Denis v. Ige et al
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT re 150 , 155 . Signed by JUDGE SUSAN OKI MOLLWAY on 7/29/2022.Defendants' motion for summary judgment is granted. Denis 's motion for summary judgment is denied. This order leaves no claim remaining for further adjudication. The Clerk is instructed to enter judgment in favor of Defendants.(cib)COURTS CERTIFICATE OF SERVICE - Non-R egistered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the (NEF). Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
a.k.a. WILLIAM DENIS
DAVID Y. IGE, CLARE E.
CONNORS, DEREK S.K. KAWAKAMI, )
TODD RAYBUCK, DEREK KELLEY,
RUSSELL HIMONGALA, and ARRYL )
Civil NO. 21-00011 SOM-RT
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
On December 5, 2020, several people called the Kauai
County police department to complain about a group of four
picketers in Kapaa.
The picketers allegedly were violating
emergency orders issued by Hawaii’s Governor and Kauai’s Mayor
(the “Mask Mandates”).
When Defendants Derek Kelley and Russell
Himongala, two Kauai County police officers, arrived on the
scene, they observed the picketers, including Plaintiff MegesoWilliam-Alan Denis, standing on the sidewalk less than six feet
apart without face masks.
That conduct violated the Mask
The officers approached the group and issued them a
Three of the four picketers responded by leaving the
area, but Denis remained behind.
He repeatedly told the officers
that he did not have to comply with the Mask Mandates, either
because they had no legal effect or because he had “authority
under God” to go outside without a mask.
After Denis refused to put on a face mask and
explicitly stated that the law did not apply to him, Defendants
Their decision appears to have been based, at
least in part, on a mistake.
Officer Kelley, in particular,
seemed to think that the Mask Mandates required Denis to wear a
mask whenever he was outside.
In reality, Denis only had to wear
a mask if he was outdoors and less than six feet away from other
At the time of his arrest, Denis was socially distanced
because all of the other picketers had left.
Denis was charged with violating the Mask Mandates.
The Kauai prosecutor, however, soon moved to dismiss the charge.
After the charge was dismissed, Denis, proceeding pro se,
filed the present lawsuit against several individuals.
point, only two of his claims remain: (1) a claim that Officers
Kelley and Himongala violated the Fourth Amendment by arresting
him without probable cause, and (2) a claim that Officers Kelley
and Himongala arrested him in retaliation for his exercise of his
First Amendment rights.
To prevail on either claim, Denis must
show that the officers lacked probable cause to arrest him.
Competing summary judgment motions on that issue are
now before the court.
While Denis’s motion is difficult to
follow and dominated by irrelevant assertions, such as the claim
that Defendants violated the Nuremberg Code, Denis appears to be
contending that Defendants lacked probable cause because he was
socially distanced at all times, including at the time of his
Defendants maintain that they had probable cause
because, several minutes before his arrest, they had observed
Denis violating the Mask Mandates.
This court agrees with Defendants.
body camera footage clearly shows Denis in violation of the Mask
Mandates when Defendants arrived on the scene.
officers did not immediately arrest him, the passage of time does
not undermine the existence of probable cause.
Bizier, 111 F.3d 214, 219 (1st Cir. 1997).
United States v.
Defendants may have chosen to let Denis off with a warning for
his initial violation, and only decided to arrest him based on a
mistaken understanding of the law, the Supreme Court has made it
clear that such subjective considerations are “irrelevant to the
existence of probable cause.”
Devenpeck v. Alford, 543 U.S. 146,
Accordingly, Defendants’ motion for summary judgment
Denis’s motion for summary judgment is denied.
The Mask Mandates.
On April 13, 2020, Mayor Derek S.K. Kawakami, Kauai’s
Mayor, issued an emergency order requiring “all persons over the
age of five (5) . . . to wear some form of face covering over
their nose and mouth when outside of their home.”
Emergency Rule #6, https://www.kauai.gov/Portals/0/Civil_Defense/
A violation was punishable by a $5,000 fine or a
prison sentence of up to one year.
On April 17, 2020, David Y. Ige, Hawaii’s Governor,
issued a similar emergency order.
The Governor’s order required
individuals to wear a face covering if they left their homes to
shop at essential businesses.
Fifth Supplementary Proclamation,
As with Mayor Kawakami’s order, a violation
was punishable by a $5,000 fine or a prison sentence of up to one
In subsequent months, Governor Ige and Mayor Kawakami
updated their emergency orders.
At the times at issue in this
case, the following orders (collectively, the “Mask Mandates”)
were in force, and a violation was again punishable by a fine of
$5,000 or a prison sentence of up to one year:
State of Hawaii: All individuals shall wear
face coverings over their noses and mouths
when in public settings.
The only exceptions to this requirement are:
A. Individuals with medical conditions or
disabilities where the wearing of a face
covering may pose a health or safety risk to
. . . .
J. While outdoors when physical distance of
six (6) feet from other individuals (who are
not members of the same household/living
unit/residence) can be maintained at all
County of Kauai: [A]ll persons five (5) years
of age or older are required to wear a face
covering over their nose and mouth, whether
indoors or outdoors, in any setting in which
they are in close contact (within 6 feet) of
people who don’t live in their immediate
household. Face coverings must be worn by
employees, customers, and visitors at all
times inside any establishment in which close
contact may occur.
The only exceptions to this rule are
individuals who can prove by a preponderance
of the evidence that they are:
. . .
