The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART THE STATE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
On September 21, 2011, Defendant the State of Hawai`i ("the State"), Defendants Bienvenido Villaflor, Freddie Carabbacan, and Daniel Kwon - in their official capacities only, Defendants Douglas Arakaki, Raymond A. Schwartz, Betty Muraki, Daryl Naauao, and Jayson M. Watts - each in his or her individual and official capacities, and Defendants Paul Reid and Reid Ogata - in their individual capacities only*fn1 (collectively "the State Defendants"), filed the instant Motion for Judgment on the Pleadings ("Motion"). Plaintiffs Mitchell Kahle and Kevin Hughes ("Plaintiffs") filed their memorandum in opposition on December 23, 2011, and the State Defendants filed their reply on January 3, 2012. In addition, Defendant Villaflor, in his individual capacity, and Defendant Kwon, in his individual capacity, each filed a joinder in the Motion on January 10, 2012 and January 12, 2012, respectively. Amicus Curiae the American Civil Liberties Union of Hawaii Foundation filed a brief in support of Plaintiffs' opposition to the Motion on January 9, 2012.
The Motion and the joinders came on for hearing on January 17, 2012. John Cregor, Jr., Esq., appeared on behalf of the State Defendants; Dennis Ferm, Esq., appeared on behalf of Defendant Villaflor, in his individual capacity, Mark Nomura, Esq., appeared on behalf of Defendant Kwon, in his individual capacity, Henry Kim, Esq., appeared on behalf of Defendant Carabbacan, in his individual capacity, and James Bickerton, Esq., and Stephanie Marn, Esq., appeared on behalf of Plaintiffs. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, the joinders are HEREBY GRANTED and the Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
On February 15, 2011, Plaintiffs filed their First Amended Complaint for Declaratory and Injunctive Relief and Compensatory and Punitive Damages ("First Amended Complaint"). [Dkt. no. 20.]
According to the First Amended Complaint, Kahle is a well-known civil rights activist who founded the Hawaii Citizens for the Separation of State and Church ("HCSSC"). In particular, he has for many years objected to religious opening prayers at the Hawai`i State Legislature on the grounds that they violate the First Amendment. [First Amended Complaint at ¶ 20.]
On April 27, 2010, Kahle sent an email on behalf of HCSSC to all members of the Hawai`i State Senate ("the Senate") and the Hawai`i State House of Representatives ("the House"), including Senate President Colleen Hanabusa and Speaker of the House Calvin Say warning that "Christian Prayer, Sermonizing, and Proselytizing" must stop. [Id. at ¶ 21.] The next day, Kahle sent two emails to the same persons addressing the same topic. [Id. at ¶¶ 22-23.] On April 29, 2010, the last day of the 2010 legislative session, Kahle sent them another email stating, inter alia, that HCSSC members "will engage in unannounced peaceful acts of civil disobedience if the Senate or House begin today's sessions with unconstitutional Christian prayers, sermonizing, singing, or proselytizing." [Id. at ¶ 24.]
Plaintiffs and Kahle's wife, Holly Huber, who is also an HCSSC member, attended the Senate's final session. Hughes agreed to film the session using Kahle's video camera. Kahle intended to post footage of the Senate's invocation on HCSSC's website, which posts extensive news content regarding the separation of church and state in Hawai`i. Plaintiffs allege that, prior to the start of the session, various Defendants and Doe Defendants met to discuss the HCSSC protest and to give instructions about the protest. [Id. at ¶¶ 25-26.] Prior to the session, Plaintiffs went to the Office of Public Safety ("OPS") and informed Lieutenant Naauao, an OPS employee who was in charge of the Deputy Sheriffs at the Capitol, and informed him about their intent to engage in "a 'peaceful act of civil disobedience' by 'objecting'" to any religious prayer or invocation. [Id. at ¶ 27.] Kahle also informed Naauao that they would be recording the invocation. Naauao responded that the deputies "'would remain neutral in the matter' as they had on previous occasions." [Id. at ¶ 28.]
