Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Franson v. City and County of Honolulu

United States District Court, D. Hawaii

January 25, 2017

FRANCISCO FRANSON and JORDON TOPINIO, Plaintiffs,
v.
CITY AND COUNTY OF HONOLULU; VINCENT MORRE; NELSON TAMAYORI; and JOSEPH BECERA, Defendants.

          ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISQUALIFY ATTORNEY MYLES BREINER

          Derrick K. Watson, United States District Judge

         INTRODUCTION

         Plaintiffs Francisco Franson and Jordon Topinio were assaulted by on-duty Honolulu Police Department (“HPD”) Officers and claim that the assault, a post-assault cover-up, and unspecified HPD policies were unlawful. Through their attorney, Myles Breiner, Esq., Plaintiffs filed civil claims against the three HPD Officers, the City and County of Honolulu (“City”), and former HPD Chief Louis Kealoha, for violations of state and federal law. Mr. Breiner currently represents Kealoha in an unrelated matter.

         Following dismissal of the claims against Kealoha with leave to amend - and in the midst of responding to an Order to Show Cause directed at Mr. Breiner's concurrent representation of Kealoha issued by another federal district judge in an unrelated matter pending in this court - Plaintiffs filed a First Amended Complaint that omitted all claims against Kealoha. The City now seeks to disqualify Mr. Breiner from further representation of Plaintiffs in this matter.

         Based upon the Court's consideration of Plaintiffs' right to counsel of their choice, the need to maintain ethical standards of professional responsibility, and the unique circumstances of this case, the City's Motion to Disqualify is GRANTED. Mr. Breiner's concurrent representation of Plaintiffs in the instant matter and Kealoha in an unrelated matter presents a non-waivable conflict of interest within the meaning of Hawaii Rule of Professional Responsibility 1.7, disqualifying Mr. Breiner from further representation of Plaintiffs in this civil action.

         BACKGROUND

         I. Plaintiffs' Original Complaint

         On September 5, 2014, on-duty HPD Officer Vincent Morre assaulted, allegedly without cause, Franson and Topinio in a Honolulu game room in the presence of HPD Officers Nelson Tamayori and Joseph Becera. On March 6, 2016, Plaintiffs filed suit against the City, the Defendant HPD Officers in their individual capacities (Complaint ¶¶ 6-8), and then-Chief Kealoha in both his official and individual capacities (Complaint ¶¶ 9-10, 41). Mr. Breiner signed the Complaint. Dkt. No. 1 at 15.

         Plaintiffs more specifically allege that Morre assaulted them, without provocation, and that Tamayori and Becera witnessed the assault, but failed or refused to intervene. Complaint ¶ 19. According to Plaintiffs, Morre, Tamayori, and Becera agreed to purposely omit the assault from their subsequent reports of the incident in an attempt to conceal it. Plaintiffs allege that all three HPD Officers were members of the HPD Crime Reduction Unit (“CRU”), see Complaint ¶ 12, and aver as follows with respect to the City and Kealoha's liability:

10. Defendant Kealoha is responsible for the instruction, training, and supervision of the Honolulu Police Department's officers and/or members.
23. Plaintiffs are informed and believe and do thereupon allege that the Honolulu Police Department has a custom, policy, practice, and/or usage of condoning and/or ratifying the use of excessive force and/or conditions amounting to severe punishment by Honolulu Police Department officers, including but not limited to officers with the Honolulu Police Department Crime Reduction Unit.
33. As the Chief of Police, Defendant Kealoha's failure to train, supervise, and/or discipline Honolulu Police Department members that use excessive force and/or expose citizens and/or pretrial detainees to conditions amounting to punishment demonstrates that he personally implemented, maintained, enforced, and/or allowed the continued use of excessive force and/or exposure of citizens and/or pretrial detainees to conditions amounting to severe punishment, acted with reckless and callous indifference, and knew of and/or acquiesced to such unconstitutional conduct.
34. Defendant Kealoha's supervision, training, implementation, maintenance, enforcement, acquiescence, and/or allowance of the continued operation of the use of excessive force or the exposure of citizens and/or pretrial detainees to conditions amounting to severe punishment amounts to deliberate indifference to the rights of persons who are victims of excessive police force and/or suffer conditions amounting to punishment because the custom, policy, and/or practice is obviously deficient, likely to cause the violation of citizens' constitutional rights, and closely related to Plaintiffs' injuries.
35. Plaintiffs are informed and believe and thereupon allege that by the aforementioned acts and/or omissions Defendants, without any probable, sufficient, just, or reasonable cause, subjected Plaintiffs to illegal and unreasonable searches and seizures and/or denied Plaintiffs due process of law in violation of rights guaranteed to them by the Fourth and Fourteenth Amendments of the United States Constitution and the Constitution and laws of the State of Hawaii and 42 U.S.C. §1983, inter alia.
37. Plaintiffs are informed and believe and thereupon allege that Defendants Kealoha and City and County of Honolulu negligently failed and refused to properly adopt and/or enforce policies, train, supervise, and/or discipline the Defendant Officers when they acted outside of the scope of their employment to improperly and illegally assault Plaintiffs and expose them to conditions amounting to severe punishment.
38. As a direct and proximate cause thereof, Plaintiffs sustained severe injuries and damages in an amount to be proved at trial.
39. Defendants Kealoha and City and County of Honolulu should have been aware of and taken appropriate action, including but not limited to train and/or supervise Defendant Officers and/or other officers with the Honolulu Police Department Crime Reduction Unit who have been involved in prior incidents in which they were accused of using excessive force.
40. Defendants Kealoha and City and County of Honolulu failed in supervising, training, hiring and/or failing to discipline the Defendant Officers because Defendants Kealoha and City and County of Honolulu knew or should have known about the necessity and opportunity to exercise control and to curtail the continued operation and use of excessive and/or unnecessary use of force and the exposure of citizens and/or pretrial detainees to conditions amounting to sever[e] punishment.
41. Defendant Kealoha acted with malice.