5. Incapable of wearing a face covering due
to a medical condition or disability.
Medical exemptions must be issued by a
licensed medical doctor (MD), doctor of
osteopathy (DO), advanced practice registered
nurse (APRN), or physician assistant (PA).
Medical exceptions should not specify the
medical condition that precludes wearing of
face coverings. Individuals must be able to
present evidence of a medical exception when
asked for it by law enforcement.
Sixteenth Emergency Proclamation, https://governor.hawaii.gov/
Emergency Rule #19 (As Amended), https://www.kauai.gov/Portals/0/
9%20-%20signed.pdf (emphasis added).
It appears that Kauai County law enforcement officers
usually gave violators more than one chance to comply with the
law by issuing warnings before taking further action.
instance, in his motion for summary judgment, Denis asserts that
on certain occasions he has been less than six feet away from
“the Mayor, Police Chief, KPD officers, [and] State Law
enforcement” without wearing a mask, and that he was not
ECF No. 155, PageID # 1635.
that assertion is true.
Defendants concede that
ECF No. 160, PageID # 1692.
significantly, as discussed in greater detail below, the
circumstances surrounding Denis’s arrest also demonstrate that
law enforcement officers warned violators before issuing
citations or making arrests.
On December 5, 2020, Denis and three other individuals
began a demonstration along Kuhio Highway near the Kauai Village
Shopping Center in Kapaa.
See ECF No. 151-4.
Around noon, the
Kauai County police department received calls complaining that
the picketers were neither wearing masks nor remaining six feet
apart from one another.
See ECF No. 151-3.
Himongala responded to those complaints.
Officers Kelley and
At 12:53 p.m., the
officers parked their vehicles at the shopping center and walked
towards the group of four picketers next to the highway.
Officer Kelley’s body camera footage plainly shows
that, as the officers approached the group, Denis was less than
six feet away from the nearest picketer.
ECF No. 151-4, at
None of the picketers was wearing a mask.
Officer Kelley approached the group, some of the picketers moved
away from one another, apparently in an attempt to maintain the
requisite six feet of distance from one another.
Id. at 00:47.
Denis disagrees with this version of events.
own motion for summary judgment, he asserts that the picketers
were “peacefully protesting six feet apart” and that he was
“always more than six feet away” until Kelley and Himongala
ECF No. 155, PageID # 1628.
Denis has not submitted
any evidence, such as a declaration, in support of that
In Fraser v. Goodale, the Ninth Circuit held that “[a]t
the summary judgment stage, we do not focus on the admissibility
of the evidence’s form.
We instead focus on the admissibility of
342 F.3d 1032, 1036 (9th Cir. 2003).
courts in the Ninth Circuit have split on the issue of whether,
when a party is proceeding pro se, Fraser requires courts to
consider factual statements made in unsworn briefs.
Cape v. San Luis Obispo Sheriff Dep’t,, 2022 WL 2308256, at *4
(C.D. Cal. June 1, 2022) (collecting cases), report and
recommendation adopted, 2022 WL 2304289 (C.D. Cal. June 27,
The Ninth Circuit has indicated, however, that when a pro
se plaintiff signs “his pleadings and/or motions under penalty of
perjury,” courts must “treat them as evidence for the purpose of
Lopez v. Country Ins. & Fin. Servs., 252 F.
App’x 142, 144 n.2 (9th Cir. 2007).
Denis’s brief states “under
penalty of law” that it was “true and correct.”
PageID # 1645.
ECF No. 155,
That is likely sufficient to require this court
to consider the factual statements in his brief.
v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995).
This court, however, need not accept Denis’s statements
as true for the purposes of this motion.
The Supreme Court has
held that, in ruling on summary judgment motions, district courts
must reject declarations that are “utterly discredited” by video
Scott v. Harris, 550 U.S. 372, 380-81 (2007) (holding
that because the plaintiff’s statements were contradicted by
video evidence, the lower courts “should not have relied on such
visible fiction” and instead should have “viewed the facts in the
light depicted by the videotape”); see also Hughes v. Rodriguez,
31 F.4th 1211, 1218 (9th Cir. 2022) (“We agree with the Sixth
Circuit and find that, for purposes of ruling on a motion for
summary judgment, a district court may properly view the facts in
the light depicted by bodycam footage and its accompanying audio,
to the extent the footage and audio blatantly contradict
testimonial evidence.” (Emphasis in original)).
claim that he stood six feet away from other picketers is
directly contradicted by Officer Kelley’s body camera footage.
Of course, on many occasions, judging distance from
body camera footage may be difficult.
In this case, however, the
task is made easier by the Mask Mandates themselves.
Mandates required individuals to wear a face covering unless they
maintained a distance of six feet from other people.
footage shows that Denis was substantially less than one body
length away from the nearest picketer when the officers
ECF No. 151-4, at 00:28-00:47.
In light of the body
camera footage, this court can conclude that, as a matter of law,
Denis violated the Mask Mandates.
Scott, 550 U.S. at 380-81;
Hughes, 31 F.4th at 1218.
After he approached the group, Officer Kelley
introduced himself and spoke with the picketers.
He told them
that the police had received a “couple calls” stating that the
picketers were not wearing masks.
ECF No. 151-4, at 00:40-00:47.
In response, one picketer stated that the picketers did not need
masks, because they were outside and socially distanced.
Officer Kelley disagreed.
He told the picketers that it
was “a law right now that you must have a mask on while outside,”
and that the picketers “must remain social distanced as well.”