Kahle sat in the gallery of the Senate Chambers, and Villaflor, the Senate Sergeant-at-Arms, positioned himself close-by prior to the start of the session. Kahle also noticed there were Deputy Sheriffs inside the chambers. After Senate President Hanabusa called the Senate to order, she introduced Reverend Dr. David Hockney from the Olivet Baptist Church ("Reverend Hockney") to deliver the invocation. Senate President Hanabusa asked the audience to rise. Reverend Hockney asked everyone to bow their heads in prayer. [Id. at ¶¶ 29-32.]
Reverend Hockney began by saying, "'Father, we thank you . . . .'" [Id. at ¶ 32.] Kahle then stood and "spoke in a calm voice, audible to those in attendance, 'I object, my name is Mitch Kahle, and I object to this prayer on the grounds that it violates my First Amendment rights . . . .'" [Id. at ¶ 33.] Kahle immediately sat down and remained quiet. Villaflor approached him and grabbed his left arm. Villaflor did not identify himself or inform Kahle that he had violated any law or rule or that he was under arrest or otherwise charged with a crime. Without stating a reason, Villaflor continued to pull Kahle's arm in an attempt to get Kahle to stand. Kahle remained calm and verbally objected to Villaflor's actions without offering physical resistence. [Id. at ¶¶ 34-39.] Carabbacan, who is a Deputy Sheriff, and members of the Senate Sergeant-at-arms staff joined Villaflor. [Id. at ¶ 40.]
The First Amended Complaint states that Reverend Hockney's prayer continued without interruption and, throughout these events, Senate President Hanabusa did not bang her gavel to restore quiet. [Id. at ¶ 41.] Reverend Hockney concluded his prayer by saying, "'We ask all these things in the name of your son, Jesus Christ.'" [Id. at ¶ 42.] At that time, Huber, who was sitting on the opposite side of the gallery, stood and began the same objection that Kahle stated. Villaflor and Carabbacan turned and looked briefly at Huber, then turned back to Kahle, who remained calmly and quietly seated. During Huber's objection, some members of the audience jeered her and shouted "'Amen!'" [Id. at ¶¶ 42-44.]
While Villaflor and Carabbacan escorted Kahle from his seat to the exit doors, Kahle called to Hughes, "'Kevin, on me!'" [Id. at ¶ 45.] Hughes had been recording the prayer from the media platform. Hughes filmed Villaflor and Carabbacan as they forcefully ejected Kahle from the gallery. Villaflor twisted Kahle's wrist and bent his arm back, causing him considerable pain. Kahle demanded that Villaflor take his hands off him. [Id. at ¶¶ 46-48.] Kahle called out "'This is a violation of the Constitution!'" [Id. at ¶ 48.] Kahle did not offer any physical resistence as he was ejected from the gallery and, throughout Kahle's removal, the Senate session continued uninterrupted. [Id. at ¶¶ 49-50.]
Hughes followed Kahle, Villaflor, Carabbacan, and the others toward the exit, and continued filming the incident. Arakaki, a member of the Sergeant-at-Arms staff, blocked the exit door, preventing Hughes from leaving the building. Hughes objected that Arakaki's conduct was illegal. [Id. at ¶¶ 51-53.] Meanwhile, Villaflor and Carabbacan led Kahle about twenty to twenty-five feet from the Senate Chambers. "There, Villaflor bent Kahle's arm further back, causing Kahle pain, and then without warning, executed a 'takedown' of Kahle by hooking one of his legs and holding Kahle's arms . . . ." [Id. at ¶ 54.] Villaflor then released him and Carabbacan helped him to get up and sit on a nearby bench. [Id. at ¶ 55.]
