Silva v. City and County of Honolulu

Filing 224

ORDER GRANTING DEFENDANT LOUIS M. KEALOHA'S MOTION FOR SUMMARY JUDGMENT (ECF No. 193 ) and DENYING PLAINTIFFS' AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE LIABILITY OF DEFENDANTS CHRISTOPHER CHUNG, SAMANTHA CRITCHLOW, STEPHEN K ARDASH, LOUIS M. KEALOHA, AND CITY AND COUNTY OF HONOLULU FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS (ECF No. 195 ) and GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S AMENDED MOTION FOR SUMMARY JUDGMENT (ECF No. 199 ) and GRANTING, IN PART, AN D DENYING, IN PART, DEFENDANTS CHRISTOPHER CHUNG, SAMANTHA CRITCHLOW, AND STEPHEN KARDASH'S AMENDED MOTION FOR SUMMARY JUDGMENT (ECF No. 200 ) re 223 - Signed by JUDGE HELEN GILLMOR on 6/27/2017. THE ONLY REMAINING CA USE OF ACTION: FIRST CAUSE OF ACTION FOR EXCESSIVE FORCE IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION PURSUANT TO 42 U.S.C. § 1983: "The First Cause of Action as stated by Plaintif f Gulstan E. Silva, Jr., as Personal Representative of the Estate of Sheldon Paul Haleck, against Defendants Christopher Chung, Samantha Critchlow, and Stephen Kardash in their individual capacities is the only remaining cause of action for trial.&qu ot; REMAINING PARTIES: PLAINTIFFS: "The only remaining Plaintiff is Gulstan E. Silva, Jr., as Personal Representative of the Estate of Sheldon Paul Haleck. There are n o remaining claims by Plaintiffs Jessica Y. Haleck, individually and as Guardian Ad Litem for Jeremiah M.V. Haleck, William E.Haleck, and Verdell B. Haleck." DEFENDANTS: "The only remaining Defe ndants are Christopher Chung, Samantha Critchlow, and Stephen Kardash in their individual capacities. There are no remaining claims against Defendant City and County of Honolulu and Defendant Louis M. Kealoha." (emt, ) 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
GULSTAN E. SILVA, JR., as
)
Personal Representative of the )
Estate of Sheldon Paul Haleck; )
JESSICA Y. HALECK, Individually )
and as Guardian Ad Litem of
)
Jeremiah M.V. Haleck; WILLIAM )
E. HALECK; VERDELL B. HALECK, )
)
Plaintiffs,
)
)
vs.
)
)
CITY AND COUNTY OF HONOLULU;
)
LOUIS M. KEALOHA, Individually; )
CHRISTOPHER CHUNG; SAMANTHA
)
CRITCHLOW; STEPHEN KARDASH,
)
)
Defendants.
)
)

CIV. NO. 15-00436 HG-KJM

ORDER GRANTING DEFENDANT LOUIS M. KEALOHA’S MOTION FOR SUMMARY
JUDGMENT (ECF No. 193)
and
DENYING PLAINTIFFS’ AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO THE LIABILITY OF DEFENDANTS CHRISTOPHER CHUNG, SAMANTHA
CRITCHLOW, STEPHEN KARDASH, LOUIS M. KEALOHA, AND CITY AND COUNTY
OF HONOLULU FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS (ECF No. 195)
and
GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU’S AMENDED MOTION
FOR SUMMARY JUDGMENT (ECF No. 199)
and
GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS CHRISTOPHER
CHUNG, SAMANTHA CRITCHLOW, AND STEPHEN KARDASH’S AMENDED MOTION
FOR SUMMARY JUDGMENT (ECF No. 200)

1

Plaintiffs filed a Second Amended Complaint against the City
and County of Honolulu, former Honolulu police chief Louis
Kealoha, and Honolulu police officers Christopher Chung, Samantha
Critchlow, and Stephen Kardash relating to a March 16, 2015
incident involving Sheldon Paul Haleck.
Plaintiffs claim the Honolulu police officers seized Sheldon
Paul Haleck and used excess force when they arrested him for
disorderly conduct.

Plaintiffs assert that the Honolulu police

officers used pepper spray and a Taser multiple times against
Sheldon Paul Haleck.

He died following his arrest.

Plaintiffs allege constitutional violations and state law
claims against the City and County of Honolulu, the former police
chief, and the Honolulu police officers who seized and arrested
Haleck.
There are four motions for summary judgment filed by the
Parties.
1.

Defendant Louis M. Kealoha’s Motion for Summary
Judgment (ECF No. 193)

Defendant Louis M. Kealoha filed a Motion for Summary
Judgment on all claims against him.
First, Defendant Kealoha seeks summary judgment as to
Plaintiffs’ third cause of action.

The cause of action includes

a Section 1983 claim against Defendant Kealoha in his individual
capacity for failure to supervise, failure to discipline, and
2

ratification of the police officers’ actions as stated in the
Third Cause of Action.
Second, Defendant Kealoha moves for summary judgment as to
the Eighth Cause of Action for interference with civil rights.
Defendant Louis M. Kealoha’s Motion for Summary Judgment
(ECF No. 193) is GRANTED.

2.

Plaintiffs’ Amended Motion for Summary Judgment (ECF
No. 195)

Plaintiffs filed an Amended Motion for Partial Summary
Judgment as to the liability of Defendants City and County of
Honolulu, Louis M. Kealoha, Christopher Chung, Samantha
Critchlow, and Stephen Kardash for alleged constitutional
violations pursuant to Section 1983 as stated in the First,
Second, and Third Causes of Action.
Plaintiffs’ Amended Motion for Partial Summary Judgment (ECF
No. 195) is DENIED.

3.

Defendant City and County of Honolulu’s Amended Motion
for Summary Judgment (ECF No. 199)

Defendant City and County of Honolulu filed an Amended
Motion for Summary Judgment as to Plaintiffs’ Third Cause of
Action for Section 1983 municipal liability.

Defendant City and

County also seeks summary judgment in its favor as to Plaintiffs’
Eighth Cause of Action for interference with civil rights.
3

Defendant City and County of Honolulu’s Amended Motion for
Summary Judgment (ECF No. 199) is GRANTED.

4.

Defendants Christopher Chung, Samantha Critchlow, and
Stephen Kardash’s Amended Motion for Summary Judgment
(ECF No. 200)

Defendants Christopher Chung, Samantha Critchlow, and
Stephen Kardash filed an Amended Motion for Summary Judgment as
to Plaintiffs’ constitutional and state law claims against them
stated in the First, Second, Fourth, Fifth, Sixth, and Seventh
Causes of Action.

The Defendant police officers assert that they

did not violate Haleck’s constitutional rights and are otherwise
entitled to qualified immunity.

The Defendant officers argue

they are entitled to a conditional privilege as to the
Plaintiffs’ state law claims.
Defendant Honolulu Police Officers’ Amended Motion for
Summary Judgment (ECF No. 200) is GRANTED, IN PART, AND DENIED,
IN PART.
As to the Causes of Action stated in the Second Amended
Complaint:
The Court GRANTS Summary Judgment for the respective
Defendants as to the Causes of Action 2 through 8.
The only Cause of Action remaining is as follows:
The First Cause of Action for Excessive Force in Violation
of the Fourth Amendment to the United States Constitution
Pursuant to 42 U.S.C. § 1983 stated by Plaintiff Gulstan E.
4

Silva, Jr., as Personal Representative of the Estate of
Sheldon Paul Haleck, against Defendants Christopher Chung,
Samantha Critchlow, and Stephen Kardash in their individual
capacities.
There are no remaining claims by Plaintiffs Jessica Y.
Haleck, for herself and as Guardian Ad Litem for Jeremiah M.V.
Haleck, William E. Haleck, and Verdell B. Haleck.
The only remaining Plaintiff is Gulstan E. Silva, Jr., as
Personal Representative of the Estate of Sheldon Paul Haleck.
There are no remaining claims against Defendant City and
County of Honolulu and Defendant Louis M. Kealoha.
The only remaining Defendants are Christopher Chung,
Samantha Critchlow, and Stephen Kardash.

PROCEDURAL HISTORY
On October 20, 2015, Plaintiffs filed a Complaint.

(ECF No.

1).
On the same date, Plaintiff Jessica Y. Haleck filed an Ex
Parte Motion for Appointment of Guardian Ad Litem.

(ECF No. 3).

On November 23, 2015, the Magistrate Judge issued an Order
Appointing Jessica Y. Haleck as Guardian Ad Litem for Jeremiah
M.V. Haleck.

(ECF No. 11).

On March 29, 2016, Plaintiffs filed a FIRST AMENDED
COMPLAINT.

(ECF No. 31).

On January 4, 2017, Defendant Louis M. Kealoha, Defendant
5

City and County of Honolulu, and Defendants Christopher Chung,
Samantha, Critchlow, Stephen Kardash, Chad Sano, Reynwood
Makishi, and Frank Pojsl filed Motions for Summary Judgment and
Concise Statements of Facts.

(ECF Nos. 126, 127, 134, 136, 137,

138).
On the same date, Plaintiffs filed a Motion for Partial
Summary Judgment and a Concise Statement of Facts.

(ECF Nos.

131, 132).
On January 4, 2017, Plaintiffs filed a Motion to Seal
Documents (ECF No. 133) and Defendant Louis M. Kealoha filed a
Motion to Seal Documents (ECF No. 129).
On January 11, 2017, the Court issued an ORDER GRANTING
PLAINTIFFS LEAVE TO FILE EXHIBITS UNDER SEAL.

(ECF No. 145).

Also on January 11, 2017, the Court issued an ORDER GRANTING
DEFENDANT LOUIS M. KEALOHA’S EX-PARTE MOTION FOR LEAVE TO FILE
CERTAIN EXHIBITS UNDER SEAL.

(ECF No. 146).

On January 20, 2017, the Parties filed their Oppositions to
the Motions for Summary Judgment.

(ECF No. 152, 153, 154, 155,

157, 158, 159, 160).
On February 2, 2017, the Parties filed their Replies.

(ECF

Nos. 167, 168, 169, 170).
On February 6, 2017, the Court issued an ORDER GRANTING
PLAINTIFFS LEAVE TO FILE EXHIBITS UNDER SEAL.

(ECF No. 171).

On February 15, 2017, Plaintiffs filed PLAINTIFFS’ MOTION

6

FOR LEAVE TO FILE SECOND AMENDED COMPLAINT.

(ECF No. 173).

Also on February 15, 2017, Plaintiffs filed PLAINTIFFS’
MOTION TO DISMISS DEFENDANTS LOUIS M. KEALOHA, IN HIS OFFICIAL
CAPACITY, CHAD SANO, REYNWOOD MAKISHI, AND FRANK POJSL.

(ECF No.

