Griego v. County of Maui

Filing 126

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re: 110 . Signed by JUDGE SUSAN OKI MOLLWAY on 3/29/2017. (afc) WRITTEN ORDER follows hearing held 2/6/2017. Minutes of hearing: ECF no. 123 . 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 HAWAII
JASON GRIEGO and JAMES
SANCHEZ,

)
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF MAUI; ANSELM
)
YAZAKI; ALY MIYASHIRO; MYLES
)
S. WON; DOE OFFICERS 2-15,
)
)
Defendants.
_____________________________ )

CIVIL NO. 15-00122 SOM-KJM
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Before the court is Defendants’ motion for summary

judgment as to Plaintiffs’ federal claims under 42 U.S.C. § 1983
alleging violations of the Fourth, Fifth, Eighth, Ninth, and
Fourteenth Amendments of the United States Constitution, and
Plaintiffs’ state claims alleging false imprisonment or false
arrest, intentional infliction of emotional distress, and
negligence.
This court grants summary judgment to Defendant County
of Maui as to all § 1983 claims.

With respect to the § 1983

claims against individual Defendants, this court grants summary
judgment to individual Defendants on the claims relating to
alleged violations of the Fifth, Eighth, and Ninth Amendments,
1

as well as with respect to any alleged violation of the Fourth
Amendment relating to the fact of Plaintiffs’ arrests.

The

court denies summary judgment to individual Defendants with
respect to § 1983 claims relating to alleged Fourth Amendment
violations concerning the manner of the arrests and concerning
the searches for guns. 1
Summary judgment is granted to all Defendants on the
state law claims of false imprisonment/false arrest.

Summary

judgment is granted to the County on the negligent
training/supervision/discipline claim.
With respect to the claim of negligence against
individual Defendants and the claim of respondeat superior
liability on the part of the County, summary judgment is denied
to the extent those claims relate to the manner of the arrests
and the searches for guns.

1

In all other respects, summary

Although the Second Amended Complaint also asserts
Fourteenth Amendment violations, nothing in that document or in
papers opposing the present summary judgment motion relates
specifically to the Fourteenth Amendment. This court therefore
reads the reference to the Fourteenth Amendment as included only
for purposes of asserting that the federal rights set forth in
other amendments listed by Griego and Sanchez apply to states
and municipalities. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655
(1961) (stating that Fourth Amendment was made applicable to
states via Fourteenth Amendment). That is, Griego and Sanchez
do not appear to be arguing a Fourteenth Amendment violation
separate from a violation of another amendment. This court
therefore does not address the Fourteenth Amendment claim
separately.
2

judgment is granted on the negligence and respondeat superior
claims.
Finally, with respect to the claim of intentional
infliction of emotional distress, summary judgment is denied
with respect to emotional distress relating to any claim that
remains for further adjudication, but granted with respect to
any emotional distress relating to matters disposed of by this
order.
BACKGROUND. 2

II.

David Maniatis called 911 to report that two men had
held him up at his home in Wailea, Maui, on July 14, 2013.
After speaking with Maniatis and several of his employees, Maui
Police Department officers arrested Plaintiffs Jason Griego and
James Sanchez for Burglary in the First Degree.

The officers

also searched Griego’s and Sanchez’s hotel rooms for weapons.
Griego and Sanchez were booked but ultimately released from
custody.
A.

Events Leading Up to Arrests on July 14, 2013.

Griego and Sanchez are long-time law enforcement
officers from New Mexico.

They came to Maui in early July 2013

2

This section does not reflect any factual finding by
this court. It contains general background information to
provide context for this court’s analysis. This court construes
all disputed facts in the light most favorable to Plaintiffs.
See Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).
3

to provide security for Maniatis at his home.

See Plaintiffs’

Opposition to Motion for Summary Judgment, Exhibit 8, ECF No.
117-9, PageID # 735; Exhibit 9, ECF No. 117-10, PageID # 746.
Griego and Sanchez had been providing security at one of
Maniatis’s land development projects on the mainland.

See ECF

No. 117-9, PageID # 735; ECF No. 117-10, PageID # 746.

Griego,

Sanchez, and their families stayed at Maniatis’s home from the
time they arrived on Maui until about July 11, 2013.

See ECF

No. 117-9, PageID # 736; ECF No. 117-10, PageID # 747.
According to Griego and Sanchez, Maniatis was erratic
and acted bizarrely during their stay.

See Plaintiffs’

Opposition, Exhibit 11, ECF No. 117-12, PageID # 756; ECF No.
117-9, PageID # 736; ECF No. 117-10, PageID # 747.

They

eventually moved their families to a nearby hotel and agreed to
rotate security shifts at Maniatis’s home.

See ECF No. 117-12,

PageID # 756; ECF No. 117-9, PageID # 736; ECF No. 117-10,
PageID # 747.

While upset about this situation, Maniatis told

them he would pay for their hotel rooms.

See ECF No. 117-9,

PageID # 736; ECF No. 117-10, PageID # 747.

He also asked if

his son could stay with them and their families at the hotel.
See ECF No. 117-9, PageID # 736; ECF No. 117-10, PageID # 747.
Maniatis’s son ended up staying at the hotel until July 12,

4

2013.

See ECF No. 117-9, PageID # 736-37; ECF No. 117-10,

PageID # 747.
Griego and Sanchez say that Maniatis told them to take
some time off and promised to contact them later to set up a
meeting.

See ECF No. 117-9, PageID # 737; ECF No. 117-10,

PageID # 747.

They say that, on July 13, 2013, one of

Maniatis’s employees in New Mexico telephoned Griego to tell him
and Sanchez to meet Maniatis at his house before they left Maui.
See ECF No. 117-9, PageID # 737; ECF No. 117-10, PageID # 74748.

On July 14, 2013, this same employee allegedly repeated

this instruction and told Griego that he and Sanchez should go
to Maniatis’s house.

See ECF No. 117-9, PageID # 737.

Griego

and Sanchez say that, before going to Maniatis’s house, they
stopped at an ABC store to buy “going away gag gifts” for
Maniatis, including a bottle of wine, some cigars, and an orange
t-shirt.

See ECF No. 117-8, PageID # 737; ECF No. 117-9,

PageID # 748.
B.

Incident at Maniatis’s House on July 14, 2013.

There are varying accounts of what happened at
Maniatis’s home on July 14, 2013.
According to Griego and Sanchez, they entered
Maniatis’s property through the side gate they had normally used
during their time on Maui.

See ECF No. 117-9, PageID # 737; ECF
5

No. 117-10, PageID # 748.

No one was sitting at the front gate,

and music was playing loudly.

See ECF No. 117-9, PageID # 737;

ECF No. 117-10, PageID # 748.

They say Maniatis initially

seemed startled when he saw them, then laughed and hugged them.
See ECF No. 117-9, PageID # 737; ECF No. 117-10, PageID # 748.
The three men talked together, and Griego asked Maniatis if he
was alone and where his security was.

See ECF No. 117-9,

PageID # 737; ECF No. 117-10, PageID # 748.

Maniatis allegedly

looked around, became angry, walked to a side room where some of
his employees were, and asked them why no one had noticed that
Griego and Sanchez had arrived.

See ECF No. 117-9,

PageID # 737; ECF No. 117-10, PageID # 748.

Maniatis reportedly

then told Griego and Sanchez that he had too much going on at
that time, wanted to meet them in New Mexico, and “just wanted
to make sure everything was good with them.”

See ECF No. 117-9,

PageID # 737-38; ECF No. 117-10, PageID # 748.

Maniatis asked

them to leave, and they left through the front door with what
they say was their understanding that they would speak to
Maniatis when they were back in New Mexico.

See ECF No. 117-9,

PageID # 738; ECF No. 117-10, PageID # 748.
After Griego and Sanchez left, Maniatis called 911.
See Defendants’ Motion for Summary Judgment, Exhibit J, ECF No.
111-10, PageID #s 498-99; Exhibit K, ECF No. 111-11,
6

PageID #s 500-01.

The 911 call record shows that, at 7:22 p.m.

on July 14, 2013, the Maui Police Department received a 911 call
from Maniatis stating that two people armed with guns “went
through security guards and held him up in his house.”
No. 111-11, PageID # 500.

See ECF

The dispatcher reported that, in the

background of the 911 call, a woman could be heard saying that
she did not want police at the house.

See id.

Maniatis then

reportedly said, “Never mind I will just talk to you later,” and
the 911 call disconnected.

See id.

Given the disconnected

call, the dispatcher sent Officers Ryan Nagata and Anselm Yazaki
to Maniatis’s house.

See id., PageID # 501.

Officers Nagata and Yazaki interviewed Maniatis and
his employees, Marvin Miles and Edward Opiana, at the house.
See Defendants’ Motion, Exhibit E, ECF No. 111-5, PageID #s 46971; Exhibit S, ECF No. 111-19, PageID #s 526-27.

Officer Yazaki

later interviewed Christopher Matson, another one of Maniatis’s
Maui employees, by telephone.
71.

See ECF No. 111-5, PageID #s 469-

Officer Geste Ornellas, Officer Aly Miyashiro, and Sergeant

Myles Won later joined Officers Nagata and Yazaki at the house
to assist in the investigation.

Defendants’ Motion, Exhibit RR,

ECF No. 111-44, PageID # 632; Exhibit T, ECF No. 111-20,
PageID # 529; Exhibit F, ECF No. 111-6, PageID # 478.

7

In their reply brief, Defendants object to
consideration by this court of the police reports and expert
report attached to Plaintiffs’ opposition.
Reply, ECF No. 118, PageID # 804.

See Defendants’

Defendants contend that the

attachments are inadmissible hearsay.

See id.

It is this

court’s understanding that the alleged hearsay consists of what
Maniatis and his employees allegedly told the officers.

The

court considers the police reports for the narrow purpose of
examining whether the police had probable cause to arrest
Plaintiffs and to search their room and belongings.

The reports

are the officers’ summaries, offered against the officers.

They

are not sufficient on their own to establish probable cause (and
Defendants themselves are not relying on them to do so), but
they could show an absence of probable cause.

With respect to

alleged statements by Miles, Opiana, and Matson, all employed by
Maniatis, this court has before it their declarations.
Deposition testimony and interrogatory responses by Griego and
Sanchez are also before the court.

This court does not have any

direct statement by Maniatis, but the record does include notes
of a 911 call from Maniatis’s house.
Defendants’ hearsay objections to the police reports
could apply with equal force to Defendants’ own submissions of
the officers’ declarations, which contain summaries of what they
8

were allegedly told.