Complaint (Dkt. No. 1).

         The Complaint alleged the following causes of action: (1) a Section 1983 claim against the City and Kealoha based upon excessive use of force, seizure, and severe punishment in violation of the Fourth and Fourteenth Amendments, and the Constitution and laws of the State of Hawaii (Count I); (2) a negligent training and/or supervision claim against the City and Kealoha (Count II); (3) an assault and battery claim against Morre (Count III); (4) a negligence claim against Defendant HPD Officers based upon conduct during the execution of an arrest warrant in the game room (Count IV); (5) a negligent infliction of emotional distress (“NIED”) claim against all Defendants (Count V); (6) an intentional infliction of emotional distress claim (“IIED”) claim against Defendant HPD Officers (Count VI); (7) a respondeat superior claim against the City based upon the tortious conduct of Morre occurring within the scope of his employment (Count VII); (8) a civil conspiracy claim against Defendant HPD Officers (Count VIII); and (9) a claim for punitive damages (Count IX).

         II. The City's Motion To Dismiss

         On April 19, 2016, the City, through its Corporation Counsel, moved to dismiss all claims in Plaintiffs' Complaint alleged against itself and Kealoha, in both his official and individual capacities. Dkt. No. 7. On April 28, 2016, Kealoha, also through Corporation Counsel, joined in the City's Motion to Dismiss. Dkt. No. 13.

         The Motion to Dismiss argued, in part, that the Complaint failed to allege that Kealoha was personally involved in any constitutional violation, that he set in motion any series of acts by others that caused constitutional injury, or that a constitutionally deficient policy was the moving force behind any harm to Plaintiffs. See City's Motion to Dismiss at 20-21. Plaintiffs filed their opposition to the City's Motion to Dismiss on June 9, 2016. Dkt. No. 23. Plaintiffs' opposition highlighted Kealoha's individual liability under Section 1983 and the City's potential liability for his conduct as follows:

Plaintiffs further contend that the allegations against Chief Louis Kealoha are sufficient to satisfy the “final policy-making authority” pleading requirement of § 1983 liability under Monell and Gillette. The Complaint clearly pleads that the constitutional tort was committed by the Police Chief. (See also, Gillette, at 1346. Allegations against the Chief of Police satisfy this requirement. (See, Complaint ¶¶ 9, 10, 33, 34, 37, 39, and 40). The policy and practice of deputizing the CRU, and ignore [sic] the hundreds of complaints of violence over the years is a policy which stops with the Police Chief. He alone could have changed this. And the § 1983 allegations are plead against the Chief of Police and the three individual officers are plead [sic] personally. (See, Complaint ¶ 9, 10, 33 & 34).

Plaintiffs' Opp. to City Motion to Dismiss at 7, 11 (footnote omitted). With respect to dismissal of their claims for damages against Kealoha, Plaintiffs argued that:

the Motion again seeks to avoid punitive damages. Such punitive damages are clearly available against the individual Defendants. The Complaint only pleads for punitive damages against “Defendant officers.” (Complaint at p.14). Plaintiffs submit that whether punitive damages apply to Chief Kealoha are [sic] a question of fact, which brings us full circle to “the final policy maker” discussion. (Supra p.7)
The Motion's final objection is that allegations against Chief Kealoha are not specific enough. Again, Defendants are applying a “plausibility” test. Under FRCP 12(b)6, the Complaint must only name the “final policy maker” is named, [sic] identify the policy in question -- the continued existence and supervision (or lack thereof of the “CRU” - so that the Defendants are afforded enough notice to prepare their defense.

Plaintiffs' Opp. to City Motion to Dismiss at 12. Plaintiffs' opposition was signed by Mr. Breiner and supported by his Declaration. Plaintiffs' Opp. to City Motion to Dismiss at 13 (Dkt. No. 23).

