Nakagawa v. County of Maui et al

Filing 142

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 115 Motion for Summary Judgment in case 1:11-cv-00130-DKW-BMK. Signed by JUDGE DERRICK K. WATSON on 03/21/2014. -- Associated Cases: 1:11-cv-00130-DKW-BMK, 1:12 -cv-00569-DKW-BMK (eps) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

CIVIL No. 11-00130 DKW-BMK
(Consolidated Cases)

JOSHUA NAKAGAWA,
Plaintiff,

ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

vs.
COUNTY OF MAUI; MAUI POLICE
DEPARTMENT; ERIC LOSVAR;
HARRY MATSUURA; RUSSELL
KAPAHULEHUA; and JUN
HATTORI,
Defendants.
________________________________
ANTHONY LUM-JOHN,

CIVIL No. 12-00569 DKW-BMK
(Other Non-Motor Vehicle Tort)

Plaintiff,
vs.
COUNTY OF MAUI; MAUI POLICE
DEPARTMENT, ET AL.
Defendants.

1

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
On July 18, 2010, at approximately 4:13 a.m., Maui Police Department
(“MPD”) Officers Eric Losvar, Russell Kapahulehua, Jun Hattori, and Harry
Matsuura, Jr., investigating reports of gunshots fired at a local beach north of
Lahaina, encountered two vehicles approaching from the opposite direction on a
dark, secluded road. Despite instructions from the officers to stop, one of the
vehicles, a black Toyota pickup truck, slowed and then suddenly accelerated,
striking Officer Losvar in an attempt to flee. All four officers immediately
responded by discharging their service weapons in an effort to halt the fleeing driver,
inadvertently hitting Plaintiffs Lum-John and Nakagawa, who were passengers in
the bed of the Toyota. Because the officers were then unaware of Lum-John and
Nakagawa’s presence in the truck, and reacted reasonably in response to the danger
that the truck presented, the officers did not violate Plaintiffs’ civil rights, are
immune from suit, and are entitled to summary judgment.

2

BACKGROUND
I.

July 18, 2010 Incident
In the early morning hours of July 18, 2010, Nakagawa and Lum-John

attended a party at “Windmills” beach in a secluded area of West Maui. Windmills
is accessible by a dirt road that requires the use of a four-wheel-drive vehicle.
Honoapiilani Highway is the narrow, two-lane road that connects the Windmills
access road to Lahaina. Defs.’ Exs. J (Aerial Photograph) and L (Matsuura Decl.)
¶ 5. During the party, Nakagawa got into a fight with several unknown assailants,
during which he was struck on the head by a bottle or rock and cut on the forearm by
a jagged piece of glass. Lum-John and others removed Nakagawa from the area of
the fight and into the bed of a Toyota pickup truck, which was parked near
Honoapiilani Highway. Eight people departed the scene of the party in the Toyota:
four in the crew cab and four in the bed of the truck, including Nakagawa and
Lum-John who were sitting with their backs against the tailgate, facing forward.
See Nakagawa Mem. in Opp. at 1-2.
At 4:13 a.m., Maui County dispatch received a report of shots fired at
Windmills, but did not have any information about the suspects. Sergeants Russell
Kapahulehua and Harry Matsuura, Jr. responded to the call from the Lahaina station,
along with Officers Jun Hattori and Eric Losvar. The four responding officers first
3

met along Honoapiilani Highway at Office Road in Kapalua and then drove their
four patrol cars north on Honoapiilani Highway in tandem, toward Windmills.
Defs.’ Ex. M at 22 (1/9/14 Kapahulehua Dep. Tr.). Kapahulehua, who was in front
of the other officers, saw a vehicle approaching in the southbound direction, turned
on his blue emergency lights, and motioned to the vehicle, a black Infiniti, to stop.
Kapahulehua parked his patrol car in the northbound lane, and with his strobe lights
on, exited his vehicle and approached the Infiniti from the rear of the driver’s side
with his firearm drawn. Defs.’ Ex. M at 26. Hattori and Matsuura parked
immediately behind Kapahulehua’s vehicle. Matsuura and Kapahulehua reached
the driver’s side door of the Infiniti at approximately the same time, while Hattori
approached the passenger’s side of the vehicle. Id. at 27. The MPD officers
ordered the occupants of the Infiniti to show their hands. Defs. Exs. Q and W
(1/9/14 Hattori Dep. Trs.).
Losvar was not as familiar with the winding Honoapiilani Highway and
was the last to arrive at the black Infiniti. Defs.’ Ex. R (1/9/14 Losvar Dep. Tr.) at
14-16. When he reached the scene, he could see the emergency lights and the other
MPD officers near the Infiniti. Defs.’ Ex. R at 16-17. According to Losvar, he
parked on the Lahaina, or southbound side, of the Infiniti. Defs.’ Ex. R. at 17;
Defs.’ Ex. K (Diagram of Officers’ Positions). One of the officers asked the
4