This court considers all the materials

submitted not to resolve disputed facts, but to consider whether
there was probable cause to arrest and search Griego and
Sanchez.

In other words, the court is focused on what the

officers were told or understood, not on whether the statements
or understandings were true.
At the hearing, Plaintiffs’ counsel agreed that the
court could ignore the expert report because certain portions
were missing.

For purposes of deciding this motion, this court

does not consider Plaintiffs’ expert report.
From Maniatis, Officer Yazaki learned that Maniatis
had hired Griego and Sanchez as well as others on Maui to
provide armed security at his house.
PageID # 470.

See ECF No. 111-5,

Maniatis allegedly said that Griego and Sanchez

quit on July 13, 2013, and that he told them to take their
belongings from his house and not to return.

See id.

Maniatis

allegedly told Officer Yazaki that he asked an employee,
Christopher Matson, to call Griego and tell him that he and
Sanchez were no longer welcome at the Maniatis home and should
not return.

See id.

According to Officer Yazaki, Maniatis said

that Matson did contact Griego on July 13, 2013.

See id.

Maniatis allegedly told Officer Yazaki that Griego and
Sanchez snuck up on him, grabbed his wrists, and placed them
9

behind his back.

See Plaintiffs’ Opposition, Exhibit 1, ECF No.

117-2, PageID # 716.

Maniatis allegedly said that Griego and

Sanchez had made him feel “scared and threatened,” and that he
believed they had come to his house to scare or harass him.
id.

See

Officer Yazaki reported that Maniatis said Griego and

Sanchez had handguns at their waists but did not draw or
threaten anyone with the weapons.

See id.

Maniatis allegedly

said that, after they let go of his wrists, he went to another
room to get Opiana and Miles.

See id.

Maniatis then allegedly

returned to the kitchen and saw Griego and Sanchez drinking
whiskey.

See id.

Maniatis reported that he asked them to

leave, and they did so through the front door.

See id.

Officer Yazaki wrote an arrest report stating:
[Griego] was told to stay away from the residence
and not to return. [Griego] returned and grabbed
the victim David MANIATIS by the left and right
wrist and held his arms behind his back and told
MANIATIS ‘where is your security now.’ [Griego]
also told MANIATIS ‘we can get you at anytime.’
The victim felt threatened by the remarks told to
him.
Defendants’ Motion, Exhibit GG, ECF No. 111-33, PageID # 582.
Officer Nagata interviewed Opiana, who said he was
surprised to see Griego and Sanchez patting Maniatis on the back
as if they were greeting him, because Opiana had not even
noticed that they had come to the house.

See Plaintiffs’

Opposition, Exhibit 2, ECF No. 117-3, PageID # 723; see also
10

Defendants’ Motion, Exhibit R, ECF No. 111-18, PageID # 524.
Opiana was cleaning the dining room while Maniatis was in the
kitchen.

See ECF No. 117-3, PageID # 723.

Miles was in the

computer room, and Maniatis’s son was in his bedroom.

See id.

Opiana heard Griego and Sanchez say “this is a security breach”
while laughing, but Opiana did not see them touch, harass, or
threaten Maniatis.
PageID #s 524-25.

See id.; see also ECF No. 111-18,
According to Opiana, the conversation never

got heated, and Griego and Sanchez did not take out their
weapons during the fifteen or so minutes they were at the house.
See ECF No. 117-2, PageID # 723; see also ECF No. 111-18,
PageID # 525.

They reportedly left the house through the main

front door, which had been left open.
PageID # 723.

See ECF No. 117-2,

According to Opiana, after they left, Maniatis

went to his bedroom, cried for about ten minutes, then called
the police.

See id.; see also ECF No. 111-18, PageID # 525.

After interviewing Maniatis, Officer Yazaki questioned
Miles, who said he had been working in the computer room in the
house when Maniatis came to the room, told him “I think we have
a problem,” and asked him to come outside.

See ECF No. 117-2,

PageID # 716; see also Defendants’ Motion, Exhibit Q, ECF No.
111-17, PageID # 522.

Miles saw Griego and Sanchez in the

kitchen with handguns at their waists.
11

See ECF No. 117-2,

PageID #s 716-17; see also ECF No. 111-17, PageID #s 522-23.
Miles allegedly told Officer Yazaki that he felt threatened
because he himself was not armed, although neither Griego nor
Sanchez drew any weapon.

See ECF No. 117-2, PageID # 522.

Miles said that Griego and Sanchez left the house after Maniatis
asked them to leave.

See id.; see also ECF No. 111-17,

PageID # 523.
After interviewing these witnesses at Maniatis’s
house, Officers Yazaki and Nagata returned to the police station
in Kihei, Maui.

See ECF No. 117-2, PageID # 717; ECF No. 111-5,

PageID # 471; ECF No. 111-19, PageID # 527.

Officer Yazaki

telephoned Matson to ask whether he had called Griego on July
13, 2013, to tell him that he and Sanchez were no longer welcome
at Maniatis’s house.

See ECF No. 111-5, PageID # 471;

Defendants’ Motion, Exhibit JJ, ECF No. 111-36, PageID # 589.
According to Officer Yazaki, Matson confirmed that he had called
Griego on that day and had told Griego that he and Sanchez were
no longer welcome and should not return to the house.
No. 111-5, PageID # 471; ECF No. 111-36, PageID # 589.

See ECF
Matson

allegedly told Officer Yazaki that Griego agreed to stay away.
See ECF No. 111-5, PageID # 471; ECF No. 111-36, PageID # 589.
Officers Yazaki and Nagata discussed what they had
learned with Sergeant Won and Officer Miyashiro.
12

See ECF

No. 111-5, PageID # 471; ECF No. 111-19, PageID # 527; ECF No.
111-6, PageID # 478.

Officer Yazaki believed the officers had

probable cause to arrest Griego and Sanchez for Burglary in the
First Degree, Terroristic Threatening in the Second Degree, and
possible firearm violations.

See ECF No. 111-5, PageID # 471.

Based on the information on hand, Sergeant Won believed the
officers had probable cause to arrest Griego and Sanchez for
only Burglary in the First Degree under Haw. Rev. Stat. § 708810.

See ECF No. 111-6, PageID # 479.
Sergeant Won instructed Officer Yazaki to arrest

Griego and Officer Miyashiro to arrest Sanchez for Burglary in
the First Degree.

See ECF No. 111-5, PageID # 471; ECF No. 111-

20, PageID # 529-30.

Sergeant Won assigned a third officer,

Officer Ornellas, to be present for officer safety when the
arrests were made because Griego and Sanchez allegedly had
weapons.

See id.; ECF No. 111-44, PageID # 633.
C.

Arrest and Search at Hotel.

Officers Yazaki, Miyashiro, and Ornellas went to
Makena Beach and Golf Resort to arrest Griego and Sanchez on the
evening of July 14, 2013.

See ECF No. 111-5, PageID #s 471-72;

ECF No. 111-20, PageID #s 529-30; ECF No. 111-44, PageID # 633.
A hotel security officer and an assistant hotel manager met the
officers in the lobby and took them to Griego’s and Sanchez’s
13

rooms.

See Defendants’ Motion Exhibit U, ECF No. 111-21,

PageID # 534; Exhibit V, ECF No. 111-22, PageID # 536.

These

hotel employees watched what happened and were there when the
rooms were searched.

See ECF No. 111-21, PageID # 534-35; ECF

No. 111-22, PageID # 536-38.
According to the officers, at around 10:13 p.m.,
Officer Yazaki knocked on Griego’s door.
PageID # 471-72.

See ECF No. 111-5,

Once Griego came to the door, Officer Yazaki

explained that he was investigating allegations of Burglary in
the First Degree and possible firearms violations.
PageID # 472.

See id.,

Officer Yazaki says he read Griego his Miranda

rights, and Griego agreed to provide a statement.

See id.

Officer Yazaki says he asked Griego if he had any
weapons, and Griego told him that he did.

See id.

Officer

Yazaki says that he asked Griego for permission to search for
any guns, and that Griego orally consented, telling Officer
Yazaki he had three handguns in a backpack on the hotel room
floor and allegedly giving Officer Yazaki permission to open the
backpack and to remove any ammunition from the guns.

See id.

Three firearms, magazine clips, and a backpack were taken as
evidence.

See Defendants’ Motion, Exhibit EE, ECF No. 111-31,

PageID # 580.

None of the guns was registered in Hawaii.

14

Officer Yazaki then arrested Griego for Burglary in
the First Degree.

See ECF No. 111-5, PageID # 472.

Officer

Yazaki says he handcuffed Griego with his hands in front of his
body.

See id.

Officer Yazaki says he did not search anywhere

else in the room.

See id.

Around the same time, at about 10:13 p.m., Officers
Miyashiro and Ornellas went to Sanchez’s hotel room.
No. 111-20, PageID # 530.

See ECF

According to Officer Miyashiro, he

told Sanchez that he was under arrest for Burglary in the First
Degree.

See id.

The officers say that they asked Sanchez if he

had any guns, and Sanchez orally consented to their search for
guns.

See ECF No. 111-44, PageID # 633.

According to Officer

Ornellas, because Officer Yazaki had already found weapons in
Griego’s room next door, the officers quickly ended their search
in Sanchez’s room.
Sanchez.

See id.

Officer Miyashiro then arrested

See id.
Griego and Sanchez have a different recollection of

what occurred when the officers arrived at their hotel rooms.
Griego says that, when his wife opened the door, one of the
police officers asked for “Chief Griego.”
PageID # 738.

See ECF No. 117-9,

Griego says he showed his police credentials and

asked, “Yes, is there something wrong?”

See id.

Griego says he

was immediately turned around, handcuffed behind his back, and
15

arrested.

See id.

He recalls asking what was going on and

being told he was under arrest.

See id.

According to Griego,

an officer asked him if he knew David Maniatis, and he replied,
“I work for him.”

See id.

Griego explains that, by this point,

Officer Yazaki and hotel security guards had entered his hotel
room and were searching his bags, even though he had not
consented to entry or a search.

See id.

He says he asked why

they were searching his bags and whether they had a search
warrant.

See id.

search warrant.”

Someone allegedly responded, “We don’t need a
See id.

Griego says that, between asking what was going on and
whether the officers had a search warrant, he asked, “Are you
guys real cops?”

See ECF No. 117-12, PageID # 758.

he was then “face-planted” into a wall.

See id.

Griego says

He says the

“face-planting” consisted of being shoved “up against the back
of the room” and “into the wall” while his hands were behind him
and that this “hurt when it happened.”