Hughes eventually made it past Arakaki and exited the building. Villaflor observed Hughes with the video camera and approached him. Villaflor punched the camera, driving the edges of the camera into Hughes's face. Hughes continued recording and Villaflor ordered him to stop. [Id. at ¶¶ 57-60.] Kahle rose from the bench when he saw Villaflor punch Hughes, and Carabbacan and Kwon immediately tackled him. When Kahle yelled at Hughes to continue filming, Villaflor ordered his subordinates to get the camera. Watts, Arakaki, Reid,*fn2 and others rushed toward Hughes to stop him from filming. Plaintiffs allege that Senate Sergeant-at-Arms staffs are not law enforcement officers and therefore are not trained on the proper use of force. [Id. at ¶¶ 63-66.] Villaflor, Watts, Arakaki, Reid, and others "proceeded as a group to assault Hughes in a gang-style attack, causing bodily injury and damage to the video camera." [Id. at ¶ 67.] They "pushed, shoved, tackled, kicked, tripped, kneed, struck and punched" him in an effort to prevent him from recording. [Id. at ¶ 69.] During the attack, Hughes saw several Deputy Sheriffs, Carabbacan, Kwon, Schwartz, Muraki, Ogata, and others. He called out for help, but none of them intervened. Further, although his cries could be heard inside the Senate Chambers, no one came out to investigate or supervise the Senate employees. [Id. at ¶¶ 71-72.]
During this time, Kwon and Carabbacan held Kahle on the ground and handcuffed him. [Id. at ¶¶ 74, 76.] Plaintiffs allege that Kahle had not broken any law and that the Deputy Sheriffs did not have probable cause to arrest him. Kwon and Carabbacan led Kahle to the elevator. While inside both the elevator and the OPS office, Kwon and Carabbacan assaulted Kahle and verbally taunted him. Kwon and Carabbacan stopped their assault when Naauao entered. Kahle protested that they had assaulted him. Naauao responded that he was sorry, but he had not seen anything. Kahle was not told that he was under arrest until after Naauao came in. No one, however, told him what the charges were or read him his rights. Naauao, Kwon, Carabbacan and others decided that Kahle should be taken to Halawa Prison instead of the Honolulu Police Department Cell Block. Schwartz and Kwon drove him to the prison, and Schwartz read Kahle his rights as they approached the prison. [Id. at ¶¶ 78-85.]
At the prison, Kahle was informed of the charges against him after booking. Although there were empty cells available, Kahle was placed in a cell with an inmate who had been in prison for seventeen years. Kahle was released after posting $300 bail. [Id. at ¶¶ 87-90.]
Plaintiffs allege that the State failed to conduct an adequate investigation of the incident and none of the individual Defendants received any discipline or faced criminal charges. [Id. at ¶ 93.] On or about July 2, 2010, the State Auditor issued a Report on the Department of Public Safety ("the Report"). It stated, inter alia, that the department was providing the Deputy Sheriffs with inadequate law enforcement training. There was very limited training in areas such as constitutional law updates and training on the use of force. [Id. at ¶¶ 96-98.] Plaintiffs allege that the State's "deliberate indifference to its responsibility to hire, train, supervise, investigate employee misconduct and appropriately discipline employees of the State Sergeant-at-Arms and Sheriff Deputies was the moving force or direct causal link between the violations alleged herein." [Id. at ¶ 102.]
On May 24, 2010, the State filed a criminal complaint charging Kahle with disorderly conduct, in violation of Haw. Rev. Stat. § 711-1101(1)(a) and/or (1)(b) and (3). The State took no action on the resisting arrest and obstructing government charges that he was also arrested for. [Id. at ¶¶ 94-95.] The disorderly conduct charge was based on "'violent and/or tumultuous behavior of pushing people aside once he was outside'" of the Senate Chambers and on "'unreasonable noise caused by his yelling . . . after the start of the invocation[.]'" [Id. at ¶ 103.] The State, however, did not pursue the violent and/or tumultuous behavior charge at trial, and Kahle was acquitted on the unreasonable noise charge. [Id. at ¶¶ 104-05.] In granting the motion for judgment of acquittal, the trial judge stated that the State had not established its prima facie case and that Plaintiff was merely exercising his constitutional right to bring the separation of church and state issue to the legislators' attention. [Id. at ¶ 106.]
