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Ninth Circuit: Qualified Immunity Not Always Available for Police Working Private Events

While working a private event at a Hawaii hotel, Honolulu Police Department Officer Kinchung Chung intervened in a verbal disagreement involving a private security guard, Aaron Okura, and a patron, Dillon Bracken, who stepped over a rope to enter an event to which he was not invited. Claiming personal injuries as a result of being tackled to the ground by other private security guards acting on the hotel's behalf, Bracken filed suit against the hotel, Okura, and Officer Chung. The district court granted summary judgment in favor of Officer Chang on all claims asserted by Bracken in the lawsuit, in part, due to the qualified immunity granted to law enforcement officers while in the course and scope of their job duties. Bracken appealed a portion of the district court's ruling.

On August 23, the Ninth Circuit Court of Appeals handed down a decision that should cause some concern for any retailer, restauranteur, or hotelier who employ law enforcement officers as security for private events. In Dillon L. Bracken v. Kinchung Chung, No. 14-16886, ___ F.3d. ___ (9th Cir. Aug. 23, 2017), the Ninth Circuit vacated the district court's summary judgment in favor of Officer Chung, finding that he was not entitled to qualified immunity in the scenario involved. The Ninth Circuit disagreed with Officer Chang's argument that because he was wearing a police uniform and badge, qualified immunity was automatically invoked. Instead, the Ninth Circuit – noting that there appeared to be no precedent on this question of law – looked to history and the purposes underlying government immunity for guidance. In doing so, the Ninth Circuit found that Officer Chang showed no "firmly rooted tradition of immunity" for law enforcement officers acting as private security guards, and that Officer Chang's actions were not a part of his public duties carrying out the work of the government since Chang was not stopping a crime and was acting only on behalf of the hotel. As a result of the Ninth Circuit's vacation of the district court's summary judgment of Officer Chang, the case was remanded back to the district court for further proceedings.

Retailers, restauranteurs, and hoteliers should be advised that just because a uniformed police officer is hired to provide private security for an event, that officer may very well be subjected to lawsuits for personal injuries or violations of the constitutional rights of others. Additionally, depending upon the jurisdiction involved, the officer may even be considered an employee or agent of the hiring company, possibly invoking doctrine that would leave the hiring company responsible for any judgment obtained against the officer.