Denis v. Ige

538 F.Supp.3d 1063

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.

Civil NO. 21-00011 SOM-RT

United States District Court, D. Hawai‘i.

Signed May 12, 2021

Megeso William Alan Denis, Kapa'a, HI, Pro Se.

Craig Y. Iha, Michelle L. Agsalda, Office of the Attorney General, Honolulu, HI, for Defendants David Y. Ige, Clare E. Connors.

Charles Arthur Foster, Office of the County Attorney, Lihue, HI, for Defendants Derek S.K. Kawakami, Todd Raybuck.

Andrew Scott Michaels, Office of the County Attorney, Lihue, HI, for Defendants Derek Kelley, Russell Himongala.

Mark L.E. Bradbury, Office of the County Attorney, County of Kauai, Lihue, HI, for Defendant Arryl Kaneshiro.

ORDER GRANTING MOTIONS TO DISMISS

Susan Oki Mollway, United States District Judge

I. INTRODUCTION

On December 5, 2020, Plaintiff Megeso-William-Alan Denis was arrested during a protest in Kapaa, on the island of Kauai. According to Denis, even though he was socially distanced from other people, police officers arrested him because he was not wearing a face mask. Denis claims that during the arrest the officers treated him roughly, and that he suffered injuries as a result. Denis, proceeding pro se , has sued two of the police officers involved in his arrest, Defendant Derrick¹ Kelley and Defendant Joseph Russell Himongala.² This order does not address Denis's claims against the two officers.

Instead, the present order concerns Denis's claims against five other Defendants who did not physically arrest him. Denis contends that Defendants David Y. Ige (Hawaii's Governor), Clare E. Connors (Hawaii's Attorney General), and Derek S.K. Kawakami (Kauai's Mayor) violated his constitutional rights by issuing rules that required him to wear a mask in the first place (even though he was allegedly complying with those rules when he was arrested). For instance, he asserts that the rules violated his "unenumerated right to breathe oxygen without restriction." Denis also maintains that Defendant Todd Raybuck (Kauai's Police Chief) and Defendant Arryl Kaneshiro (the Chairperson of Kauai's County Council) are responsible for his wrongful arrest because of their positions of authority.

Before the court are motions to dismiss filed by those five defendants (the "Moving Defendants"). Those motions are granted. Denis's claims against the Moving Defendants are dismissed.

II. BACKGROUND

A. The COVID-19 Pandemic .

"In December 2019, individuals in Wuhan, China identified a novel coronavirus. In the ensuing months, the disease spread across the world. The novel coronavirus came to be known as SARS-CoV-2, and the disease that it causes is called COVID-19. The virus is highly transmissible and is primarily spread through exchange of respiratory droplets emitted when a person talks, breathes, coughs, or sneezes." Heights Apartments, LLC v. Walz , 2020 WL 7828818, at *1 (D. Minn. Dec. 31, 2020). According to the Centers for Disease Control and Prevention, by May 12, 2021, more than 32 million cases of COVID-19 had been identified in the United States, and 580,073 people have died. https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited May 12, 2021).

B. Hawaii's Initial Response to the Pandemic.

Hawaii's first case of COVID-19 was confirmed on March 6, 2020. Audrey McAvoy, Hawaii Records its First Case of New Coronavirus , A.P. News, March 6, 2020, https://apnews.com/article/877078a229df18bbbb531524dab3f96c. On March 16, 2020, Mayor Kawakami, citing the dangers of the disease, issued an Emergency Rule prohibiting gatherings of 10 or more people in the County of Kauai. Mayor's Emergency Rule #1, https://www.kauai.gov/Portals/0/Civil_Defense/EmergencyProclamations/Mayor% 27s% 20Emergency% 20Rule% 20% 231_20200316.pdf. Shortly thereafter, on March 21, Governor Ige required all persons entering the State of Hawaii to self-quarantine for 14 days after arrival. Second Supplementary Proclamation, https://governor.hawaii.gov/wp-content/uploads/2020/03/2003152-ATG_Second-Supplementary-Proclamation-for-COVID-19-signed.pdf. Two days later, on March 23, 2020 Governor Ige ordered all persons in the State of Hawaii to shelter in place until April 30, 2020. Third Supplementary Proclamation, https://governor.hawaii.gov/wp-content/uploads/2020/03/2003162-ATG_Third-Supplementary-Proclamation-for-COVID-19-signed.pdf.

