Freeland et al v. Maui, County of et al
Filing
159
ORDER granting in part and denying in part Defendants' Motions' For Summary Judgment 135 137 . Signed by JUDGE ALAN C KAY on 12/11/2013. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive el ectronic 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 HAWAII
APRIL FREELAND, NORMAN FREELAND, )
)
Plaintiffs,
)
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v.
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COUNTY OF MAUI, GARY YABUTA,
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JERALD PERKETT, JEFFREY
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CALIBUSO, KEOKI SANTOS, RICHARD )
DODS, CHRISTOPHER GANTALA,
)
KENNETH CARROLL, CLIFFORD
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DAGULO, JAMIE WRIGHT, MATTHEW
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BROWN, EDUARDO BAYLE,
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CHRISTOPHER KEALOHA, CLIFTON
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PERREIRA, GREGG OKAMOTO, MATTHEW )
)
BIGOSS, JOHN DOE 1-20, DOE
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ENTITIES 1-20,
)
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Defendants.
)
)
Civ. No. 11-00617 ACK-KSC
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT
For the reasons stated in this written order, the Court
GRANTS the individual officers’ motion, (Doc. No. 137), and
GRANTS IN PART AND DENIES IN PART the motion filed by the County
of Maui, Chief Yabuta, and Officers Bigoss and Perkett, (Doc. No.
135), as follows:
1)
As to Defendants Perkett and Bigoss, the Court GRANTS
IN PART AND DENIES IN PART their motion for summary judgment,
(Doc. No. 135). The Court GRANTS the motion as to Plaintiffs’
official capacity claims against Bigoss and Perkett. The Court
further GRANTS the motion as to Plaintiffs’ claims for state law
assault and battery and negligent infliction of emotional
distress. Plaintiffs’ state law claims against Officers Bigoss
and Perkett for assault, battery, and negligent infliction of
emotional distress are DISMISSED WITHOUT PREJUDICE. The Court
DENIES the motion as to all of Plaintiffs’ remaining claims
against Defendants Bigoss and Perkett.
2)
As to the remaining individual officers, Defendants
Calibuso, Santos, Dods, Gantala, Carroll, Dagulo, Wright, Brown,
Bayle, Kealoha, Perreira, and Okamoto, the Court GRANTS their
motion for summary judgment, (Doc. No. 137), in its entirety. All
of Plaintiffs’ claims against the remaining individual officers
are DISMISSED WITHOUT PREJUDICE.
3)
As to Defendants the County of Maui and Chief Yabuta,
the Court GRANTS IN PART AND DENIES IN PART their motion, (Doc.
No. 135). The Court GRANTS the motion as to all of Plaintiffs’
claims against Chief Yabuta. Plaintiffs’ claims against Chief
Yabuta are DISMISSED WITHOUT PREJUDICE. The Court further GRANTS
the motion as to Plaintiffs’ federal claims, Plaintiffs’ state
law claim for negligent training, and Plaintiffs’ claim for
punitive damages as against the County of Maui. These claims
against the County of Maui are DISMISSED WITHOUT PREJUDICE. The
Court DENIES the motion as to Plaintiffs’ state law respondeat
superior claim against the County of Maui based on the alleged
2
torts committed by Officers Bigoss and Perkett.
PROCEDURAL BACKGROUND
Plaintiffs April and Norman Freeland filed the
operative complaint, their Second Amended Complaint, on January
25, 2013. (Doc. No. 122 (“SAC”).) Defendants the County of Maui,
Eduardo Bayle, Matthew Bigoss, Matthew Brown, Jeffrey Calibuso,
Kenneth Carroll, Clifford Dagulo, Richard Dods, Christopher
Gantala, Christopher Kealoha, Gregg Okamoto, Jerald Perkett,
Clifton Perreira, Keoki Santos, Jamie Wright, and Gary Yabuta.
(collectively, “Defendants”) filed an Answer to the Second
Amended Complaint on February 8, 2013. (Doc. No. 125.)
On September 18, 2013, Defendants the County of Maui,
Matthew Bigoss, Jerald Perkett, and Gary Yabuta (together, the
“County Defendants”) filed a Motion for Summary Judgment (the
“County Motion”), supported by a concise statement of facts and
numerous exhibits. (Doc. Nos. 135, 136.) On the same day,
Defendants Eduardo Bayle, Matthew Brown, Jeffrey Calibuso,
Kenneth Carroll, Clifford Dagulo, Richard Dods, Christopher
Gantala, Christopher Kealoha, Gregg Okamoto, Clifton Perreira,
Keoki Santos, and Jamie Wright (collectively, the “Officer
Defendants”) filed a separate Motion for Summary Judgment (the
“Officers’ Motion”), supported by a concise statement of facts
and numerous exhibits. (Doc. Nos. 137, 138.) The two motions are
nearly identical.
3
Plaintiffs filed memoranda in opposition to the two
motions (“County Opp’n” and “Officer Opp’n”), supported by
concise statements of facts1 and numerous exhibits on November 4,
2013. (Doc. Nos. 144-155.) The County Defendants and Officer
Defendants each filed a reply in support of their motion on
November 8, 2013. (Doc. Nos. 156, 157.)
The hearing on the motions was held on November 25,
2013.
FACTUAL BACKGROUND2
This case arises from a police raid of the home of
Plaintiffs April and Norman Freeland by officers of the Maui
Police Department (“MPD”) on April 15, 2011. (SAC ¶¶ 23-40.)
The raid on Plaintiffs’ home was executed pursuant to a
search warrant that was intended for the search of the residence
of an alleged drug dealer named Kimberly Uyeda. (County Mot. at
2; Officers’ Mot. at 2; County Opp’n at 1.) Before applying for
the search warrant, Defendant Bigoss received information from a
confidential informant that Kimberly Uyeda was selling crystal
1
Defendants correctly note that Plaintiffs’ two concise
statements fail to comply with Local Rule 56.1. LR 56.1(d) limits
concise statements to no more than five pages or 1,500 words.
Plaintiffs’ concise statements are both approximately 13 pages
long.
2
The facts as recited in this Order are for the purpose of
disposing of the instant motions and are not to be construed as
findings of fact that the parties may rely on in future
proceedings in this case.
4
methamphetamine from a house on Manini Place. (County Opp’n at 1;
County Mot. at 2.) Officer Bigoss and his supervisor, Sergeant
Perkett, later met with the informant who pointed out the house
on Manini Place during a daytime drive by, stating that it was
the one with “the bamboo fence and the brown.” (County Opp’n at
1-2; County Mot. at 2.) Defendants state that the officers
believed that the informant was pointing to the Freeland
residence, (County Mot. at 2); however, in a deposition Officer
Bigoss later stated that the informant pointed to the house
“directly next door to the Freelands’ house.” (County Opp’n Ex.
15 (Deposition of Matthew Bigoss (“Bigoss Dep.”)) at 17.)
After conducting the drive by, Officer Bigoss made
plans to have the informant conduct a controlled drug purchase at
the Manini house, while another officer, Officer Santos, provided
surveillance. (County Mot. at 3; Officers’ Mot. at 3.) On April
11, 2011, the “controlled buy” was carried out, with Officer
Santos relaying to Officer Bigoss that he saw the informant walk
towards what he thought might be the gate of a residence on
Manini Place, go out of sight, and emerge a few minutes later
with a packet of crystal methamphetamine. (County Mem. at 3;
County Opp’n at 3.) Officer Santos did not actually witness the
informant enter a gate, or enter a house, or purchase the drugs,
and Officer Bigoss did not himself go to Manini Place on the
night of the controlled buy. (Id.)
5
After the controlled buy, Officer Bigoss then proceeded
to draft an affidavit for a search warrant, relying upon Santos’s
description of the residence where the controlled buy took place,
as well as the description of the residence provided by the
informant. (County Mot. at 3-4.) Bigoss conducted a Google Maps
search for “323 Manini Place” but no matching house came up on
the search. (County Mot. at 4; County Opp’n at 4.) Bigoss
therefore assumed that Google Maps was wrong, and based his
description of the target residence in the affidavit on a house
he found on Google Maps that he believed to be the house
identified by the informant. (Id.) Bigoss secured a search
warrant for 323 Manini Place on April 14, 2011.
The Plaintiffs allege that they were hosting a dinner
at their residence on April 15, 2011, the night of the raid. (SAC
¶ 23.) Sometime around 8:00pm, Plaintiffs heard a noise on their
lanai and, when they approached their sliding glass door, they
saw men who later turned out to be police officers with “military
style guns.” (Id. ¶¶ 27-28.) Defendants contend that the police
officers did a “knock and announce” at the front sliding glass
door, that Mr. Freeland opened the door after they knocked, and
that both Plaintiffs were asked to step outside of the house
before the officers entered the house. (County Defendants’
Concise Statement of Facts ¶¶ 19-21.) Conversely, Plaintiffs
allege that the police officers rushed into Plaintiffs’ home
6
without permission and without identifying themselves as police
officers. (SAC ¶ 30.) Plaintiffs further allege that the police
officers “forcibly took” Plaintiffs outside by grabbing them by
the wrists and throwing them onto a couch on their lanai, and
“held [them] captive” with a “combat type weapon” while a search
of their home was conducted. (Id. ¶¶ 32-34.) Plaintiffs state
that they told the officers that they had the wrong house, and
that one of the officers told them that they had a search
warrant. (Id. ¶¶ 35-36.) Plaintiffs state that the officers did
not provide them with the warrant. (Id. ¶ 91.)
The Plaintiffs allege that the officers noticed that
they were not at the right house, but nevertheless proceeded to
search the Plaintiffs’ home, and detain the Plaintiffs and their
dinner guests until the search was complete. (Id. ¶¶ 52-61.)
Officer Bigoss states, however, that he immediately went to tell
Sergeant Perkett when he realized that they were at the wrong
house (about thirty seconds to a minute after they arrived at the
house). (County Mot. Ex. B (Declaration of Matthew Bigoss
(“Bigoss Decl.”)) at ¶¶ 17-18.) Sergeant Perkett states that he
realized they were at the wrong residence only after the house
had been cleared and the raid was complete. (County Mot. Ex. D
(Declaration of Jerald Perkett (“Perkett Decl.”)) at ¶ 17.)
Defendants contend that the officers’ initial objective was to
clear the house of any threats, that they did not conduct a full
7
search of the house, and that they exited the property as soon as
they realized that they were at the wrong house. (County
Defendants’ Concise Statement of Facts ¶ 24-26.)