Id. at 01:05-07.
In this regard, Officer Kelley was incorrect.
The Mask Mandates only required individuals to wear masks outside
if they were not socially distanced and if no other exception
Denis, however, did not engage Officer Kelley on that
Instead, he told Officer Kelley that the Mask Mandates
were “not a law” at all.
Id. at 00:56-00:58.
He continued to
express his displeasure while Officer Kelley attempted to defuse
Officer Kelley told the group that although
protesting was “within their constitutional rights,” they needed
to “don their masks” to continue with the demonstration.
Denis responded by telling the officers that they
had been “served notices of liability trespass.”2
Id. at 01:38-
Officer Kelley repeatedly stated his mistaken
understanding of the law. See id. at 02:55.
Denis has submitted examples of these “notices of
liability trespass” in connection with a previous motion. See
ECF No. 50, PageID # 589. These are rambling documents that
essentially state that Denis has no obligation to follow any
“mandates, proclamations, or edicts” issued by the government
during the COVID-19 pandemic. See id. Denis apparently sent
When Officer Kelley repeated that Denis needed to wear a
mask and maintain social distance, Denis responded, “No, that’s
My authority’s under God.”
Id. at 01:54-01:58.
Kelley then gave Denis “an advisory” and told Denis that he had
to put his mask on.
Id. at 02:00-02:05.
Several other picketers also disputed the legality of
the Mask Mandates.
When Officer Kelley informed them that the
Governor’s emergency order had the force of law, Denis again
retorted that the Mandate was “not a law.”
Id. at 02:45-02:47.
Once more, Officer Kelley told Denis that he “appreciat[ed] what
you guys are doing,” and that the picketers “had their rights,”
but that they had to obey the law.
Id. at 03:25-03:30.
discussion continued for several more minutes.
Id. at 03:30-
In the middle of the conversation, Denis approached
another picketer to speak with him.
Once again, Denis stood less
than six feet away from the other picketer.
still had not put on a mask.
of the four picketers left.
Id. at 05:20.
When the discussion ended, two
Id. at 06:20.
At that point, Denis and one other picketer remained,
these notices to various government officials. In his briefing,
Denis has repeatedly cited these notices. See, e.g., ECF No.
155, PageID # 1635 (arguing that Defendants “admitted on tape
that Plaintiff stated his Registered Notices of Liability
Trespass to the officers [but] that they ignored [them]”). To
state the obvious, Denis’s “notices of liability trespass” had no
legal effect. Denis cannot avoid complying with a law he
disagrees with simply by telling the government he is not bound
and Officer Kelley again asked Denis to put his mask on.
responded that “it’s not gonna happen.”
Id. at 06:17.
God and stated that he did not need to wear a mask for medical
Id. at 06:17-06:25.
When Officer Kelley asked if Denis
had a note from a doctor, Denis explained, “I don’t go to normal
Id. at 06:28-06:30.
Officer Kelley repeated the
question, and Denis responded, “I have a God-given note.”
Officer Kelley spoke to Denis for a few more minutes,
then told Denis once again that he needed to wear a mask to
continue his demonstration.
Denis replied that he had intended
to leave but decided to stay because Officer Kelley was “trying
to take away [his] rights” by “denying him the right to make
[his] own medical decisions.”
Id. at 09:30-09:44.
Kelley explained that the law did allow for medical exceptions,
but that Denis had to provide him with a note from a doctor.
Denis told Officer Kelley that the law was
unfair because it “didn’t allow natropaths.”
Id. at 09:53-09:55.
Officer Kelley told Denis “once again,” that “if you
want to leave, you’re free to leave.”
Id. at 09:55-09:59.
“if you go back out, and continue your protest,” then “you must
have your mask.
If you refuse to, then I’m going to cite you.”
Id. at 09:59-10:10.
By then, Denis was the only remaining
Less than a minute later, Officer Kelley noticed that
Denis was “going back out.”
Id. at 10:50.
After telling the
other officers that Denis was “looking for trouble,” id. at
11:18-11:19, Officer Kelley decided to arrest Denis.
time, because Denis was alone, there was no one within six feet
Officers Kelley and Himongala arrested Denis.
They took Denis to Samuel Mahelona Memorial Hospital for
evaluation before taking him to the Kauai Police Department cell
ECF No. 151-2, PageID # 1604, 1606.
The charges against
Denis were ultimately dismissed after the State of Hawaii moved
to dismiss them with prejudice.
ECF No. 160-2, PageID # 1696.
On January 6, 2021, Denis, proceeding pro se, filed
ECF No. 1.
categories of claims.
The Complaint included three general
First, Denis brought what appeared to be
claims that Defendants Kelley and Himongala violated the Fourth
Amendment by arresting him without probable cause and using
Second, Denis alleged that the Mask Mandates
were unconstitutional, and he brought claims against Governor
Ige, Mayor Kawakami, and State Attorney General Claire Connors
based on their alleged roles in enacting them.
appeared to allege that two other Kauai officials, Chief of
Police Todd Raybuck and County Council Chairperson Arryl
Kaneshiro, were indirectly responsible for his wrongful arrest.
See generally Denis v. Ige (Denis I), 538 F. Supp. 3d 1063, 1071
(D. Haw. 2021) (describing the initial complaint).
Ige, Kawakami, Connors, Raybuck, and Kaneshiro filed
motions to dismiss the Complaint.
ECF Nos. 22, 24, 31.
and Himongala filed answers to the Complaint.
