Tokuda et al v. Calio et al
ORDER (1) GRANTING IN PART AND DENYING IN PART CHRIS CALIO'S 171 MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING COUNTY OF KAUAI'S 175 MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE DERRICK K. WATSON on 10/30/2014. ~ Calio 39;s Motion for Summary Judgment is DENIED as to Counts II and III, to the extent that Tokuda, in her capacity as personal representative of Louis estate, asserts a Section 1983 Fourth Amendment claim against Calio in his individual capacity. Defen dants Calio and the County of Kauai's Motions for Summary Judgment are GRANTED in all other respects. **terminating motion for joinders to 171 175 : 174 Motion for Joinder, 177 Motion for Joinder; 179 Motion for Joinder (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
LYNELL TOKUDA, individually and
as personal representative of the Estate
of Richard Ernest Louis, RICHARD C.
LOUIS, DERRICK LOUIS, KEVIN
CIVIL NO. 13-00202 DKW-BMK
ORDER (1) GRANTING IN PART
AND DENYING IN PART CHRIS
CALIO’S MOTION FOR
SUMMARY JUDGMENT AND
(2) GRANTING COUNTY OF
KAUAI’S MOTION FOR
CHRIS CALIO; HENRY BARRIGA;
SHERWIN PEREZ; COUNTY OF
KAUAI, DOE DEFENDANTS 1-50,
and DOE ENTITIES 1-10,
ORDER (1) GRANTING IN PART AND DENYING IN PART CHRIS
CALIO’S MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING
COUNTY OF KAUAI’S MOTION FOR SUMMARY JUDGMENT
On February 15, 2012, Kauai Police Department Officer Chris Calio shot
and killed sixty-two year-old Kauai resident Richard Louis on the roof of Louis’
home while attempting to execute an arrest warrant. Louis’ estate and surviving
children bring claims against Calio and the County of Kauai for violations of state
and federal law. Because questions of fact remain regarding the circumstances of
the shooting, Calio’s motion for summary judgment is denied with respect to the
Section 1983 Fourth Amendment excessive force claim against him in his
individual capacity. No such questions, however, remain with regard to the Louis
family’s other claims against Calio or with regard to the claims against the County
of Kauai, and summary judgment on these claims is therefore entered in
February 15, 2012 Incident
On February 15, 2012, members of the Kauai Police Department (“KPD”),
including Sergeant Calio, participated in a Hawaii Fugitive Task Force (“HFTF”)
operation to apprehend Louis, a felon with an outstanding warrant. Calio Decl.
¶¶ 3, 4, 6; Kalima Decl. ¶¶ 3, 4. During a pre-operation briefing, Calio was
advised that Louis had been evading police since December 2011. Calio Decl.
¶ 7. Sixty-two year-old Louis was wanted for failure to appear for a Fifth Circuit
Court proceeding on December 5, 2011, related to criminal charges that included
theft and firearms, ammunition, and drug violations. First Amended Complaint
(“FAC”) ¶¶ 13, 55; Calio Decl. ¶ 6.
Upon HFTF’s arrival at Louis’ residence, KPD Officer Paris Resinto
attempted to negotiate his surrender. Louis, however, refused to submit and
remained inside the house with his girlfriend, Emily Fontanilla. Calio Decl. ¶ 10;
FAC ¶¶ 22-25. Plaintiffs allege that at approximately 4:20 p.m., Officer Resinto
persuaded Fontanilla to exit the house. At some point during Officer Resinto’s
negotiations with Fontanilla, KPD Acting Assistant Chief Sherwin Perez arrived
on scene and activated KPD’s Special Services Team (“SST”), led by KPD
Lieutenant Michael Gordon. Perez also informed KPD Lieutentant Eric Shibuya,
the head of the HFTF, that the plan was to wait Louis out. FAC ¶¶ 26-28.
According to Plaintiffs, around 4:30 p.m., KPD Captain Henry Barriga
arrived, and after setting up logistical support, assumed the Incident Commander
role from Perez. At approximately 5:16 p.m., Barriga ordered the KPD SST to
enter Louis’ residence. FAC ¶¶ 29-48.
In response, Louis emerged and jumped onto the top of roofed dog kennels
located at the rear, eastern side of the property, barefoot and clothed only in
corduroy shorts. Calio Decl. ¶ 11; FAC ¶ 56. According to Calio, he saw Louis
leap from the roof of the south building onto the top of the dog kennels, pick up
metal cages, and throw the cages down toward officers standing on the ground
below him. Calio claims that Louis had an angry and violent facial expression and
was screaming at the officers, who were yelling back at him, “Dickey, give up.”
Calio Decl. ¶¶ 11-17.
Calio also yelled at Louis to stop. When Louis did not do so, Calio climbed
onto the roof of the south building from the east side, and started moving toward
Louis, who ran in the opposite direction toward the west. Calio then saw Louis
pick up a bamboo pole with both hands, with his back towards Calio. Although
Calio yelled “police” and “drop it,” Louis ignored his commands, and threw the
bamboo pole like a spear down toward the road where law enforcement officers
were located. Calio Decl. ¶¶ 19-25.
Then, according to Calio, Louis turned with an “angry and violent look on
his face.” Calio Decl. ¶ 26. Louis moved toward Calio and picked up a metal
can, holding it in his left hand while reaching into it with his right. Calio stopped
advancing as he observed Louis pulling something with a handle out of the can.
Louis then charged toward Calio, who attempted to back up. Calio saw Louis pull
his right hand out of the can as nails flew out. He saw what appeared to be a
“metal object in the shape of a hammer” in Louis’ right hand. Calio Decl.
¶¶ 27-37. Calio claims that Louis raised the hammer “as if to either throw the
hammer at me or strike me with it,” while quickly closing the distance between
them. Calio Decl. ¶¶ 37-38.
