Dillon Bracken v. Kinchung Chung

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DILLON L. BRACKEN, No. 14-16886

Plaintiff-Appellant,

D.C. No.

v. 1:11-cv-00784-

LEK-BMK

AARON H. OKURA; KYO-YA HOTELS

AND RESORTS, L.P.,

Defendants, OPINION

and

KINCHUNG CHUNG,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted June 15, 2017

Honolulu, Hawaii

Filed August 23, 2017

Before: Raymond C. Fisher, Richard A. Paez

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Fisher

2 BRACKEN V. CHUNG

SUMMARY*

Civil Rights

The panel vacated the district court’s summary judgment

granting qualified immunity to a Honolulu Police Department

officer in an action brought under 42 U.S.C. § 1983 and state

law by Dillon Bracken, who alleged that Officer Chung

violated his rights under the Due Process Clause of the

Fourteenth Amendment by failing to intercede to stop an

assault on him by hotel security guards.

Officer Chung had been hired by a hotel as a special duty

officer to provide security for a private event. Although

Chung wore his police uniform, and the Honolulu Police

Department approved his employment at the hotel, the

Department considered him off-duty while working there.

Chung, wearing his police uniform, helped detain Bracken in

order to issue an internal trespass warning and then failed to

intercede when Bracken was assaulted by private security

personnel.

The panel held, first, that Chung could not assert qualified

immunity because he was not serving a public, governmental

function while being paid by the hotel to provide private

security. On the merits, the panel held there was a triable

issue as to whether Chung violated Bracken’s right to liberty

by placing Bracken in danger and then failing to protect him

from harm. The panel held that a reasonable jury could find

Chung exposed Bracken to harm he would not otherwise have

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BRACKEN V. CHUNG 3

faced, that this harm was foreseeable and that Chung acted

with deliberate indifference in the presence of a known

danger, created by his conduct. The panel remanded for

further proceedings.

COUNSEL

Charles S. Lotsof (argued), Honolulu, Hawaii, for Plaintiff-

Appellant.

Sarah T. Casken (argued) and Curtis E. Sherwood, Deputies

Corporation Counsel; Donna Y.L. Leong, Corporation

Counsel; Department of the Corporation Counsel, Honolulu,

Hawaii; for Defendant-Appellee.

OPINION

FISHER, Circuit Judge:

Qualified immunity protects government officers in the

performance of their public, governmental functions. It does

so “not to benefit [the] agents” of government, but “to

safeguard government” itself, “and thereby to protect the

public at large.” Wyatt v. Cole, 504 U.S. 158, 168 (1992). In

this case, Honolulu Police Department (HPD) Officer

Kinchung Chung seeks the protection of qualified immunity

for actions he took, or failed to take, while hired and paid by

a hotel to provide “special duty” security for a private event.

Although the police department considered Chung off-duty,

he wore his police uniform, and he used the badge of

authority it conveyed to help detain a hotel patron, Dillon

Bracken. Chung does not contend that Bracken had

4 BRACKEN V. CHUNG

committed a crime. Rather, hotel personnel had decided to

issue Bracken an internal “trespass” warning for entering a

New Year’s Eve party without permission. After Chung

helped detain him, hotel security guards allegedly assaulted

Bracken. Bracken sued under 42 U.S.C. § 1983, alleging

Chung violated his rights under the Due Process Clause of the

Fourteenth Amendment by failing to intercede and stop the

assault. The district court granted Chung summary judgment

based on qualified immunity and on the merits.

We hold, first, that Chung may not assert qualified

immunity, because he was not serving a public, governmental

function while being paid by the hotel to provide private

security. We also hold, on the merits, that a reasonable jury

could find Chung exposed Bracken to harm he would not

otherwise have faced, that this harm was foreseeable and that

Chung acted with “deliberate indifference . . . in the presence

of [the] known danger, created by [his] conduct.” L.W. v.

Grubbs, 92 F.3d 894, 896 (9th Cir. 1996) (L.W. II). We

therefore vacate and remand.

I. Background

On New Year’s Eve in 2009, Bracken attended a party at

the Kyo-ya Hotel and Resort’s Rumfire Restaurant. Aaron

Okura, a security guard for Kyo-ya, saw Bracken step over a

rope without a wristband indicating he was entitled to be

there. Okura moved toward Bracken, while Bracken tried to

walk further into the party.

Chung observed this interaction, approached and, together

with Okura, stopped Bracken. Kyo-ya had hired Chung as a

“special duty” officer to provide security for the event.