174).
On the same date, Plaintiffs filed PLAINTIFFS’ EX PARTE
MOTION TO SHORTEN TIME FOR HEARING (1) MOTION TO DISMISS
DEFENDANTS LOUIS M. KEALOHA, IN HIS OFFICIAL CAPACITY, CHAD SANO,
REYNWOOD MAKISHI, AND FRANK POJSL AND (2) MOTION FOR LEAVE TO
FILE SECOND AMENDED COMPLAINT.

(ECF No. 175).

On February 16, 2017, the Court issued a Minute Order
granting Plaintiffs’ Motion to Shorten Time and issued a briefing
schedule as to Plaintiffs’ Motion to Dismiss and their Motion to
File Second Amended Complaint.

(ECF No. 177).

On February 16, 2017, the Court issued the Parties’
STIPULATION FOR PARTIAL DISMISSAL WITHOUT PREJUDICE OF ALL CLAIMS
AGAINST DEFENDANT DONNA Y.L LEONG AND ORDER.

(ECF No. 176).

On March 7, 2017, the Court held a hearing as to Plaintiff’s
Motion to Dismiss, Plaintiff’s Motion for Leave to File Second
Amended Complaint, and the scheduling of the Motions for Summary
Judgment.

(ECF No. 186).

The Court granted, in part, and denied, in part, Plaintiffs’
Motion to Dismiss and granted Plaintiff’s Motion for Leave to
File Second Amended Complaint.

(Id.)

7

The Court ordered the Parties to re-file their Motions for
Summary Judgment in accordance with its Orders on Plaintiffs’
Motions to Dismiss and Leave to Amend.

(Id.)

On March 10, 2017, Plaintiffs filed their SECOND AMENDED
COMPLAINT FOR DAMAGES.

(ECF No. 189).

On March 14, 2017, the Court issued an ORDER GRANTING, IN
PART, AND DENYING, IN PART, PLAINTIFFS’ MOTION TO DISMISS
DEFENDANTS LOUIS M. KEALOHA, IN HIS OFFICIAL CAPACITY, CHAD SANO,
REYNWOOD MAKISHI AND FRANK POJSL AND GRANTING PLAINTIFFS’ MOTION
FOR LEAVE TO FILE SECOND AMENDED COMPLAINT.

(ECF No. 192).

On March 21, 2017, Defendant Kealoha filed his Motion for
Summary Judgment (ECF No. 193), Defendant City and County of
Honolulu filed its Amended Motion for Summary Judgment (ECF No.
199), and the Defendant Honolulu Police Officers filed their
Amended Motion for Summary Judgment (ECF No. 200).
On the same date, Plaintiffs filed their Amended Motion for
Summary Judgment.

(ECF No. 195).

On April 17, 2017, the Parties filed their Oppositions.
(ECF No. 208, 209, 210, 211).
On April 24, 2017, the Parties filed their Replies.

(ECF

Nos. 212, 214, 215, 216).
On June 14, 2017, the Court held a hearing on the Parties’
four Motions for Summary Judgment.
ruled from the bench.

(ECF No. 223).

The Court

The Court granted the Motions for Summary

8

Judgment filed by Defendants Louis M. Kealoha and the City and
County of Honolulu.

The Court granted, in part, and denied, in

part, the Defendant Officers’ Motion for Summary Judgment.
Court denied Plaintiffs’ Motion for Summary Judgment.

The

The

reasons for the decision are set forth in this Written Order.
BACKGROUND
The Parties
There are five Plaintiffs named in the Second Amended
Complaint.

All of the Plaintiffs claim they are relatives of

Sheldon Paul Haleck, who is deceased.
at ¶¶ 7-12, ECF No. 189).

(Second Amended Complaint

Gulstan E. Silva, Jr. is the personal

representative of the Estate of Sheldon Paul Haleck.
Plaintiffs have filed federal and state law claims against
the City and County of Honolulu and various individuals arising
out of a March 16, 2015 incident involving Honolulu Police
Officers and Sheldon Haleck.

(Id. at pp. 3-22).

Plaintiffs’ relationships to Sheldon Haleck are alleged in
the Second Amended Complaint as follows:
(1)

Plaintiff Gulstan E. Silva, Jr. as the natural uncle of
Sheldon Haleck and as the Personal Representative of
the Estate of Sheldon Paul Haleck (id. at ¶ 8);

(2)

Plaintiff Jessica Y. Haleck as the wife of Sheldon
Haleck and as Guardian Ad Litem of Jeremiah M.V. Haleck
(id. at ¶ 9);

(3)

Plaintiff Jeremiah M.V. Haleck as the minor son of
Plaintiff Jessica Y. Haleck and Sheldon Haleck (id. at
¶ 10);
9

(4)

Plaintiff William E. Haleck as the father of Sheldon
Haleck (id. at ¶ 11); and,

(5)

Plaintiff Verdell B. Haleck as the mother of Sheldon
Haleck (id. at ¶ 12).

The Second Amended Complaint names the following Defendants:
(1)

Defendant City and County of Honolulu (id. at ¶ 13);

(2)

Defendant Louis M. Kealoha, individually, former Chief
of the Honolulu Police Department; (id. at ¶ 14);

(3)

Defendant Christopher Chung, individually and in his
official capacity as an officer with the Honolulu
Police Department, (id. at ¶ 15);

(4)

Defendant Samantha Critchlow, individually and in her
official capacity as an officer with the Honolulu
Police Department, (id. at ¶ 16); and,

(5)

Defendant Stephen Kardash, individually and in his
official capacity as an officer with the Honolulu
Police Department, (id. at ¶ 17).

The Parties Agree to the Following Facts:
At 8:15 p.m., on March 16, 2015, Honolulu Police Officer
Christopher Chung (“Officer Chung”) responded to a call from
dispatch about a male walking in the middle of South King Street,
a busy six-lane road in Downtown Honolulu.

(Deposition of

Officer Christopher Chung (“Chung Depo.”) at p. 27-29, attached
as Ex. C to Pla.’s Concise Statement of Facts (“CSF”), ECF No.
196-4).

Officer Chung arrived at the scene and observed Sheldon

Paul Haleck (“Haleck”) in the street.

(Id. at p. 29).

Officer

Samantha Critchlow (“Officer Critchlow”) arrived approximately
10

one minute later.

(Deposition of Officer Samantha Critchlow

(“Critchlow Depo.”) at p. 39, attached as Ex. D to Pla.’s CSF,
ECF No. 196-5).
Both Officers instructed Haleck to get out of the middle of
the road and to move to the sidewalk.
at p. 30, ECF No. 196-4).

(Id. at p. 42; Chung Depo.

Haleck did not comply with the

Officers’ instructions and moved away from them while remaining
in the middle of the street.

(Critchlow Depo. at p. 42, ECF No.

196-5; Chung Depo. at p. 34, ECF No. 196-4).
The Officers warned Haleck that they would use pepper spray
if he did not comply, but Haleck did not move to the sidewalk.
(Chung Depo. at p. 34, ECF No. 196-4).

The Officers sprayed

Haleck with pepper spray multiple times.
Critchlow Depo. at p. 48, ECF No. 196-5).

(Id. at pp. 37-38;
Haleck continued to

run away from the Officers, moving side to side, and he did not
move to the sidewalk.

(Chung Depo. at p. 38, ECF No. 196-4).

Officer Chung warned Haleck that he would use the Taser if
Haleck did not get on the sidewalk.
4).

(Chung Depo. at p. 49, 196-

Officer Chung deployed the Taser in dart mode and pulled the

trigger to send a current through the probes but Haleck did not
fall to the ground.

(Id.)

Officer Stephen Kardash (“Officer Kardash”) arrived at the
scene and also ordered Haleck to move to the sidewalk.
(Deposition of Officer Stephen Kardash (“Kardash Depo.”) at p.

11

23, attached as Ex. E to Pla.’s CSF, ECF No. 196-6).

Haleck did

not comply and Officer Kardash sprayed Haleck with pepper spray.
(Id. at p. 36).
Officer Chung deployed his Taser in dart mode a second time
and pulled the trigger to send a current through the probes.
(Critchlow Depo. at p. 53, ECF No. 196-5).

Officer Chung

testified in his deposition that while the probes were still
deployed from the second deployment, he pulled the trigger to
send a current through the probes a third time.

(Chung Depo. at

p. 51, attached as Ex. A to Def.’s Opp., ECF No. 210-3).

The

Parties agree that following the third use of the Taser, Haleck
fell to the ground.

The Parties dispute the cause of the fall.

The Officers attempted to handcuff Haleck after he had
fallen on the ground.

(Critchlow Depo. at p. 57, ECF No. 196-5).

Haleck did not comply with Officers’ requests to cooperate and he
was “flailing,” “squirming,” and “kicking.”

(Id.)

Six Officers

were needed to hold Haleck down in order to place him in
handcuffs and leg shackles.

(Chung Depo. at p. 57, ECF No. 196-

4; Kardash Depo. at pp. 47-49, ECF No. 196-6).
Following the fall and cuffing, Haleck was arrested for
disorderly conduct.

(Critchlow Depo. at p. 67, ECF No. 196-5).

Minutes later, Haleck lost consciousness and stopped breathing.
(Critchlow Depo. at p. 60, ECF No. 196-5; Kardash Depo. at p. 49,
ECF No. 196-6).

An ambulance arrived at the scene and took

12

Haleck to Queen’s Medical Center.

(Autopsy Report of Sheldon P.

Haleck at p. 3, attached as Ex. A to Def. Honolulu’s CSF, ECF No.
136-13).

The next morning, approximately 11 hours later, Haleck

was pronounced dead at 7:33 a.m.

(Id.)

Plaintiffs’ Position:

Plaintiffs assert that the third use of the Taser caused
Haleck to fall.

Plaintiffs point to evidence from the Autopsy

that there were red marks on Haleck’s body that they assert
indicate the Taser had some effect on Haleck.

(Autopsy Report of

Sheldon P. Haleck at p. 6, attached as Ex. A to Def. Honolulu’s
CSF, ECF No. 136-13; Report of Richard Lichten, at p. 11,
attached as Ex. B to Pla.’s CSF, ECF No. 147-1).
Plaintiffs claim the Officers’ multiple uses of pepper spray
and the Taser were not reasonable under the circumstances.
Defendants’ Position:
Defendants state that following the third use of the Taser,
Haleck’s shorts fell down and he tripped and fell to the ground.
(Critchlow Depo. at p. 54, ECF No. 196-5; Kardash Depo. at p. 45,
ECF No. 196-6).

Defendants assert that the Chief Medical

Examiner determined that the Taser had no effect on Haleck
because the barbs never implanted in his skin.

(Deposition of

Chief Medical Examiner Dr. Christopher Happy at pp. 22-24, (“Dr.

13

Happy Depo.”) attached as Ex. H to Def.’s Opp., ECF No. 210-9).
Defendants assert that the Officers’ actions were reasonable
under the circumstances.

Defendants claim there was an immediate

threat of injury to the Officers and others.