occupants of the Infiniti about the report of gunshots, and, according to Losvar: “I
heard one of the people [in the Infiniti], one of them said, ‘Yeah some guys in. . . a
Toyota truck, they’re the ones that were firing the gun.’” Pls.’ Ex. C (7/18/10 MPD
Report) at 8-9.
Within seconds of addressing the Infiniti’s occupants, Kapahulehua
heard tires approaching from the northbound Windmills direction. Defs.’ Ex. N
(1/9/14 Kapahulehua Dep. Tr.) at 29. He turned from the Infiniti and walked in the
northbound lane along the patrol vehicles to meet the approaching vehicle. Defs.’
Exs. K and N at 36. Around the same time, Losvar was at the driver’s side of the
Infiniti and also heard the sound of the approaching tires. He followed
Kapahulehua from a distance of approximately five feet.
Based on the change in the sound of the tires, both Kapahulehua and
Losvar perceived that the approaching vehicle was slowing down. Defs.’ Exs. N at
30-31 and S at 23. As the vehicle neared, Kapahulehua could clearly see the driver
of a black Toyota pickup truck. The driver’s side window was partially down and
Kapahulehua instructed the driver to stop the truck and display his hands. In
response, the driver said “What?,” causing Kapahulehua to repeat the instructions.
As he did so, Kapahulehua had to look up because the truck was raised or lifted, with
large off-road tires. At that point, Kapahulehua had a clear view of the driver’s
5

face, but saw no other occupants. Defs.’ Exs. N at 32-33 and DD (Kapahulehua
Decl.).
Kapahulehua expected the truck to stop because it had been slowing
down as it approached the patrol cars with their activated emergency lights. Defs.’
Ex. N at 33, 42. Lum-John, in the bed of the truck, also thought the truck was going
to stop because it had slowed to the pace of someone walking. Defs.’ Exs. FF and
GG (1/17/14 Lum-John Dep. Trs.). The driver, however, shifted his focus from
Kapahulehua to the front of the truck, and suddenly accelerated, veering left toward
the gap between Matsuura’s patrol car and the Infiniti. Defs. Ex. N at 33-35.
Lum-John slammed into the back of the tailgate as a result of the Toyota’s
acceleration. Defs.’ Ex. GG at 129, 134.
As the Toyota accelerated, Kapahulehua states that he was afraid of
being pinned between the truck and a patrol car and jumped back to avoid being
struck. Defs.’ Ex. N at 35-36. Kapahulehua saw the Toyota strike Losvar, who
was in the gap between Matsuura’s patrol car and the Infiniti’s bumper, launching
Losvar into the air and causing him to disappear in front of the truck. Defs.’ Ex. S
at 22, 25. Fearing Losvar would be run over, Kapahulehua raised his gun and fired
three shots at the driver’s head in quick succession. Because of the truck’s angle,
Kapahulehua claims he had a clear view of the driver, but stopped firing when that
6

view became obscured. It was at that time, according to Kapahulehua, that he first
became aware that there were passengers in the truck. Defs.’ Ex. O (1/9/14
Kapahulehua Dep. Tr.); Defs.’ Exs. AA (1/9/14 Kapahulehua Dep. Tr.) and DD.
Despite being struck by the truck in the right hip, and being thrown off
on the driver’s side of the truck, Losvar was also able to fire at the Toyota’s driver
because he believed that Matsuura was in danger of being struck next or killed.1
Defs.’ Ex. T (1/9/14 Losvar Dep. Tr.) at 30-40. Losvar ceased firing, however, as
soon as he saw someone in the bed of the truck on the driver’s side. Pls.’ Ex. C
(7/18/10 MPD Report) at 15.
Matsuura was behind Losvar when he saw the Toyota accelerate and
strike Losvar. From Matsuura’s perspective, Losvar appeared to have been
projected over the truck before being run over. Matsuura believed that Losvar had
fallen under the truck’s tires after being launched over the hood. Defs.’ Ex. U
(1/10/14 Matsuura Dep. Tr.) at 30-36. At that point, Matsuura was directly in the
truck’s path. As the truck accelerated towards him, Matsuura ran out of the way,
turned and fired one shot at the driver through the windshield. Defs.’ Ex. U at
37-39.

1

Losvar believed that the driver of the truck intentionally struck him because, immediately before
the truck accelerated, he made eye contact with the driver. Defs.’ Ex. T.

7

From across the road, on the passenger side of the Infiniti, Hattori saw
the truck accelerate towards the area where he had last seen Matsuura and Losvar.
Hattori believed that both officers’ lives were at risk and fired toward the driver of
the Toyota. According to Hattori, besides the driver, he never saw any of the other
occupants of the truck. Defs.’ Exs. P and X (1/9/14 Hattori Dep. Trs.).
In all, nine shots struck the truck. Defs.’ Exs. D and E (Photographs).
Lum-John was hit by a single bullet in the left hip, taken to the hospital by medics
and discharged later that same day. Defs.’ Ex. KK. Nakagawa was shot twice in
the right shoulder and grazed by a third bullet. Defs.’ Ex. LL. According to
Plaintiffs, none of the officers pointed their firearms in their direction until after the
Toyota accelerated, striking Losvar. Defs.’ Exs. GG at 130 and JJ.
The parties disagree about portions of the record. According to the
County, as the truck approached the officers, Lum-John sat with his back touching
the tailgate on the passenger side, and tried to hide the injured Nakagawa from the
police. Plaintiffs dispute that Lum-John “hid” Nakagawa from the police. Indeed,
they also claim that Kapahulehua saw Nakagawa, ostensibly before discharging his
firearm. Pls.’ Exs. G at 44; Ex. H at 17-18; Ex. I at 3; Ex. J at 19.
Plaintiffs also dispute that Kapahulehua saw the truck strike Losvar or
that he was in fear of Losvar being run over. They claim that Losvar rolled over the
8

hood of the pickup and landed on his feet directly next to the driver-side door, which
Kapahulehua had been standing next to moments before. Pls.’ Ex. B at 31-32, 34;
Ex. F at 17; Ex. G at 38.
Another passenger in the Toyota’s bed, Kalen Agarano, claims that one
of the officers first asked if the group knew anything about shots being fired at
Windmills, and that the same officer then told them to put their hands in the air.
Pls.’ Ex. A (7/18/10 MPD Report.). Defendants deny that any of the officers saw
any of the passengers in the truck prior to firing at the Toyota’s driver.
Neither Nakagawa nor Lum-John was arrested following the incident.
According to the County, the driver of the Toyota, Austin Pierman, was charged
with attempted murder, charges that remain pending. Defs.’ Ex. PP.
II.

