Hyun Park v. City and County of Honolulu
952 F.3d 1136
9th Cir.2020Background
- Hyun Ju Park, a bartender in Honolulu, was struck by a bullet when off-duty HPD Officer Anson Kimura, after drinking seven beers, recklessly attempted to load his revolver; two other off‑duty officers (Sterling Naki and Joshua Omoso) were present and watched.
- Park sued Kimura, Naki, Omoso, and the City & County of Honolulu under 42 U.S.C. § 1983 and Hawaii law, alleging a Fourteenth Amendment bodily‑integrity violation.
- Park’s Monell theory alleged two municipal causes: HPD Policy 2.38 (requiring officers to carry holstered pistols except when ‘‘impaired’’) and a departmental ‘‘brotherhood culture of silence’’ that discouraged reporting misconduct.
- Kimura settled early and is no longer a defendant. The district court dismissed the § 1983 claims against Naki and Omoso and dismissed the County Monell claim for failure to plausibly allege deliberate indifference; state claims were remanded/declined.
- The Ninth Circuit affirmed: (1) Naki and Omoso were not acting under color of state law while off duty; (2) Park failed to plead that the Chief had notice or that Policy 2.38 or the culture of silence was so obviously deficient as to demonstrate municipal deliberate indifference.
- Judge Smith concurred in part and dissented in part: he agreed about Naki/Omoso but would have allowed Park’s Monell claim to proceed, finding the complaint plausibly alleged notice, causation, and deliberate indifference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Naki and Omoso acted "under color of state law" for §1983 liability | They became effectively on‑duty when they observed Kimura brandish his firearm and thus should be liable for failing to intervene | They were off‑duty, in plain clothes, did not identify themselves, and showed no indicia of official authority | Dismissed — allegations do not plausibly show they acted or pretended to act in an official capacity |
| Whether HPD Policy 2.38 is facially deficient such that Monell liability follows without a pattern of prior violations | Policy required officers to carry until they were ‘‘impaired,’’ creating a foreseeable risk that officers would carry while drinking; policy lacked guidance on assessing impairment | Policy expressly prohibits carrying while impaired and requires holstered pistols; it is not reasonably read to force officers to carry into bars while impaired | Dismissed — policy not plausibly so deficient on its face to establish municipal deliberate indifference |
| Whether a departmental "brotherhood culture of silence" gave the Chief constructive or actual notice of constitutional risk | The culture discouraged reporting, so misconduct (like Kimura’s) would go undisclosed and the Chief thus had constructive notice; failure to require whistleblower policies shows deliberate indifference | Alleged prior incidents are too vague and do not show prior deprivations of federally protected rights or that policymakers knew of a risk to constitutional rights | Dismissed — allegations do not plausibly show notice of prior similar constitutional violations or deliberate indifference |
| Whether combining Policy 2.38 and the culture‑of‑silence allegations establishes causation and deliberate indifference | If the Chief had required reporting, prior incidents would have surfaced, prompting corrective policy changes that would have prevented the shooting | That chain alleges mere causation possibilities but not that the Chief knew the culture extended to concealment of constitutional violations; causation ≠ deliberate indifference | Dismissed — combination shows possible causation but not the required plausible inference of deliberate indifference/notice |
Key Cases Cited
- Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (municipal liability under § 1983 requires a policy, custom, or practice that causes a constitutional deprivation)
- City of Canton v. Harris, 489 U.S. 378 (deliberate indifference standard for failure‑to‑train/failure‑to‑act claims)
- Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397 (deliberate indifference requires disregard of a known or obvious consequence)
- Connick v. Thompson, 563 U.S. 51 (pattern of similar violations normally required to show notice when policy not facially deficient)
- Anderson v. Warner, 451 F.3d 1063 (9th Cir.) (three‑part test for when an off‑duty officer acts under color of state law)
- Naffe v. Frey, 789 F.3d 1030 (9th Cir.) (distinguishing off‑duty employees who exercise official responsibilities from those entirely off duty)
- Van Ort v. Estate of Stanewich, 92 F.3d 831 (9th Cir.) (off‑duty officer not acting under color when no indicia of official capacity during misconduct)
- Huffman v. Cty. of Los Angeles, 147 F.3d 1054 (9th Cir.) (off‑duty officer in bar brawl did not act under color of law)
- Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. en banc) (clarifies Monell deliberate‑indifference standards)
- Gibson v. Cty. of Washoe, 290 F.3d 1175 (9th Cir.) (municipal liability requires a municipal employee violated rights while acting under color of law)