United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS COUNTY OF HAWAII AND SAMUEL
JELSMA'S MOTION TO DISMISS FIRST AMENDED
C. Kay, Sr., United States District Judge
reasons detailed below, the Court GRANTS Defendants'
Motion to Dismiss the First Amended Complaint, ECF No. 17,
and dismisses all of Plaintiff's claims without
to the First Amended Complaint (“FAC”), ECF No.
16, Plaintiff John Rodrigues, Jr. (“Plaintiff”)
is a retired police officer who retired on August 31, 2016,
after serving with the Hawai`i County Police Department
(“HCPD”) for twenty-six years, FAC ¶ 10. At
all relevant times, Plaintiff was a “qualified retired
law enforcement officer” as that term is defined under
18 U.S.C. § 926C (the “Law Enforcement Officers
Safety Act” or “LEOSA”). Id.
¶ 96. Plaintiff had met standards for qualification in
firearms training for active law enforcement officers with
the HCPD, including for his Remington shotgun and 9mm Smith
& Wesson handgun; these qualifications expired on
December 24, 2016. Id. ¶ 89.
about January 26, 2017, at 10 a.m., Plaintiff called 911 to
request police assistance after he was threatened by an
individual known to him as Wesley “Mana” Brooks.
Id. ¶¶ 11-12. Witnesses informed HCPD
officers that Brooks had brandished what appeared to be a
chrome-plated, 9mm handgun, chambered a round, pointed the
handgun at Plaintiff, and fired a round at him. Id.
¶ 13. At no point did Plaintiff take out, brandish, or
display any firearms, or point any firearms in Brooks's
direction. Id. ¶ 14.
the responding officers was Defendant Samuel Jelsma
(“Defendant Jelsma”), a captain in the HCPD.
Id. ¶ 15. Plaintiff and Defendant Jelsma were
acquainted, and Defendant Jelsma had and has a personal
grudge against Plaintiff. Id. ¶ 65. This grudge
stems from a No. of incidents, but first arose in the 1990s,
when the two were roommates during a two-week specialized
Traffic Enforcement Unit training in Honolulu. Id.
¶¶ 65, 65(a). There, Defendant Jelsma deliberately
irritated and mocked Plaintiff about the course material,
studying, and preparing for the training's final exam.
Id. ¶ 65(b).
after Defendant Jelsma's promotion to sergeant, Plaintiff
was assigned to assist him in a DUI enforcement roadblock.
Id. ¶ 65(c). Defendant Jelsma instructed
Plaintiff to perform an activity that Plaintiff believed to
be inefficient, and did not appreciate it when Plaintiff
expressed that opinion. Id.
approximately 2010 or 2011, Plaintiff was once again assigned
to assist Defendant Jelsma, this time in locating and
arresting a dangerous fugitive. Id. ¶ 65(e).
When the fugitive was cornered, Defendant Jelsma, in the
presence of other law enforcement officers, repeatedly
refused to go in and make the arrest. Id. Plaintiff
proceeded to make the arrest without incident, after which
point Defendant Jelsma was hostile toward Plaintiff due to a
perceived slight to Defendant Jelsma's reputation.
recently, prior to Plaintiff's retirement, Plaintiff and
another officer spotted a fugitive driving a stolen truck;
upon seeing Plaintiff, the fugitive sped away, driving well
over the speed limit. Id. ¶ 65(f). Plaintiff
contacted the Pahoa HCPD station (of which Defendant Jelsma
was the captain) over the police radio to inform them that a
fugitive was driving a stolen truck in their direction.
Id. Plaintiff was not in pursuit of the fugitive,
but Defendant Jelsma contacted Plaintiff over the police
radio and ordered him to come to the Pahoa station to type
out a memo or report concerning his pursuit of the fugitive.
Id. Plaintiff, thinking this was odd, contacted his
supervisor, who overrode Defendant Jelsma's order and
informed Defendant Jelsma over the police radio that
Plaintiff would not be typing out a memo or report.
Id. This embarrassed Defendant Jelsma. Id.
on these incidents, and on comments from coworkers, Plaintiff
believes that Defendant Jelsma would use any and every
opportunity to embarrass, humiliate, or discipline him.
Id. ¶ 65(g).