ECF Nos. 34, 35.
On May 12, 2021, this court granted the motions to dismiss.
court ruled that Denis had failed to state a claim based on his
allegations that the Mask Mandates were unconstitutional, and
that Denis had failed to identify any actions attributable to
Raybuck or Kaneshiro that had harmed him.
Denis I, 538 F. Supp.
3d at 1076-82.
On June 4, 2021, Denis filed a First Amended Complaint.
ECF No. 63.
For the most part, the First Amended Complaint
repeated the claims in the initial Complaint, although Denis
dropped his claims against Kaneshiro.
Denis v. Ige (Denis II),
557 F. Supp. 3d 1083, 1090 (D. Haw. 2021) (describing the First
Kelley and Himongala again filed answers,
and the remaining Defendants again moved to dismiss.
64, 66, 67, 70.
On August 31, 2021, this court granted the
motions to dismiss.
This court again ruled that Denis had failed
to state a claim in alleging that the Mask Mandates were
unconstitutional or otherwise unlawful.
3d at 1093-1100.
Denis II, 557 F. Supp.
The claims against Ige, Connors, Kawakami, and
Raybuck were dismissed with prejudice.
Id. at 1101.
Accordingly, only the claims against Kelley and Himongala
On September 17, 2021, Kelley and Himongala filed a
motion for partial judgment on the pleadings.
ECF No. 100-1.
They maintained that, although Denis had included allegations in
support of his excessive force claim in the initial Complaint, he
had omitted those allegations from the First Amended Complaint.
See id. at 1106.
On that basis, they contended that the First
Amended Complaint failed to state an excessive force complaint.
Id. at 1106-07.
This court agreed and dismissed Denis’s excessive force
Denis v. Ige (Denis III), 2021 WL 5312294, at *3 (D.
Haw. Nov. 15, 2021).
Because it appeared that Denis might be
able to save his excessive force claim through an amendment, the
dismissal was without prejudice.
Id. at *4.
The court noted,
however, that Denis’s briefing had indicated “that any amended
complaint [would] include new claims that are patently
For instance, Denis indicated that he intended
to assert claims based on the King James Bible and the Nuremberg
To avoid unnecessary motions, this court granted
Denis leave to file, by no later than December 13, 2021, a motion
seeking leave to file an amended complaint under Rule 15(a)(2) of
the Federal Rules of Civil Procedure.
This court stated
that any motion Denis filed “must include as an attached exhibit
a copy of the proposed amended complaint that Denis seeks to
Id. (emphasis in original).
On November 18, 2021, Denis filed a motion for
permission to file a Second Amended Complaint.
That motion did
not include a copy of a proposed amended complaint (as this court
had instructed); it also failed to comply with the District of
Hawaii’s local rules.
ECF No. 124.
Magistrate Judge Rom Trader
therefore denied the motion without prejudice and allowed Denis
to file a second motion to be accompanied by a proposed amended
In his order, Judge Trader cautioned Denis that
“any proposed amended complaint must seek only those amendments
permitted in Judge Mollway’s Order, comply with the Local Rules,
and be filed by the 12/13/21 deadline.
Failure to do so may
result in sanctions to include possible dismissal with prejudice
of this action.”
On December 12, 2021, Denis filed a proposed Second
Amended Complaint, but that document was not accompanied by a
Rule 15(a)(2) motion.
rejected that pleading.
ECF No. 128.
Judge Trader therefore
He instructed Denis to file, by
December 21, 2021, a submission that included both a proposed
Second Amended Complaint and a motion for leave to file the
proposed Second Amended Complaint.
Denis did not comply
with that order and has made no further attempt to seek leave to
file a Second Amended Complaint.
As a result, Denis failed to
amend his excessive force claims.
His failure to comply with
court orders and the local rules3 causes Denis’s excessive force
claims to play no part in this case.4
On January 26, 2022, Kelley and Himongala filed a
second motion for partial judgment on the pleadings.
In that motion, they noted that although Denis’s primary
claims against the officers appeared to be Fourth Amendment
claims, the First Amended Complaint also mentioned the First
Amendment and Fourteenth Amendments.
See ECF No. 131-1, PageID #
The officers argued that to the extent that Denis had
alleged that they violated the First Amendment by arresting him
in retaliation for a protest, Denis had failed to state a claim
This is hardly the only time Denis has failed to comply
with court rules. For instance, he has frequently filed
impermissible surreplies. ECF Nos. 50, 85. He has also
disregarded the page limits set by the local rules. ECF Nos. 4347, 50. Finally, on more than one occasion, he has failed to
file opposition briefs in accordance with deadlines set by Local
Rule 7.2. See ECF Nos. 134, 161.
While Denis’s failure to comply with local rules and
court orders has kept his excessive force claims from being now
before this court, even had those claims survived, Denis would
have had to overcome considerable obstacles at trial. For
instance, on the body camera footage, Denis’s screams of pain
after his arrest might not match the medical evidence. ECF No.
151-4, at 11:55. Officer Himongala has also submitted a
declaration stating that although Denis screamed in pain when a
doctor examined him by lightly touching his wrists, he did not
complain at all when a nurse grabbed and held his wrists after
the examination, possibly because he thought no one was paying
attention. ECF No. 151-2, PageID # 1606.
because he had not alleged that the officers had a “retaliatory
animus” or “retaliatory motive.”
