United States District Court, D. Hawaii
ORDER (1) GRANTING AND DENYING IN PART
DEFENDANTS’ MOTIONS TO DISMISS; AND (2) DISMISSING
COMPLAINT IN PART WITH PARTIAL LEAVE TO AMEND
Derrick K. Watson, United States District Judge
Muriel Ikeda, on behalf of her deceased son, Cameron Johnson,
brings this civil rights action against the City & County
of Honolulu (the “City”) and Honolulu Police
Department Officer Scott Valdez. On January 13, 2017, Johnson
was at Malaekahana Beach Park in the driver’s seat of a
parked vehicle that was suspected of being stolen when he was
shot multiple times by Officer Valdez. Ikeda asserts eleven
claims, including use-of-excessive force in violation of the
Fourth Amendment to the United States Constitution.
motions to dismiss are now before the Court filed by the City
and by Officer Valdez, respectively. Dkt. Nos. 17, 21.
Because the Court concludes that Officer Valdez is not
entitled to either qualified immunity or a state law
qualified privilege at this early stage in the proceedings,
Officer Valdez’s motion is DENIED with respect to
Ikeda’s Fourth Amendment claim. The Court likewise
DENIES Defendants’ motions directed towards
Ikeda’s tort claims to the extent based on the absence
of or breach of a duty. But because Ikeda has failed to
allege sufficient facts to support the inference that a
policy, practice, or custom of the City was the moving force
behind the death of her son, the City’s motion is
GRANTED, albeit with leave to amend, with respect to
Ikeda’s Monell claim. The balance of
Ikeda’s eleven claims is addressed below.
& PROCEDURAL BACKGROUND
the afternoon on January 13, 2017, Officer Scott Valdez of
the Honolulu Police Department (“HPD”) responded
to a 911 call about a stolen 1997 Toyota Tacoma located at
Malaekahana campgrounds in Laie. Dkt. No. 14, ¶¶
7–9. When Officer Valdez arrived at Malaekahana,
Cameron Johnson was in the parking lot, sitting at the wheel
of a parked vehicle that matched the 911 caller’s
description of the stolen pickup truck. Dkt. No. 14,
Valdez approached the pickup truck, which was parked at a
slight incline, and engaged in a brief conversation with
Johnson at the driver’s side window. Id. at
¶¶ 10, 12. Johnson was the only occupant,
id. at ¶ 10, and the vehicle was not running.
Id. at ¶ 11. Officer Valdez ordered Johnson to
show his hands and Johnson complied. Id. at ¶
14. What happened next is disputed by the parties.
to Officer Valdez’s report, Johnson started the truck,
it in gear, and ignored repeated commands to turn off the
vehicle. Id. at ¶¶ 15, 19–20.
Officer Valdez related that Johnson placed the vehicle in
reverse, and in the process, struck Officer Valdez’s
left arm with the driver’s side mirror. Id. at
that, Officer Valdez drew his firearm-and while walking
alongside the vehicle as it slowly rolled backward-fired five
shots at Johnson. Id. at ¶¶ 21–22.
The rounds pierced Johnson’s left shoulder, left
breast, mid-back, and two places in his left arm.
Id. at ¶ 22. After Johnson’s vehicle came
to rest against another, witnesses observed Officer Valdez
reach across Johnson’s body, remove a backpack from the
cab of the truck, and empty the backpack’s contents on
the ground. Id. at ¶ 25. Johnson was later
pronounced dead at the hospital. Id. at ¶ 27.
January 10, 2019, Ikeda, Johnson’s biological mother
and representative of his estate, initiated this lawsuit
against the City and Officer Valdez (collectively
“Defendants”). Dkt. No. 1. After Defendants moved
to dismiss the complaint (Dkt. No. 8), they agreed to allow
Ikeda to amend (Dkt. No. 12), resulting in the first amended
complaint (“FAC”)(Dkt. No. 14). Defendants have
moved separately under Rule 12(b)(6), seeking the dismissal
of the FAC. Dkt. Nos. 17, 21.
Federal Rules of Civil Procedure require that a complaint
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). To satisfy this requirement, a
complaint must contain enough facts “to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
complaint may be deficient for failure “to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). Even though a “complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citations omitted).