The parties agree that the Plaintiffs’ home was not, in
fact, the target residence. (See County Mot. at 7; Officers’ Mot.
at 6; SAC ¶¶ 56, 60-61.) The warrant identified the target
residence as “323 Manini Place.” (SAC ¶¶ 45, 65.) The Plaintiffs
live at 237 Manini Place, and state that their address is clearly
and prominently posted on their fence, and that their house has a
number of attributes distinguishing it from the surrounding
houses, and from the description the confidential informant gave
Bigoss. (Id. ¶¶ 1, 74-80.) A few weeks after the raid on the
Plaintiffs’ home, the MPD executed a search warrant on the house
next door to Plaintiffs’ house and recovered crystal
methamphetamine. (See County Mot. at 8; Officers’ Mot. at 7.)
As a result of the raid on Plaintiffs’ home, an
Internal Affairs investigation focusing on Officer Bigoss began.
(County Opp’n Ex. 19 (Deposition of Police Chief Gary Yabuta
(“Yabuta Dep.”)) at 16, 37.) Officer Bigoss was disciplined for
violating MPD policies, including failing to conduct a proper
investigation before obtaining a search warrant. (See County Mot.
Exs. DD-FF.)
In the Second Amended Complaint, the Plaintiffs make
the following claims: (1) a 42 U.S.C. § 1983 unlawful seizure
8
claim; (2) a 42 U.S.C. § 1983 unlawful arrest claim; (3) a 42
U.S.C. § 1983 unlawful search claim; (4) a 42 U.S.C. § 1983 claim
for inadequate supervision, training, and/or discipline as
against Defendant Yabuta and the County of Maui; (5) a state law
claim for false arrest; (6) a state law claim for battery; (7) a
state law claim for assault; (8) state law claims for intentional
and negligent infliction of emotional distress; (9) a state law
trespass claim; (10) a state law gross negligence claim; (11)
claims against Defendant Yabuta and the County of Maui for
vicarious liability for the acts of the other individual named
officers based on a theory of respondeat superior; (12) a state
law claim for negligent training as against Defendant Yabuta and
the County of Maui; and (13) a state law negligence claim against
all Defendants. (SAC ¶¶ 115-193.)
STANDARD OF REVIEW
Summary judgment is appropriate when a “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.” Fed. R. Civ.
P. 56(a). The central issue is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986).
The moving party bears the initial burden of
9
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that
burden has been 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 Court must draw all
reasonable inferences in favor of the nonmoving party. Id. at
587.
In supporting a factual position, a party must “cit[e]
to particular parts of materials in the record . . . or show[]
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 585. “[T]he requirement is that there be
no genuine issue of material fact . . . . Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 247–48 (emphasis in original).
Also, “[t]he mere existence of a scintilla of evidence in support
of the non-moving party’s position is 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
10
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).
DISCUSSION
Both motions filed by the Defendants make substantially
the same arguments, and ask the Court to dismiss all claims
against all Defendants.
As an initial matter, the Court notes that Plaintiffs
are bringing claims against all of the individual named officers
both individually and in their official capacities. (SAC ¶ 19.)
The claims against these defendants in their official capacities
are redundant, however, because the County of Maui is also a
named defendant. The Supreme Court noted decades ago that
“[t]here is no longer a need to bring official-capacity actions
against local government officials, for . . . local government
units can be sued directly for damages and injunctive or
declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14
(1985). See also Monell v. Dep’t of Social Services, 436 U.S.
658, 690 n. 55 (1978) (stating that “official capacity suits
generally represent only another way of pleading an action
against an entity of which an officer is an agent.”). As such,
the official-capacity claims “duplicate[] the claims asserted
against the [County of Maui]” and are therefore DISMISSED. See
Wong v. City & Cnty. of Honolulu, 333 F. Supp. 2d 942, 947
11
(2004).
I.
The § 1983 Claims
Plaintiffs allege, inter alia, that Defendants violated
their constitutional rights under the Fourth Amendment by
conducting an unlawful search of their home and unlawfully
detaining them during that search. Accordingly, Plaintiffs seek
relief under 42 U.S.C. § 1983, which provides in relevant part:
Every 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, shall be liable to the
party injured in an action at law, suit in
equity[.]
Thus, to prevail on their § 1983 claims, Plaintiffs
must prove two essential elements: (1) “that a right secured by
the Constitution or laws of the United States was violated,” and
(2) “that the alleged violation was committed by a person acting
under the color of State law.” Long v. Cnty. of Los Angeles, 442
F.3d 1178, 1185 (9th Cir. 2006).
The Defendants do not contest that they were acting
under the color of state law when they conducted the raid on
Plaintiffs’ home. Rather, Defendants argue that they did not
violate Plaintiffs’ constitutional rights and are therefore
entitled to qualified immunity.
The doctrine of qualified immunity protects government
12
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).
When examining a claim of qualified immunity, the Court
may use a two part test by examining (1) “whether the facts that
a plaintiff has alleged make out a violation of a constitutional
right” and (2) “whether the right at issue was clearly
established at the time of [the] defendant’s alleged misconduct.”
Id. at 232. A right is clearly established if “a reasonable
official would understand that what he is doing violates that
right.” Saucier v. Katz, 533 U.S. 194, 202 (2001). If the right
is not clearly established, then the officer is entitled to
qualified immunity. Id. While the order in which these questions
are addressed is left to the Court’s “sound discretion,” “it is
often beneficial” to perform the analysis in the sequence
outlined above. Pearson, 555 U.S. at 236.
Plaintiffs have the burden of proving the existence of
a clearly established constitutional right. Doe v. Petaluma City
School District, 54 F.3d 1447, 1450 (9th Cir. 1995). It is the
13
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).
When determining whether there are any genuine issues
of material fact at the summary judgment stage, a court must take
all facts in the light most favorable to the non-moving party. In
the context of qualified immunity, determinations that turn on
questions of law, such as whether the officers had probable cause
or reasonable suspicion to support their actions, are
appropriately decided by the court. Act Up!/Portland v. Bagley,
988 F.2d 868, 873 (9th Cir. 1993). However, a trial court should
not grant summary judgment when there is a genuine dispute as to
“the facts and circumstances within an officer’s knowledge” or
“what the officer and claimant did or failed to do.” Id.
The constitutional right Plaintiffs allege that
Defendants violated was their Fourth Amendment right to be free
from unreasonable searches and seizures.
A.
Whether Defendants Violated Plaintiffs’ Fourth
Amendment Rights
The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. v. Place, 462
U.S. 696, 700 (1983). Plaintiffs allege that Defendants violated
their Fourth Amendment rights by unlawfully searching their home
14
and detaining them during the search.
1.
Unlawful Search
“At the very core” of the Fourth Amendment is the right
of a person to be free from unreasonable governmental intrusion
in his or her own home. Kyllo v. United States, 533 U.S. 27, 31
(2001). As a result, warrantless searches of a person’s home are
presumptively unreasonable, subject only to certain narrowly
delineated exceptions. Here, it is undisputed that Defendants did
not have a warrant authorizing the search of Plaintiffs’
residence, 237 Manini Place, and that no exception to the warrant
requirement (apart from whatever significance the mistakenly
executed warrant had) is applicable.
The Fourth Amendment is not necessarily violated,
however, in circumstances such as exist here where officers have
mistakenly executed a search warrant on the wrong property. As
the Supreme Court stated in Graham v. Connor: “The Fourth
Amendment is not violated by . . . the mistaken execution of a
valid search warrant on the wrong premises[.]” 490 U.S. 386, 396
(1989) (citing Maryland v. Garrison, 480 U.S. 79 (1987)). In
Garrison, police officers obtained and executed a warrant to
search “the premises known as 2036 Park Avenue third floor
apartment.” Id. at 80. The police believed that there was only
one apartment on the third floor, but there were in fact two, one
occupied by the intended target of the search and the other by
15
Garrison. In executing the warrant, the officers unknowingly
entered Garrison’s apartment and, before becoming aware they were
in the wrong apartment, discovered contraband. In concluding the
contraband should not be suppressed, the Court stated:
While the purposes justifying a police search
strictly limit the permissible extent of the
search, the Court has also recognized the need to
allow some latitude for honest mistakes that are
made by officers in the dangerous and difficult
process of making arrests and executing search
warrants.
Id. at 87.
The Garrison Court went on to define “honest mistakes”
as “those of reasonable men, acting on facts leading sensibly to
their conclusions of probability” and concluded that the question
was ultimately whether the officers’ actions in entering the
wrong residence were “objectively understandable and reasonable”
under the circumstances. Id. at 87–88. As a result, in
determining whether Defendants’ entry into the Plaintiffs’ home
violated their Fourth Amendment rights, the question becomes
whether the officers’ actions, though mistaken, were nonetheless
objectively reasonable so as to make the entry the sort of
“honest mistake” to which Garrison alluded. In the context of the
instant motions for summary judgment, the Court looks to whether
the proffered facts, viewed in the light most favorable to
Plaintiffs, are sufficient to create genuine question of fact as
to the objective reasonableness of the officers’ actions.
16
a.
Reasonableness in Obtaining the Warrant
First, with respect to Officer Bigoss, Plaintiffs argue
that he acted unreasonably in obtaining the search warrant
pursuant to which their house was searched. (County Opp’n at
13.)3 Plaintiffs argue that a police officer in Bigoss’s position
acting reasonably should have described the location of the
target house with sufficient particularity to direct those
executing the warrant to the correct house, rather than to
Plaintiffs’ house. (See id.)
“The Warrant Clause of the Fourth Amendment
categorically prohibits the issuance of any warrant except one
‘particularly describing the place to be searched and the persons
or things to be seized.’” Garrison, 480 U.S. at 84 (quoting U.S.
Const. amend. IV). The Supreme Court has held that this
requirement is satisfied “if the description is such that the
officer with a search warrant can with reasonable effort
ascertain and identify the place intended.” Steele v. United
3
Defendants argue that Plaintiffs are asserting a claim for
judicial deception in the application for the warrant and must
therefore demonstrate that Officer Bigoss acted recklessly,
rather than simply unreasonably. (County Reply at 1-2.)
Plaintiffs appear to state in their opposition, however, that
they are not arguing that the warrant was not validly issued but,
rather, that Officer Bigoss was unreasonable in applying for the
warrant, and that it was mistakenly served on the wrong house.
(County Opp’n at 13 n.1.) Plaintiffs’ counsel confirmed this at
the hearing. As such, the standard for analyzing the officers’
conduct is reasonableness, rather than recklessness. See
Garrison, 480 U.S. at 88.
17
States No. 1, 267 U.S. 498, 503 (1925). “The test for determining
the sufficiency of the warrant description is whether the place
to be searched is described with sufficient particularity to
enable the executing officer to locate and identify the premises
with reasonable effort, and whether there is any reasonable
probability that another premise might be mistakenly searched.”