HCPD officers arrived at the scene on January 26, 2017,
Defendant Jelsma approached Plaintiff and asked if he had any
firearms in his vehicle. Id. ¶ 15. Plaintiff
responded in the affirmative, Id. ¶ 16, at
which point Defendant Jelsma said, “We need a consent
from you to enter your vehicle, ” Id. ¶
17. Plaintiff gave his consent. Id. ¶ 18.
the search commenced, Plaintiff took out a photographic
identification card issued to him by HPCD, which identified
Plaintiff as a retired detective from HCPD, Id.
¶ 19, and which read, on the back, as follows:
This card is for identification purposes only, pursuant to 18
United States Code [§] 926C(d), Carrying of Concealed
Firearms By Qualified Retired Law Enforcement Officers. This
identification DOES NOT perm[i]t the holder to carry a
concealed firearm pursuant to 18 United States Code [§]
926C and in [and] of itself is not inte[n]ded to comply with
or be applicable to State statutes and administrative rules
governing identification for the purpose of carrying a
concealed and/or unconcealed firearm.
FAC, Declaration of John Rodrigues, Jr. (“Rodrigues
Decl.”), ECF No. 16-10 ¶ 13; FAC Ex. 2 (“ID
Card”), ECF No. 16-2 at 1-2. Plaintiff attempted to
hand the identification card to Defendant Jelsma, and told
Defendant Jelsma (in the presence of other HCPD officers)
that he was permitted to carry concealed firearms under
LEOSA, but Defendant Jelsma ignored Plaintiff's
statements and refused to look at the ID Card. FAC
then related to Defendant Jelsma the history between
Plaintiff's family and Brooks. Id. ¶¶
23-30. Among other incidents, Brooks had previously made
death threats against Plaintiff's son while brandishing
an AK-47 assault rifle and a chrome-plated 9 mm handgun.
Id. ¶ 23-24. Brooks had also stalked the
Plaintiff's son at his workplace and had threatened his
life in front of others. Id. ¶ 25.
Plaintiff's son reported each incident to the HCPD, which
had taken no action against Brooks and had not investigated
any of the claims made by Plaintiff's son. Id.
¶ 26. Plaintiff told Defendant Jelsma that Brooks's
threats and actions were escalating dangerously, and that
Plaintiff wanted to protect his son's life and ensure
that HCPD detained and investigated Brooks, Id.
¶ 28-29, but that Plaintiff was concerned that HCPD was
doing nothing. Id. ¶ 30. Defendant Jelsma
responded that Plaintiff should have called HCPD and spoken
to a supervisor. Id. ¶ 31. When Plaintiff
expressed concern that Brooks would act on his threats, and
asked why HCPD was not taking action, Defendant Jelsma
ignored him. Id. ¶ 32.
officers then searched Plaintiff's vehicle, and recovered
a Remington shotgun and a 9mm Smith and Wesson handgun,
Id. ¶ 33, both of which were legally registered
to Plaintiff, Id. ¶¶ 38-39. The Remington
shotgun was on the floor of Plaintiff's truck, in the
back of the cab, Id. ¶ 34, and the 9mm Smith
and Wesson handgun was in a holster on the floor beneath the
driver's seat, Id. ¶ 35. During the search,
Plaintiff displayed the ID Card and told the HCPD officers he
was allowed to carry concealed firearms, Id. ¶
36, but Defendant Jelsma ordered the officers to continue the
search, Id. ¶ 37. Plaintiff then again asked
Defendant Jelsma if he intended to do anything about Brooks
and the threats against Plaintiff's son, but Jelsma
continued to ignore Plaintiff. Id. ¶ 40.
approximately 11:02 a.m., Defendant Jelsma instructed
Plaintiff to drive himself to the Pahoa police station, where
later he would be free to go. Id. ¶ 41.
Plaintiff was not under arrest. Id. ¶ 42.
Plaintiff drove directly to the Pahoa police station,
followed closely by an HCPD officer. Id. ¶ 43.
was directed by an HCPD officer to go into an interrogation
room and remain there. Id. ¶ 45. Plaintiff
heard over the police radio that Defendant Jelsma had arrived
at the Pahoa station, id. ¶ 46, and went to the
doorway to meet him, id. ¶ 47. Plaintiff asked
Defendant Jelsma when he was going to conduct the Advice of
Rights (“AOR”) so that Plaintiff could leave, as
Defendant Jelsma had earlier said Plaintiff could do.
Id. Plaintiff again displayed the ID Card to
Defendant Jelsma and said that, under LEOSA, he was permitted
to carry concealed firearms. Id. ¶ 48.
