 833 (1998) (substantive due process "shocks the conscience" standard)
- Connick v. Thompson, 563 U.S. 51 (2011) (failure-to-train requires deliberate indifference; pattern ordinarily necessary)
- City of Canton v. Harris, 489 U.S. 378 (1989) (municipal liability for failure to train when need is obvious)
- Bd. of County Comm’rs v. Brown, 520 U.S. 397 (1997) (deliberate indifference standard)
- Van Ort v. Estate of Stanewich, 92 F.3d 831 (9th Cir. 1996) (limits on municipal liability for private acts; special-relationship exception)
- Huffman v. County of Los Angeles, 147 F.3d 1054 (9th Cir. 1998) (danger-creation theory and foreseeability in off-duty firearm cases)
- Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992) (elements for Monell claim)