Plaintiffs’ Claims
Plaintiffs allege that Nakagawa was struck three times and Lum-John

was struck once by the MPD officers’ bullets. See Nakagawa First Amended
Complaint ¶¶ 27, 29; Lum-John Complaint ¶¶ 27, 33. Plaintiffs’ complaints
include the following causes of action: assault (Count I); battery (Count II);
intentional infliction of emotional distress (“IIED”) (Count III); negligence (Count
IV); negligent infliction of emotional distress (“NIED”) (Count V); violation of 42
U.S.C. § 1983 based on the Fourth, Fifth, Eighth, and Fourteenth Amendments
9

(Count VI); municipal liability for violation of 42 U.S.C. § 1983 (“Monell claim”)
(Count VII); and negligent supervision and training (Count VIII). Defendants seek
summary judgment on all counts.
At the March 5, 2014 summary judgment hearing, Plaintiffs conceded
that Defendants are entitled to summary judgment as to Count I (assault) and Count
VIII (state law claims for negligent supervision and training). On March 21, 2014,
Plaintiffs stipulated to dismiss all claims against Matsuura. Dkt. No. 141.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
The moving party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If that burden is met, the nonmoving party must then come forward and
establish the specific material facts in dispute to survive summary judgment.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
The nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Id. at 585. Also, “[t]he mere
existence of a scintilla of evidence in support of the non-moving party’s position is
10

not sufficient[ ]” to defeat summary judgment. Triton Energy Corp. v. Square D
Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Likewise, the nonmoving party “cannot
defeat summary judgment with allegations in the complaint, or with unsupported
conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d
1107, 1112 (9th Cir. 2003). The Court must draw all reasonable inferences in favor
of the nonmoving party. Matsushita, 475 U.S. at 587.
DISCUSSION
I.

Section 1983 Claims Against MPD Officers (Count VI)
Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage . . . subjects, or causes to be
subjected, any citizen of the United States ... to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress. . . .
Plaintiffs concede that their § 1983 claims for violations of the Fifth

and Eighth Amendments should be dismissed. Accordingly, their remaining claims
are based on the Fourteenth and Fourth Amendments.
A. Defendants Did Not Violate Nakagawa Or Lum-John’s Civil Rights
Under Either the Fourteenth Or Fourth Amendments
Although Plaintiffs’ excessive force claims are properly analyzed
under the Fourteenth Amendment because no seizure occurred, the Court concludes
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that Plaintiffs cannot maintain a claim under either the Fourteenth or Fourth
Amendment, and that Defendants are entitled to summary judgment.
1.

Plaintiffs Were Not “Seized,” Requiring the Application of
Fourteenth Amendment Analysis

To determine whether Plaintiffs’ Fourth Amendment right against
unreasonable seizures was violated, the Court first looks to whether Plaintiffs were
“seized.” Brower v. County of Inyo, 489 U.S. 593, 595-97 (1989). A person is
“seized” within the meaning of the Fourth Amendment if “by means of physical
force or show of authority, his freedom of movement is restrained.” United States
v. Mendenhall, 446 U.S. 544, 553 (1980). However, not every such restraint
amounts to a seizure. As the Brower court explained,
a Fourth Amendment seizure does not occur whenever there is a
governmentally caused termination of an individual’s freedom
of movement (the innocent passerby), nor even whenever there is
a governmentally caused and governmentally desired
termination of an individual’s freedom of movement (the fleeing
felon), but only when there is a governmental termination of
freedom of movement through means intentionally applied.
498 U.S. at 596-97 (1989) (emphasis in original); see also Reed v. Hoy, 909 F.2d
324, 329 (9th Cir. 1990) (“The Brower analysis breaks down into a three-part test: a
seizure is a (1) governmental (2) termination of freedom of movement (3) through
means intentionally applied.”).