U.S. v. Turner, 770 F.3d 1508, 1510 (9th Cir. 1985) (internal
quotation marks and citations omitted).
Here, it is undisputed that the raid was conducted on
the wrong house, and it appears the parties agree that the
description of the target house in the warrant was incorrect.
(See County Mot. at 15; County Opp’n at 13.) Plaintiffs argue
that Bigoss acted unreasonably in describing the target residence
in the application because, despite ample evidence that the
target residence was brown, including the statements of the
informant, Officer Bigoss, after conducting a search on Google
Maps, picked a house he guessed was the correct house and
described the target residence in the affidavit as “off-white to
gray in color with red trim.” (County Opp’n at 13-14, Ex. 5
(Search Warrant No. 11-1-0088).) Defendants counter that there is
no evidence that Bigoss acted unreasonably: he drove by the
location with the confidential informant during the daylight
hours and had her point out the house, and believed she had
identified Plaintiffs’ residence because she mentioned a bamboo
18
fence (which both Plaintiffs’ house and the house next door
have). Bigoss then described the residence in his affidavit as
best he could given the information he had. (Id. at 14-15.)
Plaintiffs have made the required showing that Officer
Bigoss may have acted unreasonably when investigating and setting
forth the description of the target house in the warrant
affidavit. It is undisputed that the confidential informant told
Bigoss that the target house was brown, (Bigoss Decl. at ¶ 8),
yet Bigoss described the house as “off-white to gray in color
with red trim” in his affidavit in support of the warrant.
(County Opp’n Ex. 5.) Further, it is undisputed that a Google
Maps search for 323 Manini Place yielded no results, but that
Bigoss nevertheless assumed that Google Maps was wrong and did
not conduct any further investigation to clarify the correct
address of the target house. (Bigoss Dep. at 25-26.) In light of
these facts, Plaintiffs have at least raised a question of fact
as to whether Bigoss knew or should have known that additional
investigation and/or a more accurate description were needed to
assure that the wrong house was not searched. See Navarro v.
Barthel, 952 F.2d 331, 333 (1991) (concluding that “it is for the
jury to decide whether [the officer] acted reasonably” in
describing the warrant location where there was some question as
to which was the correct house). Although the Court recognizes
“the need to allow some latitude for honest mistakes that are
19
made by officers in the dangerous and difficult process of making
arrests and executing search warrants,” Garrison, 480 U.S. at 87,
Bigoss’s actions in this case were simply not “consistent with a
reasonable effort to ascertain and identify the place intended to
be searched” as dictated by Garrison. See id. at 88-89.
The Court therefore concludes that there is a question
of fact as to whether Officer Bigoss acted unreasonably when
investigating and setting forth the physical location and
description of the target house in the warrant application.
b.
Reasonableness of Other Officers Who Participated
in the Search
With respect to the remaining individual officers who
participated in the search, Plaintiffs argue that they likewise
acted unreasonably when they participated in the search without
verifying first that it was lawful. Specifically, Plaintiffs
argue that the remaining officers had a duty to independently
assess the sufficiency of the affidavit and the warrant prior to
executing the warrant, but that they unreasonably failed to do
so. (County Opp’n at 11.) Defendants counter that officers
participating in the execution of a warrant are protected by
qualified immunity when they rely upon their superiors’
instructions. (County Mot. at 15-16; Officers’ Mot. at 14-15.)
The Ninth Circuit has made clear that what is
reasonable for a particular officer depends on his role in the
search. Ramirez v. Butte-Silver Bow Cty., 298 F.3d 1022, 1027
20
(9th Cir. 2002), aff’d sub nom. Groh v. Ramirez, 540 U.S. 551
(2004). The officers who lead a team that executes a warrant are
responsible for ensuring that they have a proper warrant that in
fact authorizes the search and seizure they are about to conduct.
Id. The leaders of the search “must actually read the warrant and
satisfy themselves that they understand its scope and
limitations, and that it is not defective in some obvious way.”
Id.; see also United States v. Leon, 468 U.S. 897, 922–23 (1984)
(search pursuant to a warrant is invalid if no reasonable officer
could have believed the warrant was valid).
“Line officers,” or the officers who conduct but do not
lead the search, are required to do much less. “They do not have
to actually read or even see the warrant; they may accept the
word of their superiors that they have a warrant and that it is
valid.” Ramirez, 298 F.3d at 1028 (citing Guerra v. Sutton, 783
F.2d 1371, 1375 (9th Cir. 1986); Marks v. Clarke, 102 F.3d 1012,
1029–30 (9th Cir. 1996)). So long as the participating officers
“ma[k]e inquiry as to the nature and scope of [the] warrant,”
Guerra, 783 F.2d at 1375, their reliance on leaders’
representations about it is reasonable. Id.
Here, counsel for Defendants stated during the hearing
on the instant motions that Officer Bigoss was the leader of the
raid on Plaintiffs’ home. Nevertheless, it appears that Sergeant
Perkett likewise acted in some leadership capacity during the
21
raid, as Perkett has stated that he was the one who gave the
order to the other officers to cease the search once he realized
they were at the wrong house. (See Opp’n Ex. 8 at 2; Mot. Ex. D
at 3-4.) The remaining officers who participated in the raid
appear to have acted as line officers.
First, as to the line officers, the Court finds that
they acted reasonably: they were told that a warrant had been
obtained and learned through an advance briefing about the
particulars of the warrant. (County Mot. at 4-5, 16; Officers’
Mot. at 4-5, 15.) Because they were not required to read the
warrant, the line officers conducting the search cannot
reasonably have been expected to know that it may have been
defective, or that Officer Bigoss may have acted unreasonably
when conducting his investigation and drafting his description of
the house to be searched. Further, the line officers would not
have known, upon passing the posted address of Plaintiffs’ house,
that it did not match the address on the warrant, as there is no
evidence that they read the warrant (nor were they required to do
so). Accordingly, it appears that the line officers acted
reasonably when they entered Plaintiffs’ property and initiated
the raid.
As to Sergeant Perkett, it is unclear from the record
whether he read the warrant prior to leading the raid. Plaintiffs
allege in their Second Amended Complaint that Perkett never
22
confirmed that the address of 323 Manini Place existed, and never
“verified the warrant.” (SAC ¶¶ 66, 68.) Defendants do not
present any evidence indicating that Perkett read the warrant or
otherwise did anything to satisfy himself that the warrant was
valid. Further, Plaintiffs correctly point out that Sergeant
Perkett participated in the initial investigation with Bigoss,
and was present when the confidential information pointed out the
target house and described it as brown with a bamboo fence. (See
County Reply at 4.) Thus, had Perkett read the warrant, he might
have identified the discrepancies between the warrant description
and the description provided by the informant. As such, the Court
concludes that there is at least a question of fact as to whether
Sergeant Perkett acted reasonably in his capacity as one of the
officers leading the search.
Finally, as to Officer Bigoss, as discussed above,
there is at least a question of fact as to whether he made “a
reasonable effort to ascertain and identify the place intended to
be searched” as dictated by Garrison. See id. at 88-89. Further,
he saw as he was entering Plaintiffs’ property that the posted
street address did not match the address on the search warrant.
(See County Mot. Ex. 6 at 2.) In light of the discrepancies he
knew already existed as to the target house’s description and
exact address (as discussed above), there is a question of fact
as to whether he acted reasonably in his capacity as one of the
23
leaders of the search in allowing the search to go forward.
c.
Reasonableness of the Duration of the Search
With respect to all of the individual officers,
Plaintiffs argue that they acted unreasonably by continuing the
search of Plaintiffs’ house for almost 20 minutes, even after
some or all of the officers realized that they were at the wrong
house. (County Opp’n at 16-18; Officer Opp’n at 11-14.)
Defendants counter that the search ceased as soon as the officers
became aware of their mistake. (County Mot. at 6-8.) Even if some
of the officers’ mistaken entry into Plaintiffs’ home was
excused, as discussed above, there may still be an actionable
violation of Plaintiffs’ Fourth Amendment rights if the search
continued after the error was realized.
The facts are clearly in dispute as to whether the
search ceased as soon as the officers in charge realized they
were at the wrong house. Officer Bigoss stated that approximately
30 seconds after arriving at his perimeter post on Plaintiffs’
lanai he realized that they were at the wrong house. (County
Opp’n Ex. 6 at 2.) Bigoss stated further that as soon as he
realized they were at the wrong house he notified Sergeant
Perkett of the mistake. (County Mot. Ex. X (Bigoss Depo.) at 38.)
Perkett and Bigoss claim that by the time they realized they were
at the wrong house, the house had already been cleared by the
officers, and that they immediately ordered the officers to
24
leave. (County Opp’n Ex. 8 at 2; Ex. 6 at 2.) Nevertheless,
Plaintiffs state (and Defendants concede for purposes of the
instant motions) that the search lasted at least 20 minutes,
indicating there was at least some period of time during which
the search continued even after Bigoss and Perkett realized their
mistake approximately 30 seconds after arriving at Plaintiff’s
house. (County Opp’n at 6, Ex. 21 (Deposition of April Freeland)
at 46.)
In light of this timing, there is at least a question
of fact as to whether Officers Bigoss and Perkett allowed the
search to continue even after they realized that they were at the
wrong house. Although police officers do not necessarily violate
the Fourth Amendment when they mistakenly execute a search
warrant on the wrong address, the officers are required to
immediately discontinue the search once they are put on notice
that they may be searching the wrong house. Garrison, 480 U.S. at
87. The Court cannot conclude as a matter of law that the
officers in charge immediately ceased the search once they
realized that they were at the wrong house. Plaintiffs have
therefore raised a triable issue of fact as to whether their
Fourth Amendment rights were violated as to Defendants Bigoss and
Perkett.
As for the line officers, Plaintiffs point to evidence
suggesting that at least some of them suspected they might not be
25
at the correct house upon knocking on the door and seeing
Plaintiffs, but that they nevertheless proceeded to enter and
clear the house. For example, Officer Brown stated that, as soon
as Plaintiffs answered the door and Brown saw the occupants and
the interior of the house, he believed that it didn’t look “like
the house of ‘Drug Dealers,’” and that “I don’t think I was the
only member to feel this but continued to execute the Search
Warrant.” (County Opp’n Ex. 10 at 1.) Similarly, Officer Dods
stated that “[i]n my opinion, it appeared that the involved
officers felt that something wasn’t right after making entry into
the residence,” but that the officers continued to execute the
warrant until “the residence was determined to be secure.” (Id.
Ex. 28 at 1-2.) Other officers made similar statements. (See
County Opp’n at 14-15.)