Id. at 1414-15.
maintained that Denis’s Fourteenth Amendment claims based on his
allegedly wrongful arrest were subsumed by his Fourth Amendment
Id. at 1415-16.
Finally, Kelley and Himongala argued
that Denis had failed to state a claim against them in their
official capacities, and that he had failed to state a claim
under the Hawaii constitution.
Id. at 1416-1424.
held that Denis had adequately alleged a First Amendment claim,
but agreed with the officers on their other points.
generally Denis v. Ige (Denis IV), 2022 WL 1046274, at *1-4 (D.
Haw. Apr. 7, 2022).
This court therefore granted the second
motion for partial judgment on the pleadings in part and denied
it in part.
Id. at *5.
On May 24 and 25, 2022, the parties filed the present
motions for summary judgment.
ECF Nos. 150, 155.
Under Rule 56 of the Federal Rules of Civil Procedure,
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); accord Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134
(9th Cir. 2000).
The movants must support their position
concerning whether a material fact is 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
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.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
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
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).
The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 809 F.2d at 630.
At least some “‘significant
probative evidence tending to support the complaint’” must be
Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)); see also 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
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.
T.W. Elec. Serv., 809 F.2d at 630-31.
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.
The Summary Judgment Motions.
Defendants contend that they are entitled to summary
judgment on Denis’s First and Fourth Amendment claims.
to Defendants, the absence of probable cause is an element of
ECF No. 150-1, PageID # 1560, 1567.
maintain that, as a matter of law, Denis cannot establish5 that
Denis’s motion for summary judgment is difficult to
Most of his arguments have either already been rejected
by this court or are irrelevant.
For instance, he contends that:
The Mask Mandates “are simply an opinion,” and
they “are unlawful, because a mandate also
requires consent from the person being mandated.”
ECF No. 155, PageID # 1627, 1636. This court has
already addressed the legality of the Mask
Mandates in two prior orders. ECF Nos. 62, 97.
Obeying the Mask Mandates “leaves Plaintiff with a
status of being a SLAVE, and slavery was abolished
on December 18, 1865.” ECF No. 155, PageID #
1640; see also id. at 1629 (“A mask is a sign of
slavery.”). As this court stated in a prior
order, that assertion “trivializes the horrors of
slavery,” which involved “the forced subjugation
and brutal exploitation of human beings.” Denis
II, 557 F. Supp. 3d at 1095.
Defendants have violated several criminal laws and
the Nuremberg Code. ECF No. 155, PageID # 162934.
Officers Kelley and Himongala (two relatively
junior police officers) “failed to conduct a
proper investigation regarding COVID-19 as a real
Because Officers Kelley and Himongala arrested Denis
without a warrant, they bear the initial burden of producing
“some evidence that [they] had probable cause for a warrantless
arrest.” Dubner v. City & Cnty. of San Francisco, 266 F.3d 959,
965 (9th Cir. 2001). The ultimate burden of proof, however,
remains on Denis. Id.
pandemic.” Id. at 1636. According to Denis,
COVID-19 is a “hoax.” Id. at 1637.
Officers Kelley and Himongala have “kept known
therapeutic cures like Ivermectin, HCQ, Zinc,
Vitamins C & D, and more from the public and to
this day are putting the Health, Safety, and
Welfare of our children, Plaintiff and the
governed at risk by using false PCR testing, and
drug therapies upon the public as if we are lab
rats.” Id. at 1638.
Officers Kelley and Himongala are “treasonous to
the Constitution of the Republic and there is no
statute of limitations on fraud.” Id. at 1640.
Denis is making a “one-time proposed summary
judgment offer” that “expires June 3, 2022.” The
offer requires Officers Kelley and Himongala to
pay Denis $92 million, give him an “irrevocable
99-year lease of 144 acres,” take more than 3,000
hours of formal classroom training on the state
and federal constitutions, and apologize publicly.
Id. at 1642-43. In return, Denis offers to
refrain from filing a criminal case, to refrain
from recommending Defendants for prosecution at
the Nuremberg trials, and to refrain from filing
charges in the “International Court.” Id. at
However, Denis does also touch on the issue of probable cause.
Specifically, he asserts that Officers Kelley and Himongala
arrested him even though he maintained a distance of six feet
from other picketers at all times.
ECF No. 155, PageID # 1628.
The court therefore interprets Denis’s pro se brief, which also
seeks summary judgment, as arguing that the evidence establishes,
as a matter of law, that Defendants did not have probable cause
to arrest him.
In short, the resolution of the competing summary
judgment motions turns on the presence or absence of probable
Defendants argue that they had probable cause to arrest
Denis, and Denis argues that they did not.
This court agrees
Defendants are Entitled to Summary Judgment on
Denis’s Fourth Amendment Claim for False Arrest.
Defendants first address Denis’s Fourth Amendment
ECF No. 150-1, PageID # 1560-66.
The absence of probable
cause is an element of a Fourth Amendment wrongful arrest claim.
Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir.
2015) (“A claim for unlawful arrest is cognizable under § 1983 as
a violation of the Fourth Amendment, provided the arrest was
without probable cause or other justification.” (internal
quotation marks omitted)).
“Probable cause exists when there is
a fair probability or substantial chance of criminal activity.”
Id. (internal quotation marks omitted).
The probable cause inquiry is an objective one.
Supreme Court has made it clear that an officer’s “subjective
reason for making the arrest need not be the criminal offense as
to which the known facts provide probable cause.”
Alford, 543 U.S. 146, 153 (2004).