Fearing that he would fall as he attempted to retreat, Calio yelled to Louis
twice, “drop it, drop it now.” Calio Decl. ¶¶ 40-41. Calio claims that Louis
yelled back at him, “I going to fucking kill you.” Calio Decl. ¶ 42. Fearing for
his life, and believing that he was going to be struck in the face or head with the
hammer, Calio unholstered and drew his firearm with his right hand. Calio Decl.
¶ 43. He fired his service weapon at hip level as Louis charged toward him, until
Louis dropped six feet short of reaching him. Calio Decl. ¶¶ 44-45.
Numerous law enforcement officers at the scene saw Louis on the roof
before he was shot by Calio. According to Eric Kalima, Deputy United States
Marshal, he yelled, “don’t move,” after he saw Louis climb onto the roof near the
south end of the residence. Kalima Decl. ¶¶ 5-7. Like Calio, Kalima observed
Louis pick up a metal cage and throw it down at officers on the south side of the
property, while yelling obscenities at them. Kalima Decl. ¶¶ 9-11. As Louis ran
toward the west side of the roof, Kalima mirrored his movements on the ground.
Kalima Decl. ¶¶ 14-15. Kalima claims to have seen Louis with a hammer in his
right hand, raised above his head in a cocked back position, as Louis ran toward
Calio. Kalima Decl. ¶¶ 17-19. According to Kalima, he then saw Louis throw the
hammer at Calio, as Calio fired his weapon. Kalima Decl. ¶¶ 20-21.
Another KPD officer, Daniel Oliveira, climbed onto the roof shortly before
Louis was shot. While on the ground, Oliveira heard Louis yelling “something
about kill me, killing.” As he climbed onto the roof, Oliveira observed Calio
retreating backward. Oliveira did not see Louis holding or throwing a hammer or
any other object prior to Calio discharging his firearm, stopping Louis in his tracks.
Ex. 2 attached to Calio Reply; Plaintiffs’ Ex. 11. (2/21/12 Oliveira Statement).
Several non-law enforcement witnesses also observed the incident. Louis’
neighbor, Rose Koerte, saw Louis throw the bamboo poles off the roof in the
direction of law enforcement officers on the ground. According to Koerte, after
he did so, Louis did not have anything in his hands prior to multiple gun shots
ringing out. Koerte Decl. ¶ 10-16. Another neighbor, Robert Jordan, saw Louis
on the roof, wearing only a pair of shorts, walking toward the street with a bamboo
pole in his hand. Jordan then turned away from his window and heard gun shots.
Jordan Decl.¶ 10-14.
James Louis, a neighbor and Louis’ grand-nephew, recounted the incident as
When I saw Uncle Dickie on the roof, he had bamboo
poles in his hand and he tossed them onto the driveway.
The bamboo poles that he threw were rotten.
There were police officers standing in front of the house
out in the open.
Everyone could see that Uncle Dickie had no weapons on
After he tossed the bamboo poles off the roof, Uncle
Dickie’s hands were empty.
He had nothing on his person other than his shorts.
I then saw Uncle Dickie moving back toward the middle
of the roof.
From where I was standing, I could see Uncle Dickie the
entire time from when he tossed the bamboo poles off the
roof until he was shot.
Uncle Dickie was shot almost immediately after he
tossed the bamboo poles to the ground and turned
His hands were still empty.
From where I was standing, if Uncle Dickie had leaned
down or bent down to pick something up from the roof, I
would have lost [sight] of him. However, I did not lose
[sight] of him from the time he turned around until the
time he was shot.
I then heard Uncle Dickie get shot and I heard him fall.
I find it hard to believe Uncle Dickie had time to pick up
anything after he tossed the bamboo poles to the ground
and before he was shot and killed by the police officer, as
the whole thing happened in a matter of seconds.
James Louis Decl.
According to Plaintiffs, Louis was non-violent and non-threatening, and
Calio’s use of excessive force was avoidable. They insist that Louis never had a
hammer1 or any other sharp or shiny metal object on the roof and did not threaten
Calio before he was shot.
Plaintiffs emphasize that, during the HFTF operation, KPD’s highest ranking
officers, including KPD Chief of Police Darryl Perry, Assistant Chief of Police
Roy Asher, Assistant Chief of Police Ali Quibilan, and Acting Chief of Police
KPD Officer James Rodriguez recovered a hammer from the rear area of the kennels in the days
subsequent to the incident. The hammer was swabbed for DNA, but the samples were not tested
because of the expense and the absence of a criminal case. Rodriguez Decl. ¶¶4-10. Plaintiffs
claim that the hammer found by Rodriguez was rusted and could not have been the shiny object
on the roof that Calio claimed to have seen in Louis’ hand. Moreover, they assert that Louis
kept the rusted hammer near his flower beds where he used it as a makeshift gardening tool.
Lisa Louis Decl. ¶¶ 9-15.
Michael Contrades, were either suspended, on administrative leave, or otherwise
out of state. FAC ¶ 15. They also contend that Perez improperly delegated his role
as Incident Commander to Barriga, who had no experience in barricaded suspect
negotiations and had never been an Incident Commander. According to Plaintiffs,
Barriga’s decision to initiate a tactical response was made without consulting
Officer Resinto, KPD’s primary negotiator, and precipitated Louis’ death.
Plaintiffs’ Ex. 4 (Van Blaricom Report).2
Plaintiffs Richard C. Lewis, Derrick Louis, Kevin Louis, and Lynell Tokuda
are Louis’ adult children. Tokuda is named both individually and as personal
representative of the Louis Estate. Plaintiffs allege claims against KPD Officers
Calio, Barriga, and Perez in their individual and official capacities, as well as
against the County of Kauai. Count I alleges assault and battery against Calio in
his individual and official capacity. Count II alleges 42 U.S.C. § 1983 violations
against Calio in his individual capacity, and Count III alleges 42 U.S.C. § 1983
violations against the County, and Calio, Barriga, and Perez individually. Count
IV alternatively alleges negligent training and/or supervision against the County,
Barriga and Perez. Plaintiffs’ remaining claims are alleged against all Defendants:
Barriga prepared a report on the incident, but KPD has been unable to produce it. Plaintiffs’
negligence (Count V); intentional infliction of emotional distress (“IIED”) (Count
VI); negligent infliction of emotional distress (“NIED”) (Count VII); and wrongful
death/loss of consortium under Hawaii Revised Statutes (“HRS”) § 663-3 (Count
VIII). Count IX seeks punitive damages against Calio, Barriga, and Perez only.