As discussed above, however, the line officers did not
act unreasonably in following their superiors’ orders in
executing the search warrant. See Ramirez, 298 F.3d at 1028.
Further, the Court cannot conclude that the line officers knew or
should have known that their conduct might result in the
violation of Plaintiffs’ rights simply because they observed that
Plaintiffs did not match the description of the target. The line
officers did not know at the time that there was any discrepancy
with respect to the search warrant’s description of the target
residence, and did not know whether the target - Kimberly Uyeda -
26
was in fact in the house, notwithstanding the fact that she did
not answer the door. Further, there is no evidence that, once the
order to cease the search was given, any of the line officers
nevertheless continued searching Plaintiffs’ home. As such, the
Court cannot conclude that the line officers acted unreasonably
with respect to the duration of the search.
2.
Unlawful Seizure/Arrest
With respect to Defendants’ detention of Plaintiffs
during the search of their home, Plaintiffs bring separate claims
for unlawful seizure and unlawful arrest under § 1983 (See SAC ¶¶
115-124.) Because Plaintiffs do not appear to plead facts to
support separate claims for unlawful arrest and unlawful
seizure,4 the Court will construe Counts 1 and 2 of Plaintiffs’
Second Amended Complaint as a single claim against Defendants for
the alleged unlawful detention, or seizure, of Plaintiffs during
the police raid on their home. A person is “seized” when by means
of physical force or a show of authority, his freedom of movement
is restrained. United States v. Mendenhall, 446 U.S. 544, 553-54
(1980); see also Doe ex rel. Doe v. State of Hawaii Dept. of
Education, 334 F.3d 906, 909 (9th Cir. 2003)(seizure, in
4
“It is quite plain that the Fourth Amendment governs
‘seizures’ of the person which do not eventuate in a trip to the
station house and prosecution for crime -- ‘arrests’ in
traditional terminology. It must be recognized that whenever a
police officer accosts an individual and restrains his freedom to
walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 U.S.
1, 16 (1968).
27
constitutional sense, occurs “when there is a restraint on
liberty to the degree that a reasonable person would not feel
free to leave.”). A seizure violates the Fourth Amendment if it
is objectively unreasonable under the circumstances. Doe, 334
F.3d at 909. The determination of whether a seizure was
reasonable requires a two-step inquiry: first, whether a seizure
has occurred, and, if so, whether that seizure was objectively
unreasonable under the circumstances. Id.
As to the first inquiry, whether a seizure occurred,
the Supreme Court has stated that examples of circumstances that
might indicate a seizure include “the threatening presence of
several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the
officer’s request might be compelled.” Mendenhall, 446 U.S. at
554. Here, it does not appear that the parties dispute that there
was a seizure. Plaintiffs state that they were forcibly taken
outside of their home and “held . . . captive” on their lanai by
officers with “combat type weapon[s].” (SAC ¶¶ 32-35.) Defendants
concede that Plaintiffs were “asked to step outside of the
house,” but assert that no physical force was used, and that
neither plaintiff was handcuffed. (Officers’ Mot. at 5; County
Mot. at 5-6.) Nevertheless, Defendants admit in their motions
that Plaintiffs were “detained for a few minutes” until
28
Defendants realized that they were at the wrong house. (County
Mot. at 12; Officers’ Mot. at 11-12.) Thus, it is undisputed that
Plaintiffs were detained by the officers and not free to leave
for at least several minutes. The Court finds that a seizure
occurred.
The Court next turns to an analysis of whether the
seizure was reasonable. Supreme Court and Ninth Circuit
precedents establish that, generally, the police may detain a
building’s occupants while officers execute a search warrant.
Michigan v. Summers, 452 U.S. 692, 704–05 (1981) (“If the
evidence that a citizen’s residence is harboring contraband is
sufficient to persuade a judicial officer that an invasion of
privacy is justified, it is constitutionally reasonable to
require that citizen to remain while officers of the law execute
a valid warrant to search his home.”); Ganwich v. Knapp, 319 F.3d
1115, 1120 (9th Cir. 2003) (concluding that it was reasonable to
detain a business’s employees while officers searched the
business’s premises pursuant to a warrant). To determine whether
a detention incident to a search is constitutionally reasonable,
courts balance the law enforcement interests served by the
detention against the public’s privacy interests. Ganwich, 319
F.3d at 1120. Courts recognize that detaining a building’s
occupants during a search serves at least three law enforcement
interests: first, it prevents a suspect from fleeing before the
29
police discover contraband; second, it minimizes the risk that an
officer or an occupant might be harmed during the search; and
third, it often expedites the search. Summers, 452 U.S. at
702–03; Ganwich, 319 F.3d at 1120.
Importantly, the Supreme Court recently held that “[a]n
officer’s authority to detain incident to a search is
categorical; it does not depend on the ‘quantum of proof
justifying detention or the extent of the intrusion to be imposed
by the seizure.’” Muehler v. Mena, 544 U.S. 93 (2005). The Ninth
Circuit has sated that, under Muehler, the duration of a
detention may be coextensive with the period of a search, and
require no further justification, so long as the detention is
conducted in a reasonable manner. Dawson v. City of Seattle, 435
F.3d 1054, 1066 (9th Cir. 2006). Thus, it appears the MPD could
detain Plaintiffs in a reasonable manner while Plaintiffs’
residence was being searched, albeit mistakenly, pursuant to a
warrant.
Plaintiffs nevertheless argue that the seizure was
unreasonable because they were forcibly pulled out of their home,
held on their lanai by armed men, and were not free to leave for
“at least 20 minutes while the police searched their home.”
(County Opp’n at 17; Officer Opp’n at 15.) Defendants counter
that Plaintiffs were only detained for “a few minutes” before the
police officers realized that they were at the wrong house, that
30
no physical force was used against them, and that the detention
was reasonable in light of the commencement of the search.
(County Mot. at 12; Officers’ Motion at 11-12.) In light of the
parties’ differing allegations regarding the exact length and
nature of Plaintiffs’ detention during the search, it appears
that issues of fact preclude a legal finding as to the
reasonableness of the seizure.
Because, as discussed above, Defendants Bigoss and
Perkett were the leaders of the search and thus had the authority
to end Plaintiffs’ detention, the Court concludes there is a
question of fact as to whether Bigoss and Perkett violated
Plaintiffs’ Fourth Amendment right to be free from unreasonable
seizure. Specifically, as discussed above, there is a question of
fact as to whether Bigoss and Perkett ordered the line officers
to cease the detention as soon as they realized they were at the
wrong house, or whether some amount of time elapsed before they
gave the order to release Plaintiffs. As to the remaining line
officers, because, as discussed above, there is no evidence that
they continued the search or detention once the order to cease
was given, the Court cannot conclude that they acted unreasonably
in their participation in Plaintiffs’ detention.
3.
Excessive Force
In their motions, Defendants suggest that Plaintiffs’
seizure claim should be construed as an “inartful attempt” to
31
allege a claim for excessive force. (County Mot. at 10.)
Plaintiffs do not make a claim for excessive force in the Second
Amended Complaint, but nevertheless stated at the hearing on the
instant motions that the Second Amended Complaint could be
interpreted as making such a claim. As such, the Court addresses
Plaintiffs’ claim for excessive force here.
The Fourth Amendment, which protects against excessive
force in the course of a seizure, requires that courts examine
the objective reasonableness of a particular use of force to
determine whether it was indeed excessive. Graham, 490 U.S. at
394–95, 398; see also Maxwell v. Cnty. of San Diego, 697 F.3d
941, 951 (9th Cir. 2012). To assess objective reasonableness,
courts weigh “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 396 (citation and internal quotation marks omitted). Stated
another way, the Court must “balance the amount of force applied
against the need for that force.” Meredith v. Erath, 342 F.3d
1057, 1061 (9th Cir. 2003).
First, the Court must analyze the type and amount of
force that Defendants used against Plaintiffs during the raid.
Plaintiffs claim that Defendants grabbed them by their wrists,
pulled them out of their home, pushed them onto a couch on their
lanai, and held them captive during the search. (County Opp’n at
32
5, Exs. 1 & 2; SAC ¶¶ 32-34.) Plaintiffs do not, however, allege
that they suffered any physical injury or required medical
treatment as a result of Defendants’ actions. (See County Opp’n
Ex. 1 at 6; Ex. 2 at 2.) Further, Plaintiffs have stated that the
officers never pointed their weapons at Plaintiffs. (County Mot.
Ex. MM (Deposition of April Freeland) at 40.) As such, the Court
concludes that the nature and quality of the force used was
relatively minimal.
Next, as to the governmental interests at stake, Graham
provides a non-exhaustive list of factors to consider, including
“the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396. In the case of force
used to effectuate a search, the Supreme Court has stated that
“[i]nherent in [officers’] authorization to detain an occupant of
the place to be searched is the authority to use reasonable force
to effectuate the detention.” Muehler, 544 U.S. at 98-99. The
Meuhler Court further explained that “the risk of harm to
officers and occupants is minimized if the officers routinely
exercise unquestioned command of the situation.” Id. at 99
(internal quotation marks omitted). Defendants were therefore
constitutionally permitted to use some amount of reasonable force
to detain Plaintiffs while conducting the search.
33
Here, viewing the facts in the light most favorable to
Plaintiffs, the physical force used on Plaintiffs was minimal at
most. In Muehler, the Supreme Court found that the handcuffing of
plaintiffs for two to three hours while the officers conducted a
search of their home was a “marginal intrusion” outweighed by the
interests of the officers in effectuating the search. Id. Here,
Plaintiffs were not handcuffed and did not suffer any physical
injury as a result of Defendants’ actions. Further, Plaintiffs
state that they were detained for, at the most, 20 minutes. As
such, in light of the minimum force used on Plaintiffs and the
legitimate government interest of keeping the officers and
occupants safe during the search, the Court cannot conclude that
Defendants used unreasonable or excessive force in the instant
case.
In sum, the Court concludes that Plaintiffs have raised
issues of fact as to whether Defendants Bigoss and Perkett
violated Plaintiffs’ Fourth Amendment rights to be free from
unreasonable search and seizure. Specifically, there are
questions of fact as to: (1) whether Officer Bigoss acted
unreasonably in investigating and drafting the warrant affidavit,
(2) whether Officers Bigoss and Perkett acted unreasonably as the
leaders of the raid in initiating the search, (3) whether
Officers Bigoss and Perkett acted unreasonably in allowing the
search to continue even after they realized they may be at the
34
wrong residence, and (4) whether Officers Bigoss and Perkett
acted unreasonably in detaining Plaintiffs during the raid. As to
the remaining individual officers, the Court finds that they did
not act unreasonably and therefore Plaintiffs have not shown that
they violated Plaintiffs’ Fourth Amendment rights.