Although Chung wore his police uniform, and HPD approved

BRACKEN V. CHUNG 5

his employment at Kyo-ya, the HPD website says “HPD

officers hired for special duty assignments are off-duty.”

See Ask HPD: Hiring Special Duty Officers,

www.honolulupd.org/news/index.php?page=main&story=1

610 (last visited Aug. 16, 2017).1 Chung was paid directly by

the hotel for his employment at Kyo-ya – not by HPD.

Chung also acted at the hotel’s direction in helping to stop

Bracken, doing so because hotel personnel had decided to

issue Bracken an internal “trespass” warning, pursuant to the

hotel’s internal policies.2

When Chung and Okura confronted Bracken, Bracken

began recording video on his cell phone. The video shows

Chung asking Bracken for his identification and telling him

he was being “trespassed,” while Bracken repeatedly asked

whether he could leave. Shortly thereafter, other Kyo-ya

security guards arrived. The security guards then tackled

Bracken, allegedly assaulted him and took him to the hotel’s

security office. Except for the initial takedown, the video

does not show the alleged assault, because Bracken’s phone

fell to the ground. The audio continues, however, and

Bracken’s voice can be heard screaming in pain, cursing and

asking the guards to stop hurting him. Bracken allegedly lost

consciousness at several points, suffered a vocal cord and

larynx injury and incurred bruising on his wrists. Once the

group reached the security office, Bracken provided his

1

Chung does not contend he was on-duty while providing security for

Kyo-ya.

2

When the hotel decided it did not want a given person on its

premises, it would “trespass” them – an in-house warning stating the

person was not welcome at the hotel for a period of one year and that if

the person returned, the hotel would “call the police” and pursue legal

remedies.

6 BRACKEN V. CHUNG

identification. He was then issued the written trespass

warning, examined by paramedics and allowed to leave.

Although Bracken does not argue that Chung was involved

physically in the alleged assault, the phone audio and video

show he was present the entire time.

Bracken filed suit against the hotel, the hotel security

guards and Chung. He brought claims under state law, along

with § 1983 claims under the Fourth and Fourteenth

Amendments for unlawful seizure, excessive force and failure

to intercede. The district court granted Chung summary

judgment on all claims, both on the merits and based on

qualified immunity. Bracken appeals only the § 1983 failure

to intercede claim. We review de novo a district court’s grant

of summary judgment, see Blankenhorn v. City of Orange,

485 F.3d 463, 470 (9th Cir. 2007), and we vacate and remand.

II. Discussion

A. Qualified Immunity

We first address whether Chung may invoke the doctrine

of qualified immunity. “There are two questions that must be

answered” when an officer seeks qualified immunity. Jensen

v. Lane Cty., 222 F.3d 570, 576 (9th Cir. 2000). The first is

“whether qualified immunity is categorically available” to the

type of officer at issue. Id.3 “Second, if qualified immunity

3

Chung contends Bracken waived this argument by not raising it

below. We disagree. “To have been properly raised below, ‘the argument

must be raised sufficiently for the trial court to rule on it.’” Broad v.

Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996) (quoting In re E.R.

Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)). Bracken raised this

argument both in opposition to the motion to dismiss and in his motion for

reconsideration after summary judgment.

BRACKEN V. CHUNG 7

is available generally, we must determine whether [the

officer] is entitled to it in this case,” i.e., whether the officer

“violated a clearly established constitutional . . . right.” Id.

1. State action for purposes of § 1983 is not co-extensive

with state action for which immunity is available.

Chung conceded at oral argument that he “absolutely”

acted under color of state law in helping detain Bracken, and

he argues that, because of this, qualified immunity is

necessarily available to him. We agree that Chung acted

under color of state law for § 1983 purposes: In preventing

Bracken from leaving the party, Chung invoked the authority

conveyed by his police uniform and badge. See Wyatt,

504 U.S. at 161. We disagree, however, that this

automatically entitles him to invoke qualified immunity.