Defendant Jelsma ignored Plaintiff and would not look at the
ID Card. Id. ¶ 49. Plaintiff attempted to hand
the ID Card to Defendant Jelsma, who would not take it.
Id. ¶ 50.
asked Defendant Jelsma if the HCPD intended to do anything
about Brooks, but Defendant Jelsma instructed Plaintiff to
“wait.” Id. ¶ 51. Plaintiff asked
Defendant Jelsma if he was under arrest, to which Defendant
Jelsma responded, “No!” Id. ¶ 52.
Plaintiff inquired if he was free to leave, and again,
Defendant Jelsma said, “No!” Id. ¶
53. Confused, Plaintiff sought clarification, stating that he
was not under arrest but he was not free to go. Id.
¶ 54. Defendant Jelsma responded loudly, “No, you
are not under arrest, but you are not free to leave.”
Id. ¶ 55. When Plaintiff repeated Defendant
Jelsma's statement, the latter confirmed: yes, the
Plaintiff was not under arrest, and “Yes, you can't
leave; you need to wait.” Id. ¶ 57.
point, in order to test Defendant Jelsma's intentions and
determine whether he was under arrest, Plaintiff declared
himself to be thirsty and asked Defendant Jelsma if he could
retrieve his hydro-flask full of water from his truck.
Id. ¶ 60. Defendant Jelsma allowed Plaintiff to
retrieve his hydro-flask under armed police escort.
Id.¶ 61. Upon his return to the interrogation
room, Plaintiff against asked Defendant Jelsma if he planned
on conducting any investigation into Brooks and his threats
against Plaintiff's son, but Defendant Jelsma ignored
Plaintiff. Id. ¶ 62.
got the clear impression that Defendant Jelsma was
unconcerned with Brooks and with the safety of
Plaintiff's son, and, because of Defendant Jelsma's
statements and demeanor, that Defendant Jelsma was trying to
discredit Plaintiff and ruin his reputation in the community.
Id. ¶¶ 63, 64. From the interrogation
room, Plaintiff could clearly hear Defendant Jelsma's
voice from an adjacent room as he conversed with other
officers, trying to find any and every possible violation of
the law for which they could arrest Plaintiff. Id.
approximately 2 p.m., an HCPD officer, under Defendant
Jelsma's orders, placed Plaintiff under arrest for three
counts of terroristic threatening in the first degree and six
firearm violations. Id. ¶ 67. Before being
placed under arrest, Plaintiff again displayed his ID Card
and informed the arresting officer that, under LEOSA, he was
permitted to carry concealed weapons. Id. ¶ 68.
Plaintiff attempted to hand his ID Card to the arresting
officer, but the officer would not accept or examine it,
id., but instead informed Plaintiff that Defendant
Jelsma's mind was made up, id. ¶ 69. In
violation of HCPD standard operating procedure, Plaintiff was
given no information regarding the identity of the person he
was supposed to have threatened, or about his alleged
firearms violations. Id. ¶¶ 70-71. After
Plaintiff's arrest, Detective Kelii, an HCPD officer,
informed him that the prosecuting attorney for the County of
Hawai`i had been contacted and had advised Defendant Jelsma
to release Plaintiff because, under LEOSA, Plaintiff should
not have been arrested. Id. ¶ 72. Plaintiff was
released, pending further investigation, after over four
hours in custody. Id. ¶ 73. In violation of
HCPD standard operating procedure, Plaintiff was given no
information about his arrest after his release from custody.
Id. ¶ 74.
after Plaintiff's arrest, Defendant Jelsma and the County
of Hawai`i (together, “the County Defendants”)
issued two media releases about Plaintiff's arrest and
charges. Id. ¶ 75. The first, issued on January
26, 2017, read in relevant part as follows:
HPD Investigating ‘Shots Fired' Report in
Hawai`i Island police are investigating a firearms incident
initially reported as “gunshots fired” in the
Hawaiian Paradise Park subdivision in lower Puna. Responding
officers contacted a group of individuals near the area where
the shots were reported, although the preliminary
investigation has thus far indicated that no shots were
fired. Detectives assigned to the Criminal Investigations
Section are continuing the investigation.