In the instant case, the First Amended Complaint alleges the following claims:
1) a claim for injunctive and declaratory relief pursuant to § 1983 against "All Defendants Except the State in their Official Capacities"*fn3 for violations of Plaintiffs' freedom of speech, press, assembly, and petition, as guaranteed by the First Amendment of the United States Constitution and Article I, § 4 of the Hawai`i State Constitution ("Count I"); [First Amended Complaint at pgs. 28-29;]
2) a § 1983 claim for damages against "All Defendants Except the State in their Individual Capacities"*fn4 for violations of Plaintiffs' rights to freedom of speech, press, assembly, and petition ("Count II"); [id. at pgs. 29-31;]
3) a § 1983 claim for injunctive and declaratory relief against the Official Capacity Defendants for violations of Plaintiffs' equal protection rights, as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, § 5 of the Hawai`i State Constitution ("Count III"); [id. at pgs. 31-32;]
4) a § 1983 claim for damages against the Individual Defendants for violations of Plaintiffs' equal protection rights ("Count IV"); [id. at pgs. 32-33;]
5) a § 1983 claim for declaratory and injunctive relief against the Official Capacity Defendants for denial of due process, use of excessive force, unlawful seizure, and malicious prosecution, in violation of the Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, §§ 5, 7, and 8 of the Hawai`i State Constitution ("Count V"); [id. at pgs. 33-35;]
6) a § 1983 claim for damages against the Individual Defendants for denial of due process, use of excessive force, unlawful seizure, and malicious prosecution ("Count VI"); [id. at pgs. 36-38;]
7) assault and battery against Defendants Villaflor, Kwon, Carabbacan, Schwartz, Watts, Reid, and Arakaki ("Count VII"); [id. at pgs. 38-39;]
8) false arrest/false imprisonment against Defendants Villaflor, Kwon, Carabbacan, Schwartz, Watts, Reid, and Arakaki ("Count VIII"); [id. at pg. 39;]
9) intentional infliction of emotional distress ("IIED") against "All Defendants Except Defendant State" ("Count IX"); [id. at pgs. 39-40;]
10) negligent infliction of emotional distress ("NIED") against all Defendants ("Count X"); [id. at pg. 40;]
11) malicious prosecution against all Defendants ("Count XI"); [id. at pgs. 40-41;]
12) negligent hiring, training, supervision, and retention against the State ("Count XII"); [id. at pgs. 41-42;]
13) negligent investigation against the State ("Count XIII"); [id. at pgs. 42-43;]
14) a claim for declaratory and injunctive relief under 42 U.S.C. § 1985 against the Official Capacity Defendants for conspiracy to violate civil rights ("Count XIV"); [id. at pgs. 43-44;]
15) a § 1985 claim for damages against the Individual Defendants for conspiracy to violate civil rights ("Count XV"); [id. at pgs. 44-45;]
16) a claim for declaratory and injunctive relief under 42 U.S.C. § 1986 against the Official Capacity Defendants for neglecting to prevent a conspiracy to violate civil rights ("Count XVI"); [id. at pgs. 45-46;]
17) a § 1986 claim for damages against the Individual Defendants for neglecting to prevent a conspiracy to violate civil rights ("Count XVII"); [id. at pgs. 46-47;] and
18) a civil conspiracy claim against "All Defendants Except the State and Doe Defendants" ("Count XVIII"); [id. at pgs. 47-48].
The First Amended Complaint seeks: a temporary restraining order, and preliminary and permanent injunctions, including termination or other disciplinary action against the individual Defendants and mandatory training; a monetary judgment including prejudgment and post-judgment interest; general, special, and punitive damages; attorneys' fees and costs; and any other appropriate relief. [Id. at pgs. 48-50.]