The Defendants base

their claim on the facts that the incident occurred in the middle
of a busy street in Downtown Honolulu, at night, and that Haleck
refused to comply with the Officers’ warnings and commands.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

To defeat

summary judgment there must be sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party.
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
1997).
The moving party has the initial burden of “identifying for
the court the 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. Pacific Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)).

The moving party, however, has no

burden to negate or disprove matters on which the opponent will
have the burden of proof at trial.

14

The moving party need not

produce any evidence at all on matters for which it does not have
the burden of proof.

Celotex, 477 U.S. at 325.

The moving party

must show, however, that there is no genuine issue of material
fact and that he or she is entitled to judgment as a matter of
law.

That burden is met by pointing out to the district court

that there is an absence of evidence to support the non-moving
party’s case.

Id.

If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979).

The opposing party must present admissible

evidence showing that there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1049 (9th Cir. 1995).

“If the evidence is merely colorable, or

is not significantly probative, summary judgment may be granted.”
Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)).
The court views the facts in the light most favorable to the
non-moving party.

State Farm Fire & Casualty Co. v. Martin, 872

F.2d 319, 320 (9th Cir. 1989).

Opposition evidence may consist

of declarations, admissions, evidence obtained through discovery,
and matters judicially noticed.
477 U.S. at 324.

Fed. R. Civ. P. 56(c); Celotex,

The opposing party cannot, however, stand on

15

its pleadings or simply assert that it will be able to discredit
the movant’s evidence at trial. Fed. R. Civ. P. 56(e); T.W. Elec.
Serv., 809 F.2d at 630.

The opposing party cannot rest on mere

allegations or denials.

Fed. R. Civ. P. 56(e); Gasaway v.

Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir.
1994).

When the non-moving party relies only on its own

affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.

Hansen v. United States, 7 F.3d 137, 138

(9th Cir. 1993); see also National Steel Corp. v. Golden Eagle
Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).
ANALYSIS
There are eight causes of action in the Second Amended
Complaint:
FIRST CAUSE OF ACTION:

Excessive Force in violation of the
Fourth Amendment to the United States
Constitution and Article I of the Hawaii
Constitution pursuant to 42 U.S.C. §
1983
Stated by:
Plaintiffs Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, and Jessica Y.
Haleck, individually and as Guardian Ad
Litem for Jeremiah M.V. Haleck, William
E. Haleck, and Verdell B. Haleck
(hereinafter “the individual
Plaintiffs”)
Stated against:
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash
16

SECOND CAUSE OF ACTION:

Violations of the Due Process Clause of
the Fourteenth Amendment to the United
States Constitution Pursuant to 42
U.S.C. § 1983
Stated by:
Plaintiff Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, and the individual
Plaintiffs
Stated against:
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash

THIRD CAUSE OF ACTION:

Municipality and Supervisor Liability
for United States Constitutional
Violations pursuant to 42 U.S.C. § 1983
Stated by:
Plaintiff Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, and the individual
Plaintiffs
Stated against:
Defendants City and County of Honolulu
and Louis M. Kealoha

FOURTH CAUSE OF ACTION:

Assault and Battery
Stated by:
Plaintiff Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, and the individual
Plaintiffs
Stated against:
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash

FIFTH CAUSE OF ACTION:

Intentional Infliction of Emotional
Distress
Stated by:
17

Plaintiff Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, and the individual
Plaintiffs
Stated against:
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash
SIXTH CAUSE OF ACTION:

Negligence
Stated by:
Plaintiff Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, and the individual
Plaintiffs
Stated against:
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash

SEVENTH CAUSE OF ACTION: Negligent Infliction of Emotional
Distress
Stated by:
Plaintiff Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, and the individual
Plaintiffs
Stated against:
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash
EIGHTH CAUSE OF ACTION:

Interference With Civil Rights
Stated by:
Plaintiff Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, and the individual
Plaintiffs
Stated against:
Defendants City and County of Honolulu
18

and Louis M. Kealoha
Plaintiffs move for partial summary judgment in their favor
as to Causes of Action 1-3.
Defendants move for summary judgment in their favor as to
all Causes of Action 1-8.

FIRST CAUSE OF ACTION:

Excessive Force in Violation of the
Fourth Amendment to the United States
Constitution and Article I of the
Constitution of the State of Hawaii
Pursuant to 42 U.S.C. § 1983 Stated by
All Plaintiffs Against the Defendant
Officers Chung, Critchlow, and Kardash

A plaintiff may challenge actions by government officials
that violate the United States Constitution, pursuant to 42
U.S.C. § 1983.

Section 1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage ... subjects,
or causes to be subjected, any citizen of the United
States ... to deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
redress....
42 U.S.C. § 1983.
substantive rights.

Section 1983 does not create any

Cholla Ready Mix, Inc. v. Civish, 382 F.3d

969, 978 (9th Cir. 2004).
To prevail on a Section 1983 claim, a plaintiff must
establish that a right secured by the Constitution or law of the
19

United States was violated and that the violation was committed
by a person acting under the color of state law.

West v. Atkins,

487 U.S. 42, 48 (1988).
A.

Standing

The First Cause of Action is stated by Plaintiffs Gulstan E.
Silva, Jr., as Personal Representative of the Estate of Sheldon
Paul Haleck, and Jessica Y. Haleck, individually and as Guardian
Ad Litem for Jeremiah M.V. Haleck, William E. Haleck, and Verdell
B. Haleck against the Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash in both their individual
capacities and their official capacities as Honolulu Police
Officers.
In Section 1983 actions, the survivors of an individual who
allegedly died as a result of an officer’s excessive use of force
may assert a Fourth Amendment claim on that individual’s behalf
if the relevant state’s law authorizes a survival action.
Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 369 (9th
Cir. 1998).
Hawaii law permits the decedent’s “legal representative” to
pursue his tort claims.

Haw. Rev. Stat. § 663-7.

The term,

“legal representative,” has not been defined by statute or the
Hawaii Supreme Court.
The interpretation of the term “legal representative” in

20

Haw. Rev. Stat. § 663-7 was considered by the federal district
court in Agae v. United States, 125 F.Supp.2d 1243, 1248 (D. Haw.
2000).

In Agae, the district court found that a legal

representative generally refers to one who stands in place of,
and represents the interests of another such as an administrator
of an estate or a court appointed guardian of a minor.

Id.

The

district court found that the term is not so broad so as to allow
an individual heir to a decedent to file a claim on his or her
behalf.

Id. at 1248.

The district court found that the term

“legal representative,” as used in Haw. Rev. Stat. § 663-7, is
limited to one who stands in the place of the deceased and
represents his interest, either by the decedent’s act or by the
operation of law, citing Mutual Life Ins. v. Armstrong, 117 U.S.
591, 597 (1886).

Agae, 125 F.Supp.2d at 1248.

In this case, the Second Amended Complaint states that
Sheldon Haleck’s estate is represented by Plaintiff Gulstan E.
Silva, Jr.

(Second Amended Complaint at ¶ 8, ECF No. 189).

Plaintiff Silva, as personal representative of the decedent’s
estate, has standing to assert a Fourth Amendment Excessive Force
Claim pursuant to Section 1983 on the decedent’s behalf.
The remaining Plaintiffs Jessica Y. Haleck, individually and
as Guardian Ad Litem for Jeremiah M.V. Haleck, William E. Haleck,
and Verdell B. Haleck, allege they are related to the decedent
Sheldon Haleck.

Their status as relatives does not confer upon

21

them standing to pursue decedent Sheldon Haleck’s Fourth
Amendment claim pursuant to Haw. Rev. Stat. § 663-7.

Agae, 125

F.Supp.2d at 1248; Ryder v. Booth, Civ. No. 16-00065HG-KSC, 2016
WL 2745809, *5 (D. Haw. May 11, 2016) (finding that only one
plaintiff had standing to pursue the decedent’s Section 1983
claim on behalf of the decedent’s estate).
Plaintiffs Jessica Y. Haleck, individually and as Guardian
Ad Litem for Jeremiah M.V. Haleck, William E. Haleck, and Verdell
B. Haleck do not have individual standing to bring a Fourth
Amendment Excessive Force Claim.

There are no facts that

Plaintiffs Jessica Y. Haleck, Jeremiah M.V. Haleck, William E.
Haleck, or Verdell B. Haleck were involved in the March 16, 2015
incident that would allow them to pursue their own Section 1983
excessive force claims.
Defendant Officers Chung, Critchlow, and Kardash’s Amended
Motion for Summary Judgment is GRANTED, IN PART, as to Plaintiffs
Jessica Y. Haleck, individually and as Guardian Ad Litem for
Jeremiah M.V. Haleck, William E. Haleck, and Verdell B. Haleck’s
Claim in the First Cause of Action in the Second Amended
Complaint.
Plaintiffs Jessica Y. Haleck, individually and as Guardian
Ad Litem for Jeremiah M.V. Haleck, William E. Haleck, and Verdell
B. Haleck’s Amended Motion for Partial Summary Judgment as to the
First Cause of Action is DENIED.

22

Plaintiffs Jessica Y. Haleck, individually and as Guardian
Ad Litem for Jeremiah M.V. Haleck, William E. Haleck, and Verdell
B. Haleck may not bring an excessive force claim on behalf of
Sheldon Paul Haleck.
Plaintiff Gulstan E. Silva, Jr., as Personal Representative
of the Estate of Sheldon Paul Haleck, is the only Plaintiff with
standing to bring an Excessive Force Claim pursuant to Section
1983.
B.

Section 1983 Does Not Permit State Constitutional
Claims

In the First Cause of Action, Plaintiff Silva alleges the
Defendant Officers Chung, Critchlow, and Kardash violated Sheldon
Haleck’s rights under the Fourth Amendment to the United States
Constitution and Article I of the Hawaii Constitution pursuant to
42 U.S.C. § 1983. (Second Amended Complaint at pp. 11-12, ECF No.
189).

Plaintiff Silva is unable to assert a Section 1983 claim

pursuant to a violation of the Hawaii State Constitution.
Section 1983 is a remedy for violations of federal rights.
Violations of state law, including a state constitution, are not
cognizable pursuant to Section 1983.

Maizner v. Hawaii Dept. of

Educ., 405 F.Supp.2d 1225, 1240 (D. Haw. 2005) (citing Lovell v.
Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996)).
Plaintiff Silva may not bring an excessive force claim in
violation of the Hawaii Constitution pursuant to Section 1983.
23

Defendant Officers Chung, Critchlow, and Kardash’s Amended
Motion for Summary Judgment is GRANTED, IN PART, as to Plaintiff
Silva’s Claim in the First Cause of Action as an alleged
violation of Article I of the Hawaii State Constitution pursuant
to 42 U.S.C. § 1983.
Plaintiff Silva’s Amended Motion for Partial Summary
Judgment as to the First Cause of Action as an alleged violation
of Article I of the Hawaii State Constitution pursuant to 42
U.S.C. § 1983 is DENIED.

C.

