Denis v. Ige
| Decision Date | 29 July 2022 |
| Docket Number | CIVIL 21-00011 SOM-RT |
| Parties | MEGESO-WILLIAM-ALAN DENIS a.k.a. WILLIAM DENIS Plaintiff, v. DAVID Y. IGE, CLARE E. CONNORS, DEREK S.K. KAWAKAMI, TODD RAYBUCK, DEREK KELLEY, RUSSELL HIMONGALA, and ARRYL KANESHIRO, Defendants. |
| Court | U.S. District Court — District of Hawaii |
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
On December 5, 2020, several people called the Kauai County police department to complain about a group of four picketers in Kapaa. The picketers allegedly were violating emergency orders issued by Hawaii's Governor and Kauai's Mayor (the “Mask Mandates”). When Defendants Derek Kelley and Russell Himongala, two Kauai County police officers, arrived on the scene, they observed the picketers including Plaintiff Megeso- William-Alan Denis, standing on the sidewalk less than six feet apart without face masks. That conduct violated the Mask Mandates.
The officers approached the group and issued them a warning. Three of the four picketers responded by leaving the area, but Denis remained behind. He repeatedly told the officers that he did not have to comply with the Mask Mandates, either because they had no legal effect or because he had “authority under God” to go outside without a mask.
After Denis refused to put on a face mask and explicitly stated that the law did not apply to him, Defendants arrested him. Their decision appears to have been based, at least in part, on a mistake. Officer Kelley, in particular, seemed to think that the Mask Mandates required Denis to wear a mask whenever he was outside. In reality, Denis only had to wear a mask if he was outdoors and less than six feet away from other people. At the time of his arrest, Denis was socially distanced because all of the other picketers had left.
Denis was charged with violating the Mask Mandates. The Kauai prosecutor, however, soon moved to dismiss the charge. After the charge was dismissed, Denis, proceeding pro se, filed the present lawsuit against several individuals. At this point, only two of his claims remain: (1) a claim that Officers Kelley and Himongala violated the Fourth Amendment by arresting him without probable cause, and (2) a claim that Officers Kelley and Himongala arrested him in retaliation for his exercise of his First Amendment rights. To prevail on either claim, Denis must show that the officers lacked probable cause to arrest him.
Competing summary judgment motions on that issue are now before the court. While Denis's motion is difficult to follow and dominated by irrelevant assertions, such as the claim that Defendants violated the Nuremberg Code, Denis appears to be contending that Defendants lacked probable cause because he was socially distanced at all times, including at the time of his arrest. Defendants maintain that they had probable cause because, several minutes before his arrest, they had observed Denis violating the Mask Mandates.
This court agrees with Defendants. Officer Kelley's body camera footage clearly shows Denis in violation of the Mask Mandates when Defendants arrived on the scene. Although the officers did not immediately arrest him, the passage of time does not undermine the existence of probable cause. United States v. Bizier, 111 F.3d 214, 219 (1st Cir. 1997). Similarly, while
Defendants may have chosen to let Denis off with a warning for his initial violation, and only decided to arrest him based on a mistaken understanding of the law, the Supreme Court has made it clear that such subjective considerations are “irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Accordingly, Defendants' motion for summary judgment is granted. Denis's motion for summary judgment is denied.
On April 13, 2020, Mayor Derek S.K. Kawakami, Kauai's Mayor, issued an emergency order requiring “all persons over the age of five (5) . . . to wear some form of face covering over their nose and mouth when outside of their home.” Mayor's Emergency Rule #6, https://www.kauai.gov/Portals/0/CivilDefense/ EmergencyProclamations/Mayor%27s%20Emergency%20Rule%20%236%202020 0413.pdf. A violation was punishable by a $5,000 fine or a prison sentence of up to one year. Id.
On April 17, 2020, David Y. Ige, Hawaii's Governor, issued a similar emergency order. The Governor's order required individuals to wear a face covering if they left their homes to shop at essential businesses. Fifth Supplementary Proclamation, https://governor.hawaii.gov/wp-content/uploads/2020/04/ 2004088-ATGFifth-Supplementary-Proclamation-for-COVID-19-distrib ution-signed.pdf. As with Mayor Kawakami's order, a violation was punishable by a $5,000 fine or a prison sentence of up to one year. Id.
In subsequent months, Governor Ige and Mayor Kawakami updated their emergency orders. At the times at issue in this case, the following orders (collectively, the “Mask Mandates”) were in force, and a violation was again punishable by a fine of $5,000 or a prison sentence of up to one year:
Sixteenth Emergency Proclamation, https://governor.hawaii.gov/ wp-content/uploads/2020/11/2011098-ATGSixteenth-Proclamation-Rel ated-to-the-COVID-19-Emergency-distribution-signed.pdf; Mayor's Emergency Rule #19 (As Amended), https://www.kauai.gov/Portals/0/ CivilDefense/EmergencyProclamations/2010134-COKMayor%27s%20Emer gency%20Rule%20No%2019%2C%20Amendment%20No%201%20%28certified%2 9%20-%20signed.pdf (emphasis added).
It appears that Kauai County law enforcement officers usually gave violators more than one chance to comply with the law by issuing warnings before taking further action. For instance, in his motion for summary judgment, Denis asserts that on certain occasions he has been less than six feet away from “the Mayor, Police Chief, KPD officers, [and] State Law enforcement” without wearing a mask, and that he was not arrested. ECF No. 155, PageID # 1635. Defendants concede that that assertion is true. ECF No. 160, PageID # 1692. More significantly, as discussed in greater detail below, the circumstances surrounding Denis's arrest also demonstrate that law enforcement officers warned violators before issuing citations or making arrests.
On December 5, 2020, Denis and three other individuals began a demonstration along Kuhio Highway near the Kauai Village Shopping Center in Kapaa. See ECF No. 151-4. Around noon, the Kauai County police department received calls complaining that the picketers were neither wearing masks nor remaining six feet apart from one another. See ECF No. 151-3. Officers Kelley and Himongala responded to those complaints. At 12:53 p.m., the officers parked their vehicles at the shopping center and walked towards the group of four picketers next to the highway. ECF No. 151-4.
Officer Kelley's body camera footage plainly shows that, as the officers approached the group, Denis was less than six feet away from the nearest picketer. ECF No. 151-4, at 00:28-00:47. None of the picketers was wearing a mask. Id. As Officer Kelley approached the group, some of the picketers moved away from one another, apparently in an attempt to maintain the requisite six feet of distance from one another. Id. at 00:47.
Denis disagrees with this version of events. In his own motion for summary judgment, he asserts that the picketers were “peacefully protesting six feet apart” and that he was “always more than six feet away” until Kelley and Himongala approached. ECF No. 155, PageID # 1628. Denis has not submitted any evidence, such as a declaration, in support of that statement.
In Fraser v. Goodale, the Ninth Circuit held that 342 F.3d 1032, 1036 (9th Cir. 2003). District courts in the Ninth Circuit have split on the issue of whether, when a party is proceeding pro se, Fraser requires courts to consider factual statements made in unsworn briefs. See, e.g., Cape v. San Luis Obispo Sheriff Dep't,, 2022 WL 2308256, at *4 (C.D. Cal. June 1, 2022) (collecting cases), report and recommendation adopted, 2022 WL 2304289 (C.D. Cal....
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