Rule 12(b)(6) motion to dismiss, a court “must accept
as true all of the factual allegations contained in the
complaint, ” Erickson v. Pardus, 551 U.S. 89,
94 (2007), and draw “any reasonable inferences”
in favor of the plaintiff. Johnson v. Riverside
Healthcare Sys., 534 F.3d 1116, 1122 (9th Cir. 2008). To
that end, a court must judge the sufficiency of a complaint
under a two-pronged approach: (1) disregard all “legal
conclusions” and “conclusory statements”;
and (2) determine whether the remaining “well-pleaded
factual allegations, ” accepted as true,
“plausibly give rise to an entitlement to
relief.” Ashcroft v. Iqbal, 556 U.S. 662,
“only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679 (citing Twombly, 550 U.S. at 556). A
claim becomes plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. at 678. That is, the
plaintiff’s “[f]actual allegations must be enough
to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S.
at 555 (internal citations omitted). If, from the
well-pleaded facts, the court cannot “infer more than
the mere possibility of misconduct, the complaint has
alleged-but has not ‘show[n]’-‘that the
pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
asserts eleven counts in the FAC. As a preliminary matter,
Ikeda now concedes that, under the U.S. Constitution, she
cannot state a Fifth Amendment claim (Dkt. No. 20 at 13) or a
Fourteenth Amendment claim for deprivation of substantive due
process (Dkt. No. 25 at 6). Therefore, these claims are
DISMISSED WITH PREJUDICE.
respective motions also urge the Court to dismiss
Ikeda’s other claims. See Dkt. No. 21-1; Dkt.
No. 17-1. For the reasons that follow, the remaining claims
against Officer Valdez stand, while Counts III and VIII
against the City are DISMISSED, albeit with leave to
Officer Valdez’s Motion to Dismiss
Section 1983 – Individual Liability (Count I)
Count I, Ikeda asserts a claim under 42 U.S.C. Section 1983,
alleging that Officer Valdez used excessive force when he
shot Johnson. Dkt. No. 14, ¶¶ 32–33. In
defense, Officer Valdez maintains that he is insulated by
qualified immunity. Dkt. No. 17-1 at 9–12. At least at
this stage, the Court disagrees.
federal law, qualified immunity will shield a government
official from liability for civil damages “unless a
plaintiff pleads facts showing (1) that the official violated
a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The sequence in which these prongs
are addressed is discretionary. Pearson v. Callahan,
555 U.S. 223, 236 (2009). In conducting the analysis, the
Court “is limited to the facts that were knowable to
the defendant officers at the time they engaged in the
conduct in question. Facts an officer learns after the
incident ends-whether those facts would support granting
immunity or denying it-are not relevant.” Hernandez
v. Mesa, 137 S.Ct. 2003, 2007 (2017) (per
curiam) (citation and internal quotation marks omitted).
detailed below, Officer Valdez is not entitled to qualified
immunity because Ikeda has pled facts that-when
“[t]aken in the light most favorable” to Ikeda,
Saucier v. Katz, 533 U.S. 194, 201 (2001)-show that
Officer Valdez violated Johnson’s Fourth Amendment
right to be free from excessive force, and at the time of the
incident, that right was clearly established, such that
“any reasonable official in [Officer Valdez]’s
shoes would have understood that he was violating it.”
Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018)
(citation and internal quotation marks omitted).
Use of Excessive Force in Violation of the Fourth
“When a plaintiff alleges excessive force during an
investigation or arrest, the federal right at issue
is the Fourth Amendment right against unreasonable
seizures.” Tolan v. Cotton, 572 U.S. 650, 656
(2014) (emphasis added). The test for whether an officer used
excessive force is “objective reasonableness.”
Graham v. Connor, 490 U.S. 386, 395, 399 (1989).
“Reasonableness” is evaluated based on “the
totality of the circumstances, ” Tennessee v.
Garner, 471 U.S. 1, 8–9 (1985), viewed “from
the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. A non-exhaustive list of
factors relevant to this inquiry include: “(1) the
severity of the crime at issue, (2) whether the suspect posed
an immediate threat to the safety of the officers or others,
and (3) whether the suspect actively resisted arrest or
attempted to escape.” Maxwell v. Cty. of San
Diego, 697 F.3d 941, 951 (9th Cir. 2012) (citing
Graham, 490 U.S. at 396).
force is reasonable, however, only if “the officer has
probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.” Garner, 471 U.S. at 3
(emphasis added); Gonzalez v. City of Anaheim, 747
F.3d 789, 793 (9th Cir. 2014) (en banc). Although
“police officers are often forced to make split-second
judgments-in circumstances that are tense, uncertain, and
rapidly evolving-about the amount of force that is necessary
in a particular situation, ” Graham, 490 U.S.
at 396–97, “an officer must give a warning before
using deadly force whenever practicable.”
Gonzalez, 747 F.3d at 794 (citation and internal
quotations omitted); Garner, 471 U.S. at
11–12. Hence, the availability of “alternative
methods of capturing or subduing a suspect” is relevant
to whether the use of deadly force was reasonable.
Gonzalez, 747 F.3d at 794.
