Officers Who Fail to Intervene in Colleague's Mishandling of Firearm Not Acting under Color of State Law; Municipality's Policy on Carrying Firearm Does Not Show Deliberate Indifference

In Park v. City and County of Honolulu, published March 13, 2020, a divided 9th Circuit panel affirmed a district court's dismissal of a 42 U.S.C. section 1983 lawsuit.  Three off-duty police officers were in a bar.  One allegedly became intoxicated, inspected his personal revolver (which his department had authorized him to carry), and tried to load his already-loaded pistol.  It accidentally discharged, and a bullet struck the plaintiff, a bartender.  She sued the three officers and the defendant municipality.  She alleged that the two other officers violated her Fourteenth Amendment substantive due process right to bodily integrity by failing to intervene.  She alleged that the municipality violated her rights by promulgating a policy requiring off-duty officers to carry a firearm at all times, except when mental processes are impaired by drinking (allegedly requiring an officer to carry a firearm until he or she consumes enough alcohol to be impaired); and by a "brotherhood code of silence" that allegedly emboldened the intoxicated officer to act with impunity.

The panel majority agreed with the district court that the plaintiff failed to plead facts establishing either claim.  Because the non-shooting officers were not only off-duty, but in civilian clothes, they did not have the indicia of authority that would establish that they were acting under color of law when the allegedly failed to intervene.  The two policies or customs described did not show Monell liability, because the plaintiff failed to plead facts showing deliberate indifference behind them.  Deliberate indifference required either an obviously facially inadequate policy, or a pattern of  prior, similar violations of federally-protected rights, of which the policymakers had actual or constructive notice.  The facts showed neither here.  A dissenting judge opined that the complaint adequately pleaded that the officer with the revolver was acting under color of state law, and that the policies, practices, or customs identifies showed deliberate indifference sufficient to plead a cause of action.