Ninth Circuit Says No Qualified Immunity for Off-Duty but Uniformed Officer Acting as Private Security Guard

Steven D. Schwinn, John Marshall Law School

In an apparent first in the circuits, the Ninth Circuit ruled today that an off-duty but uniformed police officer who was acting as a private security guard could not assert qualified immunity in a suit for a constitutional tort against him. The court went on to say that a reasonable jury could have found for the plaintiff on the merits, so remanded the case for further proceedings.

The case arose when the Kyo-ya Hotel and Resort hired Honolulu Police Department Officer Kinchung Chung as a "special duty" officer to provide security for a New Year's Eve party. Chung was off official duty, but he nevertheless wore his police uniform. During the party, Chung detained Dillon Bracken, a hotel patron who crashed the party, and stood by while hotel security guards assaulted Bracken.

Bracken sued Chung for constitutional torts under 42 U.S.C. Sec. 1983. Chung moved to dismiss, arguing that he enjoyed qualified immunity. The Ninth Circuit disagreed.

The court first noted that state action for the purpose of Section 1983 isn't coextensive with state action for the purpose of qualified immunity. That's because Section 1983 is designed "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims," whereas qualified immunity "protect[s] government's ability to perform its traditional functions."

That said, the court went on to rule that Chung couldn't claim qualified immunity. Applying the Supreme Court's two-part test, the court wrote,

First, he has shown no "firmly rooted" tradition of immunity for off-duty or special duty officers acting as private security guards. . . . Second, Chung has not shown that the policies underpinning qualified immunity warrant invoking the doctrine here. In detaining Bracken, Chung did not act "in performance of public duties" or to "carry[] out the work of government."

The case appears to be the first circuit court ruling on whether an off-duty police officer acting as a private security guard can claim qualified immunity.