Courtesy of James R. Touchstone, Esq. of Jones & Mayer
On August 23, 2017, the Court of Appeals for the Ninth Circuit, in Bracken v. Okura, 2017 U.S. App. LEXIS 16105 (9th Cir. Aug. 23, 2017), ruled that an “off-duty” Honolulu Police Department Officer working as a hotel security guard was not entitled to qualified immunity for failure to intervene to prevent an assault because he was not working on behalf of the government at the time of the incident.
On New Year’s Eve in 2009, Kyo-ya Hotel and Resort’s Rumfire Restaurant (“Kyo-ya”) hired Honolulu Police Department (“HPD”) Officer Chung, as a special duty officer to provide security for a party that was held there that night. Officer Chung wore his police uniform for the assignment, but Kyo-ya, not HPD, paid Officer Chung directly for his employment. HPD approved his employment at Kyo-ya, but, HPD’s website made it clear that “HPD officers hired for special duty assignments are off duty.”
Dillon Bracken (“Bracken”) attended the party at Kyo-ya. While there, Bracken stepped over a rope into the party without a required wristband that confirmed he could be present. Aaron Okura, a security guard for Kyo-ya, and Officer Chung observed Bracken step over the rope without the appropriate wrist band. Both Officer Chung and Okura approached Bracken and stopped him.
When Officer Chung and Okura confronted Bracken, Bracken began recording them on video using his cell phone. The video shows Officer Chung asking Bracken for his identification and telling him he had “trespassed.” Hotel personnel had decided to issue a trespass warning to Bracken because he had trespassed pursuant to the hotel’s internal policies. The video also showed Bracken repeatedly asking if he could leave. Shortly thereafter, other Kyo-ya security guards arrived, allegedly tackled him and assaulted him. As soon as the security guards tackled him, the phone fell to the ground and only audio of the incident can be heard. 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 bruises on his wrist.
Bracken provided his identification once the group reached the security office, and he was ultimately issued a written trespass warning. He was then examined by paramedics and allowed to leave. Although Officer Chung was not involved physically in the alleged assault, the phone audio and video show that he was present the entire time.
Bracken subsequently filed suit against the hotel, the hotel security guards and Officer Chung. He brought claims under state law, as well as Section 1983 claims under the Fourth and Fourteenth Amendments for unlawful seizure, excessive force and failure to intercede. The District Court granted Officer Chung summary judgment on all claims, both on the merits and based on qualified immunity. Bracken thereafter appealed the ruling to the Ninth Circuit.
The Ninth Circuit vacated the District Court’s judgment. The Court held that a reasonable jury could find Officer Chung exposed Bracken to harm that he would not otherwise have faced, that this harm was foreseeable and that Officer Chung acted with deliberate indifference in the presence of a known danger that was created, in part, by his conduct.
The Court indicated that there were two questions that must be answered when an officer seeks qualified immunity. The first was “whether qualified immunity was categorically available” to the type of officer at issue, and second, “if qualified immunity is available generally, whether the officer is entitled to it in this case,” i.e., “whether the officer violated a clearly established constitutional…right.”Id. The Court also addressed whether summary judgment was appropriate in the case.
Whether Qualified Immunity is Categorically Available to Officer at Issue?
Officer Chung stated that he acted under color of law when he detained Bracken. As such, he argued that he was entitled to qualified immunity. The Court initially observed that “state action,” or acting under color of law, for Section 1983 purposes is not necessarily co-extensive with state action for which qualified immunity is available. The Court explained that the availability of immunity does not necessarily overlap with state action under Section 1983 when a government officer uses the “badge of their authority” in service for a private, non-governmental goal. The purpose of Section 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. Qualified immunity, on the other hand, acts to safeguard the government and thereby to protect the public at large.
The Court agreed with Officer Chung that he acted under color of state law, for Section 1983 purposes, in preventing Bracken from leaving the party as Officer Chung invoked the authority conveyed by his police uniform and badge. The Court disagreed, however, that this automatically entitled him to invoke qualified immunity. The Court determined that because he used his badge of authority in service of a private, non-governmental goal, qualified immunity was unavailable in this instance.