Individual and Official Capacities

Plaintiff Silva asserts the First Cause of Action against
Defendant Honolulu Officers Chung, Critchlow, and Kardash in both
their official and individual capacities.
A suit against a police officer in his or her official
capacity is the equivalent of naming the government entity itself
as the defendant.

Kentucky v. Graham, 473 U.S. 159, 165-67

(1985); Community House, Inc. v. City of Boise, 623 F.3d 945,
966-67 (9th Cir. 2010).
The Defendant City and County of Honolulu is already a named
defendant.

Plaintiff has brought the Third Cause of Action

against the Defendant City and County of Honolulu pursuant to
Section 1983.
Duplicative Section 1983 claims may not be brought against
24

both the municipality itself and against the individual
government officials in their official capacities.

Vance v.

Cnty. of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996); see
Lawman v. City and Cnty. of San Francisco, 159 F.Supp.3d 1130,
1143 n.7 (N.D. Cal. 2016).
Plaintiff’s Section 1983 Claim in the First Cause of Action
against Defendant Honolulu Officers Chung, Critchlow, and Kardash
in their official capacities is duplicative of Plaintiff’s Third
Cause of Action against the Defendant City and County of
Honolulu.

McFarland v. City of Clovis, 163 F.Supp.3d 798, 808

(E.D. Cal. 2016); Carnell v. Grimm, 872 F.Supp. 746, 752 (D. Haw.
1994).
Defendant Officers Chung, Critchlow, and Kardash’s Amended
Motion for Summary Judgment is GRANTED, IN PART, as to Plaintiff
Silva’s Section 1983 Claim in the First Cause of Action against
the Defendant Officers in their official capacities.
Plaintiff Silva’s Amended Motion for Partial Summary
Judgment as to the Section 1983 Claim in the First Cause of
Action against Defendant Officers Chung, Critchlow, and Kardash,
in their official capacities, is DENIED.
The remaining claim in the First Cause of Action is as
follows:
Plaintiff Silva’s Claim for Excessive Force in
violation of the Fourth Amendment to the United States
Constitution pursuant to 42 U.S.C. § 1983 as stated
against Defendant Officers Chung, Critchlow, and
25

Kardash in their individual capacities.
D.

Excessive Force

A person deprives another of a constitutional right, within
the meaning of Section 1983, if he does an affirmative act,
participates in another’s affirmative acts, or omits to perform
an act which he is legally required to do that causes the
deprivation of which the plaintiffs complain.

Leer v. Murphy,

844 F.2d 628, 633 (9th Cir. 1988).
Plaintiff Silva asserts that Defendant Honolulu Officers
Chung, Critchlow, and Kardash used excessive force in the course
of their arrest of Haleck.

It is undisputed that Officers Chung,

Critchlow, and Kardash acted under color of state law when they
acted to seize and arrest Haleck.
The use of force in the course of an arrest is analyzed
pursuant to the Fourth Amendment of the United States and its
reasonableness standard.
(1989).

Graham v. Connor, 490 U.S. 386, 397

The reasonableness inquiry is an objective one: the

question is if the officer’s actions are objectively reasonable
in light of the facts and circumstances confronting them.
id.

See

The essence of the reasonableness inquiry is a balancing of

the force which was applied against the need for that force.
Liston v. Cnty. of Riverside, 120 F.3d 965, 976 (9th Cir. 1997).
Determining whether the force used to effect a particular

26

seizure is reasonable pursuant to the Fourth Amendment requires a
careful balancing of the “nature and quality of the intrusion on
the individual’s Fourth Amendment interests” against the
countervailing governmental interests at stake.

Graham, 490 U.S.

at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)).
1.

Nature and Quality of the Intrusion

The gravity of the particular intrusion that a given use of
force imposes upon an individual’s liberty interest is measured
by “the type and amount of force inflicted.”

Jackson v. City of

Bremerton, 268 F.3d 646, 651-52 (9th Cir. 2001) (citing Chew v.
Gates, 27 F.3d 1432, 1440 (9th Cir. 1994)).
In this case, it is undisputed that on March 16, 2015,
Honolulu Police Officers Chung, Critchlow, and Kardash seized and
arrested Sheldon Haleck.

During the course of the seizure and

arrest, Officers Chung, Critchlow, and Kardash repeatedly used
pepper spray on Haleck.

(Chung Depo. at pp. 37-38, ECF No. 196-

4; Critchlow Depo. at p. 48, ECF No. 196-5; Kardash Depo. at p.
36, ECF No. 196-6).
The use of pepper spray is a form of force capable of
inflicting significant pain and causing serious injury.

Young v.

Cnty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011).
Pepper spray is regarded as an “intermediate force” that, while
less than deadly force, presents a significant intrusion upon an

27

individual’s liberty interests.

Nelson v. City of Davis, 685

F.3d 867, 878 (9th Cir. 2012).
There is no dispute that a Taser was deployed by Officer
Chung at Haleck.

(Chung Depo. at pp. 49-51, ECF No. 196-4;

Critchlow Depo. at p. 51, ECF No. 196-5; Kardash Depo. at p. 44,
ECF No. 196-6).
The use of a Taser constitutes an intermediate use of force.
Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010).

The

Ninth Circuit Court of Appeals has considered the effects of
Tasers at length and held that they constitute an “intermediate
significant level of force that must be justified by the
governmental interest involved.”

Id.

In MacPherson, the plaintiff was shot with a Taser that
caused him to fall face-first to the ground.

Id.

The plaintiff

suffered facial contusions and four fractured teeth as a result
of the Taser use.

Id.

The Ninth Circuit Court of Appeals held

that the “physiological effects, the high levels of pain, and
foreseeable risk of physical injury lead us to conclude that the
X26 [Taser] and similar devices are a greater intrusion than
other non-lethal methods of force we have confronted.”

Id.

The

appellate court explained that the Taser delivered in dart-mode
sends an electrical impulse that instantly overrides the victim’s
central nervous system, paralyzing the muscles throughout the
body, rendering the target limp and helpless.

28

Id.

The appeals court stated that the pain caused by a Taser is
“intense, is felt throughout the body, and ... [may cause]
immobilization, disorientation, loss of balance, and weakness.”
Id. (quoting Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2
(7th Cir. 1990)); see also Mattos v. Agarano, 661 F.3d 433, 443
(9th Cir. 2011) (en banc) (reviewing excessive force claims for
use of a Taser).
The Parties dispute the effect of the Taser and if the Taser
shocked Haleck.

The Chief Medical Examiner, Dr. Happy, stated in

his autopsy report that there was “no evidence of Taser barb
penetration of the skin.”

(Autopsy Report of Sheldon P. Haleck

at p. 1, attached as Ex. A to Def. Honolulu’s CSF, ECF No. 13613).

The autopsy report also stated that the “Taser deployment

[was] ineffective according to police reports.”

(Id.)

Dr. Happy

provided a Declaration stating that “there was no indication or
evidence that Haleck suffered from Taser related injuries.”
(Declaration of Dr. Happy, attached to Def. Honolulu’s CSF, ECF
No. 136-4).
Plaintiff provided an expert report from Richard Lichten, a
law enforcement specialist.

(Lichten Report attached as Ex. B to

Pla.’s CSF, ECF No. 147-1).

Lichten stated in his Report that he

reviewed the autopsy photographs and saw evidence of small red
wounds called “erythema,” which are consistent with the wounds
caused by Taser probes.

(Id. at pp. 10-11).

29

The Parties dispute the reason Haleck fell to the ground,
allowing Officers to seize him.

Plaintiff asserts that Haleck

fell because of the Taser triggered by Officer Chung.
Defendant Officers claim that Haleck tripped.

The

(Critchlow Depo.

at p. 54, ECF No. 196-5; Kardash Depo. at p. 45, ECF No. 196-6).
The genuine disputes of fact regarding the use and
effectiveness of the Taser prevent the Court from entering
summary judgment for either party.

The facts as to the use of

force must be balanced by the government interest.

With disputed

facts as to the use of force in this case, summary judgment is
inappropriate.

Santos v. Gates, 287 F.3d 846, 854 (9th Cir.

2002) (explaining that summary judgment is impermissible in
excessive force cases where there are material disputes of fact).
2.

Governmental Interest

Courts examine three main factors when evaluating the
governmental interest in the use of force:
(1)

whether the suspect poses an immediate threat to the
safety of the officers or others;

(2)

the severity of the crime at issue; and,

(3)

whether the suspect actively resists detention or
attempts to escape.

Liston, 120 F.3d at 968; McPherson, 630 F.3d at 825.

The

list of factors to be examined by the court is non-exhaustive.
In addition to the three main factors, courts examine the

30

totality of the circumstances and whatever specific factors may
be appropriate in a particular case.

Franklin v. Foxworth, 31

F.3d 873, 876 (9th Cir. 1994).
(a)

Immediate Threat to the Safety of the
Officers and Others

The most important factor concerning the governmental
interest is whether the suspect posed an “immediate threat to the
safety of the officers or others.”
F.3d 689, 702 (9th Cir. 2005).

Smith v. City of Hemet, 394

A statement by an officer that he

subjectively feared for his safety or the safety of others is
insufficient, there must be objective factors to justify such a
concern.

Mattos, 661 F.3d at 441-42 (citing Deorle v.

Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001)).
Haleck’s presence in a busy street, at night, is central to
the question of danger to the officers and others.

The disputes

of fact as to the severity of the threat prevent summary judgment
for any of the Parties on this claim.
The Ninth Circuit Court of Appeals has explained that
summary judgment should be granted sparingly in excessive force
cases because the reasonableness inquiry for such a claim “nearly
always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom.”

Santos, 287 F.3d

at 853 (citing Liston, 120 F.3d at 976 n.10).
Summary judgment is not appropriate considering the genuine
31

disputes of fact as to the immediate threat to the safety to the
Defendant Officers and others.

There are disputes of fact as to

other matters as well.
(b)

Severity of the Crime At Issue

The Ninth Circuit Court of Appeals held in Velazquez v. City
of Long Beach, 793 F.3d 1010, 1026 (9th Cir. 2015), that an
excessive force analysis takes into account the facts known to
the police at the time of the arrest with respect to the alleged
offense that triggered the arrest.

The severity of the crime

factor is diminished as a justification for the use of force
where officers are presented with circumstances indicating that
no crime, or a minor crime was committed.

Id. at 1025; Nelson,

685 F.3d at 880.
Haleck was arrested for a charge of disorderly conduct.
(Critchlow Depo. at pp. 67-68, ECF No. 196-5).

The Parties

dispute if there was a basis to arrest Haleck for a more severe
crime.

An issue of fact remains concerning the level of force

used by the Defendant Officers.

The question is: was the level

of force objectively reasonable in light of the totality of the
circumstances?
(c)

Resistance or Attempt to Escape

There are also disputes of fact as to the level of
resistance made by Haleck.
32

The Defendant Officers testified that after Haleck fell to
the ground, he resisted his arrest by reportedly “flailing,”
“squirming,” and “kicking.”