See id.

He recalls

being asked whether he had any guns and responding that his guns
were in a green duffle bag.

See ECF No. 117-9, PageID # 738.

He says that he did not tell the officers that they could open
and search his bag, but they did so.

See id.

Griego recalls that one of the officers pulled the
guns out of his bag, and another officer asked him, “How do you
16

take this out of the holster?”

See id.

Griego says he helped

undo the holster even though his hands were cuffed behind him,
and the officer took the guns and backpack.

See id.

According

to Griego, he repeatedly asked what was going on and was told to
“shut up” or to be quiet.

See id.

He says he asked if he was

being arrested or detained and for what and was told, “You are
under arrest.”

See id.

According to Sanchez, Officer Miyashiro and several
other men in uniforms arrived at his hotel room.
117-10, PageID # 748.

See ECF No.

They asked if he knew David Maniatis, and

he told them he provided security for him.

See id.

Sanchez

says that the officers asked if Sanchez had any guns on him,
then grabbed his arms and asked him to turn around.

See id.

Sanchez says he told the officers he had a knife but no guns.
See id.

Sanchez recalls that the officers also asked for

permission to search his room.

See id., PageID # 748.

Sanchez

says he asked if he was being detained and if they had a search
warrant and was told, “We don’t need one.”

See id.

says his room was searched, and nothing was found.

Sanchez
See id.

According to Sanchez, he waited in the hallway outside his hotel
room while the officers opened drawers and suitcases and went
through his belongings.

See ECF No. 117-13, PageID # 770.

Sanchez says that, before leaving the hotel, he told the
17

officers that he had a thirteen-year-old son at the hotel pool.
See ECF No. 117-10, PageID # 748.
him not to worry about his son.
D.

The officers allegedly told
See id.

Processing at Kihei Police Substation.

After arresting Griego and Sanchez at the hotel,
Officers Yazaki and Miyashiro took them to the Kihei police
substation in separate cars.

See ECF No. 111-5, PageID # 473;

ECF No. 111-20, PageID # 530.

Griego says that he had asked the

arresting officer to cuff him in the front of his body because
he was a disabled veteran with back injuries, but the officer
refused to do that.

See ECF No. 117-9, PageID # 739.

Griego

alleges that, although he complained that his handcuffs were too
tight, the officers did nothing in response.

See id.

Once the

car arrived at the police station, Griego allegedly asked
Officer Yazaki to let him out of the car so that he could
stretch his back.

See id.

Griego says he was suffering back

spasms, which worsened while he was waiting in the back seat of
the car.

See id.

Officer Yazaki allegedly refused Griego’s

requests until he “became concerned” about Griego’s condition.
See id.

Officer Yazaki disputes that Griego complained about

any pain and reports that the car ride “went without incident.”
See ECF No. 111-5, PageID # 473.

18

Griego says that during the car ride he was mocked by
being asked, “So how does it feel to be a police chief in
handcuffs?”

See ECF No. 117-12, PageID # 759.

Griego alleges

that the mocking continued at the police station.

See id.

Sanchez says that the arresting officer did not put
Sanchez’s seatbelt on, so Sanchez slid around on the car’s
slick, plastic seats during the ride to the police station.
ECF No. 117-10, PageID # 749.

See

He recalls telling the officer

that he was a “disabled combat wounded vet,” asking to be cuffed
in front of his body, and telling the officer that his handcuffs
were too tight.

Id.

Sanchez says that his requests were

ignored and that he was insulted by being told he was “too
stupid to be in the military.”

See id.

Sanchez says that

during the car ride he was further taunted by being asked how
many times he had been arrested and by being told that he had
“messed with the wrong people.”

See id.

Officer Miyashiro does not recall exactly what was
said during the car ride, but he says that he was polite to
Sanchez.

See ECF No. 111-20, PageID # 530.

Officer Miyashiro

says that Sanchez did not complain about any pain or about his
handcuffs being too tight.

See id.

He recalls double-locking

Sanchez’s handcuffs to prevent the handcuffs from tightening
around his wrists.

See id.
19

The officers say that Griego and Sanchez were
processed in a routine manner.

See Defendants’ Motion, Exhibit

A, ECF No. 111-1, PageID #s 451-53.

Griego and Sanchez

allegedly sat on a bench while being processed.
PageID #s 451-52.

See id.,

After processing, Sanchez was put in a cell,

but Griego allegedly stayed seated on a bench and was not put in
any cell.

See id., PageID # 452.

The officers and a Public

Safety Aide noted in the Inmate Logs that they made regular
checks on Griego and Sanchez.

See id., PageID #s 451-52.

However, Griego says that he was placed in the same
cell as Sanchez for about a minute.
PageID # 739.
the floor.

See ECF No. 117-9,

The cell allegedly had urine, feces, and vomit on

See id.; ECF No. 117-10, PageID # 749.

Sanchez says

he pointed out the cell’s conditions to an officer, who then
made him leave the cell, take off his shoes and socks, then go
back into the cell.

See ECF No. 117-10, PageID # 749.

Sanchez

recalls asking for a towel or something to stand on while in the
cell and being handed a paper tissue while being told, “Here
crybaby stand on this.”

See id.

Griego says he saw that

Sanchez was standing barefoot in the cell when he was placed in
the cell with him.

See ECF No. 117-9, PageID # 739.

The

officers deny that the floor of the cell had feces, urine, or

20

vomit.

See ECF No. 111-20, PageID # 533; ECF No. 111-6,

PageID # 481.
Officers Yazaki and Miyashiro say they used Maui
Police Department Form 103 to advise Griego and Sanchez of their
Miranda rights at the police station.

See ECF No. 111-5,

PageID # 474; ECF No. 111-20, PageID # 532; see also Defendants’
Motion, Exhibit KK, ECF No. 111-37, PageID # 590; Exhibit LL,
ECF No. 111-38, PageID # 591.
by signing and dating the form.

Griego agreed to make a statement
See ECF No. 111-5,

PageID # 474; ECF No. 111-37, PageID # 590.

Sanchez allegedly

signed and initially declined to waive his rights.
111-20, PageID # 532.

See ECF No.

Sanchez says he asked about his son again

but was told not to worry about him and that his refusal to make
a statement to the officers was “only delaying all this.”
ECF No. 117-10, PageID # 749.

About ten minutes later, he

agreed to make a statement and waived his rights.
111-20, PageID # 532.

See

See ECF No.

Officers Yazaki and Miyashiro say that

they treated Griego and Sanchez with respect and that, knowing
that Griego and Sanchez were law enforcement officers, officers
and staff avoided making any derogatory comment to them.

See

ECF No. 111-5, PageID # 475; ECF No. 111-20, PageID # 532-33.
Sergeant Won contacted a detective in the Criminal
Investigation Division to inform him of the case and to see
21

whether bail should be set or whether Griego and Sanchez should
be released pending the investigation.
PageID # 481.

See ECF No. 111-6,

The detective told Sergeant Won that they should

be released pending the investigation.

See id.

Officer Yazaki

then walked them out the back door and told Griego and Sanchez
how to get to the front of the station.

See id.; see also

Defendants’ Motion, Exhibit P, ECF No. 111-16, PageID #s 520-21.
E.

Aftermath of Arrests.

According to Griego, after he and Sanchez were
released and picked up by Griego’s wife, they changed their
flights to leave Maui earlier.

See ECF No. 117-9, PageID # 740.

At about 9 a.m. on the day of their departure, Detective Myrna
Sabas-Ryder met them at the airport to verify that they were law
enforcement officers.

See id.

Griego said that the detective

took photos of their credentials and told them “it was all a big
misunderstanding.”

See id.

Griego says he asked her if he

could get his guns, and she told him that they could not yet be
returned to him.

See id.

Upon returning to New Mexico, Griego retired from the
Cuba Police Department in August 2013.

See id.

Griego explains

that trespassing charges were filed in Hawaii against him and
Sanchez but were eventually dropped.

22

See id.

However, he says

the process of expunging their records caused him and Sanchez “a
lot of problems and lost opportunities.”

See id.

According to Sanchez, he left Maui at the same time as
Griego and his family, and the same detective asked to verify
his credentials.

See ECF No. 117-10, PageID #s 749-50.

He

states that, around October 26, 2013, he lost his training
contract with the Army.

See id.

Sanchez also alleges that Maui

Police Department employees “stonewalled” him when he later
contacted them about the status of his case.
III.

See id.

STANDARD OF REVIEW.
Summary judgment shall be granted when “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.”
Fed. R. Civ. P. 56(a) (2010).

See Addisu v. Fred Meyer, Inc.,

198 F.3d 1130, 1134 (9th Cir. 2000).

A movant must support his

position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
23

admissible evidence to support the fact.”

Fed. R. Civ. P.

56(c).
One of the principal purposes of summary judgment is
to identify and dispose of factually unsupported claims and
defenses.
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 323–24
Summary judgment must be granted against a party that

fails to demonstrate facts to establish what will be an
essential element at trial.

See id. at 323.

A moving party

without the ultimate burden of persuasion at trial--usually, but
not always, the defendant--has both the initial burden of
production and the ultimate burden of persuasion on a motion for
summary judgment.

Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec.

Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp., 477 U.S. at 323).

“When the moving party has

carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the
material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
24

The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.

T.W. Elec.

At least some “‘significant

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities

Serv. Co., 391 U.S. 253, 290 (1968)).

See Addisu, 198 F.3d at

1134 (“A scintilla of evidence or evidence that is merely
colorable or not significantly probative does not present a
genuine issue of material fact.”).

“[I]f the factual context

makes the non-moving party’s claim implausible, that party must
come forward with more persuasive evidence than would otherwise
be necessary to show that there is a genuine issue for trial.”
Cal. Arch’l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818
F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus.
Co., 475 U.S. at 587).

Accord Addisu, 198 F.3d at 1134 (“There

must be enough doubt for a ‘reasonable trier of fact’ to find
for plaintiffs in order to defeat the summary judgment
motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.

T.W. Elec. Serv.,

Inferences may be drawn from underlying

facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
25

Id.

When “direct evidence” produced by the moving party

conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
fact.”

Id.

IV.

ANALYSIS.
Defendants move for summary judgment on all claims

asserted by Griego and Sanchez.

See ECF No. 110-1.

Griego and

Sanchez, however, address in their opposition memorandum only
Defendants’ arguments relating to the 42 U.S.C. § 1983 claims
alleging violations of the Fourth and Fourteenth Amendments.
See ECF No. 116-2.

Defendants therefore contend that Griego and

Sanchez have waived other claims.
PageID # 804-06.