The County seeks judgment on the pleadings or summary judgment on
Counts I, III, IV, V, VI, VII, and VIII, and on all Counts against Calio in his
official capacity as duplicative of the non-viable claims against the County. Calio,
in his individual capacity, seeks summary judgment on Counts I, II, III, V, VI, VII,
VIII, and IX.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Calio Motion for Summary Judgment
The Court first addresses Calio’s motion for summary judgment on the
claims brought against him in his individual capacity,
Ex. 13 (12/18/13 Letter).
Section 1983 Claims Against Calio Indivdually (Counts II & III)
Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress. . . .
Plaintiffs allege that Calio violated Louis’ rights under the Fourth, Eighth,
and Fourteenth Amendments to the United States Constitution, and civil liberties
protected by the Hawaii State Constitution. FAC ¶¶ 101, 114-115.
Hawaii State Constitution
Section 1983 is a vehicle for redress of violations of federal law. A claim
for violation of state law is not cognizable under the statute. Cornejo v. County of
San Diego, 504 F.3d 853, 855 n.3 (9th Cir. 2007) (citing Campbell v. Burt, 141
F.3d 927, 930 (9th Cir. 1998)) (“We note that a claim for violation of state law is
not cognizable under § 1983.”); Alston v. Read, 678 F. Supp. 2d 1061, 1074 (D.
Haw. 2010) (citing Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371
(9th Cir. 1998)) (“Section 1983 is a remedy for violations of certain federal rights.
Violations of state law (including a state constitution), however, are not cognizable
under Section 1983.”), reversed on other grounds, 663 F.3d 1094 (9th Cir. 2011).
To the extent Plaintiffs assert Section 1983 claims based on violations of the
Hawaii State Constitution, those claims fail as a matter of law.
To the extent Plaintiffs allege a violation of the Eighth Amendment, their
claim also fails. “In addressing an excessive force claim brought under § 1983,
the analysis begins by identifying the specific constitutional right allegedly
infringed [upon] by the challenged application of force.” Graham v. Connor, 490
U.S. 386, 394 (1989) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
The validity of the claim must then be determined by reference to the constitutional
standard which governs the right, rather than to a more generalized excessive force
standard. Id.; compare Tennessee v. Garner, 471 U.S. 1 (1985) (applying the
Fourth Amendment standard to a claim of excessive force to effect an arrest), with
Whitley v. Albers, 475 U.S. 312 (1986) (applying the Eighth Amendment standard
to a claim of excessive force to subdue a convicted prisoner), with White v. Roper,
901 F.2d 1501, 1507 (9th Cir. 1990) (applying the Fourteenth Amendment’s
Substantive Due Process standard to a claim of excessive force against a pretrial
detainee). The custodial status of the victim determines the applicable
constitutional amendment. See Graham, 490 U.S. at 393-94.
Here, Louis was not a prisoner or pretrial detainee at the time of the incident.
The Fourth Amendment’s objective reasonableness standard governs Section 1983
claims based on excessive force during the “arrest, investigatory stop, or other
‘seizure’ of a free citizen.” See Graham, 490 U.S. at 394.3 Accordingly, Louis’
status does not support an Eighth Amendment claim.
As a preliminary matter, Plaintiffs individually cannot bring Section 1983
claims against Defendants based on violations of Louis’ Fourth Amendment rights.
See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); Smith v. City of Fontana, 818
F.2d 1411, 1417 (9th Cir. 1987), overruled on other grounds by Hodgers–Durgin
v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (“Smith’s children, suing in their
individual capacities, also assert a claim for relief under the Fourth
Amendment...The children were not directly subjected to the excessive use of state
force and therefore cannot maintain personal causes of action under section 1983 in
A person is “seized” within the meaning of the Fourth Amendment if “by means of physical
force or show of authority, his freedom of movement is restrained.” United States v.
Mendenhall, 446 U.S. 544, 553 (1980).
reliance on this Fourth Amendment theory.”). Louis’ Fourth Amendment rights
were personal to him and may be asserted, if at all, only by his estate. See
Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998);
Smith, 818 F.2d at 1416-17. Accordingly, only Tokuda, in her capacity as
personal representative of the Louis Estate, may assert such a claim.
Calio urges the Court to enter judgment on his behalf on the Fourth
Amendment claim based on qualified immunity because he had probable cause to
use deadly force under the circumstances. “The doctrine of qualified immunity
protects government officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S.
223, 231 (2009).
In determining whether an officer is entitled to qualified immunity, this
Court employs a two-step test: “first we decide whether the officer violated a
plaintiff’s constitutional right; if the answer to that inquiry is ‘yes,’ we proceed to
determine whether the constitutional right was ‘clearly established in light of the
specific context of the case’ at the time of the events in question.” Mattos v.
Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc). Here, the Court must
consider whether Calio violated Louis’ Fourth Amendment rights. The Supreme
Court “has emphasized that there are no per se rules in the Fourth Amendment
excessive force context; rather, courts must still slosh [their] way through the
factbound morass of ‘reasonableness.’ Whether or not [a defendant’s] actions
constituted application of ‘deadly force,’ all that matters is whether [the
defendant’s] actions were reasonable.” Id. at 433 (citation omitted).
Under the Fourth Amendment, “officers may only use such force as is
‘objectively reasonable’ under the circumstances.” See Jackson v. City of
Bremerton, 268 F.3d 646, 651 (9th Cir. 2001) (quoting Graham v. Connor, 490
U.S. 386, 397 (1989)). To determine whether the force used was reasonable,
courts balance “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Graham, 490 U.S. at 397.