The motions are therefore DENIED with respect to
Plaintiffs federal claims against Officers Bigoss and Perkett,
and GRANTED with respect to Plaintiffs’ federal claims against
all of the individual officers except Bigoss and Perkett.
B.
Was the Applicable Law Regarding Fourth Amendment
Searches and Seizures “Clearly Established” in 2011?
Because the Court concludes that Plaintiffs have
demonstrated that factual questions exist as to whether Officers
Bigoss and Perkett violated their Fourth Amendment rights, the
next step in the qualified immunity analysis is determining
whether those rights were “clearly established,” assessed “in
light of the specific context of the case, not as a broad general
proposition.” Saucier, 533 U.S. at 201. “Because the focus is on
whether the officer[s] had fair notice that [their] conduct was
unlawful, reasonableness is judged against the backdrop of the
law at the time of the conduct.” Brosseau v. Haugen, 543 U.S.
194, 198 (2004). “If the law at that time did not clearly
establish that the officer’s conduct would violate the
Constitution, the officer should not be subject to liability or,
indeed, even the burdens of litigation.” Id.
35
To be clearly established, the “contours” of an
asserted constitutional right “must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). This does not mean that a court must have previously
found the very action in question unlawful, but it does mean that
“in the light of pre-existing law the unlawfulness must be
apparent.” Id. In determining whether a constitutional violation
is clearly established, the Court construes the facts in the
light most favorable to Plaintiffs as the non-moving party. Scott
v. Harris, 550 U.S. 372, 378-80 (2007).
Here, the Court finds that the rights involved were
“clearly established.” “No reasonable officer could claim to be
unaware of the basic rule, well established by our cases, that,
absent consent or exigency, a warrantless search of the home is
presumptively unconstitutional.” Groh, 540 U.S. at 564 (citing
Payton v. New York, 445 U.S. 573, 586 (1980)). Further, the
particular “contours” of Fourth Amendment law involved here - the
requirement that an officer act reasonably in describing with
particularity the premises to be searched, the requirement that a
detention during a search be reasonable, and the requirement that
a search be terminated once a mistake is realized - were all also
well established when the raid took place in 2011. Indeed,
Maryland v. Garrison, the primary Supreme Court case analyzing
36
the issue of a mistaken search conducted pursuant to a warrant
was published in 1987. See Ashcroft v. Al-Kidd, 131 S.Ct. 2074,
(2011) (stating that, for a finding that a right is clearly
established, “[w]e do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.”). As such, Defendants
Bigoss and Perkett were on reasonable notice that their actions
in allowing the search and detention to continue even after
realizing they were at the wrong house violated the Fourth
Amendment. Further, Officer Bigoss was on notice that his actions
in failing to make a reasonable investigation and description of
the target house to avoid search of the wrong house was likewise
violative of the Fourth Amendment. The Court therefore finds that
the constitutional rights Plaintiffs allege were violated were
“clearly established” on April 15, 2011, the night of the
mistaken raid on their home.
In sum, the Court concludes that Plaintiffs have
demonstrated genuine issues of material fact as to whether
Defendants Bigoss and Perkett acted unreasonably and thus
violated their clearly established Fourth Amendment rights. The
Court therefore DENIES the County Motion insofar as the Court
concludes that Officers Bigoss and Perkett are not entitled to
qualified immunity. Because the Court finds that the other named
individual officers acted reasonably and did not violate
37
Plaintiffs’ clearly established Fourth Amendment rights, the
Court GRANTS the Officers’ Motion and DISMISSES WITHOUT PREJUDICE
Plaintiffs’ federal claims against those defendants.
C.
The County and Chief Yabuta
In addition to their claims against the individual
officers who participated in the raid, Plaintiffs also bring
§ 1983 claims against the County of Maui and Chief Yabuta for
failure to adequately supervise. Defendants argue that
Plaintiffs’ § 1983 claims against the County of Maui and Chief
Yabuta must be dismissed because Plaintiffs cannot show that the
allegedly unreasonable search and seizure were undertaken
pursuant to county policy or custom, or that Chief Yabuta
expressly ratified the allegedly unconstitutional conduct.
(County Mot. at 17-19; County Reply at 6-12.)
Municipal liability under 42 U.S.C. § 1983 “can only be
imposed for injuries inflicted pursuant to an official government
policy or custom.” Davis v. City of Ellensburg, 869 F.2d 1230,
1233 (9th Cir. 1989). A “policy” is a “deliberate choice to
follow a course of action made from among various alternatives by
the official or officials responsible for establishing final
policy with respect to the subject matter in question.” Young v.
City of Visalia, 687 F. Supp. 2d 1141, 1147 (E.D. Cal. 2009). “A
‘custom’ for purposes of municipal liability is a ‘widespread
practice that, although not authorized by written law or express
38
municipal policy, is so permanent and well-settled as to
constitute a custom or usage with the force of law.” Id.
“Absent a formal governmental policy, [Plaintiffs] must
show a ‘longstanding practice or custom which constitutes the
standard operating procedure of the local government entity.’”
Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). The policy or
custom “must be so persistent and widespread that it constitutes
a permanent and well settled city policy.” Id. Liability for
improper policy or custom “may not be predicated on isolated or
sporadic incidents; it must be founded upon practices of
sufficient duration, frequency and consistency that the conduct
has become a traditional method of carrying out policy.” Id.
Here, Plaintiffs appear to be attempting to satisfy
their burden of showing such a policy or custom by relying on a
“failure to train” theory - i.e., that MPD officers received
insufficient training in the supervision and execution of
warrants. In order to succeed under such a theory in the § 1983
context, Plaintiffs’ evidence must address the following three
factors:
First, it must be determined whether the existing
training program is adequate. The adequacy of a
particular training program must be resolved “in
relation to the tasks the particular officers must
perform.” A training program will be deemed
adequate if it “enables officers to respond
properly to the usual and recurring situations
with which they must deal.”
Second, if the training program is deemed
39
inadequate, it may justifiably be said to
constitute a city policy. Such will be the case,
however, “only where the failure to train amounts
to deliberate indifference to the rights of
persons with whom the police come into contact.”
This heightened degree of culpability on the party
[sic] of a municipality may be established when
“the need for more or different training is so
obvious, and the inadequacy 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.”
Finally, inadequate training that manifests
deliberate indifference on the part of a
municipality must be shown to have “actually
caused” the constitutional deprivation at issue.
Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir.
1989) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 39192 (1989)). Only if all three factors are proven can a
municipality’s training program be actionable under § 1983.
In light of the above standard, Plaintiffs’ § 1983
claims against the County of Maui must fail. Defendants state,
and Plaintiffs do not dispute, that the mistaken execution of a
warrant in this case represents a single, isolated incident.
(County Mot. Ex. A (Declaration of Gary Yabuta (“Yabuta Decl.”))
at ¶ 10.) Given this uncontested fact, the County cannot be said
to have been on notice of any deficiencies in its training of
police officers in the execution of warrants. Municipal liability
therefore cannot attach as a matter of law. “Only where a failure
to train reflects a deliberate or conscious choice by the
municipality . . . can a city be liable for such a failure under
40
§ 1983.” City of Canton, Ohio, 489 U.S. at 389; see also Connick
v. Thompson, 131 U.S. 1350, 1360 (2011) (“A pattern of similar
constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of
failure to train.”).
As to Chief Yabuta, Plaintiffs appear to be arguing
that he “ratified” the officers’ allegedly unconstitutional
actions, and may therefore be held liable under § 1983. (County
Opp’n at 21.) First, even assuming that Yabuta did “ratify” the
individual officers’ actions after the fact, Plaintiffs cannot
show that his ratification was the cause of the alleged
constitutional violations. See Williams v. Elligton, 936 F.2d
881, 884-85 (6th Cir. 1991) (noting that Monell v. Dept. of
Social Services of New York, 436 U.S. 658 (1978) requires a
causal connection between the municipal “policy” and the
constitutional deprivation, and that a single instance of
ratification after the fact was insufficient to constitute the
“moving force” behind the alleged constitutional deprivation). As
discussed above, Plaintiffs have not produced evidence of any
other unconstitutional, mistaken searches conducted by the MPD,
or other instances of Chief Yabuta ratifying such conduct.
Second, Plaintiffs have not demonstrated that Yabuta
actually ratified the unconstitutional conduct here. The Ninth
Circuit has found municipal liability on the basis of
41
ratification when the officials involved “adopted and expressly
approved of the acts of others who caused the constitutional
violation.” Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996).
Here, it is undisputed that Officer Bigoss was disciplined for
the mistaken search of Plaintiffs’ home. (See County Opp’n at 9;
County Reply at 8.) Accordingly, Plaintiffs have not demonstrated
that Chief Yabuta “adopted and expressly approved of” Bigoss’s
conduct, or the unconstitutional raid itself.5 See Haugen v.
Brosseau, 339 F.3d 857, 875 (9th Cir. 2003), rev’d on other
grounds by Brosseau v. Haugen, 543 U.S. 194 (2004) (stating that
a plaintiff must show that a decision was the product of a
conscious, affirmative choice to ratify the conduct in question).
The Court therefore cannot conclude that Chief Yabuta or the
County of Maui are subject to municipal liability for the actions
of the individual officers in conducting the allegedly
unconstitutional raid.
As such, the Court GRANTS the County Motion to the
extent it seeks summary judgment as to Plaintiffs’ federal claims
5
While it is somewhat unclear from their pleadings,
Plaintiffs also possibly argue that Yabuta is subject to
supervisor liability in his individual capacity. (See County
Opp’n at 21.) This claim must also fail, however, because
Plaintiffs have failed to demonstrate that Yabuta “participated
in or directed . . . or knew of . . . and failed to prevent
. . .” the unconstitutional search of Plaintiffs’ home. See
Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Indeed,
there appears to be no evidence that Yabuta participated in or
knew of the raid prior to its execution.
42
against the County of Maui and Defendant Yabuta. Plaintiffs’
§ 1983 claims against the County of Maui and Chief Yabuta are
DISMISSED WITHOUT PREJUDICE.
II.
The State Law Claims
In addition to their federal claims, Plaintiffs bring
the following claims under Hawaii state law: (1) false arrest,
(2) assault and battery, (3) intentional infliction of emotional
distress, (4) negligent infliction of emotional distress, (5)
trespass, (6) gross negligence, (7) respondeat superior liability
as against Chief Yabuta and the County of Maui, (8) negligent
training/supervision as against Chief Yabuta and the County, and
(9) negligence as against all Defendants.
A.
