California Police Chief- Fall 2013 CPCA_2017_Winter Magazine Final | Page 8

LEGAL
Recent Ninth Circuit Case Raises Serious Risk
Management Concerns Related to Secondary
Employment for Law Enforcement Officers
F
By: James Touchstone, General Counsel for California Police Chiefs Association
requently, law enforcement executives do not give
the issue of secondary employment of agency
officers the attention that it deserves. However,
secondary employment by agency officers raises significant
risk management concerns that should not be ignored.
A recent decision by the Ninth Circuit Court of Appeals
highlights these concerns.
Specifically, on August 23, 2017, the Court ruled,
in Bracken v. Okura, that an “off duty” Honolulu Police
Department Officer working as a hotel security guard
was “acting under color of law” for purposes of 42 U.S.C.
section 1983 liability. In conjunction with this holding, the
Court determined that the officer was not entitled to quali-
fied 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.
FACTS OF BRACKEN V. OKURA
On New Year’s Eve in 2009, Kyo-ya Hotel and the
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 at
Kyo-ya 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. However, 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 entered the party without the
required wrist band. Officer Chung and hotel personnel
confronted Bracken. Bracken began video recording them
using his cell phone. Hotel personnel had decided to issue
a trespass warning to Bracken because he had trespassed
pursuant to the hotel’s internal policies. Shortly thereafter,
other Kyo-ya security guards allegedly tackled Bracken and
assaulted him. 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
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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 against
Officer Chung. In response, Officer Chung asserted that he
was acting under color of law and that he was entitled to
qualified immunity. The District Court agreed, and granted
Officer Chung summary judgment on all claims, both on
the merits and based on qualified immunity. Bracken there-
after appealed the ruling to the Ninth Circuit.
THE NINTH CIRCUIT’S OPINION
The Ninth Circuit vacated the District Court’s
judgment. The Court held that a reasonable jury could find
that 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.
IS QUALIFIED IMMUNITY AVAILABLE TO AN OFF-DUTY
OFFICER?
Officer Chung stated that he acted under color of law
when he detained Bracken. He also argued that he was
entitled to qualified immunity for his actions. 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 agreed with Officer Chung that he
acted under color of state law, for Section 1983 purposes,
in preventing Bracken from leaving by invocation of
the authority conveyed by his official police uniform
and badge. The Court disagreed, however, that this
automatically entitled him to 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.
In making this ruling, the Court indicated that neither
the Ninth Circuit nor the Supreme Court had addressed
whether the defense of qualified immunity is available to
off-duty police officers acting as private security guards.