Determining whether a police officer’s use of force was reasonable or
excessive “requires careful attention to the facts and circumstances of each
particular case” and a “‘careful’ balancing of an individual’s liberty with the
government’s interest in the application of force.” Santos v. Gates, 287 F.3d 846,
854 (9th Cir. 2002) (quoting Graham, 490 U.S. at 396). When evaluating the
nature and quality of the intrusion, the Court considers the “type and amount of
force inflicted.” City of Bremerton, 268 F.3d at 651-52 (quoting Chew v. Gates,
27 F.3d 1432, 1440 (9th Cir. 1994)). When evaluating the governmental interest
in the use of force, courts examine three main factors: (1) the severity of the crime
at issue; (2) whether the suspect poses an immediate threat to the safety of the
officers or others; and (3) whether he is actively resisting arrest or attempting to
evade arrest by flight. Bryan v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010).4
Here, Louis was clearly attempting to evade arrest. The parties dispute the
severity of the crime and whether Louis posed an immediate threat to the safety of
the officers or others.
The “most important” of these factors is whether the suspect posed an
“immediate threat to the safety of the officers or others.” Smith v. City of Hemet,
394 F.3d 689, 702 (9th Cir. 2005). In determining whether there was an
immediate threat, a “simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective factors to justify such a
concern.” Mattos, 661 F.3d at 441-42.
These three factors are not exclusive. Courts may also examine the “totality of the
circumstances” and “whatever specific factors may be appropriate in a particular case.” Bryan
Here, Calio avers that Louis was charging toward him with an “angry and
violent look on his face” and raised a hammer over the right side of his head “as if
to either throw the hammer at me or strike me with it,” while quickly closing the
distance between them. Calio Decl. ¶¶ 26, 37-38. According to Calio, Louis
yelled, “I going to fucking kill you.” Calio Decl. ¶ 42. Calio claims that he
feared for his life, believing that he was going to be struck in the face or head with
the hammer. Calio Decl. ¶ 43. Kalima’s account of the incident supports Calio’s
view. Kalima claims that he saw Louis with a hammer in his right hand, raised
above his hand in a cocked back position, while running toward Calio. Kalima
Decl. ¶¶ 17-19. According to Kalima, Louis threw the hammer at Calio, causing
Calio to fire his weapon in response. Kalima Decl. ¶ 20-21.
Thus, in Defendants’ version of the incident, Louis was warned several
times to give up, Louis failed to comply with each command, Louis threw metal
cages and bamboo poles from the roof down onto the officers below, Louis
actively resisted Calio’s attempt to apprehend him, Louis threatened to kill Calio,
Louis charged at Calio with a hammer that he pulled out of a can on the roof, and
Louis threw the hammer at Calio as the officer approached. If believed by the
v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010) (quoting Franklin v. Foxworth, 31 F.3d 873,
trier of fact, this version of events could surely support a finding that Calio’s use of
force was reasonable under the circumstances. See, e.g., Sheehan v. City & Cnty.
of San Francisco, 743 F.3d 1211, 1229 (9th Cir. 2014) (holding that officer was
entitled to qualified immunity where undisputed facts showed that the plaintiff
threatened to kill the officer, wielded a knife in an upraised position, advanced
toward the officer, did not drop the knife after being pepper sprayed, and got to
within only a few feet of the officer before being shot); Blanford v. Sacramento
Cnty., 406 F.3d 1110, 1119 (9th Cir. 2005) (officers reasonably believed that
victim armed with Civil War-era sword posed a serious danger to officers and
bystanders “because he failed to heed warnings or commands and was armed with
an edged weapon that he refused to put down.”); Reynolds v. Cnty. of San Diego,
84 F.3d 1162, 1168 (9th Cir. 1996), overruled on other grounds by Acri v. Varian
Assocs., Inc., 114 F.3d 999 (9th Cir. 1997) (holding that deadly force was
reasonable where a suspect, who had been behaving erratically, swung a knife at an
officer); Garcia v. United States, 826 F.2d 806, 812 (9th Cir. 1987) (holding that
deadly force was reasonable where the decedent attacked an officer with a rock and
876 (9th Cir. 1994)).
The facts, however, are sharply disputed. Plaintiffs contend that Louis was
trapped on the roof, wearing only his shorts, and that he was neither violent nor a
flight risk. Their contention that he was neither violent nor a flight risk is lent
some support by the fact that dozens of officers were apparently in the immediate
area of Louis’ home at the time of the shooting and that Louis was on foot
(barefoot) practically surrounded with nowhere to go.5 The declarations of
witnesses Rose Koerte, Robert Jordan, and James Louis assert generally that Louis
had a slight-build that was non-threatening. Most significantly, Plaintiffs present
evidence that Louis did not have a hammer or any other weapon in his hands as he
moved along the roof before he was shot. According to James Louis, he could see
Louis from the time that he tossed the bamboo poles off the roof until he was shot,
which occurred within a matter of seconds. He clearly states that Louis was shot
almost immediately after he tossed the bamboo poles to the ground and turned
around, and that his hands were empty. James Louis states that he did not lose
sight of Louis from the time he turned around until the time he was shot. James
Louis Decl. ¶¶ 16-21. Even law enforcement declarant Oliveira did not observe
Of course, it is difficult to conclude there was no evidence of Louis’ violence, given the
undisputed testimony that Louis threw poles and metal cages from the roof onto the areas
occupied below by law enforcement personnel.
anything in Louis’ hands at the time he was shot, in stark contrast to the statements
of Calio and Kalima. Plaintiffs’ Ex. 11.