State action for § 1983 purposes is not necessarily co-

extensive with state action for which qualified immunity is

available. See Jensen, 222 F.3d at 576 (“[A] finding of ‘state

action’ on the part of Dr. Robbins does not require this court

to find that he is entitled to qualified immunity.” (citing

Richardson v. McKnight, 521 U.S. 399 (1997)). “The

purpose of § 1983 is to deter state actors from using the badge

of their authority to deprive individuals of their federally

guaranteed rights and to provide relief to victims if such

deterrence fails.” Wyatt, 504 U.S. at 161. Qualified

immunity, on the other hand, “protect[s] government’s ability

to perform its traditional functions.” Id. at 167 (emphasis

added). Courts, therefore,

have recognized qualified immunity for

government officials where it was necessary

to preserve their ability to serve the public

8 BRACKEN V. CHUNG

good or to ensure that talented candidates

were not deterred by the threat of damages

suits from entering public service. In short,

. . . qualified immunity . . . acts to safeguard

government, and thereby to protect the public

at large, not to benefit its agents.

Id. at 167–68 (emphasis added) (citations omitted). Thus, the

availability of immunity does not necessarily overlap with

state action under § 1983 when a government officer uses the

“badge of their authority,” id. at 161, in service of a private,

non-governmental goal. See generally Richardson, 521 U.S.

at 404–12.

2. Neither a firmly rooted tradition of immunity nor the

purposes underlying the doctrine justifies qualified

immunity for Chung.

Neither this court nor the Supreme Court has addressed

the general availability of qualified immunity to off-duty

police officers acting as private security guards.4 In other

contexts, however, we have followed the Supreme Court’s

instruction to “look both to history and to the purposes that

underlie government employee immunity in order to find the

answer.” Richardson, 521 U.S. at 404; see Jensen, 222 F.3d

at 576. The first inquiry is whether “[h]istory . . . reveal[s] a

4

We are also not aware of any case from other circuits squarely

addressing the issue. See Saenz v. G4S Secure Sols. (USA), Inc., 224 F.

Supp. 3d 477, 481–82 (W.D. Tex. 2016) (noting “nation[-wide]

uncertainty regarding this issue”); see also Morris v. Dillard Dep’t Stores,

Inc., 277 F.3d 743, 753 (5th Cir. 2001) (assuming without analysis that

immunity was available to an off-duty officer acting as a security guard);

Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 763 & n.5 (7th Cir. 2006)

(taking a similar approach).

BRACKEN V. CHUNG 9

‘firmly rooted’ tradition of immunity.” Richardson, 521 U.S.

at 404. We look principally to “the common law as it existed

when Congress passed § 1983 in 1871.” Filarsky v. Delia,

566 U.S. 377, 384 (2012). The next question is whether

granting immunity would serve the purposes underlying the

immunity doctrine – such as “protecting government’s ability

to perform its traditional functions,” “preserv[ing] the ability

of government officials to serve the public good,” “ensur[ing]

that talented candidates [are] not deterred by the threat of

damages suits from entering public service,” and “protecting

the public from unwarranted timidity on the part of public

officials.” Richardson, 521 U.S. at 407–08 (citations and

internal quotation marks omitted).

Applying that framework, we conclude qualified

immunity is unavailable to Chung. First, he has shown no

“firmly rooted” tradition of immunity for off-duty or special

duty officers acting as private security guards. Indeed, Chung

has not cited any supporting historical authority. Nor has our

own review revealed a “firmly rooted” tradition of immunity.

Cf. Filarsky, 566 U.S. at 387–89 (explaining that immunity

was historically available to “public servants and private

individuals engaged in public service” when they were

“carrying out government responsibilities” (emphasis

added)); Richardson, 521 U.S. at 404 (“History does not

reveal a ‘firmly rooted’ tradition of immunity applicable to

privately employed prison guards.”). We are not aware of

any state that offers immunity where an officer serving as a

private security guard did not act in service of a public duty,

and some states have held immunity is simply unavailable in

10 BRACKEN V. CHUNG

this context.5 Thus, the historical inquiry does not support

immunity for Chung here.

Second, Chung has not shown that the policies

underpinning qualified immunity warrant invoking the

doctrine here. In detaining Bracken, Chung did not act “in

performance of public duties” or to “carry[] out the work of

government.” Filarsky, 566 U.S. at 389–90 (emphasis added)

(citing Richardson, 521 U.S. at 409–11). He does not

contend, for example, that he was preventing Bracken from

committing a crime. Instead, Chung – acting on behalf of the

hotel, at the hotel’s direction and while being paid by the

5

See, e.g., Traver v. Meshriy, 627 F.2d 934, 940 (9th Cir. 1980)

(“Under California law, . . . [immunity] is not available to an off-duty

police officer . . . who was acting in the scope of his employment as a

private security guard.” (citing Cervantez v. J.C. Penney Co., 595 P.2d

975 (Cal. 1979), abrogated in part by statute as explained in Melendez v.