(Critchlow Depo. at p. 57, ECF No.

196-5).
The Ninth Circuit Court of Appeals has explained that, in
cases where officers are involved in deadly incidents, and the
officers and the decedent are the only witnesses, courts must
carefully examine all the evidence in the record.
of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014).

Cruz v. City
It is necessary

to determine if the officers’ stories are internally consistent
and consistent with other known facts.

Id.

The Parties agree that there was some level of resistance by
Haleck.

There is no dispute that Haleck repeatedly refused to

comply with the Officers’ instructions to move to the sidewalk.
Haleck ran away from the Officers and evaded seizure.
Genuine disputes of material fact remain which prevent an
objective assessment of the use of force in the totality of the
circumstances.

The Parties do not agree on the facts as to how

Haleck was ultimately restrained.
of Haleck’s fall.

The Parties dispute the cause

There is disagreement between the Parties’

experts as to the use and effectiveness of the Taser.

The

genuine disputes of material facts prevent the Court from
granting summary judgment.

33

E.

Qualified Immunity

Defendant Officers Chung, Critchlow, and Kardash argue that
they are immune from liability as to the excessive force claim.
The doctrine of qualified immunity shields public officials
from personal liability when performing discretionary functions,
unless their conduct violates a statutory or constitutional right
that was clearly established at the time of the challenged
conduct.

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

A

constitutional right is clearly established when every reasonable
official would have understood that what he is doing violates
that right.

Id. at 741; see Bremerton, 268 F.3d at 651.

The determination whether a right was clearly established
must be undertaken in light of the specific context of the case,
not as a broad general proposition.
U.S. 223, 232 (2009).

Pearson v. Callahan, 555

The inquiry is case specific but it is not

so narrowly defined to preclude any potential claims without
identical fact patterns.

Kelly v. Borg, 60 F.3d 664, 667 (9th

Cir. 1995).
The United States Supreme Court has explained that officials
can be on notice that their conduct violates established law even
in novel factual situations.
(2002).

Hope v. Pelzer, 536 U.S. 730, 741

A plaintiff need not establish that the officers’ exact

behavior had been previously declared unconstitutional, only that
the unlawfulness of their actions was apparent in light of
34

preexisting law.

Jensen v. City of Oxnard, 145 F.3d 1078, 1085

(9th Cir. 1998).
Qualified immunity is an affirmative defense and the burden
of proof initially lies with the official asserting the defense.
Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1987).

A plaintiff

seeking summary judgment on an excessive force claim, however,
must prove both that there was a constitutional violation and
that the right was clearly defined.

See Morales v. City of

Delano, 852 F.Supp.2d 1253, 1267 (E.D. Cal 2012) (citing Mueller
v. Auker, 576 F.3d 979, 989 (9th Cir. 2009)).
Here, the question of whether the Defendant Officers’
conduct violated a clearly established constitutional right turns
on issues of fact that are in dispute.
Plaintiff relies on Mattos v. Agarano, 661 F.3d 433 (9th
Cir. 2011) for the position that it has been clearly established
in the Ninth Circuit Court of Appeals that the use of a Taser may
constitute excessive force in certain circumstances.

The two

fact patterns in Mattos are not similar to the fact in this case
and do not assist the Plaintiff.
The use of pepper spray may also constitute excessive force,
depending on the facts of the case.

Headwaters Forest Def. v.

Cnty. of Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002); LaLonde
v. Cnty. of Riverside, 204 F.3d 947, 960-61 (9th Cir. 2000).
The extent to which the law is “clearly established” in the

35

Fourth Amendment reasonableness context is fact-specific.
Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 n.6 (9th Cir.
2013).

The material disputes of fact here do not permit a

finding of summary judgment as to the issue of qualified
immunity.
There are questions of fact as to the use and effectiveness
of the Taser triggered by Officer Chung.

There are questions as

to the extent that Haleck posed a threat to the Officers and
others.

There is also a question about the immediacy and level

of threat the traffic on South King Street posed during the
incident.

See Cruz, 765 F.3d at 1079.

The Ninth Circuit Court of Appeals has found police officers
are not entitled summary judgment on the basis of qualified
immunity when there are disputes of fact that could lead a jury
to find in favor of the plaintiff.

Ortega v. San Diego Police

Dept., 669 Fed. Appx. 922, 923 (9th Cir. 2016).
Plaintiff Silva’s Amended Motion for Partial Summary
Judgment as to the First Cause of Action in the Second Amended
Complaint is DENIED.
Defendant Officers Chung, Critchlow, and Kardash’s Amended
Motion for Summary Judgment as to the First Cause of Action in
the Second Amended Complaint stated by Plaintiff Gulstan E.
Silva, Jr., as Personal Representative of the Estate of Sheldon
Paul Haleck, is DENIED.

36

The Excessive Force Claim stated by Plaintiffs Jessica Y.
Haleck, individually and as Guardian Ad Litem for Jeremiah M.V.
Haleck, William E. Haleck, and Verdell B. Haleck is DENIED, as a
matter of law.
The First Cause of Action for Excessive Force in Violation
of the Fourth Amendment to the United States Constitution
Pursuant to 42 U.S.C. § 1983 stated by Plaintiff Gulstan E.
Silva, Jr., as Personal Representative of the Estate of Sheldon
Paul Haleck, against Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash in their individual capacities
remains for trial.

SECOND CAUSE OF ACTION:

Violations of the Due Process Clause of
the Fourteenth Amendment to the United
States Constitution Pursuant to 42
U.S.C. § 1983 Stated by All Plaintiffs
Against the Defendant Officers Chung,
Critchlow, and Kardash

Plaintiff Gulstan E. Silva, Jr., as Personal Representative
of the Estate of Sheldon Haleck, and Jessica Y. Haleck,
individually and as Guardian Ad Litem for Jeremiah M.V. Haleck,
William E. Haleck, and Verdell B. Haleck, allege that Defendant
Officers Chung, Critchlow, and Kardash violated their individual
rights under the Fourteenth Amendment to the United States
Constitution pursuant to 42 U.S.C. § 1983.
37

(Second Amended

Complaint at pp. 12-13, ECF No. 189).
A.

Standing

The Ninth Circuit Court of Appeals has recognized that
family members have a Fourteenth Amendment liberty interest in
familial companionship and society.

Wilkinson v. Torres, 610

F.3d 546, 554 (9th Cir. 2010); Tokuda v. Calio, Civ. No. 130202DKW-BMK, 2014 WL 5580959, *9 (D. Haw. Oct. 31, 2014).
Plaintiff Gulstan E. Silva, Jr., as the Personal
Representative of the Estate of Sheldon Haleck, may not bring a
Fourteenth Amendment claim where the estate’s claims are more
specifically covered by the Fourth Amendment.

Burns v. City of

Concord, 2014 WL 5794629, *8 (N.D. Cal. Nov. 6, 2014).
Plaintiff Gulstan E. Silva, Jr.’s Amended Motion for Partial
Summary Judgment as to the Second Cause of Action is DENIED.
Plaintiffs Jessica Y. Haleck, individually and as Guardian
Ad Litem of Jeremiah M.V. Haleck, William E. Haleck, and Verdell
B. Haleck have standing to pursue their Fourteenth Amendment
claims for their personal liberty interests as alleged family
members of the decedent.
B.

Due Process

Parents and children of a person killed by law enforcement
officers may assert a substantive due process claim based on the

38

deprivation of their liberty interest arising out of their
relationship with the deceased.

Moreland, 159 F.3d at 371.

A

substantive due process violation requires that law enforcement
officers’ conduct “shock the conscience” when responding to an
emergency or an escalating situation.

Porter v. Osborn, 546 F.3d

1131, 1137 (9th Cir. 2008).
Plaintiffs must prove that the purpose of the Defendant
Officers’ conduct in using the pepper spray and the Taser was “to
cause harm unrelated to the legitimate object of arrest.”

Id. at

1140 (citing Cnty of Sacramento v. Lewis, 523 U.S. 833, 836
(1998)).
The United States Supreme Court has held that a purely
reactive decision to give chase or use force to seize a suspect
does not shock the conscience.

Lewis, 523 U.S. at 855.

Situations that shock the conscience are “rare situations where
the nature of an officer’s deliberate physical contact is such
that a reasonable factfinder would conclude that the officer
intended to harm, terrorize, or kill.”

Porter, 546 F.3d at 1141

(citing Davis v. Township of Hillside, 190 F.3d 167, 174 (3d Cir.
1999)).
In Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365,
368 (9th Cir. 1998), two officers responded to a dispatch call of
a fight outside a bar.

The officers arrived at the scene to see

a male firing a semiautomatic handgun at a group of individuals

39

across the parking lot who were returning fire.

Id.

between 50 and 100 people trapped in the crossfire.

There were
Id.

The

officers fired at the male when he failed to comply with their
orders to stop.

Id.

After the shooting ceased, the officers

discovered they had shot an alleged innocent standby who later
died.

Id.

The mother and children of the victim sued the officers
under the Fourteenth Amendment.

Id. at 371-72.

The Ninth

Circuit Court of Appeals found that the mother and children were
unable to prevail on the Fourteenth Amendment claim because there
was no evidence that the police officers intended to punish the
victim in a way that was unrelated to a legitimate law
enforcement objective.

Id. at 373.

The appellate court

explained that even if the officers acted recklessly or with
gross negligence in shooting into the parking lot, the officers
did not act in a way that shocks the conscience.

Id.

In this case, there is no dispute that actions of the police
officers occurred during an escalating situation within minutes
of arriving at a scene in the middle of a busy road in Downtown
Honolulu.
There is no evidence that Defendant Officers Chung,
Critchlow, or Kardash had any intent to inflict pain, terrorize,
harm, or kill the decedent Haleck in a way that was unrelated to
any legitimate law enforcement objective.

40

The deposition

testimony of the Officers indicates that they were each intending
to perform their legitimate law enforcement duties.
The Parties agree that Haleck repeatedly failed to comply
with the Officers’ orders to move to the sidewalk.

Haleck ran

from the Officers and evaded the Officers’ attempts to seize him.
There is no evidence that the Officers’ use of the pepper spray
and the Taser was used for a purpose other than to try to seize
Haleck pursuant to their law enforcement duties.
Regardless of whether the Officers’ amount of force was
reasonable, the actions of the Officers, construed in the light
most favorable to the Plaintiffs, does not demonstrate a purpose
to cause harm that would “shock the conscience.”

Moreland, 159

F.3d at 373; see Wilkinson, 610 F.3d at 554 (finding an officer’s
actions did not shock the conscience when he shot and killed the
driver of crashed minivan after a high speed chase as there was
no evidence that the officer used force that was unrelated to a
legitimate law enforcement objective).
There is no evidence to support a due process violation
pursuant to the Fourteenth Amendment to the United States
Constitution against the Defendant Officers.
Plaintiffs Jessica Y. Haleck, individually and as Guardian
Ad Litem for Jeremiah M.V. Haleck, William E. Haleck, and Verdell
B. Haleck’s Amended Motion for Partial Summary Judgment as to the
Second Cause of Action in the Second Amended Complaint is DENIED.