If a trier of fact believed the version of events set forth in James Louis’
Declaration, he or she could surely and rationally find that Louis did not pose an
immediate safety threat to Calio or anyone else. Accordingly, a reasonable jury
could find that Calio violated the decedent’s clearly established Fourth
Amendment rights by seizing an unarmed, aged, slight, nearly naked,
non-dangerous civilian surrounded by numerous law enforcement personnel by
shooting him dead. See, e.g., Torres v. City of Madera, 648 F.3d 1119, 1128 (9th
Cir. 2011) (citing Garner, 471 U.S. at 11) (“While locating the outer contours of
the Fourth Amendment may at times be a murky business, few things in our case
law are as clearly established as the principle that an officer may not ‘seize an
unarmed, nondangerous suspect by shooting him dead’ in the absence of ‘probable
cause to believe that the fleeing suspect poses a threat of serious physical harm,
either to the officer or to others.’”); Curnow v. Ridgecrest Police, 952 F.2d 321,
324-25 (9th Cir. 1991) (holding that deadly force was unreasonable where the
suspect possessed a gun but was not pointing it at the officers and was not facing
the officers when they shot); Ting v. United States, 927 F.2d 1504, 1511 (9th Cir.
1991) (“A jury could reasonably conclude that it would not be reasonable for an
officer to believe the use of deadly force was lawful under [arrestee’s] version of
the shooting, i.e., an unarmed and injured felon lying or kneeling on the floor[.]”);
Duenez v. City of Manteca, 2013 WL 6816375, at *9-*10 (E.D. Cal. Dec. 23,
2013) (Finding “that it was clearly established at the time of the shooting that it
was a Fourth Amendment violation to seize an unarmed, non-dangerous civilian by
shooting him dead,” where “the video of the shooting shows that there may be
something briefly in decedent’s hand, but it is not clear beyond reasonable dispute
that it is a knife, or a weapon of any kind.”).
The Court acknowledges that it “must allow for the fact that police officers
are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving about the amount of force that is necessary in a
particular situation.” Ogden ex rel. Estate of Ogden v. Cnty. of Maui, 554 F.
Supp. 2d 1141, 1148 (D. Haw. 2008) (quoting Long v. City & Cnty. of Honolulu,
511 F.3d 901, 906 (9th Cir. 2007)). Even considering the objectively tense,
rapidly evolving scenario on the rooftop, when viewed in the light most favorable
to Plaintiffs, there are disputed material facts surrounding whether Louis possessed
a weapon and posed an immediate threat to the safety of Calio and the other
officers. Under the circumstances, the Court cannot determine whether the force
employed by Calio was reasonable as a matter of law.
Whether Calio’s conduct violated a clearly established constitutional right
by subjecting Louis to excessive force turns on issues of fact that are in dispute,
including the circumstances of the shooting, and specifically, whether Louis
charged at Calio with hammer in his hand and/or threw the hammer at Calio.
After considering the severity of the force used, the basic Graham factors, and the
totality of the circumstances, the Court finds that a genuine issue of fact exists as to
whether Louis posed an immediate threat to the safety of the officers sufficient to
warrant the use of deadly force. Accordingly, the Court cannot determine whether
Calio’s conduct was reasonable as a matter of law. Nor can the issue of whether
Calio is entitled to qualified immunity be resolved as a matter of law in light of the
factual conflict surrounding the circumstances of the shooting. The Court
DENIES Calio’s motion with respect to the Section 1983 claim for violation of
Louis’ Fourth Amendment rights.
Substantive Due Process
Plaintiffs individually may bring claims under the Fourteenth Amendment’s
substantive due process analysis. The Ninth Circuit has recognized that family
members have a Fourteenth Amendment liberty interest in familial companionship
and society. Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (citing
Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991)).
A substantive due process violation requires that law enforcement officers’
conduct “shock the conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.
2008). In determining whether excessive force shocks the conscience, the Court
must first ask “whether the circumstances are such that actual deliberation [by the
officer] is practical.” Id. (quoting Moreland v. Las Vegas Metro. Police Dep’t,
159 F.3d 365, 372 (9th Cir. 1998) (internal quotation marks omitted)). Where
actual deliberation is practical, then an officer’s “deliberate indifference” may
suffice to shock the conscience. Id. On the other hand, where, as here, a law
enforcement officer makes a snap judgment because of an escalating situation, his
conduct may be found to shock the conscience only if he acts with a purpose to
harm unrelated to legitimate law enforcement objectives. Id. at 1140. For
example, a purpose to harm might be found where an officer uses force to “teach [a
suspect] a lesson” or to “get even.” Id. at 1141.
Here, there is no evidence that Calio had any intent to cause harm to Louis
beyond performing his legitimate law enforcement duties. This conclusion is
supported by the absence of any relationship between Calio and Louis prior to
February 15, 2012, as well as Calio’s repeated verbal commands that day, which
demonstrate an intent to apprehend Louis without serious harm or injury.
Regardless of whether Calio’s ultimate decision to use deadly force was
reasonable, his actions do not demonstrate a purpose to cause harm that would
“shock the conscience” sufficient to implicate the Due Process Clause.
Accordingly, Calio is entitled to summary judgment on Plaintiffs’ Fourteenth
Amendment due process claim.
To the extent Plaintiffs allege a violation of the Fourteenth Amendment’s
Equal Protection Clause, they fail to state a claim. To state a claim under 42
U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth
Amendment, a plaintiff must show that a defendant acted with an intent or purpose
to discriminate against the plaintiff based on membership in a protected class. See
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“[A] plaintiff must
show that the defendants acted with an intent or purpose to discriminate against the
plaintiff based upon membership in a protected class.”); Damiano v. Florida
Parole & Probation Comm’n, 785 F.2d 929, 932–33 (11th Cir. 1986) (explaining
that protected classes include race, religion, national origin, and poverty). The
First Amended Complaint contains no allegations that Calio discriminated against
Louis based on his membership in a protected class, nor do Plaintiffs offer any
evidence of such discrimination. Plaintiffs also do not allege that they themselves
are members of a protected class or that they were treated differently based on such
membership. Calio is entitled to summary judgment on this claim.
