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Public Agency Not Liable For Off-Duty Officer’s Accidental Shooting Of Bartender
Three off-duty Honolulu Police Department police officers stopped at a bar for drinks. After consuming several drinks, one of the officers, Officer Kimura, inspected his personal revolver, which the Department authorized him to carry, to ensure it was loaded. The other two officers watched an intoxicated Kimura attempt to load his already-loaded firearm. Kimura’s revolver accidentally discharged, striking and severely injuring bartender Hyun Ju Park.
Park sued the three officers and the City and County of Honolulu (County) under 42 U.S.C. Section 1983 and Hawaii state law, alleging that they violated her substantive due process right to bodily integrity under the Fourteenth Amendment. Park also alleged that Kimura’s handling of his firearm exhibited deliberate indifference to her personal safety, and the other two officers were liable for failing to intervene to stop Kimura.
To attempt to establish the County’s liability under Section 1983, Park alleged two Department policies caused her injuries. First, Department policy required off-duty officers to carry a firearm at all times, except when an officer’s “physical and/or mental processes are impaired because of consumption of alcohol.” Second, Park alleged the Department promoted a “brotherhood culture of silence” that condoned police misconduct.
Park settled her claims against Kimura. Thereafter, the district court granted the remaining defendants’ motion to dismiss Park’s Section 1983 claim. Park appealed.
The U.S. Court of Appeals for the Ninth Circuit found that the two bystander officers did not act or purport to act under color of state law. The Court disagreed with Park’s claim that both officers were “effectively on-duty” the moment Kimura pulled out his firearm in the bar. The Court said that the question is not whether the officer is on or off duty. Instead, the inquiry is whether the officers exhibited or purported to exhibit their official duties during the events that led to Park’s injuries. The Court answered no because the officers: were not in uniform; did not identify themselves as police officers; and did not pretend to exercise their official responsibilities in any way. The Ninth Circuit affirmed the dismissal of Park’s Section 1983 claim against the bystander officers.
The Ninth Circuit also found that Park failed to plausibly allege that the County’s inaction reflected deliberate indifference to her Fourteenth Amendment right to bodily integrity. Park could not allege the Chief of Police had actual or constructive notice that any deficiencies in Department policy would likely result in deprivation of Park’s federally protected rights. There was no indication that the Chief was aware of any prior, similar incidents in which off-duty officers mishandled their firearms while drinking. Further, there was no indication that the Chief was aware of any “culture of silence” that operated to conceal officer misconduct. Since Park failed to plausibly allege that the Chief was deliberately indifferent to her federally protected rights, the Ninth Circuit affirmed the dismissal of her Section 1983 claim against the County.
Park v. City and County of Honolulu, 2020 WL 1225271 (2020).
Law enforcement agencies frequently have questions about whether they can be held liable for the off-duty conduct of their personnel. While this question requires careful analysis of the specific facts, as a general rule, there must be a plausible showing of deliberate indifference by a relevant policy maker.