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As this district court recognized in Edenfield v. Estate of Willets, 2006
WL 1041724 at *7-8 (D. Haw. Apr. 14, 2006), the “Ninth Circuit has not addressed
whether inadvertent injuries that a police officer inflicts on . . . an innocent
bystander while attempting to stop another person constitute a seizure under the
Fourth Amendment.” Edenfield noted that circuits that have addressed the issue
focus on the question of “to whom or at what the officers directed their physical
restraint.” Id. at *7. In cases where a plaintiff was the target of an officer’s
conduct, courts generally find that the officer effected a Fourth Amendment seizure.
See, e.g., Ciminillo v. Streicher, 434 F.3d 461, 464-66 (6th Cir. 2006) (concluding
that plaintiff was “not collaterally injured by an assertion of force against a third
party,” and, thus, was seized, and finding that force used to effect seizure was
unreasonable); Fisher v. Memphis, 234 F.3d 312, 315 (6th Cir. 2001) (plaintiff was
seized when car in which she was riding was the target of the officer’s “intentionally
applied exertion of force”).
In contrast, when the § 1983 plaintiff was not the target of an officer’s
conduct, courts have concluded that the plaintiff was not seized. See, e.g., Rucker
v. Harford Co., 946 F.2d 278, 280-81 (4th Cir. 1991) (plaintiff, whom officers did
not know was in vicinity, and was shot as officers fired at suspect, was not seized
because plaintiff was not the “intended object of a physical restraint”);
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Landol-Rivera v. Cosme, 906 F.2d 791 (1st Cir. 1991) (plaintiff, a known hostage,
who was shot when officers attempted to seize hostage-taker was not “seized”
because officers’ actions were directed at restraining the hostage taker). The facts
in these cases show an intent, or lack thereof, to restrain the plaintiff’s freedom of
movement. As summarized in Edenfield,
whether Plaintiffs were seized by the Officers turns on whether
the Officers intended to direct their physical restraint at Plaintiffs
and/or the truck. . . . [I]f the Officers were unaware of
Plaintiffs’ presence, it may be that no seizure occurred, as the
Officers could not have intended to direct their restraint against
them. . . . Thus, to determine whether Plaintiffs were seized, the
court must decide how the Officers were directing their physical
restraint.
Edenfield, at *10 (citations omitted).
In this case, the officers were not aware of Plaintiffs’ presence in the
bed of the truck before they discharged their firearms. Defs.’ Ex. O (1/9/14
Kapahulehua Dep. Tr.); Defs.’ Exs. AA (1/9/14 Kapahulehua Dep. Tr.); P and X
(1/9/14 Hattori Dep. Trs.); Pls.’ Ex. C (7/18/10 MPD Report) at 15. Plaintiffs argue
that Kapahulehua saw one passenger in the bed of the truck, but do not raise any
question of fact beyond their own speculation that Kapahulehua actually saw
Plaintiffs before he discharged his firearm. Plaintiffs solely rely on the statements
of Agarano, who told police that he was seated in the bed of the truck, directly

14

behind the driver. Pl.’s Ex. A. at 7. According to Plaintiffs, Agarano told
investigators that one of the officers, presumably Kapahulehua, saw him in the bed
of the truck before the shooting began. When asked about this contact, Agarano
replied as follows:
Like, at, yeah I did at first, ‘cause like he was walking up from
the side and I put my hands up in the air, like he saw me like turn
to ‘em like with my hands up’ cause he’s like, put your hands up
and pull the car over and like I put hands up and look at ‘em and
like then the driver just took off. And then I just saw him reach
for it and I just ducked and then I heard it.
Pl.’s Ex. A. at 13. As best the Court can discern, Agarano believes that
Kapahulehua saw him put his hands in the air. According to Kapahulehua,
however, he “did not see any occupants in the bed of the truck. I only became
aware that an occupant may have been in the bed of the truck after I had fired my gun
and saw skin in the left tailgate area of the truck bed. I did not see any other
occupants in the truck bed.” Defs.’ Ex. AA ¶ 4. Viewing the evidence in the light
most favorable to Plaintiffs, there is a question of fact as to whether Kapahulehua
saw Agarano in the bed of the truck. However, there is no question that
Kapahulehua did not see Plaintiffs themselves in the bed of the truck, nor have
Plaintiffs offered any evidence that any officer other than Kapahulehua, saw any one
in the bed of the truck before the onset of shooting. Moreover, whether or not

15

Kapahulehua saw Agarano is not dispositive of whether a seizure occurred. The
issue is whether the officers directed their physical restraint at Plaintiffs. The
evidence here is that they did not. See Defs.’ Ex. O at 41-42 (Kapahulehua fired
three shots in rapid succession “where [he] believed the driver’s head to be.”); Ex. T
at 34-40 (Losvar shot at driver and “stopped shooting when ‘he lost that line of sight
on the driver’s seat[.]”); Ex. P at 51 (Hattori was “focused on the area of the
driver[.]”).
Because there is no dispute that each of the officers fired their weapons
at the driver of the truck (Austin Pierman) unaware of the presence of either
Plaintiff, there was no seizure of either Plaintiff for Fourth Amendment purposes.
2.

The Officers’ Conduct Does Not Shock The Conscience

In cases involving injuries caused by law enforcement officers, a
substantive due process analysis under the Fourteenth Amendment is appropriate
where, as here, the Fourth Amendment does not apply. Sacramento v. Lewis, 523
U.S. 833, 844-45 (1998). A substantive due process violation requires that law
enforcement officers’ conduct “shock the conscience.” Porter v. Osborn, 546 F.3d
1131, 1137 (9th Cir. 2008).
At the March 4 summary judgment hearing and in their briefing,
Plaintiffs all but concede their inability to meet this standard. At each stage of the
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rapidly evolving encounter, each officer was forced to make split-second decisions.
The Toyota driver initially slowed his vehicle as he approached the officers, giving
the clear impression that he intended to heed Kapahulehua’s instruction to stop.
Instead, the driver surprised not only the officers, but his own passengers, by
suddenly accelerating in an apparent attempt to flee the scene, striking Losvar as he
did so, and bearing down on Matsuura in a similar fashion. With no time to
communicate or coordinate, each officer independently decided to draw and fire his
service weapon to halt the driver’s actions and protect the officers who were in
immediate and obvious danger. A “purely reactive decision” does not evidence an
intention to “induce . . . lawlessness, or to terrorize, cause harm, or kill.” Porter,
546 F.3d at 1140 (quoting Sacramento v. Lewis, 523 U.S. 833, 855 (1998)). Nor is
there any evidence, and Plaintiffs have cited none, that the officers acted with a
purpose “to cause harm unrelated to the legitimate object of arrest” or
self-protection. Porter, 546 F.3d at 1140. Indeed, there is no evidence to suggest
that the officers had any motive other than legitimate law enforcements objectives,
beyond Plaintiffs’ speculative arguments that the officers fired at the driver in
retaliation for running over Officer Losvar.
Accordingly, because none of the evidence – including the evidence
offered by Plaintiffs – approaches the “shocks the conscience” standard necessary to
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prevail on a Fourteenth Amendment claim, Defendants are entitled to summary
judgment.
3.