Indeed, “an arresting
officer’s state of mind (except for the facts that he knows) is
irrelevant to the existence of probable cause.”
Id. (emphasis in
“The Fourth Amendment’s concern with ‘reasonableness’
allows certain actions to be taken in certain circumstances,
whatever the subjective intent.”6
Id. (internal brackets and
quotation marks omitted) (emphasis in original).
Objectively, Defendants had probable cause to arrest
Denis for violating Mayor Kawakami’s Mask Mandate.
required Denis to wear a mask while outdoors “in any setting in
which [he was] in close contact (within 6 feet) of people who
[didn’t] live in [his] immediate household.”
Rule #19 (As Amended), https://www.kauai.gov/Portals/0/
On more than one occasion, Defendants saw
Denis standing less than six feet away from someone whom the
officers had no reason to think lived in his immediate
That observation provided the officers with the
requisite probable cause.
See Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001) (“If an officer has probable cause to
believe that an individual has committed even a very minor
According to the Supreme Court, this standard “ensure[s]
that officers may go about their work without undue apprehension
of being sued.” Nieves v. Bartlett, 139 S. Ct. 1715, 1725
(2019). The Court has concluded that allowing considerations
about an officer’s state of mind to influence the probable cause
analysis would subject those officers to “overwhelming litigation
Denis has never contended that any other picketer lived
in his immediate household.
criminal offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender.”).
Before he was arrested, Denis told the officers that he
did not have to wear a mask because of his medical condition.
But Mayor Kawakami’s order, unlike Governor Ige’s order, stated
that medical exemptions had to be issued by certain medical
It also required Denis to “present evidence of a
medical exception when asked for it by law enforcement.”
Emergency Rule #19 (As Amended), https://www.kauai.gov/Portals
Officer Kelley asked Denis for such
evidence on multiple occasions, but Denis did not provide any
evidence, instead indicating that he did not see “normal”
Under those circumstances, Defendants had probable
cause to believe that Denis did not meet the requirements for a
The court recognizes that, initially, Officer Kelley
appears to have decided to let Denis off with a warning.
Kelley arrested Denis only after Denis continued to protest
without a mask.
At that point, Denis, although unmasked, was
alone and therefore in compliance with the Mask Mandates.
That raises two issues.
First, while Defendants had
probable cause to arrest Denis for violating the Mask Mandates
when they arrived on the scene, the officers decided to exercise
their discretion and just caution Denis.
In other words, the
only offense that justifies Denis’s arrest is one that Defendants
chose upon first accosting him that day not to arrest him for.
Second, a few minutes passed between Denis’s violation of the
Mask Mandates and his arrest.
Neither consideration invalidates
the otherwise legal arrest.
As to the first issue, Devenpeck is instructive.
that case, the plaintiff, Jerome Alford, stopped to help two
Id. at 148.
When Joi Haner, a police
officer, also stopped to help, Alford “hurried back to his car
and drove away.”
also a police officer.
The motorists asked Haner if Alford was
They explained that his “statements,
and his flashing, wig-wag headlights, had given them that
Concerned that Alford might be impersonating a
police officer, Haner followed Alford and pulled him over.
Alford answered Haner’s questions evasively.
A short time later, Haner’s supervisor, Sergeant
Devenpeck, arrived at the scene and noticed a tape recorder on
the passenger seat of Alford’s car.
Devenpeck played the
tape in the recorder and discovered that Alford been recording
his conversation with the officers.
Devenpeck then arrested
Alford for violating the Washington Privacy Act.
Devenpeck called a deputy county prosecutor and
recounted the events leading to Alford’s arrest.
Id. at 150.
The two discussed several possible charges, including the
“violation of the Privacy Act, impersonating a police officer,
and making a false representation to an officer.”
prosecutor advised Devenpeck that there was “clearly probable
cause” and suggested that the respondent also be charged with
“obstructing a public servant.”
Devenpeck rejected that
He explained that “the State Patrol [did] not,
as a matter of policy, ‘stack charges’ against an arrestee.”
Ultimately, Haner charged Alford only with violating the
Washington Privacy Act.8
It turned out that Alford had not violated the
Washington Privacy Act by recording the officers.
See id. at
Alford brought a 42 U.S.C. § 1983 claim against
Devenpeck and Haner.
Id. at 151.
The case went to trial, and
the jury found that the officers had had probable cause to arrest
Alford, apparently based on the offenses that Devenpeck had
decided not to charge Alford with (impersonating a law
enforcement officer or obstructing a law enforcement officer).
Haner also issued Alford a ticket for his flashing
headlights, but, under Washington law, that offense did not
permit the officers to arrest Alford. Id.
On appeal, the Ninth Circuit held that the jury’s
verdict was based on a mistaken understanding of the law.
In the Ninth Circuit’s view, the offenses of impersonating a law
enforcement officer or obstructing a law enforcement officer
could not provide the requisite probable cause because neither
offense was “closely related” to the offense Devenpeck actually
decided to charge Alford with.
The Supreme Court disagreed.
Id. at 153-56.
reasoned that the Ninth Circuit’s “closely related” rule
made “the lawfulness of an arrest turn upon the motivation of the
arresting officer” because, under that rule, only facts related
to the offense that the officers chose to arrest a plaintiff for
Id. at 154.
The Court rejected the Ninth Circuit’s
It explained that subjective considerations could never
provide a basis for invalidating an arrest.
Id. at 154-55.