Decl. ¶ 16; FAC Ex. 4, ECF No. 16-4 at 1. This release
was published to the community at large in print media and
through text and mobile phone messages. FAC ¶ 75(a). The
second, which the Defendants issued on January 27, 2017,
included a recent picture of Plaintiff and read thusly:
Hakalau Man Arrested for Firearms, Terroristic
East Hawai`i detectives arrested a 50-year-old Hakalau man
late Thursday afternoon, Jan. 26, as part of their
investigation into a firearms incident earlier in the day in
John Rodrigues Jr. was arrested on suspicion of three counts
of first-degree terroristic threatening and six firearms
violations. After conferring with prosecutors, police
released Rodrigues pending further investigation.
The incident was initially reported as “gunshots
fired” in the Hawaiian Paradise Park subdivision in
lower Puna at approximately 10 a.m. Responding officers
contacted a group of individuals near where the shots were
reported and were able to determine that no shots had been
fired, although firearms were involved in a confrontation.
Detectives assigned to the Criminal Investigations Section
are continuing the investigation[.]
FAC Ex. 4 at 2.
a conflict of interest, the prosecuting attorney for
Defendant County of Hawai`i (“County”) referred
any criminal charges against Plaintiff to the Department of
the Attorney General, State of Hawai`i, which also had a
conflict of interest and referred the matter to the
prosecuting attorney for the County of Kaua`i. FAC ¶
77. On or about August 17, 2017, the prosecuting attorney for
the County of Kaua`i informed Plaintiff that he would not
pursue any criminal action against Plaintiff, closed the case
against Plaintiff, and notified the Department of the
Attorney General, State of Hawai`i, about the decision.
Id. ¶ 79. The Department of the Attorney
General also decided not to prosecute Plaintiff. Id.
¶ 80. In a conversation with Plaintiff, Mitch Roth, the
prosecuting attorney of the County of Hawai`i, stated that
under LEOSA Plaintiff was allowed to carry concealed
firearms. Id. ¶ 82.
Plaintiff's arrest, Brooks appeared at Plaintiff's
son's workplace and threatened him; the County Defendants
did not intervene. Id. ¶ 76.
January 9, 2018, Plaintiff filed a complaint in state court
against the County, Defendant Jelsma, Doe Persons 1- 10, Doe
Corporations 1-10, Roe “Non-Profit” Corporations
1-10, and Roe Governmental Entities 1-10 (collectively,
“Doe Defendants”). ECF No. 1-2. The complaint
alleged eight counts: (1) violation of 42 U.S.C. § 1983
(“§ 1983”) by Defendant Jelsma; (2)
violation of § 1983 by the County; (3) false
arrest/false imprisonment; (4) defamation “per
se”; (5) defamation “per quod”; (6) false
light; (7) intentional infliction of emotional distress
(“IIED”); and (8) negligent infliction of
emotional distress (“NIED”). Id.
¶¶ 710-132. On January 18, 2018, the County
Defendants filed a notice of removal with this Court. ECF No.
1. The County Defendants filed a motion to dismiss on January
26, 2018. ECF No. 5. On April 20, 2018, the Court entered an
order granting the motion and dismissing all of
Plaintiffs' claims without prejudice (“April 20,
2018 Order”). ECF No. 14. In the April 20, 2018 Order,
the Court gave Plaintiff thirty days to file an amended
complaint. Id. at 34.
17, 2018, Plaintiff filed the FAC, alleging the same eight
claims as alleged in the original complaint. ECF No. 16.
Along with the FAC, Plaintiff filed nine exhibits and five
declarations. See ECF Nos. 16-1-16-14. The County
Defendants filed the instant Motion to Dismiss
(“Motion”), ECF No. 17, and an accompanying
memorandum (“MTD”), ECF No. 17-1, on May 21,
2018. A hearing on the Motion was originally scheduled for
September 4, 2018, ECF No. 18, but was continued until
November 13, 2018, at the Court's request, ECF No. 22. On
October 23, 2018, Plaintiff filed an opposition
(“Opposition” or “Opp.”) to the
Motion. ECF No. 24. The County Defendants filed a reply
(“Reply”) on October 31, 2018. The Court held a
hearing on the Motion on Tuesday, November 13, 2018.
Rule of Civil Procedure (“Rule”) 12(b)(6)
authorizes the Court to dismiss a complaint that fails
“to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is read
in conjunction with Rule 8(a), which requires only “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
The Court may dismiss a complaint either because it lacks a
cognizable legal theory or because it lacks ...