See ECF No. 118,

Citing Rule 56(e)(2) and (3) of the Federal

Rules of Civil Procedure, Defendants argue that they are
entitled to summary judgment as to the § 1983 claim asserting
violations of the Fourth, Fifth, Eighth, Ninth, and Fourteenth
Amendments and all state law claims.

See id., PageID # 805-06.

On February 6, 2017, this court held a hearing on
Defendants’ motion for summary judgment.

The court asked

Plaintiffs’ counsel if any of the unrebutted claims were being
withdrawn.

Plaintiffs’ counsel stated that no claims were being

26

withdrawn but conceded that certain claims had not been
addressed in the opposition memorandum.
Rule 56(e) of the Federal Rules of Civil Procedure
provides in relevant part,
If a party fails to properly support an assertion
of fact or fails to properly address another
party’s assertion of fact as required by Rule
56(c), the court may:
. . . .
(2) consider the fact undisputed for
purposes of the motion; [or]
(3) grant summary judgment if the motion and
supporting materials—including the facts
considered undisputed—show that the movant
is entitled to it.
Fed. R. Civ. P. 56(e).

According to the advisory committee

notes accompanying Rule 56, this court is not to grant summary
judgment by default even if a party fails to respond to a motion
or a party’s attempted response fails to comply with Rule 56(c)
requirements.

See Adv. Comm. Notes to the 2010 Amendments to

Fed. R. Civ. P. 56(e).
A court may grant summary judgment only if the moving
party is entitled to it.

Id.

“If there is a proper response or

reply as to some facts, the court cannot grant summary judgment
without determining whether those facts can be genuinely
disputed.”

Id.

Once the court has determined which facts are

disputed and undisputed, then it “must determine the legal
27

consequences of these facts and permissible inferences from
them.”

Id.
Plaintiffs’ opposition papers clearly do not comply

with Rule 56(c) or with Local Rule 56.1.

They do not cite to

particular parts of materials in the record to properly address
all Defendants’ assertions.
Local Rule 56.1(b), (c).

See Fed. R. Civ. P. Rule 56(c)(1);

Nor do they address whether Defendants

establish the absence of a genuine factual dispute.
Civ. P. Rule 56(c)(2); Local Rule 56.1(b).

See Fed. R.

Nevertheless, this

court considers each claim at issue on summary judgment.
A.

Summary Judgment Is Granted to Defendant County
of Maui With Respect to § 1983 Claims, and
Granted in Part and Denied in Part With Respect
to § 1983 Claims Against Individual Defendants.
1.

There Is No Evidence Supporting a § 1983
Claim Against the County of Maui.

This court gave counsel for Griego and Sanchez an
opportunity at the hearing on the present motion to point out
where in the record this court might discern a basis for their
§ 1983 claim against the County of Maui, given the requirements
for municipal liability set forth in Monell v. Department of
Social Services of City of New York, 436 U.S. 658 (1978).
Counsel pointed to nothing in the record.

Noting that there

are neither facts nor arguments before the court supporting any

28

§ 1983 claim against the County, this court grants summary
judgment to the County on all § 1983 claims asserted against it.
2.

Summary Judgment Is Granted to the
Individual Defendants as to the § 1983 Claim
Based on an Alleged Fifth Amendment
Violation.

Counsel for Griego and Sanchez also conceded that they
did not have grounds for a separate § 1983 claim based on a
violation of the Fifth Amendment.

Even if counsel had not

conceded this, summary judgment would be proper because there is
nothing in the record going to any Fifth Amendment violation.
See Chavez v. Martinez, 538 U.S. 760, 770 (2003) (questioning
how defendant could allege Fifth Amendment violation when he
“was never prosecuted for a crime, let alone compelled to be a
witness against himself in a criminal case,” which requires at
least “initiation of legal proceedings”).

To the extent any

individual Defendant seeks summary judgment on any § 1983 claim
based on an alleged Fifth Amendment violation, this court grants
that portion of the motion.
3.

Summary Judgment Is Granted to Individual
Defendants With Respect to Any § 1983 Claim
Based on an Alleged Eighth Amendment
Violation.

Counsel for Griego and Sanchez said at the hearing on
the present motion that no specific argument had been presented
in the opposition papers relating to an Eighth Amendment

29

violation, but that the facts underlying any Eighth Amendment
claims were set forth.

This court is not persuaded that Griego

and Sanchez may proceed with their Eighth Amendment claim.
The Eighth Amendment’s prohibition on cruel and
unusual punishment prevents government officials from acting
with deliberate indifference to a prisoner’s health and safety.
See Hope v. Pelzer, 536 U.S. 730, 737-38 (2002).

Every United

States Supreme Court decision considering whether a punishment
was “cruel and unusual” has dealt with punishment in the context
of an actual criminal case with an actual judgment.

Ingraham v.

Wright, 430 U.S. 651, 666 (1977); see, e.g., Estelle v. Gamble,
429 U.S. 97 (1976) (incarceration without medical care); Gregg
v. Georgia, 428 U.S. 153 (1976) (execution for murder); Robinson
v. California, 370 U.S. 660 (1962) (incarceration for addiction
to narcotics).

The Court recognized that its decisions have

limited the kinds of punishment that may be imposed on those
convicted of crimes, barring punishment grossly disproportionate
to the severity of a crime and setting substantive limits on
what can be made criminal and punished as such.
430 U.S. at 667.

See Ingraham,

In the few cases in which the Court has

considered claims that certain impositions outside the criminal
process constituted “cruel and unusual” punishment, the Court

30

has concluded that the Eighth Amendment is inapplicable.

See

id. at 668.
Griego and Sanchez were not convicted of any crime.
They were not incarcerated to serve any sentence.

Because the

Eighth Amendment does not apply to those who are not
incarcerated pursuant to criminal judgments, this court grants
summary judgment to the individual Defendants on any § 1983
claim based on an alleged Eighth Amendment violation.
4.

Summary Judgment Is Granted to the
Individual Defendants With Respect to the
§ 1983 Claim Based on an Alleged Ninth
Amendment Violation.

Griego and Sanchez assert a § 1983 claim based on an
alleged violation of the Ninth Amendment.

The Ninth Amendment

provides, “The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others
retained by the people.”

U.S. Const. amend. IX.

The Ninth

Circuit has observed that the Ninth Amendment “has never been
recognized as independently securing any constitutional right,
for purposes of pursuing a civil rights claim.”

Strandberg v.

City of Helena, 791 F.2d 744, 748 (9th Cir. 1986).

Other

circuits agree that the Ninth Amendment cannot serve as an
independent source of rights for a § 1983 claim.

See Froehlich

v. Wis. Dep’t of Corrs., 196 F.3d 800, 801 (7th Cir. 1999);
Vega-Rodriguez v. P.R. Tel. Co., 110 F.3d 174, 182 (1st Cir.
31

1997); Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991).
The Ninth Amendment provides a “rule of construction,” see
Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007), or a “rule of
interpretation,” see Goodpaster v. City of Indianapolis,
736 F.3d 1060, 1075 (7th Cir. 2013).
Because the Ninth Amendment does not guarantee any
specific constitutional right, as required for pursuing a
constitutional claim under § 1983, Griego and Sanchez may not
proceed against the individual Defendants under § 1983 based on
the Ninth Amendment.
5.

Summary Judgment Is Granted in Individual
Defendants’ Favor With Respect to § 1983
Claims Alleging Fourth Amendment Violations
Based on the Fact of Plaintiffs’ Arrests.

Having addressed above the § 1983 claims based on
alleged violations of the Fifth, Eighth, and Ninth Amendments,
this court turns to the crux of what Griego and Sanchez assert
under § 1983.

They expressly opposed the present motion with

respect to alleged Fourth Amendment violations.

This court

addresses the Fourth Amendment issue relating to the fact of
arrest before turning to any Fourth Amendment claims relating to
the manner of the arrests.
The Fourth Amendment provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
32

violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend IV.
Defendants assert that the individual officers have
qualified immunity with respect to all claims under § 1983.
Defendants contend that “Plaintiffs are unable to establish a
constitutional violation since plaintiffs’ allegations, if true,
do not establish a constitutional violation.”

ECF No. 110-1,

PageID # 428.
“[G]overnment officials performing discretionary
functions [are entitled to] qualified immunity, shielding them
from civil damages liability as long as their actions could
reasonably have been thought consistent with the rights they are
alleged to have violated.”

Anderson v. Creighton, 83 U.S. 635,

638 (1987) (citations omitted); see also Richardson v. McKnight,
521 U.S. 399, 407-08 (1997).
The Supreme Court has set forth a two-pronged analysis
for determining whether qualified immunity applies.

See Saucier

v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other
grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

On one

prong, the court considers whether the facts, “[t]aken in the
light most favorable to the party asserting the injury[,] . . .
show [that] the [defendant’s] conduct violated a constitutional
33

right[.]”

Saucier, 533 U.S. at 201.

Under this prong, this

court must decide whether the facts Griego and Sanchez allege as
the basis for their § 1983 claim make out a violation of a
constitutional right.

Pearson, 129 S. Ct. at 815–16.

Under the other prong, the court examines whether the
right allegedly violated was clearly established at the time of
the violation.

Saucier, 533 U.S. at 201; Scott v. Harris, 550

U.S. 372, 377 (2007).

The “clearly establishes” prong requires

a determination of whether the right in question was “clearly
established . . . in light of the specific context of the case,
not as a broad general proposition.”
F.3d 969, 974 (9th Cir. 2004).

Id.; Walker v. Gomez, 370

Defendants bear the burden of

establishing that they reasonably believed the alleged conduct
was lawful.

See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.

2002); Trevino v. Gates, 99 F.3d 911, 916–17 (9th Cir. 1996).
The crucial question is whether Defendants could have
reasonably (even if erroneously) believed that their conduct did
not violate Griego’s and Sanchez’s rights.

Devereaux v. Abbey,

263 F.3d 1070, 1074 (9th Cir. 2001).
The Ninth Circuit has reconstituted Saucier’s two
prongs into three:
Determining whether an official is entitled to
summary judgment based on the affirmative defense
of qualified immunity requires applying a threepart test. First, the court must ask whether
34

“taken in the light most favorable to the party
asserting the injury, the facts alleged show the
officer’s conduct violated a constitutional
right?” If the answer is no, the officer is
entitled to qualified immunity. If the answer is
yes, the court must proceed to the next question:
whether the right was clearly established at the
time the officer acted. That is, “whether it
would be clear to a reasonable officer that his
conduct was unlawful in the situation he
confronted.” If the answer is no, the officer is
entitled to qualified immunity. If the answer is
yes, the court must answer the final question:
whether the officer could have believed,
“reasonably but mistakenly . . . that his or her
conduct did not violate a clearly established
constitutional right.” If the answer is yes, the
officer is entitled to qualified immunity. If
the answer is no, he is not.
Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006)
(footnotes and brackets omitted).
Whether an act is a violation of a federal right and
whether the right was clearly established at the time of the
violation are pure legal questions for the court.