Court remanded the case to the Ninth Circuit with instructions to
determine whether the evidence supported the verdict that
Devenpeck had probable cause to arrest based on the offenses of
impersonating a police officer or obstructing a law-enforcement
officer (offenses that Devenpeck expressly decided not to arrest
Id. at 156.
In other words, in Devenpeck, the Court held that a
decision not to arrest a suspect for a particular crime is a
A subjective decision does not affect the
probable cause analysis.
That principle applies here.
Defendants’ decision not to arrest Denis after they saw him
violating the Mask Mandates was a subjective choice.
“[s]ubjective intent of the arresting officer” is “simply no
basis for invalidating [the] arrest.”
Devenpeck, 543 U.S. at
154-55 (emphasis in original).
Nor does Defendants’ delay in arresting Denis undermine
the existence of probable cause.
It “is well-established that
there is no requirement that an offender be arrested the moment
probable cause is established.”
United States v. Haldorson, 941
F.3d 284, 291 (7th Cir. 2019) (internal quotation marks omitted).
“[P]robable cause to arrest, once formed, will continue to exist
for the indefinite future, at least if no intervening exculpatory
facts come to light.”
United States v. Bizier, 111 F.3d 214, 219
(1st Cir. 1997) (internal quotation marks omitted).
exculpatory facts came to light after Defendants saw Denis
violate the Mask Mandates.
Accordingly, the passage of time did
not negate the existence of probable cause.9
To the extent that police officers may later decide to
arrest a suspect for a crime they that had initially decided to
overlook, they are no different than prosecutors, who may later
decide charge a suspect with a crime even if they had initially
decided to exercise prosecutorial discretion. See generally New
York Times Co. v. United States Dep’t of Just., 939 F.3d 479, 492
(2d Cir. 2019) (“Prosecutors retain broad discretion to enforce
the Nation’s criminal laws . . . . Even after Holder announced
publicly that he had accepted the recommendations in Mr. Durham's
memoranda, he retained jurisdiction to reverse course and bring
charges at a later time.” (internal quotation marks omitted)).
Haldorson, 941 F.3d at 291 (delay of more than three weeks before
an arrest did not undermine probable cause); United States v.
Hinson, 585 F.3d 1328, 1334 (10th Cir. 2009) (“Although the
controlled buy had occurred approximately a month before Hinson’s
arrest, the passage of time did not make that information state
or otherwise destroy the officers’ probable cause.”); Forman v.
Richmond Police Dept., 104 F.3d 950, 962 (7th Cir. 1997) (delay
of more than a year before an arrest did not undermine probable
Finally, the court notes that this is not a case in
which the two officers decided to let Denis off with a warning
but ended up arresting him later without any further information
that was concerning.
After the officers saw Denis violate the
Mask Mandates, they spoke to Denis, who repeatedly indicated that
he intended to continue to violate the law.
Twice, Denis told
the officers that he did not need to obey the Mask Mandates
because they were “not laws.”
ECF No. 151-4, at 00:56-00:58, id.
He also repeatedly told the officers that he was
authorized by God to be without a mask.
also id. at 06:35.
Id. at 01:54-01:58, see
In short, Denis told the officers, in no
uncertain terms, that if they let him go he would continue to
violate the law.
The officers thereafter arrested Denis.
The record establishes that Officers Kelley and
Himongala had probable cause to arrest Denis.
The existence of
probable cause defeats Denis’s Fourth Amendment claim.10
Defendants’ motion for summary judgment on that claim is granted.
Denis’s competing motion for summary judgment on that claim is
Defendants are Entitled to Summary Judgment on
Denis’s First Amendment Retaliation Claim.
Defendants maintain that they are also entitled to
summary judgment as to Denis’s claim that they arrested him in
retaliation for his exercise of his First Amendment rights.
No. 150-1, PageID # 1566-72.
This court agrees with Defendants.
Because Defendants have established, as a matter of law, that
they had probable cause to arrest Denis, he cannot prevail on his
First Amendment retaliation claim.
See Nieves v. Bartlett, 139
S. Ct. 1715, 1723-25 (2019).
In Nieves, the Supreme Court held that plaintiffs must
plead and prove the absence of probable cause to prevail on a
claim that police officers used an arrest as retaliation for the
arrestee’s exercise of First Amendment rights.
Id. at 1723-25.
A plaintiff cannot succeed by arguing that, even though an
officer had probable cause, the officer used that probable cause
as a pretext and was really motivated by a retaliatory animus.
For the same reasons, Defendants are entitled to
qualified immunity on this claim. See District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (“officers are entitled to
qualified immunity . . . unless . . . they violated a federal
statutory or constitutional right”).
Id. at 1725 (“Absent such a showing, a retaliatory arrest claim
The Court also held that, as with the Fourth Amendment,
in the First Amendment context, the existence of probable cause
turns on an objective analysis:
[The plaintiff’s] approach dismisses the need
for any threshold showing, moving directly to
consideration of the subjective intent of the
officers. In the Fourth Amendment context,
however, we have almost uniformly rejected
invitations to probe subjective intent.
Police officers conduct approximately 29,000
arrests every day—a dangerous task that
requires making quick decisions in
circumstances that are tense, uncertain, and
rapidly evolving. To ensure that officers
may go about their work without undue
apprehension of being sued, we generally
review their conduct under objective
standards of reasonableness. Thus, when
reviewing an arrest, we ask whether the
circumstances, viewed objectively, justify
the challenged action, and if so, conclude
that action was reasonable whatever the
subjective intent motivating the relevant
officials. A particular officer’s state of
mind is simply irrelevant, and it provides no
basis for invalidating an arrest.