Qualified/Conditional Privilege
Defendants argue that all of Plaintiffs’ state law
claims must be dismissed because the individual officers are
shielded from liability by the qualified or conditional
privilege.6
Under the doctrine of conditional or qualified
privilege, nonjudicial government officials are shielded from
liability for their tortious actions committed during the
performance of their public duties. See Long v. Yomes, Civ. No.
11-00136, 2011 WL 4412847 at *6 (D. Haw. 2011). In order for a
6
Plaintiffs do not address in their oppositions Defendants’
arguments regarding conditional privilege.
43
plaintiff to prevail in a state tort action against a nonjudicial
government official, the plaintiff must “allege and demonstrate
by clear and convincing proof that the official was motivated by
malice and not by an otherwise proper purpose.” Id. (quoting
Edenfield v. Estate of Willets, Civ. No. 05-00418, 2006 WL
1041724 at *11-12 (D. Haw. 2006)).
For claims other than defamation, courts employ an
“actual malice” test. Bartolome v. Kashimoto, Civ. No. 06–00176
BMK, 2009 WL 1956278, at *1 (June 26, 2009). Under this test,
“malice” is defined as “the intent, without justification or
excuse, to commit a wrongful act[,] reckless disregard of the law
or of a person’s legal rights[,] and [i]ll will; wickedness of
heart.”
Id. (quoting Awakuni v. Awana, 165 P.3d 1027, 1041 (Haw.
2007)) (internal quotation marks omitted). The Court notes that
Awakuni established the definition of malice based on the
definitions contained in the eighth edition of Black’s Law
Dictionary. Black’s Law Dictionary contains three definitions of
malice: “1. The intent, without justification or excuse, to
commit a wrongful act. 2. Reckless disregard of the law or of a
person’s legal rights. 3. Ill will; wickedness of heart.” Black’s
Law Dictionary (8th ed. 2004). It thus appears that, in
accordance with the Hawaii Supreme Court’s ruling in Awakuni, a
plaintiff may show malice by satisfying any one of the three
definitions. See Awakuni, 165 P.3d at 1043 (concluding that
44
plaintiffs failed to show that defendants “were motivated by ill
will or an intention to commit, or a reckless disregard of
committing, a wrongful act against any of the [plaintiffs.]”
(emphasis added)).
In this case, as to the individual line officers,
Plaintiffs make no arguments in their oppositions as to malice,
and raise no evidence in their filings on the instant motions to
support a finding of malice. While Plaintiffs have introduced
several of the officers’ statements that they noted that
Plaintiffs did not match the description of the target in the
warrant, or that Plaintiffs’ house did not look like a “drug
house,” as discussed above, there is simply no evidence that the
line officers were motivated by anything other than the necessity
of following their superiors’ orders in executing what they
believed was a valid search warrant describing Plaintiffs’ home.
As such, Plaintiffs have failed to demonstrate that the
individual line officers who conducted the search were motivated
by malice or an otherwise improper purpose when they executed the
raid on Plaintiffs’ home. See id. at 1041. The individual line
officers are therefore entitled to the qualified or conditional
privilege. Plaintiffs’ state law claims, namely Counts 6 through
16, are DISMISSED WITHOUT PREJUDICE as to all of the individual
line officer defendants except Officers Bigoss and Perkett.
As to Officers Bigoss and Perkett, as discussed above,
45
Plaintiffs state that the search of their home lasted 20 minutes,
(see County Opp’n Ex. 21), while Officer Bigoss has stated that
he realized within 30 seconds of arriving at Plaintiff’s house
that the officers were at the wrong house, and told Perkett right
away. (See County Opp’n Ex. 6.) In light of these conflicting
statements, there is at least a question of fact as to whether
Officers Perkett and Bigoss allowed the search to continue even
after they realized that they were at the wrong house. To the
extent they did so, a reasonable jury may find that this
constituted a “reckless disregard of the law or of [Plaintiffs’]
legal rights.” See Awakuni, 165 P.3d at 1043. As such, the Court
finds that there is at least a question of fact as to whether
Officers Bigoss and Perkett acted with malice. They are therefore
ineligible for the qualified/conditional privilege. The Court
therefore turns to an analysis of Plaintiffs’ state law claims as
against Officers Perkett and Bigoss.
B.
False Arrest
Under Hawaii tort law, to maintain an action for false
arrest or false imprisonment a plaintiff must show (1) the
detention or restraint of one against one’s will, and (2) the
unlawfulness of such detention or restraint. Reed v. City and
Cnty. of Honolulu, 76 Haw. 219, 230 (1994) (quoting Meyer v. City
& Cnty. of Honolulu, 6 Haw. App. 505, 508, 729 P.2d 388, 391,
rev'd on other grounds, 69 Haw. 8, 731 P.2d 149 (1986)). Probable
46
cause is an affirmative defense to the claim of false
imprisonment. Id. As discussed above, it appears to be undisputed
that Plaintiffs were detained against their will during the raid.
(See SAC ¶¶ 32-25; County Mot. at 5-6; Officers’ Mot. at 5.)
Further, as discussed above, Plaintiffs have at least raised a
question of fact as to whether the detention was lawful: to the
extent Officers Bigoss and Perkett failed to halt the search and
allowed Plaintiffs’ detention to continue even after they
realized that they were at the wrong house, they may have acted
unlawfully. As such, the Court finds that a question of fact
exists as to whether Officers Bigoss and Perkett may be liable
under state law for false arrest.
C.
Assault and Battery
Under Hawaii law, a person commits the common law tort
of assault “if he or she acts with intent to cause another a
nonconsensual harmful or offensive contact or apprehension
thereof, and the other person apprehends imminent contact.”
Mukaida v. Hawaii, 159 F. Supp. 2d 1211, 1223 (D. Haw. 2001). A
person commits the common law tort of battery “if he or she acts
with intent to cause a nonconsensual harmful or offensive
contact, or apprehension thereof, and the contact occurs.” Id.
See also Williams v. Aona, 121 Haw. 1, 13 (2009) (“[A] defendant
causes battery when he or she intentionally causes bodily contact
to the plaintiff in a way not justified by the plaintiff’s
47
apparent wishes or by a privilege, and the contact is in fact
harmful or against the plaintiff’s will.” (internal quotation
marks omitted)).
Here, Plaintiffs argue that one or some of the
Defendants forcibly pulled them out of their home, and that the
reaching toward Plaintiffs and touching of Plaintiffs by pulling
them outside constituted common law assault and battery,
respectively. (See County Opp’n at 23.) Defendants counter that
the officers were entitled to use such force as was reasonable in
the effectuation of the search. (County Mot. at 23 (citing
Muehler, 544 U.S. at 98-99).) As this Court stated above, all of
the individual officers except Officers Bigoss and Perkett are
entitled to the qualified/conditional privilege and are thus
shielded from liability as to Plaintiffs’ state law claims. Thus,
the Court need only analyze whether Officers Bigoss and Perkett
may be held liable for common law assault and battery.
As to Officers Bigoss and Perkett, there is no evidence
that either of them actually intended to or did physically touch
the Plaintiffs during the raid. Plaintiffs do not identify which
of the individual Defendants allegedly pulled them out of their
home, and the Court has evidence before it that neither Officer
Bigoss nor Sergeant Perkett was assigned to the entry team, and
that both Bigoss and Perkett were assigned to exterior perimeter
posts. (See County Opp’n at 24; Ex. 8 at 2; Ex. 6 at 2.) The
48
Court therefore concludes that there is no evidence to support
Plaintiffs’ claims of assault and battery as against Defendants
Bigoss and Perkett. Plaintiffs’ state law claims for assault and
battery are therefore DISMISSED WITHOUT PREJUDICE.
D.
Intentional Infliction of Emotional Distress
The elements of the tort of intentional infliction of
emotional distress (IIED) are: “1) that the act allegedly causing
the harm was intentional or reckless, 2) that the act was
outrageous, and 3) that the act caused 4) extreme emotional
distress to another.” Hac v. Univ. of Hawaii, 102 Haw. 92,
106-07, 73 P.3d 46, 60-61 (2003).
To demonstrate the first element, a plaintiff must show
that the defendant acted either with a “desire to inflict severe
emotional distress, . . . where he knows that such distress is
certain, or substantially certain, to result from his conduct” or
“recklessly . . . in deliberate disregard of a high degree of
probability that the emotional distress will follow.” Ritchie v.
Wahiawa General Hosp., 597 F. Supp. 2d 1100, 1110 (citing
Restatement (Second) Torts Section 46, cmt. i (1965)).
Recklessness, unlike negligence, involves more than
“inadvertence, incompetence, unskillfulness, or a failure to take
precautions,” but instead rises to the level of a “conscious
choice of a course of action . . . with knowledge of the serious
danger to others involved in it.” Id.; see also Iddings v.
49
Mee-Lee, 82 Hawaii 1, 11, 919 P.2d 263, 273 (1996) (“The usual
meaning assigned to . . . ‘reckless,’ . . . is that the actor has
intentionally done an act of an unreasonable character in
disregard of a risk known to or so obvious that he . . . must be
taken to have been aware of it, and so great as to make it highly
probable that harm would follow.”).
Here, viewing the record in the light most favorable to
Plaintiffs, there is at least a question of fact as to whether
Defendants Bigoss and Perkett acted recklessly in allegedly
allowing the search to continue for 20 minutes, even after they
realized that they were at the wrong house. In light of this
factual dispute, the Court cannot conclude as a matter of law
that Bigoss and Perkett did not make a “conscious choice of a
course of action . . . with knowledge of the serious danger to
others involved in it.” See Restatement (Second) Torts, § 500,
cmt. g. The first factor is therefore satisfied.
With respect to the second factor, “outrageous”
conduct:
Liability has been found only where the conduct
has been so outrageous in character, and so
extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the
recitation of the facts to an average member of
the community would arouse his resentment against
the actor, and lead him to exclaim, “Outrageous!”
Ross v. Stouffer Hotel Co., 76 Hawaii 454, 465 n. 12 (1994)
50
(citation and quotation marks omitted); see also Shoppe v. Gucci
Am., Inc., 94 Haw. 368, 387, 14 P.3d 1049, 1068 (2000) (stating
that an act is outrageous if it is “without just cause or excuse
and beyond all bounds of decency”).
Here, Defendants Bigoss and Perkett have not
established that their acts were not outrageous as a matter of
law. Were a jury to find that Officers Bigoss and Perkett did, in
fact, allow the search to continue even after realizing that they
were at the wrong house, a reasonable fact finder could certainly
find that the recitation of these facts to an average member of
the community would arouse his sentiment against the officers and
lead him to exclaim, “Outrageous!” See id.; Ross, 76 Hawaii at
465 n. 12. As such, the second factor is satisfied.