See Martinez

v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003).

Freedom from

unreasonable seizures is clearly an established right guaranteed
by the Fourth Amendment.

No police officer could have

reasonably believed that an arrest without a warrant and not
based on probable cause was permissible.
Viewed in the light most favorable to Griego and
Sanchez, the facts before this court leave no question of fact
that the officers had probable cause to arrest Griego and
35

Sanchez.

The existence of probable cause means that Griego and

Sanchez cannot prove a violation of the Fourth Amendment based
on the fact of their arrests and that the officers are entitled
to qualified immunity as to the portion of the § 1983 claim
based on an alleged Fourth Amendment violation in the form of
the fact of arrest.
The Ninth Circuit has noted that a court’s “task in
determining whether probable cause to arrest existed as a matter
of law in [a] § 1983 action is slightly different from a similar
determination in the context of a direct review of a criminal
arrest.”

McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984).

In reviewing a criminal arrest, the court must review “both law
and fact” and must “draw the line as to what is and is not
reasonable behavior.”

Id. at 1007-08.

In a § 1983 action, “the

factual matters underlying the judgment of reasonableness
generally mean that probable cause is a question for the jury.”
Id.; see also Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir.
1981).

“[S]ummary judgment is appropriate only if no reasonable

jury could find that the officers did or did not have probable
cause to arrest.”

McKenzie, 738 F.2d at 1008.

This court

concludes that, in the present case, the undisputed facts
establish that no reasonable jury could find the officers lacked
probable cause to arrest Griego and Sanchez.
36

In guaranteeing the “right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures,” the Fourth Amendment does
not forbid all searches and seizures, only unreasonable ones.
See Terry v. Ohio, 392 U.S. 1, 9 (1968).
An officer may arrest a person for a felony, or for a
misdemeanor committed in the officer’s presence, if probable
cause supports the arrest.

United States v. Watson, 423 U.S.

411, 424 (1976); see also Atwater v. Lago Vista, 532 U.S. 318,
354 (2001) (stating that “[i]f an officer has probable cause to
believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender”).

Whether officers have

probable cause to arrest an individual turns on “whether at that
moment the facts and circumstances within their knowledge and of
which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the
[individual] had committed or was committing an offense.”
v. Ohio, 379 U.S. 89, 91 (1964).

Beck

“Because many situations which

confront officers in the course of executing their duties are
more or less ambiguous, room must be allowed for some mistakes
on their part.

But the mistakes must be those of reasonable

[people], acting on facts leading sensibly to their conclusions
37

of probability.”

Stoot v. City of Everett, 582 F.3d 910, 918-20

(9th Cir. 2009) (quoting Brinegar v. United States,
338 U.S. 160, 176 (1949)).
Determining whether there was probable cause turns on
the information the officers had at the time of the arrests.
Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

Thus, the Ninth

Circuit has noted that “[i]t is essential to avoid hindsight
analysis, i.e., to consider additional facts that became known
only after the arrest was made.”

John v. City of El Monte,

515 F.3d 936, 940 (9th Cir. 2008).
Conclusive evidence of guilt is not necessary to
establish probable cause, but “[m]ere suspicion, common rumor,
or even strong reason to suspect are not enough.”
738 F.2d at 1008.

McKenzie,

In determining whether an officer had

probable cause to arrest an individual, a court must examine the
events leading up to the arrest and then decide “whether these
historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to” probable cause.

Maryland

v. Pringle, 540 U.S. 366, 372 (2003) (quoting Ornelas v. United
States, 517 U.S. 690, 696 (1996)).

Probable cause is thus an

objective standard, and an officer’s subjective intention in
deciding whether to arrest is immaterial to whether the

38

officer’s actions were reasonable for Fourth Amendment purposes.
John, 15 F.3d at 940.
The Ninth Circuit has issued several decisions in
which police officers were not present when alleged crimes were
committed and relied on accounts by others in deciding whether
to make an arrest.

In Arpin v. Santa Clara Valley

Transportation Agency, 261 F.3d 917 (9th Cir. 2001), the
plaintiff alleged that she was arrested based on a bus driver’s
false criminal report for battery.

Id. at 918.

The bus driver

allegedly told police that the plaintiff had “touched him,”
without elaborating.

Id.

The plaintiff alleged that the

arresting officer refused to identify himself, would not tell
her why she was being arrested, and did not allow her to give
her side of the story before arresting her.

Relying on Fuller

v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991), the court
observed, “In establishing probable cause, officers may not
solely rely on the claim of a citizen witness that he was a
victim of a crime, but must independently investigate the basis
of the witness’ knowledge or interview other witnesses.”
925 (citing Fuller, 950 F.2d at 1444).

Id. at

The Ninth Circuit

concluded that the facts surrounding the arrest raised an
inference that the officers had arrested the plaintiff based on
the bus driver’s “unexamined charge.”
39

Id.

The court noted that

if the officers had not “independently investigate[d]” the bus
driver’s claim of battery, then they lacked probable cause to
arrest the plaintiff.

See id. (noting, however, that evidence

outside complaint indicated officers had interviewed additional
witnesses, although consideration of this information was not
appropriate on motion to dismiss).
In Fuller, the plaintiffs were arrested for having
stolen a ring from a jewelry store after an employee at the
store reported that they had stolen the ring.
1443.

950 F.2d at 1349,

The employee told police that the plaintiffs had handled

the missing ring before leaving the store and that no one else
in the store had the ring.

Id.

The officers also learned from

a woman in the restroom that one of the plaintiffs had run into
the women’s bathroom and asked everyone to leave as she appeared
to try to make herself throw up.

Id.

The Ninth Circuit noted

that the “police officers had a duty to conduct an investigation
into the basis of the witness’ report,” but determined that the
officers had conducted a sufficient investigation by relying on
the employee’s testimony and by questioning (1) a second store
employee, who confirmed that the plaintiffs were the last people
with the ring, (2) a witness who allegedly saw one of the
plaintiffs attempting to throw up in the restroom, and (3) the
plaintiffs and their companion.

Id. at 1444.
40

The Ninth Circuit

declined to determine whether there was probable cause but, in
assessing whether the officers were entitled to qualified
immunity, concluded that the officers “could have reasonably
believed that there was probable cause to arrest” the
plaintiffs.

Id.

The officers in Fuller relied on more detailed
statements by witnesses than the officer in Arpin.

Id.

The

court in Fuller declined to adopt the argument that “merely
because citizen witnesses are presumptively reliable, the
officers in this situation had no duty to examine further the
basis of the witness’ knowledge or talk with any other
witnesses.”

Id.

What the court decided was that “the general

proposition that private citizen witnesses or crime victims are
presumed reliable does not ‘dispense with the requirement that
the informant . . . furnish underlying facts sufficiently
detailed to cause a reasonable person to believe a crime had
been committed and the named suspect was the perpetrator.’”

Id.

(quoting People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629,
545 P.2d 1333, 13336 (1976)).
In Peng v. Penghu, 335 F.3d 970 (9th Cir. 2003), the
Ninth Circuit clarified when statements by a victim may support
probable cause.

Id. at 978 (“A sufficient basis of knowledge is

established if the victim provides ‘facts sufficiently detailed
41

to cause a reasonable person to believe a crime had been
committed and the named suspect was the perpetrator.’”).

The

victim in Peng told the officer that her brother had approached
her and asked for certain documents, and that when she refused
to give him the documents, he “reached out and grabbed the
documents from [her] right hand and refused to let go, engaging
in a tug of war with [her] over the documents.”

Id. at 973.

According to the victim, her brother then “raised his right fist
as though he was going to strike [her] in the face.”

Id.

“[F]earing for her safety, [she] released the documents,” and
her brother then reportedly took the documents, left, then came
back twenty minutes later and refused to return the documents.
Id.

The officer arrested the victim’s brother for robbery after

interviewing the victim and two other family members who,
through an interpreter, told the officer that they had seen the
victim’s brother grab the documents from the victim against her
will.

Id. at 974.
In addressing the argument that the officer did not

have probable cause to arrest because he relied solely on the
victim’s allegations, the court concluded that the officers’
reliance solely on the victim’s statements was sufficient
because the witness “provided sufficiently detailed facts
regarding the incident to support a finding that probable cause
42

to arrest existed.”

Id. at 978.

The court, however,

acknowledged that the officer had also interviewed two witnesses
with the help of an interpreter.

Id.

The court went on to say

that it was satisfied the officer made a “reasonable
investigation under the circumstances” before the arrest and
concluded that “the presence of a factual dispute regarding a
victim’s complaint at the scene of an alleged domestic
disturbance does not defeat probable cause if:

1) the victim’s

statements are sufficiently definite to establish that a crime
has been committed; and 2) the victim’s complaint is
corroborated by either the surrounding circumstances or other
witnesses.”

Id. at 979.

Other circuits have concluded that an officer’s
reliance solely on a victim’s statement may be sufficient to
support a finding of probable cause.

The Seventh Circuit has

stated, “Nothing suggests that a victim’s report must be
unfailingly consistent to provide probable cause.”
Cortese, 196 F.3d 717, 725 (7th Cir. 1999).

Spiegel v.

The Sixth Circuit

has similarly held, “An eyewitness identification will
constitute sufficient probable cause unless, at the time of the
arrest, there is an apparent reason for the officer to believe
that the eyewitness was lying, did not accurately describe what
he had seen, or was in some fashion mistaken regarding his
43

recollection of the confrontation.”
365, 370 (6th Cir. 1999).

Ahlers v. Schebil, 188 F.3d

The Second Circuit echoed these

approaches, noting that information from a victim is sufficient
to establish probable cause even when the suspect and victim
provide different version of events, “unless the circumstances
raise doubt as to the person’s veracity.”

Curley v. Village of

Suffern, 268 F.3d 65, 70 (2d Cir. 2001).
The Ninth Circuit has found that, when allegations are
not sufficiently reliable (as in a case involving a four-yearold’s allegation of abuse), officers lack probable cause to
arrest an alleged perpetrator.