41

Defendant Officers Chung, Critchlow, and Kardash’s Amended
Motion for Summary Judgment as to the Second Cause of Action in
the Second Amended Complaint is GRANTED.

THIRD CAUSE OF ACTION:

Municipal and/or Supervisor Liability
Pursuant to 42 U.S.C. § 1983 Stated by
All Plaintiffs Against Defendants City
and County of Honolulu and Louis M.
Kealoha

Plaintiffs allege Defendant City and County of Honolulu and
Defendant Louis M. Kealoha, former police chief of the Honolulu
Police Department, are liable for constitutional violations of
Sheldon Haleck’s rights under theories of supervisor and
municipal liability pursuant to 42 U.S.C. § 1983.

(Second

Amended Complaint at pp. 13-14, ECF No. 189).
A.

Defendant City and County of Honolulu

Respondeat superior or vicarious liability is not available
under Section 1983.

Tokuhama v. City and City of Honolulu, 751

F.Supp. 1385, 1394 (D. Haw. 1989) (citing City of Canton v.
Harris, 489 U.S. 378, 385 (1989)).
The United States Supreme Court has held, however, that a
municipality is subject to damages liability under Section 1983
where action pursuant to official municipal policy causes a

42

constitutional tort.
658, 694 (1978).
claims.

Monell v. Dept. of Soc. Servs., 436 U.S.

Such claims are often referred to as Monell

The municipality itself must cause the constitutional

deprivation in order to be liable for such a claim.

Id.; Canton,

489 U.S. at 385 (requiring a direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation).
A municipality may be liable in a Section 1983 action under
two theories.

Under the first theory, a municipality is liable

for injuries caused by a municipality’s unconstitutional policy
or custom.

Monell, 436 U.S. at 694; Webb v. Sloan, 330 F.3d

1158, 1164 (9th Cir. 2003).

The official policy or custom

requirement limits municipal liability to actions in which the
municipality is actually responsible for the unconstitutional
act.

Young v. Hawaii, 911 F.Supp.2d 972, 985 (D. Haw. 2012);

Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986).
The second action for which a municipality may be held
liable under Section 1983 is for failure to train, supervise, or
discipline its employees.

Canton, 489 U.S. at 387.

Municipal

liability may be imposed when “the need for more or different
training is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policymakers of
the city can reasonably be said to have been deliberately
indifferent to the need.”

Id. at 390.

43

Here, Plaintiffs do not argue that the Honolulu Police
Department had an unconstitutional policy or custom.

Plaintiffs

cite to the written policies for use of force and the use of the
Taser.

(Honolulu Police Department Policy 1.04 for Use of Force,

attached as Ex. I to Pla.’s CSF, ECF No. 147-5; Honolulu Police
Department Policy 1.15 for Use of Electric Gun, attached as Ex. J
to Pla.’s CSF, ECF No. 147-6).

Plaintiffs claim that the

Honolulu Police Department’s written policies correctly classify
the use of pepper spray and the use of a Taser as intermediate
types of force.
Plaintiffs argue, however, that Defendant Officers Chung,
Critchlow, and Kardash were inadequately trained and supervised
with respect to the use of pepper spray and the use of a Taser.
Plaintiffs also argue that the Defendant Officers were not
properly disciplined because they were never interviewed by
anyone from Internal Affairs or the Police Commission and were
not disciplined in connection with the March 16, 2015 incident.
1.

Failure to Train

Liability may only be imposed for failure to train when that
failure reflects a deliberate or conscious choice by a
municipality.

Canton, 489 U.S. at 389.

Deliberate indifference

in the municipal context is an objective standard.

Castro v.

Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016).

44

Deliberate indifference may be shown through a pattern of
tortious conduct by inadequately trained employees or where a
violation of federal rights may be a highly predictable
consequence of a failure to equip law enforcement with specific
tools to handle recurring situations.

Bd. of Cnty. Comm’rs v.

Brown, 520 U.S. 397, 407-09 (1997).
Construing the record in the light most favorable to the
Plaintiffs, they have not demonstrated that the Defendant City
and County of Honolulu had actual or constructive notice that its
officer training was deficient.
The Defendant City and County of Honolulu submitted an
expert report from John G. Peters, Jr., Ph.D., stating that it is
his opinion that the City and County of Honolulu “met and/or
exceeded national standards, recommendations, and/or guidelines
for the development of policies and procedures for their
officers” including training and lesson plans on the use of force
and the use of a Taser “that meet or exceed lesson plan standards
for career and technical training and testing of law enforcement
officers.”

(Declaration of John G. Peters, Jr., Ph.D., attached

to Honolulu’s CSF, ECF No. 136-6; Expert Report of John G.
Peters, Jr., Ph.D., attached as Ex. E to Honolulu’s CSF, ECF No.
136-17).
The Defendant City and County of Honolulu submitted the
Declaration of Brandon Ogata, a Lieutenant at the Honolulu Police

45

Department Training Division.

(Declaration of Brandon Ogata,

attached to Honolulu’s CSF, ECF No. 149-1).

Lieutenant Ogata

stated that Officers Chung, Critchlow, and Kardash each received
training at the Honolulu Police Department’s Recruit Training
Course and continue to attend Annual Recall Training.
9, 12).

(Id. at ¶¶

Lieutenant Ogata stated that Officer Chung was properly

trained, certified, and authorized to carry and use the Taser on
March 16, 2015.

(Id. at ¶¶ 11, 22).

A pattern of constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate
indifference for purposes of failure to train.
Thompson, 563 U.S. 51, 62 (2011).
presented by the Plaintiffs.

Connick v.

There is no such evidence

Plaintiffs have alleged there was

one incident where an officer was disciplined in 2013 involving
the use of a Taser.

(Pla.’s Reply at p. 7, ECF No. 216; News

Report from KHON2 dated March 11, 2014, attached as Ex. L to
Pla.’s Opp., ECF No. 155-3).
Plaintiffs’ allegation of one discrete incident is
insufficient to put the City and County on notice that its course
in training is insufficient in a particular respect.

Flores v.

Cnty. of Los Angeles, 758 F.3d 1154, 1159-61 (9th Cir. 2014).
Plaintiffs have not demonstrated that this is one of the narrow
range of cases where it was “patently obvious” that the
Defendant’s training program was insufficient.

46

Kirkpatrick v.

Cnty. of Washoe, 843 F.3d 784, 794 (9th Cir. 2016) (en banc).
Plaintiffs claim to be awaiting additional discovery as to the
City and County’s records of incidents involving Tasers, but they
have not supplemented their briefing and have not filed any
Motion with the Court as to any outstanding discovery requests.
The Defendant City and County of Honolulu denies that any
discovery remains outstanding.
Even if Plaintiffs demonstrated that the Defendant City and
County had notice as to its failure to train, there is no
evidence that the Defendant City and County was deliberately
indifferent.

Plaintiffs have not provided any evidence that the

Defendant City and County of Honolulu was aware of incidents
where constitutional rights were violated and that it made a
conscious choice to ignore the incidents.

Blankenhorn v. City of

Orange, 485 F.3d 463, 484-85 (9th Cir. 2007).
2.

Failure to Discipline

There is similarly no basis for a Monell claim based on the
failure to discipline.
In this case, the Honolulu Police Department engaged in an
administrative review of the incident involving Haleck on March
16, 2015.

(Report of Administrative Review of Critical Incident

Involving Officer Christopher G. Chung at p. 1, attached as Ex. F
to Pla.’s CSF, ECF No. 147-2).

47

On August 20, 2015, the Honolulu Police Department’s
Administrative Review Board convened, reviewed the report issued
by the Professional Standards Office, and recommended a finding
that no further action be taken against Officer Chung.
(Declaration of Dave M. Kajihiro, former Deputy Chief of Police
and Chair of the Administrative Review Board, (“Kajihiro Decl.”)
at ¶ 5, ECF No. 136-9).
The Chair of the Administrative Review Board prepared a
memorandum as to its findings to former Police Chief Louis M.
Kealoha.

(Memorandum as to Officer Chung dated August 20, 2015,

attached as Ex. G to Pla.’s CSF, ECF No. 147-2).
On September 1, 2015, Officer Chung received a notice from
the Honolulu Police Department’s Human Resources Division that
the Professional Standards Office and the Administrative Review
Board found that his actions surrounding the incident on March
16, 2015 were within acceptable parameters.

(Notice of

Disposition of Administrative Review dated September 1, 2015,
attached as Ex. H to Pla.’s CSF, ECF No. 147-4).
Plaintiffs may not prevail on their claim solely on the
basis that they believe the Defendant Officers should have been
disciplined.

Decisions in this District have emphasized that

something more than the failure to reprimand is required to
prevail on a Monell claim.

Kanae v. Hodson, 294 F.Supp.2d 1179,

1190-91 (D. Haw. 2003); Long v. City and Cnty. of Honolulu, 378

48

F.Supp.2d 1241, 1248-49 (D. Haw. 2005).
Plaintiffs have not provided evidence that the
administrative review process is futile or that it is nearly
impossible for an officer to be disciplined.
F.Supp.2d at 1190.

Kanae, 294

Plaintiffs’ expert opinion that is in

disagreement with the conclusion of the Honolulu Police
Department’s Administrative Review Board is insufficient to
create a triable issue of fact for the jury.

Long, 378 F.Supp.2d

at 1248-49.
Plaintiffs have not established a Section 1983 Monell claim
against the Defendant City and County of Honolulu.
Plaintiffs’ Amended Motion for Partial Summary Judgment as
to the Third Cause of Action in the Second Amended Complaint, as
stated against the Defendant City and County of Honolulu, is
DENIED.
Defendant City and County of Honolulu’s Amended Motion for
Summary Judgment as to the Third Cause of Action in the Second
Amended Complaint is GRANTED.

B.

Defendant Kealoha

Plaintiffs seek to bring a Section 1983 supervisor liability
claim against Defendant Louis M. Kealoha as former Chief of
Police of the Honolulu Police Department.

49

1.

Failure to Supervise

A supervisor is liable under Section 1983 for a
subordinate’s constitutional violations if the supervisor
participated in or directed the violations, or knew of the
violations and failed to act to prevent them.

Maxwell v. Cnty.

of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013) (citing Taylor
v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)) (internal quotation
marks omitted).
Defendant Kealoha was not present at the March 16, 2015
incident.

There is no evidence that he participated in or

directed the alleged violations.

Corales v. Bennett, 567 F.3d

554, 570 (9th Cir. 2009).
Plaintiffs have also not provided any evidence that
Defendant Kealoha was personally involved in the hiring or
training of Defendant Officers Chung, Critchlow, and Kardash.
Plaintiffs have not provided any evidence that Defendant
Kealoha’s own actions or failure to act caused the alleged
constitutional violations in this case.