The Officers Employed Objectively Reasonable Force

Plaintiffs urge the use of the Fourth Amendment analytic applicable
where a “seizure” has occurred. They do so because, under the Fourth Amendment,
the propriety of an officer’s conduct is measured by an objectively reasonable
standard, rather than by the Porter “shocks the conscience” standard. Even were
the Court to heed Plaintiffs’ request, the result would be no different.
Under the Fourth Amendment, “officers may only use such force as is
‘objectively reasonable’ under the circumstances.” See Jackson v. City of
Bremerton, 268 F.3d 646, 651 (9th Cir. 2001) (quoting Graham v. Connor, 490 U.S.
386, 397 (1989)). To determine whether the force used was reasonable, courts
balance “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Graham, 490 U.S. at 397.
Determining whether a police officer’s use of force was reasonable or
excessive “requires careful attention to the facts and circumstances of each
particular case” and a “‘careful’ balancing of an individual’s liberty with the
government’s interest in the application of force.” Santos v. Gates, 287 F.3d 846,
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854 (9th Cir. 2002) (quoting Graham, 490 U.S. at 396). When evaluating the
nature and quality of the intrusion, the Court considers the “type and amount of force
inflicted.” City of Bremerton, 268 F.3d at 651-52 (quoting Chew v. Gates, 27 F.3d
1432, 1440 (9th Cir. 1994). When evaluating the governmental interest in the use
of force, courts examine three main factors: (1) the severity of the crime at issue; (2)
whether the suspect poses an immediate threat to the safety of the officers or others;
and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.
Bryan v. McPherson, 630 F.3d 805, 825 (9th Cir. 2010).2 The “most important” of
these factors is whether the suspect posed an “immediate threat to the safety of the
officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005).
Here, the evidence objectively supports the following: the officers
responded to a 911 report of gunshots fired by unknown parties in a remote area of
Maui accessible only on foot or by 4x4 vehicle. As they approached the area of the
reported gunshots, the officers encountered two vehicles headed towards them.
The first vehicle stopped at the officers’ command. The second vehicle, a Toyota
4x4 truck, appeared at first to be following suit, but then as quickly as he

2

These three factors are not exclusive. Courts may also examine the “totality of the
circumstances” and “whatever specific factors may be appropriate in a particular case.”
McPherson, 630 F.3d at 825 (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)).

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decelerated, the Toyota driver accelerated, attempting to flee. As the driver did so,
the Toyota struck Officer Losvar in an apparent attempt to grievously injure him (or
worse).3 The driver then appeared to bear down on the next officer in the area,
Officer Matsuura. At that time, each officer made what was clearly a split-second
decision to fire on the Toyota’s driver to halt the progress of the vehicle and to
prevent it from both running over Officer Losvar and running into Officer Matsuura.
Indeed, even Plaintiffs do not dispute critical facts set forth in Defendants’ Concise
Statement:
23. Officer Losvar was struck by the truck and tossed over the
hood. After landing on his feet near the driver’s door, Officer
Losvar began shooting at the driver because he believed that
Sergeant Matsuura was in danger of being struck or killed.
24. Sergeant Matsuura saw the truck accelerate, turn left and
strike Officer Losvar. From Sergeant Matsuura’s perspective,
Officer Losvar appeared to go up and over the truck before being
run over. Sergeant Matsuura was directly in the truck’s path.
He began running then turned and fired one shot at the driver
through the windshield to stop the truck from running him over.
25. Officer Hattori saw the truck accelerate towards the area
where he had last seen Sergeant Matsuura and Officer Losvar.
Officer Hattori believed that both officers’ lives were at risk.
To save his partners from injury, Officer Hattori made a split
second decision to shoot at the driver.

3

As stated, infra, the Toyota’s driver has been charged with attempted murder, a charge that is
currently pending. See Def’s Ex. PP.

20

Based on these undisputed facts and Plaintiffs’ admissions, Plaintiffs’
Fourth Amendment claims cannot stand as to Losvar and Hattori.4 Plaintiffs do not
contest that Hattori and Losvar employed deadly force in an attempt to subdue a
suspect who posed an imminent and serious threat to the safety of themselves and/or
their fellow officers. Such force was objectively reasonable under the
circumstances, and no reasonable jury could find otherwise. Accordingly,
Plaintiffs’ only remaining Fourth Amendment claim lies against Kapahulehua.
However, Kapahulehua’s use of force in firing at the driver of the
fleeing truck was no less reasonable than his peers. In Wilkinson v. Torres, 610
F.3d 546 (9th Cir. 2010), the Ninth Circuit reversed the district court’s denial of an
officer’s motion for summary judgment in similar circumstances. In Wilkinson, the
driver initiated a low-speed chase in a stolen minivan. Id. at 549. One officer
positioned his vehicle in front of the minivan, which swerved and hit a telephone
pole. Two officers then approached the minivan on foot and ordered the driver to
exit. One officer attempted to open the driver-side door, but fell as the minivan
reversed, its wheels spinning in mud. While the first officer recovered his footing

4

Nor, based on these admissions, would their Fourth Amendment claim stand as against Matsuura
had Plaintiffs elected not to voluntarily dismiss him. See Dkt. No. 141.