As to the final factor, extreme or severe emotional
distress is defined as “mental suffering, mental anguish, mental
or nervous shock[,] includ[ing] horror, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment, worry
and nausea.” Hac, 102 Haw. at 106 (citation and quotation marks
omitted); Enoka v. AIG Hawai‘i Ins. Co., 109 Haw. 537, 559, 128
P.3d 850, 872 (2006) (“‘[E]xtreme emotional distress’
constitutes, inter alia, mental suffering, mental anguish,
nervous shock, and other ‘highly unpleasant mental reactions.’”).
“The intensity and the duration of the distress are factors to
[be] considered in determining its severity,” and “bodily injury
51
. . . is not necessary to establish severe emotional distress.”
Hac, 102 Haw. at 106.
In the instant case, with respect to Mrs. Freeland’s
emotional distress, Plaintiffs proffer evidence that she had a
“flashback” of the night of the raid about two or three months
after the incident, and that she is concerned it may happen again
and is therefore afraid to use headphones. She states that she is
“still very upset.” (County Mot. Ex. OO (Deposition of April
Freeland) at 121-22.) With respect to Mr. Freeland, he states
that he is “still very anxious” and that he “still lose[s] sleep”
every night over the incident. (County Mot. Ex. PP (Deposition of
Norman Freeman) at 78-79.) In light of these statements, the
Court concludes that there is at least a question of fact as to
whether Plaintiffs have suffered severe or extreme emotional
distress. Accordingly, the County Motion is DENIED to the extent
Defendants seek summary judgment as to Plaintiffs’ state law
claim of IIED against Officers Bigoss and Perkett.
E.
Negligent Infliction of Emotional Distress
The Supreme Court of Hawaii has determined that
a plaintiff may recover for negligent infliction
of emotional distress [NIED], absent any physical
manifestation of his or her psychological injury
or actual physical presence within a zone of
danger, where a reasonable person, normally
constituted, would be unable to adequately cope
with the mental stress engendered by the
circumstances of the case . . . . Thus, an NIED
claim is nothing more than a negligence claim in
which the alleged actual injury is wholly psychic
52
and is analyzed utilizing ordinary negligence
principles.
Doe Parents No. 1 v. State, Dep’t of Educ., 58 P.3d 545, 580
(Haw. 2002) (internal quotation marks and alterations omitted)
(quoting Rodrigues v. State, 472 P.2d 156, 173 (Haw. 1970)).
Where the alleged injury is for psychological distress
alone, “there is a need to strike a balance between avoiding the
trivial or fraudulent claims that have been thought to be
inevitable due to the subjective nature of such injury, on the
one hand, and promoting the underlying purpose of negligence law,
i.e., compensating persons who have sustained emotional injuries
attributable to the wrongful conduct of others, on the other.”
Doe Parents No. 1, 58 P.3d at 579 (internal quotation marks and
alterations omitted). The Supreme Court of Hawaii has, therefore,
“consistently held, as a general matter, that the plaintiff must
establish some predicate injury either to property or to another
person in order himself or herself to recover for negligently
inflicted emotional distress.” Id. at 580; see also
Kaho’ohanohano v. Dep’t of Human Svs., State of Haw., 117 Haw.
262, 307 (2008). The foregoing principle was modified by Haw.
Rev. Stat. § 663–8.9, which requires a predicate physical injury
to the NIED claimant before he or she may recover damages for
negligent infliction of emotional distress, where he or she
claims that the psychological distress arises solely out of
damage to property or to material objects. In sum, “the law as it
53
currently stands in Hawaii is that an NIED claimant must
establish, incident to his or her burden of proving actual injury
. . . that someone was physically injured by the defendant’s
conduct, be it the plaintiff himself or herself or someone else.”
Doe Parents No. 1, 58 P.3d at 580-81.
The Supreme Court of Hawaii has recognized, however,
that there are certain cases that “present unique circumstances,
which provide the requisite assurance that the plaintiff’s
psychological distress is trustworthy and genuine, [wherein the
Court has] not hesitated to carve out exceptions to [the] general
rule that recovery for psychic injury standing alone is permitted
only where there is a predicate physical injury to someone, be it
a plaintiff or a third person.” Id. at 581 (internal quotation
marks and alterations omitted). Thus, the Court has allowed NIED
claims to go forward where a plaintiff alleged actual exposure to
HIV-positive blood absent any predicate physical harm. See John &
Jane Roes, 1-100 v. FHP, Inc., 985 P.2d 661 667-68 (Haw. 1999).
The Court has also allowed NIED claims in cases involving the
mishandling of a corpse. See Guth v. Freeland, 28 P.3d 982, 989
(Haw. 2001) (adopting the “minority view,” under which the
plaintiff claiming that the defendant was negligent in the course
of preparing the body of an immediate family member for funeral,
burial, or crematory purposes, could recover for emotional
distress standing alone, without establishing that his or her
54
“emotional distress [had] manifest[ed] itself in a physical
injury”). Finally, the Court has also allowed NIED claims absent
evidence of physical injury “where a school negligently plac[es]
a child in an environment where he or she is left unsupervised
with an accused child molester, without undertaking any
reasonable effort to ascertain where it can be anticipated that
the accused will molest again.” Doe Parents No. 1, 58 P.3d at
582.
The instant case does not fall under one of these three
exceptions to the general rule that a plaintiff must demonstrate
a predicate injury to him or herself or to another in order to
bring a claim for NIED. Further, Plaintiffs do not argue that
this case similarly presents “unique circumstances” tending to
demonstrate the genuineness of their psychic harm. Indeed,
Plaintiffs concede the general rule requiring a predicate injury,
but claim that they have “suffered the predicate injury to their
property . . . .” (County Opp’n at 25.) Defendants correctly
note, however, that Plaintiffs have previously admitted that
their property was not damaged during the raid. (See County Mot.
Exs. O & P.) Further, even if Plaintiffs did suffer some damage
to property, under Hawaii law Plaintiffs cannot recover in NIED
for damage to their property unless they can also show that their
emotional distress resulted in a physical injury or mental
illness. Haw. Rev. Stat. § 663-8.9(a). Plaintiffs do not,
55
however, claim that they or anyone else suffered a physical
injury or mental illness as a result of the raid. As such,
Plaintiffs’ claims for negligent infliction of emotional distress
must fail. Count 10 of Plaintiffs’ Second Amended Complaint is
therefore DISMISSED WITHOUT PREJUDICE.
F.
Trespass
A trespass occurs when a person “intentionally (a)
enters land in the possession of the other, or causes a thing or
third person to do so, or (b) remains on the land, or (c) fails
to remove from the land a thing which he is under a duty to
remove.” Restatement (Second) of Torts § 158. With respect to
Defendants Bigoss and Perkett, as discussed at length above,
there is a question of fact as to whether they remained on
Plaintiffs’ property and allowed the search to continue even
after they realized that they were at the wrong house. As such,
the Court cannot conclude as a matter of law that Officers Bigoss
and Perkett did not intentionally remain on Plaintiffs’ property
without the legal authority to do so.
G.
Negligence and Gross Negligence
In order to succeed on a claim for negligence, a party
must show:
1. A duty, or obligation, recognized by the law,
requiring the actor to conform to a certain
standard of conduct for the protection of others
against unreasonable risks;
2. A failure on [the defendant’s part] to conform
56
to the standard required;
3. A reasonable close causal connection between
the conduct and the resulting injury; [and]
4. Actual loss or damage resulting to the
interests of another.
White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (D. Haw. 2006)
(citing Ono v. Applegate, 62 Haw. 131, 137, 612 P.2d 533, 538
(1980)).
“In order to succeed on a claim for gross negligence a
party must show ‘that there has been an ‘entire want of care’
which raises a presumption of ‘conscious indifference to
consequences.’” Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213,
1234 (D. Haw. 2010) (quoting Mullaney v. Hilton Hotels Corp., 634
F. Supp. 2d 1130, 1154 (D. Haw. 2009)). Gross negligence “is
simply a point on a continuum of probability, and its presence
depends on the particular circumstance of each case.” Royal Ins.
Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1015 (9th Cir. 1999)
(internal citation and quotation omitted); Pancakes of Haw., Inc.
v. Pomare Props. Corp., 85 Haw. 286, 293, 944 P.2d 83, 90 (Haw.
App. 1997) (“The element of culpability that characterizes all
negligence is in gross negligence magnified to a high degree as
compared with that present in ordinary negligence.” (internal
citation and quotation omitted)).
As to Officer Bigoss, as discussed above, despite ample
evidence that the target residence was brown, he described the
57
target residence in the warrant affidavit as “off-white to gray
in color with red trim.” (County Opp’n at 13-14, Ex. 5 (Search
Warrant No. 11-1-0088).) He did not conduct any further
investigation to ensure he was describing the correct house in
the warrant affidavit, despite the fact that his Google Maps
search revealed that 323 Manini Place did not exist. (Bigoss Dep.
at 25-26.) Further, Officer Bigoss has stated that he noticed as
he was passing Plaintiffs’ mailbox and exterior gate that the
posted address was 237 Manini Place and did not match the address
in the warrant. (County Opp’n Ex. 6 at 2.) Yet, again, he failed
to take any reasonable measures to ensure he was at the correct
house.
Additionally, as to both Defendants Bigoss and Perkett,
as discussed above, there is a question of fact as to whether
they allowed the search to continue even after they realized that
they were at the wrong house. The Court concludes that this
conduct, if established, is sufficient to establish that Bigoss
and Perkett failed to meet their legally required standard of
care and acted with reckless indifference to Plaintiffs’ legal
rights. As such, there are questions of fact precluding summary
judgment on Plaintiffs’ claims for negligence and gross
negligence against Officers Bigoss and Perkett.7
7
In Long v. Yomes, this Court stated that, “while the
requirement that plaintiffs show actual malice to overcome the
‘qualified or conditional privilege’ is a significant obstacle,
it does not preclude negligence liability in all cases.” 2011 WL
4412847, at *7 (D. Haw. Sept. 20, 2011). In particular, the court
58
Plaintiffs also appear to bring negligence and gross
negligence claims against Chief Yabuta and the County of Maui,
separate from their claims for liability based on a theory of
respondeat superior. (See County Opp’n at 27.) Plaintiffs do not,
however, appear to be alleging that Chief Yabuta participated in
the raid or otherwise knew about it beforehand. Further, as
discussed above, Plaintiffs do not dispute that the mistaken
execution of a warrant in this case represents a single, isolated
incident. (County Mot. Ex. A (Declaration of Gary Yabuta (“Yabuta
Decl.”)) at ¶ 10.) Given this uncontested fact, Chief Yabuta and
the County cannot be said to have been on notice of any
deficiencies in the training of police officers in the execution
of warrants. Further, Plaintiffs have not introduced any evidence
suggesting that there were, in fact, deficiencies in the training
of the officers such that the County or Chief Yabuta might be
found to have failed to exercise reasonable care in preventing
mistaken searches. As discussed in more detail below, the County
of Maui may be liable for the torts committed by the individual
officers under a theory of respondeat superior; however, there is
no evidence of direct negligence or gross negligence on the part
noted, conduct performed with “reckless disregard of the law or
of a person’s legal rights” may be negligent, even though
negligent conduct often does not involve malice. Here, as
discussed above, Plaintiffs have raised a question of fact as to
whether Officers Bigoss and Perkett acted with reckless disregard
of Plaintiffs’ legal rights. Thus, Plaintiffs may also bring
negligence claims against them.
