Bracken v. Chung, No. 14-16886 (9th Cir. 2017)
Annotate this CasePlaintiff filed suit under 42 U.S.C. 1983, alleging defendant, an off-duty police officer working as security for a private event, violated his rights under the Due Process Clause of the Fourteenth Amendment by failing to intercede and stop an assault. The Ninth Circuit reversed the district court's grant of summary judgment based on qualified immunity and on the merits. The panel held that defendant may not assert qualified immunity because he was not serving a public, governmental function while being paid by the hotel to provide private security. On the merits, the panel held that a reasonable jury could find that defendant exposed plaintiff to harm he would not otherwise have faced, that this harm was foreseeable, and that defendant acted with deliberate indifference in the presence of the known danger created by his conduct.
Court Description: Civil Rights. The panel vacated the district court’s summary judgment granting qualified immunity to a Honolulu Police Department officer in an action brought under 42 U.S.C. § 1983 and state law by Dillon Bracken, who alleged that Officer Chung violated his rights under the Due Process Clause of the Fourteenth Amendment by failing to intercede to stop an assault on him by hotel security guards. Officer Chung had been hired by a hotel as a special duty officer to provide security for a private event. Although Chung wore his police uniform, and the Honolulu Police Department approved his employment at the hotel, the Department considered him off-duty while working there. Chung, wearing his police uniform, helped detain Bracken in order to issue an internal trespass warning and then failed to intercede when Bracken was assaulted by private security personnel. The panel held, first, that Chung could not assert qualified immunity because he was not serving a public, governmental function while being paid by the hotel to provide private security. On the merits, the panel held there was a triable issue as to whether Chung violated Bracken’s right to liberty by placing Bracken in danger and then failing to protect him from harm. The panel held that a reasonable jury could find Chung exposed Bracken to harm he would not otherwise have BRACKEN V. CHUNG 3 faced, that this harm was foreseeable and that Chung acted with deliberate indifference in the presence of a known danger, created by his conduct. The panel remanded for further proceedings.
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