City of Los Angeles, 73 Cal. Rptr. 2d 469, 473–77 (Ct. App. 1998)));

Lovelace v. Anderson, 785 A.2d 726, 739–40 (Md. 2001) (“[W]hile acting

as a private security guard for the hotel, [off-duty officer] Anderson was

clearly not entitled to public official immunity.”); Duran v. Furr’s

Supermarkets, Inc., 921 S.W.2d 778, 793–94 & n.6 (Tex. Ct. App. 1996)

(denying summary judgment on qualified immunity where the off-duty

officer moonlighting as a security guard did not establish “that he was

acting within the scope of his authority as a police officer during the

incident”); cf. Smith v. Norton Hosps., Inc., 488 S.W.3d 23, 28–30 (Ky.

Ct. App. 2016) (granting immunity to an off-duty “peace officer” serving

as a security guard because the officer’s conduct fell within the statutorily

defined authority of an off-duty officer; construing broadly the

circumstances where immunity would be available); cf. also Dickson v.

Waldron, 34 N.E. 506, 509–10 (Ind. 1893) (explaining in the context of

respondeat superior liability, where a “special policeman” served as a

theater’s “doorkeeper,” that “[b]ecause he was a police officer, it does not

follow that all his acts were those of a policeman . . . . [and] [e]ven if he

were a regular patrolman, called in off the street by [the theater] or [its]

agents to aid in enforcing the regulations of the theater, he would, for such

purpose, be only an agent of [the theater].”).

BRACKEN V. CHUNG 11

hotel – aided the hotel in realizing its goal of issuing Bracken

a warning. Thus, shielding Chung from suit would not

advance the policies underlying qualified immunity. See id.

at 389–91. We hold that qualified immunity is not available

to Chung. The district court erred in concluding otherwise.6

B. Failure to Intercede

We turn next to the merits of Bracken’s failure to

intercede claim. On summary judgment, we view the

evidence in the light most favorable to the non-moving party

(here, Bracken). See Zetwick v. Cty. of Yolo, 850 F.3d 436,

440 (9th Cir. 2017). Summary judgment is inappropriate if

“a reasonable juror drawing all inferences in favor of

[Bracken] could return a verdict in [Bracken’s] favor.” Id. at

441 (quoting Reza v. Pearce, 806 F.3d 497, 505 (9th Cir.

2015)).

Bracken contends that because Chung helped detain him

and prevented him from leaving the party, Chung had a duty

to intervene once the security guards began assaulting him.

“Although the general rule is that the state is not liable for

its” failure to protect an individual from harm, “there are

several exceptions to this rule.” Munger v. City of Glasgow

Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000). One of

these “is the ‘danger creation’ exception,” which imposes a

duty to intercede on an officer “where there is ‘affirmative

conduct on the part of the [officer] in placing the plaintiff in

danger.’” Id. (quoting L.W. v. Grubbs, 974 F.2d 119, 121

6

We do not decide whether qualified immunity might be available to

an off-duty officer who steps back into a police officer role, for example,

to prevent a crime from occurring. That is a different case for a different

time.

12 BRACKEN V. CHUNG

(9th Cir. 1992) (L.W. I)); see, e.g., Wood v. Ostrander,

879 F.2d 583, 590 (9th Cir. 1989) (holding an officer’s

affirmative conduct that placed a woman in danger

“trigger[ed] a duty of the police to afford her some measure

of peace and safety”). For this duty to be triggered, the harm

the plaintiff suffers as a result of the officer’s affirmative

conduct must have been foreseeable at the time of the

officer’s conduct placing the plaintiff in danger. See

Lawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003)

(“[I]n each of the cases in which we have applied the danger-

creation exception, ultimate injury to the plaintiff was

foreseeable.”). When an officer’s affirmative conduct creates

a foreseeable risk of harm to the plaintiff, the officer will be

liable for failing to intercede if the officer demonstrates

“deliberate indifference” to the plaintiff’s plight. See L.W. II,

92 F.3d at 896 (“We have not deviated from the principle that

deliberate indifference on the part of the responsible official,

to the safety of [others,] in the presence of known danger,

created by official conduct, is sufficient to establish a due

process violation under Section 1983.”); see also Nicholas v.