C. Mask Mandates in Hawaii.

As COVID-19 continued to spread, the medical community and the Centers for Disease Control and Prevention worked to identify measures that could limit the virus's transmission. By early April, those experts were recommending wearing face coverings in public. Specifically, on April 3, 2020, the CDC recommended "wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission." Centers for Disease Control and Prevention, Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission , April 3, 2020, available at https://web.archive.org/web/20200404003200/ https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html.³

Both Governor Ige and Mayor Kawakami revised their emergency rules to incorporate that recommendation. On April 13, 2020, Mayor Kawakami, after noting that the CDC "currently recommends wearing cloth face coverings in public settings," issued an order requiring all persons over the age of five on Kauai to wear some form of face covering or mask when outside of their homes. Mayor's Emergency Rule #6, https://www.kauai.gov/Portals/0/Civil_Defense/EmergencyProclamations/Mayor% 27s% 20Emergency% 20Rule% 20% 236% 2020200413.pdf. Violations were punishable by a $5,000 fine or a prison sentence of up to one year. Id. Similarly, on April 17, 2020, after recognizing that the CDC had "recommended wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain," Governor Ige updated his shelter-in-place order by requiring individuals to wear a face mask if they did leave their home to shop at essential businesses. Fifth Supplementary Proclamation, https://governor.hawaii.gov/wp-content/uploads/2020/04/2004088-ATG_Fifth-Supplementary-Proclamation-for-COVID-19-distribution-signed.pdf. Again, violations were punishable by a $5,000 fine or a prison sentence of up to one year. Id.

As the pandemic progressed, the CDC issued several additional releases endorsing face masks. For instance, on July 14, 2020, the CDC issued a press release stating that "cloth face coverings are a critical tool in the fight against COVID-19 that could reduce the spread of the disease," and that "[t]here is increasing evidence that cloth face coverings help prevent people who have COVID-19 from spreading the virus to others." Centers for Disease Control and Prevention, CDC Calls on Americans to Wear Masks to Prevent COVID-19 Spread , July 14, 2020, https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html.

Governor Ige and Mayor Kawakami continued to require individuals to wear face coverings in public settings. At the times at issue in this case, the following orders (collectively, the "Mask Mandates") were in force, and violations were again punishable by a fine of $5,000 or a prison sentence of up to one year:

State of Hawaii: All individuals shall wear face coverings over their noses and mouths when in public settings.

The only exceptions to this requirement are:

...

J. While outdoors when physical distance of six (6) feet from other individuals (who are not members of the same household/living unit/residence) can be maintained at all times.

County of Kauai: [A]ll persons five (5) years of age or older are required to wear a face covering over their nose and mouth, whether indoors or outdoors, in any setting in which they are in close contact (within 6 feet) of people who don't live in their immediate household. Face coverings must be worn by employees, customers, and visitors at all times inside any establishment in which close contact may occur.

...

Sixteenth Emergency Proclamation, https://governor.hawaii.gov/wp-content/uploads/2020/11/2011098-ATG_Sixteenth-Proclamation-Related-to-the-COVID-19-Emergency-distribution-signed.pdf; Mayor's Emergency Rule #19 (As Amended), https://www.kauai.gov/Portals/0/Civil_Defense/EmergencyProclamations/2010134-COK_Mayor% 27s% 20Emergency% 20Rule% 20No_% 2019% 2C% 20Amendment% 20No_% 201% 20% 28certified% 29% 20-% 20signed.pdf.

D. Denis's Arrest

On December 5, 2020, Denis attended a protest in Kapaa, Kauai. ECF No. 1, PageID # 14. At the protest, Denis allegedly held a "free speech sign."⁴ Id. At some point, according to Denis, several police officers arrived and informed Denis that he was violating the law because he was not wearing a face mask. Id. Denis contends that he did not need to wear a mask because he was more than 18 yards away from any other protestor. Id. Nevertheless, two police officers, Defendants Derrick Kelley and Joseph Russell Himongala, allegedly arrested him. Id.

Denis alleges that during the arrest, Kelley and Himongala "manhandle[d]" him, causing "physical injuries to his hands, wrists, and shoulder area." Id. at 15. The Complaint also states that Denis "received additional injuries to his hands, wrists, shoulder, and neck while being forcibly placed in the police cruiser." Id. The officers took Denis to Mahelona Hospital for evaluation, where he was allegedly "diagnosed [with] a cervical sprain to the neck area, soft tissue damage to the shoulder and soft tissue damage and bone bruising in the wrists." Id. After leaving the hospital, Denis was allegedly incarcerated for several hours, until he posted bail. Id.

It appears that, at some point, Denis was charged with violating the Mask Mandates. Denis...