State Law Claims
Calio seeks summary judgment on the state law tort claims asserted against
him individually. Under Hawai‘i law, non-judicial government officials have a
qualified or conditional privilege with respect to their tortious actions taken in the
performance of their public duties. Towse v. State of Hawaii, 64 Haw. 624, 631,
647 P.2d 696, 702 (1982)); see also Medeiros v. Kondo, 55 Haw. 499, 504, 522
P.2d 1269, 1272 (1974). There is no dispute here that Calio’s allegedly tortious
conduct occurred while he was performing his public duties as a police officer.
See FAC ¶ 12.
Government officials, however, are not entitled to immunity when a plaintiff
“demonstrate[s] by clear and convincing proof that those officials were stirred by
malice and not by an otherwise proper purpose.” Towse, 64 Haw. at 631, 647
P.2d at 702. 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 ill will; wickedness of heart.” Awakuni v. Awana, 115 Hawai'i 126, 141, 165
P.3d 1027, 1042 (2007) (quoting Black’s Law Dictionary 976 (8th ed. 2004))
(internal quotation marks omitted).
Because malice involves intent, reckless disregard, or ill will, the malice
requirement is “incompatible with a claim based on negligence.” Bartolome v.
Kashimoto, 2009 WL 1956278, at *2 (D. Haw. 2009). Accordingly, Calio is
entitled to summary judgment on Plaintiffs’ claims for negligence (Count V) and
negligent infliction of emotional distress (Count VII).
With respect to the remaining tort claims for assault and battery (Count I),
intentional infliction of emotional distress (Count VI), and wrongful death/loss of
consortium (Count VIII), Plaintiffs point to nothing in the record that raises a
genuine issue of fact as to whether Calio was motivated by malice, rather than by a
desire to protect other officers and himself. See Edenfield v. The Estate of Willets,
2006 WL 1041724, at *12 (D. Haw. April 14, 2006) (“For a tort action to lie
against a nonjudicial government official, the injured party must allege and
demonstrate by clear and convincing proof that the official was motivated by
malice and not by an otherwise proper purpose. When a public official is
motivated by malice, and not by an otherwise proper purpose, Hawaii law provides
that the cloak of immunity is lost and the official must defend the suit the same as
any other defendant.”) (citations omitted, emphasis added).
To be clear, Plaintiffs offer nothing more than the legal conclusion that Calio
acted with malice. See Mem. in Opp. at 35-36; Haldeman v. Golden, 2008 WL
1744804, at *13 (D. Haw. Apr. 16, 2008) (“[T]he issue of malice is appropriate for
determination by the court if the evidence surrounding a claim for malice is
uncontroverted.”). Because there is no evidence of malice, Calio is entitled to a
qualified privilege under state law, mandating summary judgment on these claims.
In sum, Calio in his individual capacity is entitled to summary judgment on
the following claims: assault and battery (Count 1); Section 1983 claims for
violation of the Hawaii Constitution, and the Eighth and Fourteenth Amendments
to the United States Constitution (Counts II & III); negligence (Count V); IIED
(Count VI); NIED (Count VII), and the derivative claim for Wrongful Death/Loss
of Consortium (Count VIII).
Questions of fact preclude summary judgment on the Section 1983 claim
brought by Tokuda, in her capacity as personal representative of Louis’ estate, for
excessive force in violation of the Fourth Amendment (Counts II & III). The
associated prayer for punitive damages for this claim remains as well.6
County Motion for Summary Judgment
The County seeks summary judgment on all claims against Calio in his
official capacity, the respondeat superior state law claims based on Calio’s
conduct, the Section 1983 municipal liability claim (Count III), negligent training
and/or supervision (Count IV), and the derivative claim for Wrongful Death/Loss
of Consortium (Count VIII).
With respect to Count IX, a request for punitive damages is not a stand-alone claim, but rather
derivative of Plaintiffs’ other claims. See Kang v. Harrington, 59 Haw. 652, 660, 587 P.2d 285,
291 (1978) (“An award of punitive damages is purely incidental to the cause of action.”). To
the extent Plaintiffs seek punitive damages as a stand-alone claim (Count IX), the Count is
dismissed as to the state law tort claims, but is still available with respect to the remaining
Section 1983 claim. See Graham, 473 U.S. at 167 n.13 (1985) (Although Section 1983 does not
permit punitive damages against a municipality, punitive damages are available against an
Claims Based Upon Calio’s Conduct
The Court first addresses the claims against Calio in his official capacity and
the respondeat superior claims against the County.
Official Capacity Claims
The claims against Calio in his official capacity are redundant because the
County is also a named defendant. According to the Supreme Court, “[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 Servs., 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 Kauai and are therefore
dismissed. See Wong v. City & Cnty. of Honolulu, 333 F. Supp. 2d 942, 947 (D.
Respondeat Superior Claims
To recover under a respondeat superior theory, Plaintiffs must establish: (1)
a negligent act of the employee (breach of a duty that is the legal cause of injury)
(2) that occurred within the employee’s scope of employment. Henderson v.
Professional Coatings Corp., 72 Haw. 387, 391-92, 819 P.2d 84 (1991). Plaintiffs
fail to do so here. Because the Court concludes that Calio is entitled to the state
law qualified/conditional privilege, his employer, the County, cannot be liable
under the doctrine of respondeat superior. See McCormack v. City & Cnty. of
Honolulu, 2014 WL 692867, at *3 (D. Haw. Feb. 20, 2014) (internal citations and
quotations omitted) (dismissing respondeat superior claims against City where no
tort claims remained against individual officers). Accordingly, the County is
entitled to summary judgment on these claims.7
Municipal Liability Claim Against the County (Count III)
For the reasons discussed above with respect to Calio in his individual
capacity, the Section 1983 claim against the County fails to state a claim to the
extent it relies on violations of the Hawaii Constitution and the Eighth
Amendment, and is accordingly dismissed. The Court next turns to the claim for
The present ruling applies to the respondeat superior claims against the County based on
Calio’s conduct only. To the extent Plaintiffs allege tortious conduct by Perez and Barriga in
their individual capacities, those claims are not addressed by the instant motions. Accordingly,
the County remains subject to respondeat superior liability to the extent there are remaining tort
claims against these other officers. See Freeland v. County of Maui, 2013 WL 6528831, at *25
(D. Haw. Dec. 11, 2013) (“Because the individual line officers are all entitled to the
qualified/conditional privilege, respondeat superior liability may only be based on the torts
municipal liability against the County based on an official-capacity Monell theory
of liability under the Fourteenth Amendment.