See Stoot, 582 F.3d at 919; see

also John, 515 F.3d at 940 (concluding officer had probable
cause to arrest after thoroughly probing ten-year-old’s
allegations of abuse).
To arrest Griego and Sanchez for Burglary in the First
Degree, the officers had to have probable cause to believe that
Griego and Sanchez had “intentionally enter[ed] or remain[ed]
unlawfully” in Maniatis’s house, with the “intent to commit
therein a crime against” a person or against Maniatis’s property
rights.

See Haw. Rev. Stat. § 708-810(1).

Additionally, the

officers had to have probable cause to believe that Griego and
Sanchez were either “armed with a dangerous instrument in the
course of committing the offense,” had “intentionally,
44

knowingly, or recklessly inflict[ed] or attempt[ed] to inflict
bodily injury on anyone in the course of committing the
offense,” or had “recklessly disregard[ed] a risk that
[Maniatis’s house]” was a “dwelling.”

See id. § 708-810(1)(a)-

(c).
The officers contend that Griego and Sanchez were
arrested based on probable cause.
PageID # 414.

See ECF No. 110-1,

The officers point to what they were told by

Maniatis and his employees.

See id., PageID # 415-16.

Griego and Sanchez counter that the officers’
investigation lacked “any reasonably trustworthy information
that Plaintiffs intended to commit or committed crimes against
Maniatis or his property.”

See ECF No. 116-2, PageID # 688.

Griego and Sanchez point to inconsistencies in the witness
statements and the absence of any evidence of injury to Maniatis
or loss of property.

See id., PageID #s 688-90.

Specifically,

they note that Maniatis described feeling “scared” and
“threatened” but reported that neither Griego nor Sanchez drew a
weapon.

Id., PageID # 688.

They note that Maniatis reportedly

asked Griego and Sanchez to leave his home, and Griego and
Sanchez “did so--without any apparent fuss--” through the front
door.

Id.

They say that what Maniatis’s employees told the

45

officers “highlighted big gaps” in Maniatis’s account that he
was either physically threatened or felt threatened.

Id.

For instance, Opiana saw Griego and Sanchez patting
Maniatis on the back but did not report seeing them grab his
wrists and place them behind his back.

Id., PageID # 688-89.

Opiana also said that the conversation was not heated and that
he did not see Griego or Sanchez harass or threaten Maniatis.
Id., PageID # 689.

Both Opiana and Miles reported to the

officers that neither Griego nor Sanchez drew any weapon.

Id.

Griego and Sanchez say the officers “completely disregarded
[this] specific and conflicting testimony of Maniatis and his
employees that should have warranted, at the very least,
measured attempts to interview Plaintiffs,” which Griego and
Sanchez maintain would have led the officers to find no basis
for arresting them.

See id., PageID # 690.

Griego and Sanchez treat each individual statement
made to the officers in this case as an “unexamined charge” that
required further investigation.

However, in contrast to Arpin,

which dealt with an unelaborated accusation of a crime, this
case is closer to Fuller and Peng, in which witnesses provided
sufficiently detailed facts regarding the incident.

The

officers were told by Maniatis that he had a dispute with Griego
and Sanchez and had asked them to take their belongings and
46

leave.

Maniatis said he had instructed Matson to call Griego to

tell him that he and Sanchez were no longer welcome and should
not return.

Maniatis said he had also told other employees that

Griego and Sanchez were not allowed at his house.

He described

to the officers how Griego and Sanched had snuck onto his
property, talked to him in the kitchen with their guns visible
at their waists, grabbed and held his wrists behind his back,
and orally threatened him by saying “this is a security breach”
and “we can get you at anytime.”

Maniatis said he went to

another room to look for his security guards and then asked
Griego and Sanchez to leave, which they did.
Nothing in the record suggests that the officers had
reason to disbelieve Maniatis’s detailed statements about the
incident.

Griego and Sanchez say Maniatis was emotionally

unstable and erratic, and this court recognizes that there may
well be a dispute about the accuracy of Maniatis’s account.

But

this court is not concerned with whether Maniatis’s account was
correct.

Instead, in examining the record to see whether there

was probable cause to arrest Griego and Sanchez, this court
examines whether, among other things, Officer Yazaki had any
reason to think Maniatis “was lying, did not accurately describe
what he had seen, or was in some fashion mistaken regarding his
recollection of the confrontation.”
47

See Ahlers, 188 F.3d at 370

(6th Cir. 1999).

This court finds no evidence suggesting that

the circumstances of the reported incident and subsequent
interviews with eyewitnesses should have raised doubts as to
Maniatis’s truthfulness.

See Curley, 268 F.3d at 70.

The purported inconsistencies are not actual
contradictions.

What Griego and Sanchez identify as

discrepancies could be explained by the absence of employees
from the scene of some of what Maniatis recounted, and with
Maniatis’s depiction of himself as apparently “going along” with
Griego and Sanchez to diffuse the situation.
Notably, even though Maniatis reportedly provided a
detailed account, the officers did not rely solely on him.

The

officers interviewed two of Maniatis’s employees at the house,
both of whom confirmed that Griego and Sanchez had been at the
house without permission, had guns visible at their waists, and
had been heard laughing and saying “this is a security breach.”
Contrary to Griego’s and Sanchez’s position that this
information reveals inconsistencies between the accounts of
Maniatis and his employees, these specific facts were consistent
with what Maniatis told the officers.

Both eyewitnesses also

described Maniatis as appearing “scared” and “freaked out.”
When Officer Yazaki telephoned Matson to verify Maniatis’s

48

statements, Matson confirmed that he had called Griego to tell
him to stay away and that Griego had agreed.
Griego and Sanchez argue that the officers should have
interviewed them before arresting them.

While that could well

have given the officers more information and may often make
sense, this court is unaware of any requirement that a suspect
be interviewed before being arrested.

In the first place, such

a requirement would make it impossible to arrest a suspect who
exercised his Fifth Amendment right to be silent.

In the second

place, even if Griego and Sanchez had not invoked that right,
their statements would not necessarily have precluded their
arrests.

Their statements may have contradicted Maniatis’s

statement, but differing accounts do not automatically preclude
arrests.
Three days before the hearing on the present motion,
counsel for Griego and Sanchez sent a letter to the court with a
copy of Arekat v. Donohue, Civ. No. 06-16074, 2010 WL 4683906,
404 F. App’x 160 (9th Cir. 2010) (unpublished).

(Local Rule

7.8(e) required such a letter to have been submitted at least
four days before the hearing, with the relevant portions of any
attached case highlighted.)

Counsel took the position that the

facts and issues in Arekat were identical to those in this case.
This court disagrees.
49

Arekat involved an appeal from the denial of a renewed
motion for judgment as a matter of law on an underlying § 1983
claim.

404 F. App’x at 161.

In that case, police officers took

Arekat into custody “without a warrant and without any other
judicial process” for a psychiatric examination, pursuant to
Haw. Rev. Stat. § 334-59, which allows police to transport an
individual to a medical facility for an examination in an
emergency if the individual “is imminently dangerous to self or
others, or is gravely disabled, or is obviously ill.”

Id.

At trial, the jury found that the officers had had
probable cause to seize Arekat.

Id.

The Ninth Circuit reversed

on the ground that the evidence at trial “was insufficient as a
matter of law to permit any reasonable juror to reach that
determination.”

Id.

The Ninth Circuit concluded that there was

no evidence in the record to support a finding that Arekat was
“gravely disabled,” “obviously ill,” or a danger to himself or
others.

Id. at 162.

The Ninth Circuit noted that much of the

evidence cited by the officers as supporting probable cause
consisted of statements and observations occurring after Arekat
was seized or long before that.

Id.

The remaining information

came from “a disgruntled and recently discharged former employee
of Arekat.”

Id. at 163.

The Ninth Circuit stated, “For

purposes of establishing probable cause, an arresting officer is
50

permitted to depend on information supplied by a ‘reliable’
source.’”

Id.

The court concluded that the former employee was

not a reliable source because “[h]e had no history of providing
reliable information to the police, and all that defendants knew
of him was that he had several recent criminal convictions, that
he was a long time drug addict, and that he was engaged in a
wage dispute with Arekat.”

Id.

Even if the former employee’s information had been
reliable, “it could not constitute evidence of probable cause”
because the statute required probable cause that Arekat was an
“imminent” danger to himself or others, and the information
provided did not speak to anything “imminent.”

Id.

Therefore,

“the only finding or conclusion that was permissible on the
record before the jury is that defendants did not have probable
cause to seize Arekat under the emergency mental health
statute.”

Id. at 164.
Arekat is not persuasive here.

Contrary to what

Griego and Sanchez contend, Arekat does not stand for the
proposition that an individual providing information to police
officers must have a history of providing reliable information
to the police to be deemed a reliable source.

Rather, the Ninth

Circuit deemed unreliable a person known to officers as having
recent criminal convictions, being a drug addict, and having a
51

motive to lie.

The present case involves no analogous

circumstances.
Here, the officers had a detailed statement by the
alleged victim, as well as statements by employees that
corroborated many of the details.

Similar to the officer in

Peng, the officers conducted a reasonable investigation before
concluding they had probable cause to arrest.

The officers are

therefore entitled to qualified immunity.
This court does not “minimize the serious effect this
unfortunate incident must have had upon” Griego and Sanchez.
See John, 515 F.3d at 942.

The court recognizes that,

particularly for a law enforcement officer, being escorted from
a hotel in handcuffs and then booked at a police station must
have been extremely upsetting and may have had professional and
personal consequences.
immunity controls.

See id.

But the law of qualified

Given the existence of probable cause,

Defendants are entitled to summary judgment with respect to the
§ 1983 claims relating to the fact of Griego’s and Sanchez’s
arrests.
6.

Summary Judgment Is Denied With Respect to
§ 1983 Claims Alleging a Fourth Amendment
Violation Based on the Manner of the
Arrests.

Although this court concludes that the officers had
probable cause to arrest Griego and Sanchez, the Fourth
52

Amendment inquiry does not end there.

Griego and Sanchez, while

not alleging serious permanent physical injury, do challenge the
manner of their arrests.
Fourth Amendment.

Such a challenge falls within the

See Fontana v. Haskin, 262 F.3d 871, 878 (9th

Cir. 2001) (“The Fourth Amendment’s requirement that a seizure
be reasonable prohibits more than the unnecessary strike of a
nightstick, sting of a bullet, and thud of a boot.”).
While not as clearly addressed in the parties’ papers
as would have been helpful, a § 1983 claim alleging a Fourth
Amendment violation based on the manner of the arrests appears
to be in issue on the present motion.