Dang v. City of Garden

Grove, 2011 WL 3419609, *10 (C.D. Cal. Aug. 2, 2011) (granting
summary judgment in favor of the Chief of Police where there was
no evidence of the Chief’s role in either providing inadequate
training of use of a Taser).

50

2.

Ratification of Officers’ Actions

Beginning on March 18, 2015, the Honolulu Police Department
conducted an internal investigation of the March 16, 2015
incident involving Sheldon Haleck.

(Report of Administrative

Review of Critical Incident Involving Officer Christopher G.
Chung at p. 1, attached as Ex. F to Pla.’s CSF, ECF No. 147-2).
On August 20, 2015, the Chair of the Honolulu Police
Department’s Administrative Review Board prepared a memorandum as
to its findings regarding the incident to Defendant Kealoha.
(Memorandum as to Officer Chung dated August 20, 2015, attached
as Ex. G. to Pla.’s CSF, ECF No. 147-3).

Defendant Kealoha

concurred with the Board’s findings that Officer Chung’s use of
the Taser was within acceptable parameters.

(Notice of

Disposition of Administrative Review dated September 1, 2015,
attached as Ex. H to Pla.’s CSF, ECF No. 147-4).
Plaintiffs claim that Defendant Kealoha is liable as a
supervisor under Section 1983 because he concurred with the
Honolulu Police Department’s Administrative Review Board’s
finding.
Even construing the record in Plaintiffs’ favor and assuming
that the use of force was not permissible, Plaintiffs have failed
to provide evidence to support a claim against Defendant Kealoha.
In order to prevail on a Monell claim based on ratification,
Plaintiffs must show the supervisor made a conscious, affirmative
51

choice to ratify a constitutional violation that is tantamount to
confirmation of an official policy.

Tokuda, 2014 WL 5580959, at

*14; see Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999);
Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996).
Defendant Kealoha is only sued in his individual capacity,
and not in his official capacity as former Chief of Police of the
Honolulu Police Department.

An individual’s private actions

cannot constitute an official policy or constitute official
actions for purposes of municipal liability pursuant to a Monell
claim under Section 1983.

Jones v. Town of Quartzsite, 2014 WL

4771851, *12 (D. Ariz. Sept. 24, 2014) (citing Rivera v. Cnty. of
Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014)).
To the extent Plaintiffs may bring a Section 1983 claim
against Defendant Kealoha in his individual capacity, there is no
evidence that Defendant Kealoha deliberately chose to endorse the
actions of Officer Chung.
1348 (9th Cir. 1992).

Gillette v. Delmore, 979 F.2d 1342,

A mere failure to overrule the

unconstitutional, discretionary acts of a subordinate, without
expressing clear endorsement or approval of unlawful conduct, is
insufficient for the imposition of supervisor liability under
Section 1983.

Id.

Defendant Kealoha cannot be found to have ratified the
allegedly unconstitutional conduct by merely signing off on the
Administrative Board’s finding.

Courts have found that there

52

must be “something more than the mere evidence that a policymaker
concluded that the defendant officer’s actions were in keeping
with the applicable policies and procedures.”

Tokuda, 2014 WL

5580959, *14 (citing Garcia v. City of Imperial, 2010 WL 3911457,
at *2-*3 (S.D. Cal. 2010); Kanae, 294 F.Supp.2d at 1190-91; and
Larez v. City of Los Angeles, 946 F.2d 630, 646-48 (9th Cir.
1991) (internal quotation marks omitted)).

In addition, there is

no evidence that Defendant Kealoha’s ratification was the cause
of any alleged constitutional violation.

Long, 378 F.Supp.2d at

1248-49; Booke v. Cnty. of Fresno, 98 F.Supp.3d 1103, 1130 (E.D.
Cal. 2015).
Plaintiffs have not established a Section 1983 Monell claim
against Defendant Kealoha.
Plaintiffs’ Amended Motion for Partial Summary Judgment as
to the Third Cause of Action in the Second Amended Complaint, as
stated against Defendant Kealoha, is DENIED.
Defendant Kealoha’s Motion for Summary Judgment as to the
Third Cause of Action in the Second Amended Complaint is GRANTED.

FOURTH CAUSE OF ACTION:

Assault and Battery stated by all
Plaintiffs against Defendant Officers
Chung, Critchlow, and Kardash

FIFTH CAUSE OF ACTION:

Intentional Infliction of Emotional
Distress stated by all Plaintiffs
against Defendant Officers Chung,
Critchlow, and Kardash

53

SIXTH CAUSE OF ACTION:

Negligence stated by all Plaintiffs
against Defendant Officers Chung,
Critchlow, and Kardash

SEVENTH CAUSE OF ACTION: Negligent Infliction of Emotional
Distress stated by all Plaintiffs
against Defendant Officers Chung,
Critchlow, and Kardash
Plaintiffs Gulstan E. Silva, Jr., as Personal Representative
of the Estate of Sheldon Paul Haleck, and Jessica Y. Haleck,
individually and as Guardian Ad Litem for Jeremiah M.V. Haleck,
William E. Haleck, and Verdell B. Haleck have alleged state tort
law claims in Causes of Action 4-7 against Defendant Officers
Chung, Critchlow, and Kardash.
Plaintiffs do not allege Causes of Action 4-7 against the
Defendant City and County of Honolulu and Defendant Kealoha.
Under Hawaii law, non-judicial government officials acting
in the performance of their public duties enjoy a “qualified or
conditional privilege.”
1982).

Towse v. State, 647 P.2d 696, 702 (Haw.

The privilege protects the official from liability for

tortious acts unless the injured party demonstrates by “clear and
convincing proof” that the official was motivated by “malice and
not by an otherwise proper purpose.”

Id.

For torts other than

defamation, actual malice must be proven to overcome the
privilege.

Wereb v. Cnty. of Maui, 727 F.Supp.2d 898, 924 (D.

Haw. 2010).
“Actual malice” for purposes of the conditional privilege is
54

construed in its ordinary and usual sense to mean “the intent,
without justification or excuse, to commit a wrongful act,
reckless disregard of the law or of a person’s legal rights, and
ill will; wickedness of heart.”

Awakuni v. Awana, 165 P.3d 1027,

1042 (Haw. 2007).
Plaintiffs are unable to prevail on their negligence causes
of action in Causes of Action 6 and 7.

Plaintiffs must prove

that the Defendant Officers acted with “actual malice” in order
to overcome conditional privilege.

The element of actual malice

required to overcome a conditional privilege is “incompatible
with a claim based on negligence.”

Dawkins v. City and Cnty. of

Honolulu, 2011 WL 1598788, *15 (D. Haw. Apr. 27, 2011); Bartolome
v. Kashimoto, 2009 WL 1956278, at *2 (D. Haw. 2009); see Tagawa
v. Maui Pub. Co., 448 P.2d 337, 341 (Haw. 1968).
With respect to the remaining tort claims of assault and
battery and intentional infliction of emotional distress,
Plaintiffs have not pointed to any evidence that Officers Chung,
Critchlow, or Kardash were motivated by malice.

Carroll v. Cnty.

of Maui, Civ. No. 13-00066DKW-KSC, 2015 WL 1470732, *7 (D. Haw.
Mar. 31, 2015).

Officers Chung, Critchlow, and Kardash are

entitled to conditional privilege as to Plaintiffs’ state law
tort claims.

Tokuda, 2014 WL 5580959, *10 (granting summary

judgment for a defendant police officer when there was no
evidence in the record that the officer was motivated by malice).

55

Defendant Officers Chung, Critchlow, and Kardash’s Motion
for Summary Judgment as to Causes of Action 4-7 in the Second
Amended Complaint is GRANTED.

EIGHTH CAUSE OF ACTION:

Interference with Civil Rights Stated by
All Plaintiffs Against Defendants City
and County of Honolulu and Louis M.
Kealoha

Plaintiffs’ Eighth Cause of Action in their Second Amended
Complaint is a claim for “interference with civil rights.”
(Second Amended Complaint at p. 17, ECF No. 189).

Plaintiffs

assert the Eighth Cause of Action against the Defendant City and
County of Honolulu and Defendant Kealoha.
The Eighth Cause of Action concerns the timing of the
release of government records to Plaintiffs regarding the March
16, 2015 incident.
The Parties do not dispute the facts related to Plaintiffs’
Eighth Cause of Action:
On May 13, 2015, Plaintiffs’ Attorney sent a written request
to the Defendant City and County of Honolulu for government
records regarding the March 16, 2015 incident involving Haleck.
(Letter from Attorney Seitz to Chief of Police dated May 13,
2015, attached as Ex. H to Honolulu’s CSF, ECF No. 136-20).
Two weeks later, on May 27, 2015, the Defendant City and

56

County of Honolulu informed Attorney Seitz that it was unable to
disclose the records requested at that time because they were
protected pursuant to Hawaii Revised Statutes Section 92F-13(3)
and Section 92F-14.

(Letter from Defendant City and County of

Honolulu to Attorney Seitz dated May 27, 2015, attached as Ex. I
to Honolulu’s CSF, ECF No. 136-21).
The Defendant City and County identified in their letter
that disclosure of the records at that time was not appropriate
because the requested documents were part of an ongoing
investigation and were protected from release pending the outcome
of the investigation.

(Id.)

A month later, on June 30, 2015, the Honolulu Police
Department’s Media Liaison Office released two copies of videos
that showed the deployment of the Taser at decedent Haleck from
the night of March 16, 2015 to news media outlets.

(Declaration

of Sarah Yoro at ¶ 3, attached to Honolulu’s CSF, ECF No. 136-12;
CD containing videos attached as Ex. K to Honolulu’s CSF, ECF No.
136-23).

There is no evidence that the identity of Haleck as the

individual in the video was released to the media.
The next day, on July 1, 2015, media outlet KHON2 news
reported partial results from the autopsy report of the decedent
Haleck.

(KHON2 news article dated July 1, 2015, attached as Ex.

N to Pla.’s Opp., ECF No. 155-5).
Two weeks later, on July 13, 2015, the Defendant City and

57

County of Honolulu authorized the release of the entire autopsy
report and a copy of the report was mailed to Plaintiffs’
Attorney.

(Declaration of Chief Medical Examiner Dr. Christopher

Happy at ¶¶ 22-23, attached to Honolulu’s CSF, ECF No. 136-4).

A

copy of the autopsy report was also provided to a reporter for
the Civil Beat and to Queen’s Medical Center.

(Id. at ¶¶ 27,

29).
Plaintiffs’ Eighth Cause of Action is premised on the idea
that Plaintiffs did not receive the records they requested in a
timely manner.

Plaintiffs requested the records on May 13, 2015,

and they received the information two months later on July 13,
2015, after the conclusion of the Defendant City and County of
Honolulu’s investigation.
There is no legal or factual basis for Plaintiffs’ cause of
action.