Valdez contends it was objectively reasonable under the
circumstances for him to employ deadly force by firing his
weapon five times at Johnson because Johnson: “(1) was
in a stolen vehicle which made him a felony suspect, (2)
refused to obey officer commands to show his hands and turn
off the vehicle, (3) was operating a moving vehicle, (4)
struck a uniformed police officer with the stolen vehicle,
and (5) posed an immediate threat to the safety of the
officer and other bystanders and members of the
public.” Dkt. No. 21-1 at 9. Viewing the facts in the
light most favorable to Ikeda, however, the Court concludes
that Officer Valdez’s use of deadly force was not
threshold matter, it bears emphasis that Officer Valdez has
taken certain liberties in construing the facts alleged in
the FAC. That is a luxury this Court does not have. See
Twombly, 550 U.S. at 555. This is especially true given
that “[d]eadly force cases pose a particularly
difficult problem . . . because the officer defendant is
often the only surviving eyewitness.”
Gonzalez, 747 F.3d at 794 (citation and internal
quotation marks omitted). “Because the person most
likely to rebut the officers’ version of events-the one
killed-can’t testify, ” the Ninth Circuit has
held that courts should “carefully examine all the
evidence” produced during discovery and grant summary
judgment “sparingly” in excessive force cases.
S.B. v. Cty. Of San Diego, 864 F.3d 1010, 1014 (9th
Cir. 2017) (citation and internal quotation marks omitted).
That challenge is compounded here by the fact that discovery
has yet to occur. This matter is only before the Court on a
motion to dismiss the FAC and therefore, at the very
least, there remain triable issues of fact.
stated, the controlling question is whether Officer Valdez
had “probable cause to believe that [Johnson] pose[d]
a significant threat of death or serious physical injury
to [Officer Valdez] or others.” Garner,
471 U.S. at 3. Probable cause existed if “at the moment
[Officer Valdez fired his weapon] . . . the facts and
circumstances within [his] knowledge and of which [he] had
reasonably trustworthy information were sufficient to warrant
a prudent man in believing” that Johnson posed a threat
of death or serious injury to the officer or others. See
Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting
Beck v. Ohio, 379 U.S. 89, 91 (1964)); cf.
Garner, 471 U.S. at 3.
assuming the 911 call provided sufficient, trustworthy
information that was then independently verified by Officer
Valdez, see Draper v. United States, 358 U.S. 307,
313 (1959), Officer Valdez approached Johnson knowing only
that Johnson was in a vehicle that “matched the
description” of a pickup reported stolen in the area.
Dkt. No. 14, ¶ 9; id. at ¶¶
7–14. Ikeda disputes the events that followed as
recorded in Officer Valdez’s report. See Id .
at ¶¶ 15–16, 19–21. Therefore, at best,
Officer Valdez had probable cause to arrest Johnson for the
felony offense of vehicle theft. See Hawaii Rev.
Stat. §§ 708-810, -836.
all felony offenses are treated equally when it comes to the
use of deadly force, as Officer Valdez appears to assert.
See Garner, 471 U.S. at 21 (“[T]he fact that
Garner was a suspected burglar could not, without regard to
the other circumstances, automatically justify the use of
deadly force.”); Dkt. No. 26 at 4–5. For good
reason, the law does not grant law enforcement carte blanche
authority to use lethal weapons against all suspected felons,
even if they are fleeing. Garner, 471 U.S. at 11,
19. Only if a suspect “has committed a crime involving
the infliction or threatened infliction of serious physical
harm” is an officer permitted to use deadly force.
Id. at 11. So while stealing laptops from the trunk
of a car may be a serious crime, rising to the level of a
felony, it is not one that presents a “threat of death
or serious injury” so as to justify the use of deadly
force. And Officer Valdez’s inchoate fear that Johnson
otherwise “posed a risk of harm, ” see
(Dkt. No. 21-1 at 11), is not grounded in the FAC. Rather,
when viewing the few undisputed facts in this case from the
perspective of a reasonable officer on the scene, there was
no probable cause to believe that an immediate threat to
Officer Valdez or others existed. As such, Officer Valdez was
prohibited from using deadly force.
Valdez resists this conclusion by contending that the use of
deadly force was necessary to “prevent [a suspected
felon]’s flight.” See Dkt. No. 21-1 at
11; Dkt. No. 26 at 4. But Garner is explicitly
clear: “The use of deadly force to prevent the escape
of all felony suspects, whatever the circumstances, is
constitutionally unreasonable.” 471 U.S. at 11. As the
Supreme Court explained:
It is not better that all felony suspects die than that they
escape. Where the suspect poses no immediate threat to the
officer and no threat to others, the harm resulting from
failing to apprehend him does not justify the use of deadly
force to do so. It is no doubt unfortunate when a suspect who
is in sight escapes, but the fact that the police arrive a