21

and dodged the minivan, the second officer on the passenger-side believed that the
first had been run over and began shooting at the minivan, firing eleven rounds. Id.
The Ninth Circuit held that the officer “had probable cause to believe
that [the driver] posed an immediate threat to the [first officer] and himself.” Id. at
551. It noted that before discharging his firearm, the officer stood in a “slippery
yard with a minivan accelerating around him,” that the driver “had failed to yield to
police sirens,” and that “a fellow officer was nearby either lying fallen on the ground
or standing but disoriented.” Id. Wilkinson concluded that, where “the driver of a
moving vehicle . . . [is] ignoring police commands, attempt[ing] to accelerate within
close quarters of two officers on foot,” the officer had probable cause to believe
“that the threat to safety justified the use of deadly force.” Id.
The facts here dictate a similar outcome. Kapahulehua stood in a
remote and darkened roadway with a Toyota truck accelerating around him, whose
driver had failed to yield to his command, and whose fellow officers had either just
been struck by the vehicle or were in the vehicle’s path. Under these
circumstances, Kapahulehua’s instantaneous decision to fire at the driver is no
different than the officer’s conduct countenanced by the Ninth Circuit in Wilkinson.
See Graham, 490 U.S. at 397 (“The ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather than
22

with the 20/20 vision of hindsight.”); Wilkinson, 610 F.3d at 550 (The Court makes
“allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.”).
Accordingly, even analyzing Plaintiffs’ excessive force claims under a
Fourth Amendment rubric, Defendants are entitled to summary judgment.
B.

The Officers Are Entitled To Qualified Immunity
Defendants also move for summary judgment based on qualified

immunity. The doctrine of qualified immunity protects government officials “from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The protection of
qualified immunity applies regardless of whether the government official’s error is a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law and
fact.” Id. (internal quotation marks omitted).
“Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).
23

The Supreme Court has held that district courts “may grant qualified immunity on
the ground that a purported right was not ‘clearly established’ by prior case law,
without resolving the more difficult question whether the purported right exists at
all.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (citing Pearson, 555 U.S. at
236).
To be clearly established, a constitutional right must be sufficiently
clear “that every reasonable official would have understood that what he is doing
violates that right.” al-Kidd, 131 S. Ct. at 2083. Plaintiffs have the burden of
proving the existence of a clearly established constitutional right. Doe v. Petaluma
City School Dist., 54 F.3d 1447, 1450 (9th Cir. 1995). It is the Defendants’ burden
to show that a “reasonable . . . officer could have believed, in light of the settled law,
that he was not violating a constitutional or statutory right.” V-1 Oil Co. v. Smith,
114 F.3d 854 (9th Cir. 1997).
For the reasons described above, the Court concludes that Defendants
are entitled to summary judgment on Plaintiffs’ federal claims against the MPD
officers because, even drawing all reasonable inferences in Plaintiffs’ favor, there

24

was no violation of their constitutional rights. The Court, therefore, need not reach
the second step in the al-Kidd qualified immunity analysis.5
II.

Section 1983 Claims Against County (Count VII)
A.

Municipal Liability Claim Against the County
Plaintiffs allege that the County of Maui is liable under § 1983 for

MPD’s policy and custom “to tolerate and ratify the use of unreasonable . . . uses of
force by its police officers.” Nakagawa Complaint ¶ 68; Lum-John Complaint
¶ 66. Local governmental bodies such as the County are “persons” that may be
sued under § 1983. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978).
Municipal liability under § 1983 may be established in one of three ways:
First, the plaintiff may prove that a city employee committed the
alleged constitutional violation pursuant to a formal
governmental policy or a longstanding practice or custom which
constitutes the standard operating procedure of the local
governmental entity. Second, the plaintiff may establish that
the individual who committed the constitutional tort was an

5

In any event, Plaintiffs fail to point to any right clearly established at the time of the challenged
conduct. Their citation to Tennessee v. Garner, 471 U.S. 1 (1985), is unavailing under the
specific facts and circumstances of this case and does not satisfy their burden of proving that the
right allegedly violated was clearly established at the time of the alleged misconduct. See
Brosseau v. Haugen, 543 U.S. 194, 199-20 (2004) (explaining that Graham and Garner “are cast
at a high level of generality” and cannot, in every case, “offer a basis for decision”); al-Kidd, 443
131 S. Ct. at 2084 (the Supreme Court has “repeatedly told courts not to define clearly established
law at a high level of generality.”) (citations omitted). Because they offer no other citation,
Plaintiffs fail to prove that the officers violated clearly established law at the time of the July 18,
2010 incident.