Wallenstein, 266 F.3d 1083, 1088 (9th Cir. 2001) (declining

to impose liability where the plaintiffs did not show officials’

“deliberate indifference to known or obvious dangers” that

arose after the allegedly danger-creating conduct occurred).7

7

Our cases also permit liability for officers who demonstrate

deliberate indifference in creating a danger, as distinguished from

responding to the foreseeable danger they created. See, e.g., Kennedy v.

City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006) (holding the

evidence “establish[ed] that [the defendant] acted deliberately and

indifferently to the danger he was creating” (emphasis added)). Chung

does not argue these cases preclude liability for an officer’s deliberately

indifferent response to foreseeable danger the officer creates, see

BRACKEN V. CHUNG 13

Here, a reasonable jury could find that Chung engaged in

affirmative conduct that exposed Bracken to foreseeable

harm. Even as the situation escalated, the alleged assault

began and it became foreseeable that Bracken would suffer

harm, Chung affirmatively prevented Bracken from leaving

the party and ensured that Bracken remained under the

control of the hotel’s security guards. The cell phone video

shows that while the other security guards surrounded

Bracken and physically grabbed his arm and shoulder, Chung

stood directly in front of Bracken asking him for

identification and telling him he was being trespassed. As the

jostling and yelling became more intense, Bracken looked at

the group of people detaining him and said, “Do not do this.”

Chung did not step away or intimate that the situation was

now under the security guards’ control. Instead, he again

asserted his authority over Bracken, again telling Bracken he

was being trespassed and needed to show identification.

Seconds later, as Chung asked for Bracken’s identification

yet again, the takedown occurred. At this point – while

Chung was still an active participant in the incident – Chung

could foresee that his conduct “expose[d] [Bracken] to a

danger” he “would not have . . . faced” had Chung let him

leave, triggering a duty to intercede. Kennedy, 439 F.3d at

1061; see Wood, 879 F.2d at 588, 590 (officers exposed a

woman to foreseeable danger by leaving her on the side of a

road in a high-crime area, where the officer knew or should

have known of crime reports and “common sense” suggested

the woman might suffer harm); see also Dan B. Dobbs, Paul

T. Hayden & Ellen M. Bublick, Dobbs’ Law of Torts § 159

(2d ed. 2017) (describing foreseeability as whether “a

Answering Br. at 19 (accepting the theory that an officer can be liable for

“affirmatively act[ing] to create a danger and then show[ing] deliberat[e]

indifference to the danger created”), and we do not read them as doing so.

14 BRACKEN V. CHUNG

reasonable person would recognize a risk of harm”). As a

trained police officer, Chung should have known the guards

were overreacting and exposing Bracken to injury.

A jury could also find that Chung showed “deliberate

indifference . . . in the presence of [the] known danger,

created by [his] conduct.” L.W. II, 92 F.3d at 896. After the

takedown, the alleged assault continued for more than ten

minutes. During this time – although only audio is

discernable on the recording – a voice that reasonably could

belong to Chung can be heard along with Bracken’s screams

and requests for the security guards to stop hurting him. At

no point, however, did Chung take any action to stop the

assault. Thus, a jury could find that Chung knew the security

guards were hurting Bracken and deliberately chose to do

nothing about it. See id. at 900 (“The deliberate indifference

standard . . . requires that the defendant have actual

knowledge of, or willfully ignore, impending harm.”). In

short, a reasonable jury could find Chung liable on a failure

to intercede theory. The district court therefore erred by

granting summary judgment to Chung on Bracken’s due

process claim.8

8

The district court did not address the danger-creation exception. It

granted summary judgment on the failure to intercede claim addressing

only a different “route to police officer liability” for failure to intercede:

“police officers[’] . . . duty to intercede when their fellow officers violate

the constitutional rights of a suspect or other citizen.” United States v.

Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994), rev’d in part on other

grounds by Koon v. United States, 518 U.S. 81 (1996). Bracken does not

appear to contest the district court’s conclusion regarding the “fellow-

officer” exception, relying instead on the danger-creation exception. See,

e.g., Opening Br. at 16 (“The essence of a failure to intercede cause of

action is the off[i]cer’s deliberate indifference to the victim’s exposure to

a known risk that was increased by the officer’s action.”). Thus, we do

not address whether the fellow-officer exception applies here.

BRACKEN V. CHUNG 15

III. Conclusion

We hold that qualified immunity is unavailable to Chung,

and that a reasonable jury could find Chung liable for failing

to intercede against the harm to which he exposed Bracken.

VACATED AND REMANDED.

Costs on appeal are awarded to Appellant Bracken.