In the instant Motion, the State Defendants acknowledge that the Court must accept the facts as pled in the First Amended Complaint for purposes of the instant Motion. [Mem. in Supp. of Motion at 1.]
A. First Amendment and Other Claims Based on Alleged Constitutional Violations
The State Defendants first argue that Plaintiffs' First Amendment claims fail because the underlying premise of their claims is that they were exercising their First Amendment right of free speech when Kahle spoke out during the State Senate session and therefore the actions Defendants took in response either directly violated Plaintiffs' First Amendment rights or were taken in retaliation for the exercise of those rights. The State Defendants argue that this premise is false because state legislative chambers are not public fora and therefore there is no First Amendment right to speak out on any topic while in a legislative chamber during session. The State Defendants also note that, pursuant to Article III, § 18 of the Hawai`i State Constitution, it is a crime to show disrespect or to behave in a disorderly or contemptuous manner in the presence of either the House or the Senate. [Id. at 6-7.]
The State Defendants emphasize that the United States Supreme Court held in Marsh v. Chambers, 463 U.S. 783 (1983), that an opening prayer in a state legislative session does not violate the First Amendment. [Id.]
Further, the First Amended Complaint itself states that Plaintiffs informed the Deputy Sheriffs and the Senate members that they intended to engage in civil disobedience. The State Defendants argue that, by definition, civil disobedience is breaking the law, in contrast to a peaceful protest. The individual Defendants are law enforcement personnel who were merely enforcing the law, particularly because Kahle resisted attempts to eject him from the Senate Chambers after his disturbance. [Id. at 7-8 & n.2 (noting that, pursuant to Haw. Rev. Stat. § 21-17, Senate Sergeant-at-Arms personnel in the performance of their duties are law enforcement officers).] The actions of the individual Defendants were therefore appropriate. Thus, all of Plaintiffs' claims premised on the assumption that Plaintiffs were exercising their First Amendment rights fail.
The State Defendants also argue that Plaintiffs cannot bring § 1983 claims, § 1985 claims, or § 1986 claims against the State or against state officials in their official capacities because they are not "persons" within the meaning of those statutes. Moreover, to the extent that Plaintiffs have alleged §§ 1983, 1985, and 1986 claims against the proper defendants, conduct that is merely actionable under tort law does not necessarily amount to constitutional violations. [Id. at 8-9.]
To the extent that Count IV is based on the alleged failure to adopt adequate policies and procedures and the alleged failure to properly supervise and train employees and agents, Plaintiffs have failed to name the state official responsible for adopting policies and for training and supervising the individuals involved in the events at issue. [Id. at 14.]
B. Claims Seeking Equitable Relief
The State Defendants also argue that Plaintiffs are not entitled to injunctive relief because, although a federal court can issue an injunction to a state official to cease violating federal law, that official must have a sufficient nexus to the enforcement of the law at issue. They contend that Plaintiffs have failed to name such a state official because "a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." [Id. at 10 (citations and quotation marks omitted).] The State Defendants also note that there is very little case law directly addressing the issue whether declaratory relief is available in civil rights actions against state officials. Even if it is, the State Defendants contend that Plaintiffs' claim fails for failure to name the proper state officials. [Id. at 10-11.]
The State Defendants next argue that Plaintiffs do not have standing to pursue their claims for equitable relief.
First, Plaintiffs cannot establish a lack of an adequate remedy at law because, for each claim that they seek equitable relief, there is a companion claim for damages based on the same conduct. Second, to the extent that Plaintiffs' claims are based on the hiring, supervision, and training of government employees, these are discretionary government functions and claims based on those functions are not justiciable. [Id. at 11-12.] Plaintiffs have also failed to plead a non-speculative likelihood of substantial and irreparable injury. They have only alleged that they expect to attend future legislative sessions and expect to encounter similar resistence. The State Defendants state that it is public knowledge that, beginning with the 2011 Session, the Senate abolished opening invocations and prayer. The State Defendants therefore argue that the ...