See Robins v. Harum,

773 F.2d 1004, 1010 (9th Cir. 1985) (“[O]nce a seizure has
occurred, it continues throughout the time the arrestee is in
the custody of the arresting officers . . .

Therefore,

excessive use of force by a law enforcement officer in the
course of transporting an arrestee give rise to a section 1983
claim based upon a violation of the Fourth Amendment.”).

See

also Tennessee v. Garner, 471 U.S. 1, 8 (1985) (holding the
reasonableness analysis under the Fourth Amendment “depends on
not only when a seizure is made, but also how it is carried
out”).
In traditional excessive force cases, courts analyze
alleged violations of the Fourth Amendment under the framework
53

established by the Supreme Court in Graham v. Connor,
490 U.S. 386 (1989).

The authority to arrest “necessarily

carries with it the right to use some degree of physical
coercion or threat thereof to effect it.”

Id. at 396.

Police

officers “are not required to use the least intrusive degree of
force possible,” but must act within a reasonable range of
conduct.

Marquez v. City of Phoenix, 693 F.3d 1167, 1174 (9th

Cir. 2012) (quotation marks omitted).

The existence of an

injury does not necessarily mean that a plaintiff’s
constitutional rights have been violated or that police officers
used excessive force in arresting the plaintiff.

Instead, for

Fourth Amendment purposes, “The question is whether the
officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.”

Graham, 490 U.S. at

397.
Under Graham, the reasonableness of a particular use
of force “must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.”

Id. at 396.

In other words, not every push or

shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates the Fourth Amendment.

The calculus

of reasonableness must allow for the fact that, in circumstances
that are tense, uncertain, and rapidly evolving, police officers
54

are often forced to make split-second judgments about the amount
of force needed in a particular situation.

Id.

However,

“[g]ratuitous and completely unnecessary acts of violence by the
police during a seizure violate the Fourth Amendment.”
262 F.3d at 880.

Fontana,

Whether an officer’s actions were “objectively

reasonable” should be determined without regard to the officer’s
underlying intent or motivation.

Graham, 490 U.S. at 397.

In the Ninth Circuit, the objective reasonableness
inquiry under Graham involves a three-step analysis: First, the
court must assess the gravity of the particular intrusion on
Fourth Amendment interests by evaluating the type and amount of
force used.
2003).

Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir.

Second, the court must assess the importance of the

governmental interests at stake by considering the Graham
factors: (a) the severity of the crime, (b) whether the suspect
posed an immediate threat to the safety of the officer and
others, and (c) whether the suspect was actively resisting
arrest or attempting to evade arrest by flight.

Id.

Third, the

court must balance “the gravity of the intrusion on the
individual against the government’s need for that intrusion to
determine whether it was constitutionally reasonable.”

Id.

“Because such balancing nearly always requires a jury to sift
through disputed factual contentions, and to draw inferences
55

therefrom . . . summary judgment or judgment as a matter of law
. . . should be granted sparingly” in cases involving claims of
excessive force.

Drummond v. City of Anaheim, 343 F.3d 1052,

1056 (9th Cir. 2003).
In this case, the officers believed that Griego and
Sanchez had just committed a burglary and were armed with guns.
The officers allegedly handcuffed Griego and Sanchez while they
searched for guns.

The detention and search apparently occurred

quickly and contemporaneously.

Griego and Sanchez say the

officers knew they were law enforcement officers.

The officers

indisputably knew that Griego and Sanchez had provided security
for Maniatis at his home.

Nothing in the record suggests that

Griego or Sanchez resisted their arrests or attempted to evade
arrest by fleeing.
Griego says that, after he was handcuffed, he was hurt
by being “face-planted” against a wall in the back of the room.
Both Griego and Sanchez say their hands were cuffed behind them.
They say they asked the officers to place their handcuffs in
front because they were disabled veterans with back injuries.
They also allege that their handcuffs were too tight and that
the officers ignored their requests to loosen their handcuffs.
Sanchez says that the arresting officer did not place a seatbelt
on him for the car ride to the station.
56

Both Griego and Sanchez

claim that they were repeatedly mocked by the officers and
placed in dirty cells with feces, urine, or vomit.
The officers dispute these allegations.

They say they

did not use more force than needed in placing handcuffs on
Griego and Sanchez in the front of their bodies.

The officers

say that they cuffed Griego and Sanchez in a manner that
prevented the handcuffs from tightening, placed seatbelts on
both men for the car rides, and treated both men in a routine
manner while they were processed.

The officers say that the

cells were not dirty and that Griego was not placed in any cell.
This court’s role in deciding a motion for summary
judgment is not to weigh the credibility of the evidence.

See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (at
the summary judgment stage, “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge”); Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir.
1999) (en banc) (the “court does not weigh the evidence or
determine the truth of the matter, but only determines whether
there is a genuine issue for trial”).
Genuine questions of fact exist as to whether the
manner of the arrests was objectively reasonable under the
circumstances.

The accounts of Griego and Sanchez, if accepted
57

by a jury, may be sufficient for the jury to conclude that the
amount of force or some other circumstance relating to their
arrests constituted an unreasonable seizure.

Conversely, the

evidence may end up supporting a finding that the manner of the
arrests was reasonable.

This court leaves this determination to

the jury and here denies summary judgment with respect to the
§ 1983 claim alleging a Fourth Amendment violation based on the
manner of arrest.
7.

Summary Judgment Is Denied With Respect to
§ 1983 Claims Alleging Fourth Amendment
Violations Based on the Gun Searches.

Having addressed the § 1983 claim alleging a Fourth
Amendment violation based on Griego’s and Sanchez’s arrests,
this court turns to the alleged Fourth Amendment violations
relating to searches.
Defendants contend that the officers’ search for
weapons did not violate the Fourth Amendment because Griego and
Sanchez consented to the searches of their hotel rooms and
belongings for weapons.

See ECF No. 110-1, PageID #s 418-21.

Griego and Sanchez deny that they consented to any search and
say there are genuine issues of material fact in what they call
“two wildly divergent versions of the events that occurred,”
constituting “the very types of factual disputes that hinge on

58

witness credibility determinations that can only be made by the
triers of fact.”

See ECF No. 116-2, PageID # 692.

A search that is “conducted without a warrant issued
upon probable cause is ‘per se unreasonable . . . subject only
to a few specifically established and well-delineated
exceptions.’”

Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973) (quoting Katz v. United States, 389 U.S. 347, 357
(1967)).

A search conducted pursuant to consent is a

specifically established exception to the warrant and probable
cause requirements and therefore not violative of the
Constitution.

Id.

Although the officers say that Griego and Sanchez
orally consented to a search for weapons, Griego and Sanchez say
the officers entered their hotel rooms, searched their
belongings without permission, and told them search warrants
were not needed.

Griego does not dispute that he told the

officers he had guns in a bag, but he says he did not tell the
officers they could open and search his bag.

Sanchez similarly

does not dispute that he told the officers that he had a knife
but no guns on him.

Sanchez is not challenging the officers’

recovery of the knife, but he says the officers searched his
room for other weapons without permission, going through his
drawers and suitcases, without finding anything.
59

These

differing accounts, viewed in the light most favorable to Griego
and Sanchez, leave this court with genuine issues of material
fact as to whether Griego and Sanchez consented to the search
for guns.
The record contains no evidence suggesting that the
officers had a search warrant.

Officer Yazaki suggests in his

declaration that, even if Griego had not allegedly consented to
a search of his bag, exigent circumstances would have justified
the search.

Officer Yazaki says:

If Griego had not given me consent to open the
backpack, I was obligated under General Order
101.3 and my training, to secure Griego’s
firearms. It would be a danger to myself and
anyone near the backpack for me to transport
loaded firearms in a backpack. Any one of the
three firearms could have accidentally discharged
during transport, seriously injuring or killing
someone. I believed that, based on that danger,
exigent circumstances existed for the backpack to
be opened and the firearms secured in the absence
of Griego’s consent. It would have been unsafe
to transport firearms without clearing them of
ammunition and locking them in an open position.
ECF No. 111-5, PageID #s 472-73.
This court is not persuaded that exigent circumstances
justified a warrantless search of Griego’s bag.

The officers

could easily have given the bag to hotel employees, who were
present at the time.

Hotel employees could have held the bag in

a secure location while officers sought a warrant.

The record

does not indicate that the officers would have seen any danger
60

in hand-carrying the bag to a secure location in the hotel or
that the guns needed to be at the station immediately.

It may

indeed be the case that moving the bag within the hotel would
have been dangerous, but that is not established in the record.
In fact, although Griego said he would remove ammunition from
guns he himself seized, he said it was his practice to have a
magazine in one of his own firearms (although not in the gun’s
chamber) while traveling, suggesting that he did not necessarily
see having a loaded gun as being a problem during transport.
See ECF 117-12, PageID # 758.

Moreover, Griego and Sanchez

complain that the guns were held at the station for some time
after they were released and asked for their return, and there
is no evidence that the guns were tested or used in any
proceeding during that time.

Therefore, even if the court were

to accept Officer Yazaki’s assertion that it would have been
dangerous to move the bag in a car without first opening the bag
and unloading the guns that Griego said were in the bag, the
present record does not establish that there was such an
immediate need for the guns to be at the station that they could
not have been secured at the hotel pending the issuance of a
warrant.
In light of the disputed material facts, a jury must
determine whether Griego and Sanchez consented to searches for
61

items other than the knife on Sanchez’s person.

Accordingly,

this court denies summary judgment as to the § 1983 claim
alleging an unreasonable search.
Although denying summary judgment with respect to the
gun searches and to the manner of arrest, this court has clearly
in mind the principle that qualified immunity is designed to
protect the right of a public official not to have to proceed to
trial.

What is preventing this court from ruling that the

individual Defendants have qualified immunity with respect to
the gun searches and the manner of arrest is the presence of
factual disputes going to what the individual Defendants did.
Qualified immunity is a matter purely of law, but the law has to
be applied to facts.

Here, certain facts are in dispute.

The

officers say they searched pursuant to consent, while Griego and
Sanchez say they never gave consent.

This court cannot grant

summary judgment on qualified immunity grounds because, given
the uncertainty about what the officers did, the court cannot
possibly say whether the acts the officers took did or did not
violate a constitutional right.
Summary judgment motions raising qualified immunity
must be denied when material facts affecting immunity are in
dispute.

It is to allow trial on disputed facts that the Ninth

Circuit declines to review on interlocutory appeal such a
62

denial.

See Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir.