Is Officer Entitled to Qualified Immunity in This Case?
In making this ruling, the Court indicated that neither the Ninth Circuit nor the Supreme Court had addressed the general availability of qualified immunity to off-duty police officers acting as private security guards. Moreover, the Court stated, a historical inquiry did not support that off-duty or special duty officers acting as private security guards should be granted qualified immunity because traditionally immunity was granted to “public servants and private individuals engaged in public service” when they were “carrying out government responsibilities.”
Additionally, the Court explained that Officer Chung did not show that policies underpinning qualified immunity warranted invoking the doctrine here . He did not act “in performance of public duties” or to “carry out the work of government.” Officer Chung was not attempting to stop a crime during his encounter with Bracken, the Court observed. Instead, the Court stated, he acted on behalf of the hotel while being paid by the hotel. Thus, the Court concluded that shielding Officer Chung from suit would not advance the policies underlying qualified immunity.
Failure to Intercede
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. One of those exceptions 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.” 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. 
The Court determined that a reasonable jury could find that Officer Chung engaged in affirmative conduct that exposed Bracken to foreseeable harm. Officer Chung affirmatively prevented Bracken from leaving the party even though he saw the situation escalate with hotel security. The Court concluded that a jury could find that Officer Chung showed deliberate indifference in the presence of the known danger, created by his conduct. As a result, the Court concluded the District Court erred by granting summary judgment to Officer Chung on Bracken’s due process claim.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit has now ruled that law enforcement officers acting as security guards for private entities are acting under color of law for purposes of federal Section 1983 liability and generally may not be entitled to the potential defense of qualified immunity if they become involved in an incident causing harm to another. This ruling represents the “worst of all worlds,” to use a modification of a popular saying.
California law on this issue is governed, in part, by Penal Code section 70. Section 70, in pertinent part, provides:
“(d)(1) Nothing in this section precludes a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, from engaging in, or being employed in, casual or part-time employment as a private security guard or patrolman by a private employer while off duty from his or her principal employment and outside his or her regular employment as a peace officer, and exercising the powers of a peace officer concurrently with that employment, provided that all of the following are true:
(A) The peace officer is in his or her police uniform.
(B) The casual or part-time employment as a private security guard or patrolman is approved by the county board of supervisors with jurisdiction over the principal employer or by the board’s designee or by the city council with jurisdiction over the principal employer or by the council’s designee.
(C) The wearing of uniforms and equipment is approved by the principal employer.
(D) The peace officer is subject to reasonable rules and regulations of the agency for which he or she is a peace officer.
(2) Notwithstanding the above provisions, . . . Any and all civil and criminal liability arising out of the secondary employment of any peace officer pursuant to this subdivision shall be borne by the officer’s principal employer. The principal employer shall require the secondary employer to enter into an indemnity agreement as a condition of approving casual or part-time employment pursuant to this subdivision.”
In Melendez v. City of Los Angeles, 63 Cal.App.4th 1 (1998), a California Court of Appeal held that the City was not liable for the actions of two off-duty LAPD officers when one of the officers shot a partygoer rendering him a paraplegic. Critical to the Court’s analysis in determining that the City was not liable for the off-duty officers’ actions in Melendez was the fact that the requirements of Penal Code section 70, subdivision (d), were not met. Specifically, the off-duty officers were not in uniform and had not received permission from their employer to work as private security guards.
In light of the holding in Bracken, pursuant to federal law, and the potential for liability under state law, as enunciated in Penal Code section 70 and its case law progeny, it is critical that law enforcement agencies review their secondary employment policies and engage in prudent risk management assessments to limit liability exposure derivative of secondary employment.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at firstname.lastname@example.org.
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 Jensen v. Lane Cty., 222 F. 3d 570, 576 (5th Cir. 2001)
 Filarsky v. Delia , 566 U.S. 377 at 387-89 (2012)
 Munger v. City of Glasgow Police Dep’t, 227 F. 2d 1082, 1086 (9th Cir. 2000)
 Lawrence v. United States, 340 F. 3d. 952, 957 (9th Cir. 2003)