A plaintiff may establish Monell liability by showing at least one of the
(1) conduct pursuant to an official policy inflicted the injury;
(2) the constitutional tort was the result of a “longstanding
practice or custom which constitutes the standard operating
procedure of the local government entity;” (3) the tortfeasor
was an official whose acts fairly represent official policy such
that the challenged action constituted official policy; or (4) an
official with final policy-making authority “delegated that
authority to, or ratified the decision of, a subordinate.”
Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008).
Plaintiffs allege that the County is liable under Section 1983 for failing to
properly train and supervise its officers, which amounts to deliberate indifference
to Louis’ rights. FAC ¶¶ 93-100. In Count III, Plaintiffs allege:
119. The constitutional violations committed by Defendants
CALIO, BARRIGA and PEREZ were the result of
Defendant COUNTY OF KAUAI’s deliberate failure to
properly train and supervise its officers in handling,
dealing with and/or taking custody of suspects and
arrestees who appear to be noncooperative and refuse to
come out of their homes, a situation that KPD Officers
allegedly committed by the remaining individual officer defendants, Officers Bigoss and
120. Defendant COUNTY OF KAUAI is tasked with properly
equipping KPD Officers with the needed non-deadly
force technologies available that would allow KPD
Officers to maintain their own safety and be able to
subdue suspects and arrestees without causing their
121. The actions of Defendants CALIO, BARRIGA, PEREZ
and the rest of the law enforcement personnel on the
scene was the result of inadequately trained and
supervised KPD Officers attempting to handle
negotiations with an arrestee barricaded on his property.
Every action taken by the insufficiently trained KPD
Officers was inappropriate to the situation and caused the
encounter to be escalated.
122. The supervising KPD Officers – e.g. BARRIGA, PEREZ
– that arrived on the scene were also insufficiently
trained and could not and did not properly supervise the
situation, resulting in the supervising KPD Officers
taking actions and giving directives that resulted in the
death of MR. LOUIS.
FAC ¶¶ 119-22.
Liability may only be imposed for failure to train when that
failure “reflects a ‘deliberate’ or ‘conscious’ choice by a
municipality.” Canton, 489 U.S. at 389, 109 S.Ct. 1197.
Further, failure to train claims “can only yield liability against a
municipality where that city’s failure to train reflects deliberate
indifference to the constitutional rights of its inhabitants.” Id.
at 392, 109 S.Ct. 1197. Given these restrictions on municipal
liability, a plaintiff seeking to impose liability against a county
for failure to train must show: “(1) [A]n inadequate training
program, (2) deliberate indifference on the part of the County in
adequately training its law enforcement officers, and (3) [that]
the inadequate training ‘actually caused’ a deprivation of [a
plaintiff’s] constitutional rights.” Merritt v. County of L.A.,
875 F.2d 765, 770 (9th Cir. 1989); see also Gibson v. County of
Washoe, 290 F.3d 1175, 1194 (9th Cir. 2002) (setting forth a
similar three-prong test) (citation omitted).
Wereb v. Maui Cnty., 727 F. Supp. 2d 898, 921 (D. Haw. 2010) (footnote omitted).
Municipal liability may be imposed 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.” Canton, 489 U.S. at 390; see also
Bd. of County Comm’rs v. Brown, 520 U.S. 397, 407-09 (1997) (explaining that
deliberate indifference may be shown through a “pattern of tortious conduct by
inadequately trained employees” or where “a violation of federal rights may be a
highly predictable consequence of a failure to equip law enforcement officers with
specific tools to handle recurring situations”). In the municipal context, deliberate
indifference is an objective standard. See Gibson, 290 F.3d at 1187 n.8
(explaining that the objective standard “assigns liability even when a municipality
has constructive notice that it needs to remedy its omissions in order to avoid
violations of constitutional rights”) (citations omitted).
In light of the above standards, Plaintiffs’ Section 1983 claims against the
County must fail. Plaintiffs raise no genuine issue of material fact that County
policymakers had actual or constructive notice that its officer training was
deficient. “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 § 1983.”
Canton, 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
In the face of the County’s formal policies on the use of force (see County
Exs. 22 & 23), Plaintiffs fall short of establishing any “informal policy” or
“widespread practices” sufficient to survive summary judgment. See Hunter v.
Cnty. of Sacramento, 652 F.3d 1225, 1234 (9th Cir. 2011). To the extent
Plaintiffs contend that KPD operated without a “Hostage Negotiation Policy,” they
provide no authority that the County was required to implement one, or that KPD’s
training was inadequate without one under the circumstances. Cf. County Reply
Ex. 1 (Resinto Dep. Tr.); Ex. 3 (Perry Dep. Tr.). Significantly, Plaintiffs provide
no evidence that the County was aware of prior incidents in which constitutional
rights were similarly violated and made a conscious choice to ignore the incidents,
nor do they allege any other program-wide deficiency in training. See
Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007).
Plaintiffs instead focus on (1) KPD Chief Perry’s purported ratification of
Calio’s allegedly unconstitutional actions and (2) Mayor Bernard Carvalho’s
decision to go forward with the HFTF arrest warrant sweep as official County
policy. Neither provides sufficient grounds to maintain a Monell claim against the
With respect to ratification, Plaintiffs “must show the decision was the
product of a conscious, affirmative choice to ratify the conduct in question. Such
a ratification ‘could be tantamount to the announcement or confirmation of a policy
for purposes of Monell.’” Edenfield, 2006 WL 1041724, at *16 (quoting Haugen
v. Brosseau, 339 F.3d 857, 875 (9th Cir. 2003), reversed on other grounds by
Brosseau v. Haugen, 543 U.S. 194 (2004) (per curiam)). See also Christie v. Iopa,
176 F.3d 1231, 1239 (9th Cir. 1999) (ratification requires proof of a policymaker’s
knowledge of the alleged constitutional violation); Trevino v. Gates, 99 F.3d 911,
920 (9th Cir. 1996) (ratification requires an adoption and express approval of the
acts of others who caused the constitutional violation); Gillette v. Delmore, 979
F.2d 1342, 1348 (9th Cir. 1992) (an official policymaker must “make a deliberate
choice from among various alternatives to follow a particular course of action”).