59
of the County or Chief Yabuta. The Court therefore DISMISSES
WITHOUT PREJUDICE Plaintiffs’ claims for negligence and gross
negligence as against the County of Maui and Chief Yabuta.
H.
Negligent Training, Supervision, Management
In addition to their claims against the individual
officers, Plaintiffs bring claims against Chief Yabuta and the
County of Maui for negligent supervision, management, and
control. Importantly, however, under Hawaii law a claim for
negligent supervision “may only be found where an employee is
acting outside of the scope of his or her employment[.]” Dairy
Rd. Partners v. Island Ins. Co., Ltd., 92 Haw. 398, 427 (2000)
(emphasis in original); see also Wong-Leong v. Hawaiian Indep.
Refinery, Inc., 76 Haw. 433, 444-45 (1994) (adopting the test for
negligent supervision set forth in the Restatement (Second) of
Torts § 317, requiring that the employee be acting outside the
scope of his employment).
The parties do not appear to dispute that the
Defendants were acting within the scope of their employment and
under color of law when they conducted the mistaken raid on
Plaintiffs’ home. Plaintiffs do not allege that any of the
Defendants were acting outside the scope of their employment, nor
do they set forth facts giving rise to such an inference. Indeed,
Plaintiffs admit in their oppositions and allege in the Second
Amended complaint that the officers were acting within the scope
60
of their employment as police officers. (See County Opp’n at 29;
SAC ¶¶ 4-17.) Plaintiffs’ claim for negligent training,
supervision, management, and control is therefore DISMISSED
WITHOUT PREJUDICE.
I.
Respondeat Superior Claims
Plaintiffs also allege that Chief Yabuta and the County
of Maui may be held liable for the torts of the officers based on
a theory of respondeat superior. “Under the theory of respondeat
superior, an employer may be liable for the negligent acts of its
employees that occur within the scope of their employment.”
Wong–Leong, 76 Haw. at 438. To recover under the respondeat
superior theory, a plaintiff must establish: 1) a negligent act
of the employee (breach of a duty that is the legal cause of
plaintiff’s injury); and 2) that the negligent act was within the
employee’s scope of employment. Henderson v. Professional
Coatings Corp., 72 Haw. 387, 391–92 (1991). Because the
individual line officers are all entitled to the
qualified/conditional privilege, respondeat superior liability
may only be based on the torts allegedly committed by the
remaining individual officer defendants, Officers Bigoss and
Perkett. See Silva v. City and Cnty. of Honolulu, 2013 WL 2420902
at *20 (D. Haw. May 31, 2013); Reed v. City and Cnty. of
Honolulu, 76 Haw. 219, 227 (Haw. 1994).
As an initial matter, the Court notes that Chief Yabuta
61
may not be held liable pursuant to a theory of respondeat
superior because he is not the individual officers’ “employer.”
The role of a police chief with respect to subordinate police
officers is that of a managing co-employee, not an employer.
Chief Yabuta cannot be held vicariously liable for the tortious
conduct of his co-employees where he did not participate in or
direct their conduct. See, e.g., Jones v. City of Los Angeles,
215 Cal. App. 2d 155, 158 (1963) (noting that a chief of police
may not be held liable for the wrongful acts of subordinates not
done at his discretion). The Court therefore GRANTS the County
Motion insofar as it seeks summary judgment on Plaintiffs’ claims
of respondeat superior liability as against Chief Yabuta.
As to the County of Maui, as discussed above, the
parties do not dispute that the Defendants were acting within the
scope of their employment when they conducted the raid on
Plaintiffs’ home. (See County Mot. at 28-29; County Opp’n at 29.)
Further, as discussed above, there is at least a question of fact
as to whether Officers Bigoss and Perkett may be liable for the
torts of false arrest, intentional infliction of emotional
distress, trespass, negligence, and gross negligence. Because
Bigoss and Perkett were acting within the scope of their
employment when they allegedly committed the torts, the County of
Maui may be held liable under a theory of respondeat superior,
should Defendants Bigoss and Perkett be found to be liable for
62
those torts. See Wong–Leong, 76 Haw. at 438.
III. Punitive Damages
Finally, Plaintiffs seek punitive damages as against
all Defendants. As a preliminary matter, Defendants correctly
point out that municipalities may not be held liable for punitive
damages under either § 1983 or Hawaii state common law. See
Newport v. Facts Concerts, Inc., 453 U.S. 247, 271 (1981)
(stating that a municipality is immune from punitive damages
under 42 U.S.C. § 1983); Lauer v. Young Men’s Christian Assoc.,
57 Haw. 390, 402 (1976) (stating that municipalities cannot be
liable under common law for punitive or exemplary damages). As
such, Plaintiffs’ claim for punitive damages is DISMISSED WITH
PREJUDICE as against the County of Maui.
As for Plaintiffs’ claim for punitive damages against
the individual officers, “[t]he standard for punitive damages
under § 1983 mirrors the standard for punitive damages under
common law tort cases.” Dang v. Cross, 422 F.3d 800, 807 (9th
Cir. 2005). According to the Hawaii Supreme Court:
In order to recover punitive damages, “the
plaintiff must prove by clear and convincing
evidence that the defendant has acted wantonly or
oppressively or with such malice as implies a
spirit of mischief or criminal indifference to
civil obligations, or where there has been some
wilful misconduct or that entire want of care
which would raise the presumption of a conscious
indifference to consequences.”
Ass’n of Apartment Owners v. Venture 15, Inc., 167 P.3d 225, 297
63
(Haw. 2007).
Further, “the proper measurement of the amount of
punitive damages is the degree of the defendant’s malice,
oppression, or gross negligence that forms the basis for
liability for punitive damages and the amount of money required
to punish the defendant.” Ditto v. McCurdy, 98 Haw. 123, 131, 44
P.3d 274, 282 (2002) (citing Kang v. Harrington, 59 Haw. 652, 663
(1978)); see also Iddings v. Mee-Lee, 82 Hawaii 1, 9 (1996)
(noting that willful, wanton, or reckless conduct may support an
award of punitive damages).
As discussed above, as to the individual line officers,
Plaintiffs make no arguments in their oppositions as to malice,
and raise no evidence in their filings on the instant motions to
support a finding of malice or “conscious indifference to
consequences.” See Venture 15, 167 P.3d at 297. Indeed, there is
no evidence that the line officers were motivated by anything
other than the necessity of following their superiors’ orders in
executing what they believed to be a valid search warrant
describing Plaintiffs’ home. Plaintiffs have thus failed to
demonstrate that the individual line officers who conducted the
search acted wantonly, oppressively, or with malice such that
punitive damages may be recovered as against them. Plaintiffs’
claim for punitive damages against the individual line officers
is therefore DISMISSED WITHOUT PREJUDICE.
As to Chief Yabuta, as discussed above, there is simply
64
no evidence that he either knew about the mistaken raid prior to
its execution, or ratified any alleged unlawful acts after the
fact. The Court therefore DISMISSES WITHOUT PREJUDICE Plaintiffs’
claim for punitive damages as against Chief Yabuta.
Finally, as to Officers Bigoss and Perkett, as
discussed above, there is a question of fact as to whether they
allowed the search to continue even after they realized that they
were at the wrong house. If they did, in fact, allow the search
to continue knowing that they were at the wrong house, this might
very well constitute the type of “willful misconduct” or “entire
want of care” sufficient to support an award of punitive damages.
See id.
CONCLUSION
For the foregoing reasons, the Court GRANTS the
individual officers’ motion, (Doc. No. 137), and GRANTS IN PART
AND DENIES IN PART the motion filed by the County of Maui, Chief
Yabuta, and Officers Bigoss and Perkett, (Doc. No. 135), as
follows:
1)
As to Defendants Perkett and Bigoss, the Court GRANTS
IN PART AND DENIES IN PART their motion for summary judgment,
(Doc. No. 135). The Court GRANTS the motion as to Plaintiffs’
official capacity claims against Bigoss and Perkett. The Court
further GRANTS the motion as to Plaintiffs claims for state law
assault and battery and negligent infliction of emotional
65
distress. Plaintiffs’ state law claims against Officers Bigoss
and Perkett for assault, battery, and negligent infliction of
emotional distress are DISMISSED WITHOUT PREJUDICE. The Court
DENIES the motion as to all of Plaintiffs’ remaining claims
against Defendants Bigoss and Perkett.
2)
As to the remaining individual officers, Defendants
Calibuso, Santos, Dods, Gantala, Carroll, Dagulo, Wright, Brown,
Bayle, Kealoha, Perreira, and Okamoto, the Court GRANTS their
motion for summary judgment, (Doc. No. 137), in its entirety. All
of Plaintiffs’ claims against the remaining individual officers
are DISMISSED WITHOUT PREJUDICE.
3)
As to Defendants the County of Maui and Chief Yabuta,
the Court GRANTS IN PART AND DENIES IN PART their motion, (Doc.
No. 135). The Court GRANTS the motion as to all of Plaintiffs’
claims against Chief Yabuta. Plaintiffs’ claims against Chief
Yabuta are DISMISSED WITHOUT PREJUDICE. The Court further GRANTS
the motion as to Plaintiffs’ federal claims, Plaintiffs’ state
law claim for negligent training, and Plaintiffs’ claim for
punitive damages as against the County of Maui. These claims
against the County of Maui are DISMISSED WITHOUT PREJUDICE. The
Court DENIES the motion as to Plaintiffs’ state law respondeat
superior claim against the County of Maui based on the alleged
torts committed by Officers Bigoss and Perkett.
IT IS SO ORDERED.
66
DATED:
Honolulu, Hawaii, December 11, 2013
________________________________
Alan C. Kay
Sr. United States District Judge
Freeland v. County of Maui et al., Civ. No. 11-00617 ACK KSC, Order Granting
in Part and Denying in Part Defendants’ Motions for Summary Judgment
67
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