[The plaintiff’s] purely subjective approach
would undermine that precedent by allowing
even doubtful retaliatory arrest suits to
proceed based solely on allegations about an
arresting officer’s mental state. . . .
. . . .
Adopting [the rule that a plaintiff must
plead and prove the absence of probable
cause] in this closely related context
addresses those familiar concerns. Absent
such a showing, a retaliatory arrest claim
Id. at 1724–25 (emphasis in original) (internal brackets,
citations, and quotation marks omitted).
In other words, in Nieves, the Court held that its
Fourth Amendment probable cause analysis applies when a plaintiff
argues that an arrest was in retaliation for the exercise of
First Amendment rights.
In the Fourth Amendment context,
this court has already held that Defendants have established that
they had probable cause to arrest Denis as a matter of law.
conclusion is also fatal to Denis’s First Amendment claim.
In Nieves, the Court did establish a “narrow
qualification” to its rule.
An arrest may be retaliatory
despite the presence of probable cause if the arrest is made
under “circumstances where officers have probable cause to make
arrests, but typically exercise their discretion not to do so.”
Id. at 1727.
“For example, at many intersections, jaywalking is
endemic but rarely results in arrest.
If an individual who has
been vocally complaining about police conduct is arrested for
jaywalking at such an intersection, it would seem insufficiently
protective of First Amendment rights to dismiss the individual’s
retaliatory arrest claim on the ground that there was undoubted
probable cause for the arrest.”
The Court therefore held
that “the no-probable-cause requirement should not apply when a
plaintiff presents objective evidence that he was arrested when
otherwise similarly situated individuals not engaged in the same
sort of protected speech had not been.”
Like the “probable
cause analysis, [this rule] provides an objective inquiry that
avoids the significant problems that would arise from reviewing
police conduct under a purely subjective standard.”
arresting officer’s subjective intent is again “irrelevant.”
Some evidence suggests that Kauai County police
officers did not arrest everyone who violated the Mask Mandates.
Defendants concede that, on other occasions, Denis was not
arrested even though he was seen without a mask while not
ECF No. 160, PageID # 1692.
significantly, Defendants’ own conduct before Denis’s arrest
suggests that Kauai police officers usually gave violators a
Defendants, however, contend that Denis has not met his
burden of showing that he was “similarly situated” to the
violators that Kauai police offers chose to let off with
ECF No. 150-1, PageID # 1568.
Defendants, they only arrested Denis “after he repeatedly and
affirmatively refused multiple requests to disperse or don a
Therefore, “to qualify as ‘similarly situated,’”
individuals would “need to be outside unmasked in a public area
and would need to repeatedly and affirmatively refuse an
officer’s request to disperse or don a mask.”
That argument glosses over Officer Kelley’s mistaken
understanding of the law.
Officer Kelley told Denis that he had
to wear a mask outdoors even if he was socially distanced,
something that the Mask Mandates did not require.
Kelley arrested Denis only after he had refused to comply with
Officer Kelley’s instructions, those instructions told Denis that
he had to do something that he had no obligation to do.
circumstance raises questions about whether Denis’s situation was
similar to that of individuals police let off with warnings.
the one hand, the “similarly situated” analysis is meant to
determine whether an officer used a minor violation as a pretext
for retaliation against protected speech.
If Officer Kelley
arrested Denis because Officer Kelley mistakenly believed Denis
was not following the law, that would suggest that the arrest was
On the other hand, this court is reluctant to
say that an officer’s mistake of law can nullify a First
This court need not resolve these issues.
not Officer Kelley made a mistake, Denis made statements to
Defendants that indicated an intent to continue to violate the
Nothing about those statements was tied to Officer Kelley’s
That is, there is no indication that Denis was
declining to wear a mask because he was socially distanced and
therefore did not have to wear a mask.
Instead, he informed the
officers the Mask Mandates were not laws at all and he took his
authority from God.
ECF No. 151-4, at 00:56-00:58, id. at 02:45-
02:47; id. at 01:54-01:58; id. at 06:35.
Denis expressed his
intent to continue to disregard the Mask Mandates.
have been “similarly situated” only to others pledging continuing
disregard of a law.
Denis has the burden of proof on the “similarly
Nieves, 139 S. Ct. at 1727.
He has presented
no evidence showing that Kauai County police officers decided not
to arrest other individuals who pledged to continue with
violations of any law (or even of an officer’s mistaken statement
of law) after receiving warnings.
Possibly, there were other
individuals who complained about the Mask Mandates but did not
continue to violate them in the presence of the police, but there
is no evidence of that in the record.
Having failed to introduce
such evidence, Denis cannot rely on the narrow exception
identified by the Supreme Court in Nieves.11
for summary judgment on Denis’s First Amendment claims is
Denis’s motion for summary judgment on the same claims
Defendants’ motion for summary judgment is granted.
Denis’s motion for summary judgment is denied.
This order leaves
For the same reasons, Defendants are entitled to
qualified immunity on this claim. See Wesby, 138 S. Ct. at 589.
no claim remaining for further adjudication.
The Clerk is
instructed to enter judgment in favor of Defendants.
It is so ordered.
DATED: Honolulu, Hawaii, July 29, 2022.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Denis v. Ige et al., Civil No. 21-00011 SOM-RT, ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
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