Here, there is no evidence that Chief Perry deliberately chose to “endorse”
Calio’s conduct and the basis for it, which must occur “before the policymaker will
be deemed to have ratified the subordinate’s discretionary decision.” Gillette, 979
F.2d at 1348. A mere failure “to overrule the unconstitutional discretionary acts
of subordinates[,]” without expressly endorsing or approving of the conduct, is an
insufficient predicate for the imposition of liability against the municipality. Id.
Nor do Plaintiffs offer any evidence that the alleged ratification was accompanied
by extenuating or egregious circumstances. By “signing off on the Internal
Affairs investigation,” Perry cannot be said to have “ratified” any unconstitutional
conduct. See Mem. in Opp at 25-27 (“Chief Perry affirmatively signed off on the
Internal Affairs investigation deeming Calio’s conduct appropriate.”). There must
exist “something more” than the mere evidence “that a policymaker concluded that
the defendant officer’s actions were in keeping with the applicable policies and
procedures.” Garcia v. City of Imperial, 2010 WL 3911457, at *2 (S.D. Cal.
2010) (citing Kanae v. Hodson, 294 F. Supp. 2d 1179, 1191 (D. Haw. 2003) and
Larez v. City of Los Angeles, 946 F.2d 630, 646-648 (9th Cir. 1991)).
With respect to Plaintiffs’ argument that Mayor Carvalho had actual or
constructive notice that “training was necessary for the remaining KPD personnel,”
because the top four KPD personnel were unavailable during the HFTF operation,
they fail to meet their burden in opposition to summary judgment. See Mem. in
Opp at 28-29. As discussed previously, there are no allegations or evidence of a
program-wide deficiency or omission in KPD’s training program. Plaintiffs’
conclusory allegation that Carvalho did “nothing to fix the situation – e.g. making
sure the remaining leadership personnel of KPD were adequately trained” fails to
raise a genuine issue of material fact. See Mem. in Opp. at 29. There is no
evidence that Carvalho made a deliberate choice from among various alternatives
to go forward with the HFTF operation despite an inadequate police-wide training
program. Without anything more, Plaintiffs fail to identify a genuine dispute of
material fact regarding their allegations that the County has a deficient training
program or that the County demonstrated deliberate indifference to the training
In sum, the County is entitled to summary judgment on each of Plaintiffs’
Section 1983 theories (Count III).
Negligent Training and/or Supervision (Count IV)
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 Hawai‘i 398, 427, 992 P.2d 93
(2000) (emphasis in original); see also Wong–Leong v. Hawaiian Indep. Refinery,
Inc., 76 Hawai‘i 433, 444-45, 879 P.2d 538 (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). Plaintiffs do not
present evidence that Calio or the other task force officers were acting outside the
scope of their employment. Indeed, they allege the officers were acting within the
scope of their employment and under color of law when they conducted the HFTF
operation on February 15, 2012. Cf. FAC ¶¶ 4-6.
Nor is there any evidence that Calio, or any other officer, required a greater
degree of control or supervision. See Otani v. City & Cnty. of Haw., 126
F. Supp. 2d 1299, 1308 (D. Haw. 1998) (“Under Hawaii law, before a plaintiff can
establish a claim for negligent training and/or supervision, the plaintiff must
establish that ‘the employer knew or should have known of the necessity and
opportunity for exercising such control.’ Abraham v. S.E. Onorato Garages, 50
Haw. 628, 639, 446 P.2d 821, 826 (1968). . . . If an employer has not been put on
notice of the necessity for exercising a greater degree of control or supervision
over a particular employee, the employer cannot be held liable as a matter of
law.”). Accordingly, the County is entitled to summary judgment on Count IV.
Wrongful Death/Loss of Consortium (Count VIII)
Finally, the County seeks summary judgment on Plaintiffs’ loss of
consortium claim pursuant to HRS § 663-3. In Hara v. Island Insurance Co., Ltd.,
70 Haw. 42, 759 P.2d 1374 (1988), the Hawaii Supreme Court held that claims for
damages brought under Hawaii’s wrongful death statute “are derivative and
therefore, for purposes of tort liability, stand or fall with the claim of the person
actually injured.” See also Mist v. Westin Hotels, Inc., 69 Haw. 192, 199, 738
P.2d 85, 91 (1987) (“[W]e refuse to recognize the loss of consortium claim as a
separate and independent cause of action and continue to treat it as derivative.”).
Because Louis cannot maintain a claim against the County, the derivative HRS §
663-3 claim fails as well. The County is entitled to summary judgment on Count
The County’s Motion for Summary Judgment is GRANTED as to all claims.
For the foregoing reasons, Calio’s Motion for Summary Judgment is
DENIED as to Counts II and III, to the extent that Tokuda, in her capacity as
personal representative of Louis’ estate, asserts a Section 1983 Fourth Amendment
claim against Calio in his individual capacity. Defendants Calio and the County
of Kauai’s Motions for Summary Judgment are GRANTED in all other respects.
IT IS SO ORDERED.
DATED: October 30, 2014 at Honolulu, Hawai‘i.
Tokuda v. Calio, CIV. NO. 13-00202 DKW-BMK; ORDER (1) GRANTING IN
PART AND DENYING IN PART CHRIS CALIO’S MOTION FOR SUMMARY
JUDGMENT AND (2) GRANTING COUNTY OF KAUAI’S MOTION FOR
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