2010) (“Our jurisdiction to review an interlocutory appeal of a
denial of qualified immunity . . . is limited exclusively to
questions of law.”).

See generally Rodriguez v. Lockheed Martin

Corp., 627 F.3d 1259, 1264-66 (9th Cir. 2010) (discussing
factual questions in context of government contractor’s claim of
immunity).
B.

Summary Judgment Is Granted in Part and Denied in
Part With Respect to the State Law Claims.
1.

There Is No Evidence Supporting Any
Negligent Training/Supervision/Discipline
Claims Against the County.

Because there are neither facts nor arguments before
the court supporting any negligent training, supervision, or
discipline claim against the County, this court grants summary
judgment to the County on such claims.

Such negligence is only

alleged, unsupported by any admissible evidence on that score.
2.

Summary Judgment Is Granted to All
Defendants With Respect to Claims for False
Arrest/False Imprisonment.

To establish a false arrest or imprisonment claim, a
plaintiff must show “(1) the detention or restraint of one
against his [or her] will, and (2) the unlawfulness of such
detention or restraint.”

Reed v. City & Cty. of Honolulu, 76

Haw. 219, 229, 873 P.2d 98, 109 (1994).

63

“The determination of

probable cause is a defense to the common law claims of false
arrest, false imprisonment, and malicious prosecution.”

Id.

As discussed above, the officers had probable cause to
believe that Griego and Sanchez had committed burglary.

Under

Hawaii law, this defeats any claim of false arrest or false
imprisonment.

See id.

Accordingly, this court grants summary

judgment to all Defendants on the false arrest/false
imprisonment claims.
3.

Summary Judgment Is Granted in Part and
Denied in Part With Respect to Negligence
Claims Against Individual Defendants and to
the Claim of Respondeat Superior Liability
Against the County of Maui.

Under Hawaii law, nonjudicial government officials
have a qualified or conditional privilege with respect to
tortious actions taken in the performance of public duties,
unless a plaintiff can establish that the official’s conduct was
motivated by malice.

Towse v. State, 64 Haw. 624, 631, 647 P.2d

696, 702 (1982); Runnels v. Okamoto, 56 Haw. 1, 4, 525 P.2d
1125, 1128 (1974).

This privilege shields all but the most

guilty nonjudicial officials from liability, but not from the
imposition of a suit itself.
at 702.

Towse, 64 Haw. at 631, 647 P.2d

The privilege is the result of the Hawaii Supreme

Court’s balancing of competing interests.

It protects the

innocent public servant’s pocketbook, yet it allows an injured
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party to be heard.

See Medeiros v. Kondo, 55 Haw. 499, 504, 522

P.2d 1269, 1272 (1974).
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.
Towse, 64 Haw. at 631-33, 647 P.2d at 702-03; Medeiros, 55 Haw.
at 504-05, 522 P.2d at 1272.

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.
Marshall v. Univ. of Haw., 9 Haw. App. 21, 37, 821 P.2d 937, 946
(Ct. App. 1991), abrogated on other grounds by Hac v. Univ. of
Haw., 102 Haw. 92, 73 P.3d 46 (2003).
Hawaii courts define “malice” as “the intent, without
justification or excuse, to commit a wrongful act[,]” “reckless
disregard of the law or of a person’s legal right[,]” and “ill
will; wickedness of heart.”

See Awakuni v. Awana, 115 Haw. 126,

141, 165 P.3d 1027, 1042 (2007).
may be a negligent act.

An act performed with malice

See Long v. Yomes, Civ. No. 11-00136

ACK, 2011 WL 4412847, at *7 (D. Haw. Sept. 20, 2011) (“[C]onduct
performed with ‘reckless disregard of the law or of a person’s
legal rights’ may be negligent, even though negligent conduct
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often does not involve malice.” (citations omitted)).

The

existence or absence of malice is generally a question for the
jury.

Runnels, 56 Haw. at 5, 525 P.2d at 1129.

However, when

the existence or absence of malice is demonstrated to the court
via uncontroverted affidavits or depositions, the court may rule
on the existence or absence of malice as a matter of law.

See

id.
Defendants argue that the officers are entitled to a
qualified privilege because Griego and Sanchez do not present
any credible evidence to suggest malice.
PageID # 439.

See ECF No. 110-1,

They contend that, because the officers arrested

Griego and Sanchez based on probable cause and treated them
respectfully, the officers did not act with malice.

See id.

Griego and Sanchez, however, maintain that the officers acted
with reckless disregard of the law or their rights during their
arrests and the searches for guns.
PageID #s 693-95.

See ECF No. 116-2,

Griego and Sanchez assert that the officers

failed to follow Maui Police Department policies, which they say
in itself demonstrates malice and ill-will.

See id.,

PageID # 693.
There is no dispute that the police officers are
nonjudicial government officials who are eligible for the
qualified or conditional privilege discussed in Towse.
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Accordingly, to hold the officers liable for the negligence
claims, Griego and Sanchez must “prove, to the requisite degree,
that the [officers] had been motivated by malice and not by an
otherwise proper purpose.”

Towse, 64 Haw. at 631, 647 P.2d at

702.
Because the record reflects that the officers had
probable cause to arrest Griego and Sanchez, the court sees no
evidence that the officers were motivated by malice in arresting
Griego and Sanchez.

However, the facts are clearly disputed as

to whether rights were violated with respect to the manner of
the arrests, particularly in connection with the manner in which
Griego and Sanchez were seized in their hotel rooms, taken to
the police station, and held until they were released from
custody.

The facts are also disputed as to how the officers

carried out the searches for guns and whether Griego and Sanchez
consented to the searches.

Genuine issues of material fact

exist as to whether the officers acted with malice in the manner
of the arrests and the searches for guns, but not as to whether
the officers acted with malice insofar as the bases for
arresting Griego and Sanchez are concerned.
If a jury concludes that the officers acted with
malice and ultimately determines that the officers acted
negligently in the manner of the arrests and the searches for
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guns, then the jury may also conclude that the County of Maui is
liable for the officers’ actions in this respect under the
doctrine of respondeat superior.

See McCormack v. City & Cty.

of Honolulu, Civ No. 10-00293 BMK, 2014 WL 692867, at *3 (D.
Haw. Feb. 20, 2014) (observing that “a claim for respondeat
superior cannot survive without an underlying tort claim against
an employee”); see also Wong-Leong v. Haw. Indep. Refinery,
Inc., 76 Haw. 433, 438, 879 P.2d 538, 543 (1994) (“[T]o recover
under the respondeat superior theory, a plaintiff must
establish: 1) a negligent act of the employee, in other words,
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.”).
Accordingly, with respect to the claim of negligence
against the individual officers and the claim of respondeat
superior on the part of the County, summary judgment is denied
to the extent those claims relate to the manner of the arrests
and to the searches for guns.

To the extent those claims are

based on facts unrelated to the manner of the arrests or the
searches for guns, summary judgment is granted on the negligence
and respondeat superior claims.

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4.

Summary Judgment Is Granted in Part and
Denied in Part With Respect to Claims for
Intentional Infliction of Emotional
Distress.

Under Hawaii law, the elements of intentional
infliction of emotional distress 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.”

Enoka v. AIG Hawaii Ins. Co.,

109 Haw. 537, 559, 129 P.3d 850, 872 (2006).

The Hawaii Supreme

Court has held that the “term ‘outrageous’ has been construed to
mean without just cause or excuse and beyond all bounds of
decency.”

Id.

“Moreover, extreme emotional distress

constitutes, inter alia, mental suffering, mental anguish,
nervous shock, and other highly unpleasant mental reactions.”
Id. (citation and quotation marks omitted).
The officers assert that their actions were not
outrageous but rather reasonable and based on probable cause.
See ECF No. 110-1, PageID #s 436-37.

As to the fact of the

arrests, given the existence of probable cause, Griego and
Sanchez may not recover for emotional distress.

However, as to

the manner of the arrests and the searches for guns, the facts
are clearly disputed.

If a jury agrees with Griego’s and

Sanchez’s accounts of their detention and the search, it is
presently unclear whether a jury could conclude that the manner
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of the arrests and the searches for guns were “beyond all bounds
of decency.”

See Enoka, 109 Haw. at 559, 129 P.3d at 872.

Accordingly, this court denies summary judgment on the
claim of intentional infliction of emotional distress to the
extent any emotional distress relates to any claim that remains
for further adjudication.

This court, however, grants summary

judgment on the claim of intentional infliction of emotional
distress to the extent any emotional distress relates to any
claim disposed of by this order.
V.

CONCLUSION.
Defendants’ motion for summary judgment is granted in

part and denied in part.
Summary judgment is granted as follows:
1.

Granted as to all § 1983 claims in Count 1 against
Defendant County of Maui.

2.

Granted as to the § 1983 claims in Count 1 against
individual Defendants relating to alleged violations
of the Fifth, Eighth, and Ninth Amendments.

3.

Granted as to the § 1983 claims against individual
Defendants relating to any alleged violation of the
Fourth Amendment concerning the fact of Griego’s and
Sanchez’s arrests.

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4.

Granted to all Defendants on the state law claims in
Count 2 of false arrest/false imprisonment.

5.

Granted to the County on the negligent
training/supervision/discipline claim in Count 5.

6.

Granted with respect to the claim in Count 4 of
negligence against individual Defendants and the claim
of respondeat superior liability on the part of the
County in Count 6, except to the extent those claims
relate to the manner of the arrests and any search for
guns.

7.

Granted as to the claim in Count 3 of intentional
infliction of emotional distress, to the extent any
emotional distress relates to matters disposed of by
this order.
Summary judgment is denied as to the following:

1.

Denied with respect to § 1983 claims in Count 1
against individual Defendants alleging Fourth
Amendment violations relating to the manner of the
arrests and concerning any search for guns.

2.

Denied with respect to the claim of negligence in
Count 4 against individual Defendants and the claim of
respondeat superior liability on the part of the

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County in Count 6, to the extent those claims relate
to the manner of the arrests and any search for guns.
3.

Denied with respect to the claim in Count 3 of
intentional infliction of emotional distress, to the
extent that claim relates to any matter remaining for
further adjudication.
As noted in footnote 2 of this order, Fourteenth

Amendment claims are treated here as asserted only for purposes
of showing the applicability of other cited constitutional
amendments against states and municipalities.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 29, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Jason Griego and James Sanchez v. County of Maui; Anselm Yazaki; Aly
Miyashiro; Myles S. Won; Doe Officers 2-15, Civ. No. 15-00122 SOM-KJM, ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

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