25

official with final policy-making authority and that the
challenged action itself thus constituted an act of official
governmental policy. Whether a particular official has final
policy-making authority is a question of state law. Third, the
plaintiff may prove that an official with final policy-making
authority ratified a subordinate's unconstitutional decision or
action and the basis for it.
Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1993) (citations and internal
quotations omitted).
Plaintiffs argue that the County’s liability arises under the ratification
theory of liability because “the officer’s use of deadly force was found to be justified
by an Internal Affairs investigation more than two years after the fact, and this
finding was later ratified by the Chief of Police.” Nakagawa Mem. in Opp. at 23.
First, the Court notes its previous finding that the officers themselves
committed no constitutional violations. Even if the opposite were true, however,
the Court agrees with the County that, even if unconstitutional actions were taken by
the officers and then ratified by the Maui Chief of Police, the singular July 18, 2010
incident cannot constitute a County policy that was the “moving force” behind the
alleged constitutional violations. Accordingly, Plaintiffs “must show the decision
was the product of a conscious, affirmative choice to ratify the conduct in question.
Such a ratification ‘could be tantamount to the announcement or confirmation of a
policy for purposes of Monell.’” Edenfield, 2006 WL 1041724, at *16 (quoting
26

Haugen v. Brosseau, 339 F.3d 857, 875 (9th Cir. 2003), reversed on other grounds
by Brosseau v. Haugen, 543 U.S. 194 (2004) (per curiam)). See also Christie v.
Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) (ratification requires proof of a
policymaker’s knowledge of the alleged constitutional violation); Trevino v. Gates,
99 F.3d 911, 920 (9th Cir. 1996) (ratification requires an adoption and express
approval of the acts of others who caused the constitutional violation); Gillette v.
Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (an official policymaker must “make
a deliberate choice from among various alternatives to follow a particular course of
action”). Plaintiffs fail to make any such showing.
Moreover, the policymaker must deliberately choose to “endorse” the
subordinate’s conduct and the basis for it “before the policymaker will be deemed to
have ratified the subordinate's discretionary decision.” Gillette, 979 F.2d at 1348.
A mere failure “to overrule the unconstitutional discretionary acts of
subordinates[,]” without expressly endorsing or approving of the conduct, is an
insufficient predicate for the imposition of liability against the municipality. Id.
Plaintiffs present no evidence that the Chief of Police or any other policy maker
expressly approved or adopted the acts of the officers. Nor do Plaintiffs offer any
evidence that the alleged ratification was accompanied by extenuating or egregious
circumstances. There must exist “something more” than the mere evidence “that a
27

policymaker concluded that the defendant officer’s actions were in keeping with the
applicable policies and procedures.” Garcia v. City of Imperial, 2010 WL
3911457, at *2 (S.D. Cal. 2010) (citing Kanae v. Hodson, 294 F. Supp. 2d 1179,
1191 (D. Haw. 2003) and Larez v. City of Los Angeles, 946 F.2d 630, 646-648 (9th
Cir. 1991)). No such “something more” exists on the current record. Accordingly,
the County is entitled to summary judgment on Count VII.
B.

Request for Time to Conduct Additional Discovery
Plaintiff Nakagawa requests time to conduct additional discovery

pursuant to Federal Rule of Civil Procedure 56(d) because he “believes that through
the discovery process [he] can establish a pattern of such ratifications by the Chief of
Police, the result of which is to encourage constitutional violations.” Nakagawa
Mem. in Opp. at 23. Rule 56(d) states:
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.

28

Whether to deny a Rule 56(d) request for further discovery by a party
opposing summary judgment is within the discretion of the district court. Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 920-21 (9th Cir. 1996). To obtain a
continuance under Rule 56(d), the party opposing a motion for summary judgment
must make “(a) a timely application which (b) specifically identifies (c) relevant
information, (d) where there is some basis for believing that the information sought
actually exists.” Blough v. Holland Realty, Inc, 574 F.3d 1084, 1091 n.5 (9th Cir.
2009) (citation omitted).
“A party requesting a continuance pursuant to Rule [56(d)] must
identify by affidavit the specific facts that further discovery would reveal, and
explain why those facts would preclude summary judgment.” Tatum v. City &
Cnty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Moreover, “[t]he
burden is on the party seeking additional discovery to proffer sufficient facts to show
that the evidence sought exists.” Nidds, 113 F.3d at 921. The movant must also
show diligence in previously pursuing discovery. See Pfingston v. Ronan
Engineering Co., 284 F.3d 999, 1005 (9th Cir. 2002) (“The failure to conduct
discovery diligently is grounds for the denial of a Rule 56(f) motion.”); Kocsis v.
Delta Air Lines, Inc., 2013W L 4011131, at *14 (D. Haw. Aug. 5, 2013) (“[T]he

29

district court may deny further discovery if the requesting party failed to pursue
discovery diligently in the past.”).
Plaintiff Nakagawa’s effort falls short of the rule’s requirements.
Counsel’s declaration does not identify particular facts that the requested discovery
would reveal. Rather, it states only that Plaintiff -intends to seek information with regard to previous Internal
Affairs investigations into officer-involved-shootings; the facts
and circumstances of those shootings; the outcome of criminal
investigations in those shootings that are required under Maui
Police General Orders; whether the findings of the IA
investigations were ratified or denied by policy making officials
in the Maui Police Department or the County of Maui; and any
disciplinary actions taken against the involved officers found to
have acted in violation of the General Orders governing Use of
Force. . . . Such evidence will establish, or disprove, facts
essential to create municipal liability under 42 U.S.C. Section
1983 for the actions of police officer employees of the Maui
Police Department and County of Maui.
Shipley Decl. ¶¶ 3-4. The declaration notably fails to identify any specific facts
that actually exist or discuss whether any “police-involved-shootings” relevant to
the instant matter have actually occurred. “Rule [56(d) ] is not a license for a
fishing expedition in the hopes that one might find facts to support its claims.”
Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 732 F. Supp. 2d 1107, 1125 (D.
Haw. 2010); see also Tatum, 441 F.3d at 110-01 (finding that an attorney declaration
was insufficient to support a Rule 56 continuance where the declaration failed to
30