         The Court held a hearing on the Motion to Dismiss on July 1, 2016. Dkt. No. 28. Mr. Breiner appeared at the hearing on behalf of Plaintiffs. On July 26, 2016, the Court issued an Order Granting In Part And Denying In Part Defendant City And County Of Honolulu's Motion to Dismiss Complaint. Dkt. No. 32 (7/26/2016 Order). The Court concluded that Plaintiffs' official-capacity claims against Kealoha duplicated the claims asserted against the City and, accordingly, dismissed them without leave to amend. 7/26/2016 Order at 23-24. With respect to the individual-capacity claims against Kealoha, the Court found that the Complaint alleged no facts supporting Section 1983 liability and dismissed Count I against Kealoha with leave to amend. 7/26/2016 Order at 17, 24. The Court also dismissed with leave to amend the Section 1983 municipal liability claim against the City based on Plaintiffs' allegations that Kealoha, an official with final policy-making authority, ratified the unconstitutional action of a subordinate. 7/26/2016 Order at 15-16. The Court granted Plaintiffs leave to file a First Amended Complaint by no later than August 22, 2016.

         III. Plaintiffs' First Amended Complaint

         Plaintiffs filed their First Amended Complaint on August 18, 2016 and, this time, did not name Kealoha as a defendant in any capacity. Dkt. No. 39. The First Amended Complaint again alleged Section 1983 municipal liability claims against the City (Counts I and II), with similar factual averments regarding City policies, but omitted any reference to Kealoha's role in the alleged constitutional violations. For example, Plaintiffs alleged, in part:

43. Defendant Officers used unnecessary and excessive force against, seized and/or exposed Plaintiffs to conditions that amounted to severe punishment. This use of excessive force is a result of a policy and practice of maintaining the Crime Reduction Unit (“CRU”), which allows free-roaming plain-clothed officers to violate individual rights, roam the city without authorized direction of assignment or documentation of purpose and method.
44. The policy of condoning, ratifying, and/or failing to prevent the excessive and/or unnecessary use of force and/or exposing citizens and/or pretrial detainees to conditions that amount to severe punishment by Honolulu Police Officers is a constitutionally deficient custom and policy that violated the constitutional rights of persons such as Plaintiffs, and there is a direct causal connection between the custom, policy, practice, and/or usage and these constitutional deprivations.
52. Plaintiffs are informed and believe and thereupon allege that Defendant City and County of Honolulu routinely and negligently failed to train, supervised, and/or discipline the Defendant Officers when they acted outside of the scope of their employment, allowing and even encouraging Defendant Officers to improperly and illegally assault Plaintiffs and expose them to conditions amounting to severe punishment.
55. Defendant City and County of Honolulu's supervision, training, and oversight of its officers on this unit CRU was negligent, if not entirely absent. There is no accountability for the use of time, direction of the commitment of manpower, or recording of daily activities. Work for the CRU does not involve any identifiable goals at the onset, specific recording of methodology or problems encountered, progress reporting, and legitimate target success achievements.
69. Defendant City and County of Honolulu has long been aware that the supervisors were instructing otherwise good officers to file false police reports, lie to investigators and perjure themselves before the courts. That this has created a policy and/or practice which exposes citizens and/or pretrial detainees to conditions amounting to severe punishment amounts to deliberate indifference to the rights of those persons.
71. Defendants City and County of Honolulu should have been aware and had a duty to take appropriate action involving all officers with the Honolulu Police Department who have been involved in incidents where they are accused of using excessive force.
72. Defendant City and County of Honolulu deliberately failed to supervise, train and discipline the Defendant Officers because Defendant City and County of Honolulu condones the policy and practice of targeting those who cannot credibly report misconduct or patronize game rooms.
73. Defendant City and County of Honolulu is responsible for the instruction, training, and supervision of the Honolulu Police Department's officers.

         First Amended Complaint.

         IV. Mr. Breiner's Concurrent Representation Of Kealoha And Plaintiffs

         On August 27, 2016, the City filed the instant Motion to Disqualify (Dkt. No. 44) based on Mr. Breiner's concurrent representation of Plaintiffs in the instant matter and Kealoha in an unrelated matter. Although the record is not entirely clear on the timing or scope of his representation of Kealoha, there is no dispute for purposes of the instant Motion that Mr. Breiner currently represents both Plaintiffs and Kealoha and has since at least May 2016.

         In support of its Motion, the City submitted several media interviews from May through August 2016 in which Mr. Breiner held himself out as Kealoha's attorney, commenting on a possible federal investigation and indictment of Kealoha and others. See City Motion to Disqualify, Declaration of Counsel, Exs. A, B, C, and F (Dkt. No. 44). The City also provided a May 4, 2016 letter from Mr. Breiner to the Office of the United States Attorney, Southern District of California, with the subject line “Louis and Katherine Kealoha, ” which states in pertinent part:

Please be advised that my office represents Honolulu Police Department Chief Louis Kealoha and Katherine Kealoha. Please direct any and all communication and/or correspondence ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.