Both the Defendant City and County of Honolulu and

Defendant Kealoha are entitled to summary judgment in their favor
as to Plaintiffs’ Eighth Cause of Action.
A.

Claim as to Defendant City and County of Honolulu

Plaintiffs have not articulated the legal basis for their
Eighth Cause of Action based on the timing of the disclosures of
the Taser videos and the autopsy report of Haleck.
The Defendant City and County of Honolulu did not violate
Plaintiffs’ rights.

It properly initially withheld the

58

information pursuant to two provisions in the Hawaii Uniform
Information Practices Act, Hawaii Revised Statutes 92F-13 and
92F-14.
1.

Hawaii Uniform Information Practices Act

The Hawaii Uniform Practices Act, codified at 92F-1 governs
the release of government records to the public.

The Defendant

City and County of Honolulu cited to the Act when it initially
declined to provide Plaintiffs with information as to the March
16, 2015 incident.

Hawaii Revised Statutes 92F-13(3), provides:

This part shall not require disclosure of government
records that, by their nature, must be confidential in
order for the government to avoid the frustration of a
legitimate government function.
Hawaii Revised Statutes 92F-14 provides:
(a)

Disclosure of a government record shall not
constitute a clearly unwarranted invasion of
personal privacy if the public interest in
disclosure outweighs the privacy interest of the
individual.

(b)

The following are examples of information in which
the individual has a significant privacy interest:
(1)

Information relating to medical,
psychiatric, or psychological history,
diagnosis, condition, treatment, or
evaluation, other than directory
information while an individual is
present at such facility;

(2)

Information identifiable as part of an
investigation into a possible violation
of criminal law, except to the extent
that disclosure is necessary to
prosecute the violation or to continue
59

the investigation.
Haw. Rev. Stat. 92F-14(a)-(b)(1)-(2).
Plaintiffs have not provided any basis to find that the
Defendant City and County of Honolulu violated either Haw. Rev.
Stat. 92F-13 or 92F-14.

Neither of the statutes requires the

dissemination of private material to the next of kin before its
general release.
Plaintiffs are unable to prevail on a claim pursuant to the
Hawaii Uniform Information Practices Act.

Morgan v. Cnty. of

Hawaii, Civ. No. 14-00551SOM-BMK, 2016 WL 1254222, *24 (D. Haw.
Mar. 29, 2016) (granting summary judgment in favor of the county
when there was no evidence that the defendant intentionally
leaked protected privacy information to the local news media).
2.

Conspiracy in Violation of 42 U.S.C. § 1985(3)

Plaintiffs appear to allege that the Defendant City and
County of Honolulu engaged in a private conspiracy to withhold
the information from them.

Plaintiffs allege that it “impeded,

hindered, and obstructed the due course of justice and denied
Plaintiffs’ due process and equal protection of the laws” by
“preventing Plaintiffs from receiving all requested information,
covering up, and whitewashing the events of March 16, 2015, with
selective public release of information and video recordings.”
(Second Amended Complaint at ¶ 99, ECF No. 189).

60

Private conspiracies to deny any person or class of person
the equal protection of the laws are covered by 42 U.S.C. §
1985(3).

Bretz v. Kelman, 773 F.2d 1026, 1028-29 (9th Cir.

1985).
To prevail on a cause of action pursuant to Section 1985(3),
a plaintiff must demonstrate:
(1)

a conspiracy;

(2)

to deprive any person or a class of persons of the
equal protection of the laws, or of equal privileges
and immunities under the laws;

(3)

an act by one of the conspirators in furtherance of the
conspiracy; and,

(4)

a personal injury, property damage, or deprivation of
any right or privilege of a citizen of the United
States.

Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980)
(citing Griffin v. Breckenridge, 403 U.S. 88, 101-03 (1971)).
Plaintiffs here must show an invidiously discriminatory,
racial, or class-based animus.

Bretz, 773 F.2d at 1029-30.

There is no such evidence in this case.

There is no evidence as

to any of the Plaintiffs’ race or class.

There is no evidence

that any of the individuals responsible for disclosing the Taser
videos or the autopsy report were motivated by discriminatory
animus.

Orin v. Barclay, 272 F.3d 1207, 1217 (9th Cir. 2001);

Bepple v. Shelton, 2016 WL 633892, *8 (D. Or. Feb. 17, 2016)
(granting summary judgment for the defendant when there was no
evidence of invidious class-based animus).
61

The public interest in the disclosure of the information
relating to the police encounter with Haleck outweighed the
privacy interest of the Plaintiffs.

The public concern as to the

actions of police officers is given great weight when balanced
against competing privacy interests.

See Peer News LLC v. City

and Cnty. of Honolulu, 376 P.3d 1, 21 (Haw. 2016).

The public

had a right to the information contained in the autopsy report
and the videos from the Taser deployment.
Defendant City and County of Honolulu’s Amended Motion for
Summary Judgment as to the Eighth Cause of Action in the Second
Amended Complaint is GRANTED.

B.

Claim as to Defendant Kealoha

Plaintiffs have presented no evidence that Defendant Kealoha
participated in any way with the dissemination of any information
either to them or the press involving the March 16, 2015
incident.
There is no evidence that Defendant Kealoha participated in,
prepared, reviewed, or approved the press release dated March 17,
2015.

(Declaration of Metropolitan Police Captain Rade K. Vanic

at ¶¶ 4, 5, attached to Honolulu’s CSF, ECF No. 136-11).
There is no evidence that Defendant Kealoha was involved in
preparing, reviewing, or approving the May 27, 2015 letter to
Attorney Seitz that initially declined to release information

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regarding the March 16, 2015 incident.

(Declaration of Major

Cylde K. Ho at ¶ 6, attached to Honolulu’s CSF, ECF No. 136-10).
There is no evidence that Defendant Kealoha was involved
with, participated in, prepared, or released the videos to the
media on June 30, 2016.

(Yoro Decl. at ¶ 4, ECF No. 136-12).

There is no evidence that Defendant Kealoha was involved in
the release of the autopsy report.

(Dr. Happy Decl. at ¶¶ 18-29,

ECF No. 136-4).
To the extent Plaintiffs attempt to bring a conspiracy claim
against Defendant Kealoha either pursuant to 42 U.S.C. §§ 1985(2)
or 1985(3), Plaintiffs have not presented evidence of any
discriminatory animus toward them on behalf of Defendant Kealoha.
Bretz, 773 F.2d at 1029-30; Orin, 272 F.3d at 1217.
Defendant Kealoha’s Motion for Summary Judgment as to the
Eighth Cause of Action in the Second Amended Complaint is
GRANTED.

CONCLUSION
Defendant Louis M. Kealoha’s Motion for Summary Judgment
(ECF No. 193) is GRANTED.
Plaintiffs’ Amended Motion for Partial Summary Judgment (ECF
No. 195) is DENIED.
Defendant City and County of Honolulu’s Amended Motion for
Summary Judgment (ECF No. 199) is GRANTED.
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Defendant Officers Christopher Chung, Samantha Critchlow,
and Stephen Kardash’s Amended Motion for Summary Judgment (ECF
No. 200) is GRANTED, IN PART, AND DENIED, IN PART.

SUMMARY JUDGMENT IS GRANTED IN FAVOR OF THE RESPECTIVE DEFENDANTS
AS TO CAUSES OF ACTION 2-8:
SECOND CAUSE OF ACTION FOR VIOLATIONS OF THE FOURTEENTH
AMENDMENT:
Summary Judgment is entered in favor of
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash
THIRD CAUSE OF ACTION FOR MUNICIPALITY AND SUPERVISOR LIABILITY:
Summary Judgment is entered in favor of
Defendants City and County of Honolulu
and Louis M. Kealoha
FOURTH CAUSE OF ACTION FOR ASSAULT AND BATTERY:
Summary Judgment is entered in favor of
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash
FIFTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS:
Summary Judgment is entered in favor of
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash
SIXTH CAUSE OF ACTION FOR NEGLIGENCE:
Summary Judgment is entered in favor of
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash
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SEVENTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS:
Summary Judgment is entered in favor of
Defendants Christopher Chung, Samantha
Critchlow, and Stephen Kardash
EIGHTH CAUSE OF ACTION FOR INTERFERENCE WITH CIVIL RIGHTS:
Summary Judgment is entered in favor of
Defendants City and County of Honolulu
and Louis M. Kealoha

THE ONLY REMAINING CAUSE OF ACTION:
FIRST CAUSE OF ACTION FOR EXCESSIVE FORCE IN VIOLATION OF THE
FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION PURSUANT TO 42
U.S.C. § 1983:
The First Cause of Action as stated by
Plaintiff Gulstan E. Silva, Jr., as
Personal Representative of the Estate of
Sheldon Paul Haleck, against Defendants
Christopher Chung, Samantha Critchlow,
and Stephen Kardash in their individual
capacities is the only remaining cause
of action for trial.
REMAINING PARTIES:
PLAINTIFFS:
The only remaining Plaintiff is Gulstan
E. Silva, Jr., as Personal
Representative of the Estate of Sheldon
Paul Haleck.
There are no remaining claims by
Plaintiffs Jessica Y. Haleck,
individually and as Guardian Ad Litem
for Jeremiah M.V. Haleck, William E.
Haleck, and Verdell B. Haleck.

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DEFENDANTS:
The only remaining Defendants are
Christopher Chung, Samantha Critchlow,
and Stephen Kardash in their individual
capacities.
There are no remaining claims against
Defendant City and County of Honolulu
and Defendant Louis M. Kealoha.

IT IS SO ORDERED.
DATED: June 27, 2017, Honolulu, Hawaii.

Gulstan E. Silva, Jr., as Personal Representative of the Estate
of Sheldon Paul Haleck; Jessica Y. Haleck, Individually and as
Guardian Ad Litem of Jeremiah M.V. Haleck; William E. Haleck;
Verdell B. Haleck v. City and County of Honolulu; Louis M.
Kealoha, Individually; Christopher Chung; Samantha Critchlow;
Stephen Kardash, Civ. No. 15-00436 HG-KJM; ORDER GRANTING
DEFENDANT LOUIS M. KEALOHA’S MOTION FOR SUMMARY JUDGMENT (ECF No.
193) and DENYING PLAINTIFFS’ AMENDED MOTION FOR PARTIAL SUMMARY
JUDGMENT AS TO THE LIABILITY OF DEFENDANTS CHRISTOPHER CHUNG,
SAMANTHA CRITCHLOW, STEPHEN KARDASH, LOUIS M. KEALOHA, AND CITY
AND COUNTY OF HONOLULU FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS
(ECF No. 195) and GRANTING DEFENDANT CITY AND COUNTY OF
HONOLULU’S AMENDED MOTION FOR SUMMARY JUDGMENT (ECF No. 199) and
GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS CHRISTOPHER
CHUNG, SAMANTHA CRITCHLOW, AND STEPHEN KARDASH’S AMENDED MOTION
FOR SUMMARY JUDGMENT (ECF No. 200)
66