specify specific facts to be discovered or explain how a continuance would allow the
party to produce evidence precluding summary judgment).
Nor has the required diligence been established. This case was
initiated three years ago, in 2011. Counsel’s declaration does not offer any clue that
Plaintiff has been diligent in pursuing the discovery he now seeks. Instead,
Defendants present evidence that the County of Maui previously offered Plaintiff the
opportunity to depose Maui Police Chief Gary Yubuta and Captain Wallace Tom on
specific dates in January 2014, the depositions that Plaintiffs now claim to need to
pursue their claims against the County. See Nidds, 113 F.3d at 921 (movant failed
to show diligence in previously pursuing discovery). Accordingly, the Court
DENIES Plaintiff Nakagawa’s request for a Rule 56(d) continuance.
Because Plaintiffs offer no further argument or evidence to rebut
Defendants’ showing that the County of Maui is entitled to summary judgment on
Plaintiffs’ § 1983 municipal liability claim, the Motion is GRANTED with respect
to Count VII.
III.

State Law Claims (Counts II, III, IV and V)
Under Hawai‘i law, non-judicial government officials have a qualified

or conditional privilege with respect to their tortious actions taken in the
performance of their public duties. Towse v. State of Hawaii, 64 Haw. 624, 631,
31

647 P.2d 696, 702 (1982)); see also Medeiros v. Kondo, 55 Haw. 499, 504, 522 P.2d
1269, 1272 (1974). There is no dispute here that the allegedly tortious conduct by
the MPD officers occurred while performing their public duties.
Government officials are not entitled to immunity when a plaintiff
“demonstrate[s] by clear and convincing proof that those officials were stirred by
malice and not by an otherwise proper purpose.” Towse, 64 Haw. at 631, 647 P.2d
at 702. The Hawaii Supreme Court explained that the word malice has acquired a
plethora of definitions,” id., and has defined “malice differently in different
contexts. For tort law claims other than defamation, courts apply an “actual
malice” test. Awakuni v. Awana, 115 Hawai'i 126, 140-41, 165 P.3d 1027, 1041-42
(2007) (considering “actual malice” to determine immunity in the context of an
alleged breach of fiduciary duty); Edenfield, 2006 WL 1041724, at *12 (considering
“actual malice” to determine immunity for claims of assault, battery, intentional
infliction of emotional distress and negligent infliction of emotional distress);
Ogden v. County of Maui, 554 F. Supp. 2d 1141, 1153 (D. Haw. 2008) (considering
“actual malice” to determine immunity for a negligence claim).
To determine whether a defendant acted with actual malice, “the phrase
‘malicious or improper purpose’ should be defined in its ordinary and usual sense.”
Awakuni, 115 Hawai‘i at 141, 165 P.3d at 1042. Malice is therefore defined as “the
32

intent, without justification or excuse, to commit a wrongful act, reckless disregard
of the law or of a person’s legal rights, and ill will; wickedness of heart.” Id.
(quoting Black’s Law Dictionary 976 (8th ed. 2004)) (internal quotation marks
omitted).
Because actual malice involves intent, reckless disregard, or ill will, the
actual malice requirement is “incompatible with a claim based on negligence.”
Bartolome v. Kashimoto, 2009 WL 1956278, at * 2 (D. Haw. 2009) (“[W]hen
‘actual malice’ must be shown, a non-judicial official’s qualified privilege provides
complete immunity from negligence claims.”). Accordingly, Defendants are
entitled to summary judgment on Plaintiffs’ claims for negligence (Count IV) and
negligent infliction of emotional distress (Count V).
With respect to Plaintiffs’ remaining tort claims for battery (Count II),
and intentional infliction of emotional distress (Count III), Plaintiffs point to nothing
in the record that raises a genuine issue of fact as to whether the officers were
motivated by actual malice, rather than by a desire to protect other officers and
themselves. To be clear, Plaintiffs offer nothing more than their own speculative
arguments that the officers acted with malice when they used “deadly force in
retaliation for what was alleged to have happened to Officer Losvar, or in retaliation
for the refusal of the driver to obey the command to pull-over given by Sgt.
33

Kapahulehua.” Nakagawa Mem. in Opp. at 27. Plaintiffs fail to meet their burden
on summary judgment. Moreover, because the officers are immune, their
immunity extends to the County. Reed v. City & Cnty. of Honolulu, 76 Haw. 219,
227, 873 P.2d 98, 106 (1994) (“It is well-settled that, under the doctrine of
respondeat superior, an employer is held accountable and liable for the negligent
acts of its employees; if an employee is immune from suit, then the employer is also
immune from suit and cannot be held liable.”).
Because there is no evidence of malice, Defendants are entitled to a
qualified privilege under state law, mandating summary judgment in their favor on
Counts II, III, IV and V.

//

//

//

//

//

//

//

//

34

CONCLUSION
On the basis of the foregoing, the Court GRANTS Defendants’ Motion
for Summary Judgment on all remaining Counts and the Clerk of the Court is
directed to close the case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI‘I, March 21, 2014.

__________________________________________________________________
Nakagawa v. County of Maui, CV 11-00130 DKW-RLP; Lum-John v County of
Maui; CV 12-00569 DKW-BMK (Consolidated Cases); ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

35