Case Points to Critical Need for Policy Guiding Carrying of Weapons Off-Duty

by | March 25, 2020

Hyun Ju Park v. City and County of Honolulu, 2020 WL 1225271 (9th Cir. 2020)

The court issued this opinion on Friday the 13th. You figure out who’s unlucky. Hyun Ju Park or Anson Kimura? The bystander officers at the bar? The chief? Or all the above?

Park was a bartender at a Honolulu sports bar. Three off-duty Honolulu Police Department officers stopped by the bar and proceeded to drink. After Officer Kimura downed seven beers, he decided to check to see whether his revolver was loaded. It was, but that didn’t stop him from trying to cram in more bullets—much to the amusement of the two bystander officers.

Kimura dropped his revolver. Somehow it discharged. A bullet struck Park, causing life-threatening injuries. Park sued Kimura for her injuries and she sued the other officers for failure to intervene in Kimura’s dangerous horseplay with his revolver. Park also sued the county as the sponsoring government entity of the police department, citing the department policy requiring officers to carry guns off-duty, coupled with a lack of guidance on carrying weapons when chemically impaired and aggravated by “a ‘brotherhood culture of silence’ that condoned police misconduct and affirmatively discouraged officers from reporting their colleagues’ transgressions.”

Park settled her claims against Kimura, leaving the county and the other two officers as defendants.

Though the chief and the county were not held liable, this case points to the critical need for policy guiding carrying of weapons off-duty.

Park had the initial burden to show an injury that resulted from a party acting under color of law. The court held the bystander officers were not acting under color of law at the time they were watching the drunken Kimura try to load a loaded revolver. To find that an officer acts under color of law, the “officer must have: (1) acted or pretended to act in the performance of his official duties; (2) invoked his status as a law enforcement officer with the purpose and effect of influencing the behavior of others; and (3) engaged in conduct that ‘related in some meaningful way either to the officer’s governmental status or to the performance of his duties.’” There was no evidence the bystander officers were exercising or purporting to exercise official responsibilities at the time that Park was shot.

Park could only prevail against the county if she could show the county police department had a policy or custom that caused the deprivation of her federally protected rights. She could do so by showing the county itself violated federal law or directed an employee to violate federal law, or by showing the department’s failure to implement adequate policies or procedures to safeguard her federally protected rights was a result of “deliberate indifference.” As it sounds, that is a difficult standard for a plaintiff to meet.

Park claimed the county was deliberately indifferent because the chief of police failed to provide policy that prohibited officers from carrying weapons when they were under the influence of alcohol or drugs. She also claimed the chief was deliberately indifferent by failing to promulgate policy requiring officers to alert the department to other officers’ policy violations.

Park alleged Kimura had twice previously waved his gun around in the bar while he was impaired, and in the presence of the same two bystander officers. However, there was no evidence the chief was aware of the incidents. Nor was there evidence the chief was aware of an actual culture of silence related to policy violations. Thus, he could not have been deliberately indifferent. One judge dissented in part, arguing it was plausible the county was deliberately indifferent.

Though the chief and the county were not held liable, this case points to the critical need for policy guiding carrying of weapons off-duty, and particularly in connection with the consumption of alcohol or drugs.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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