FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 24-NOV-2025 08:32 AM Dkt. 50 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
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ANTHONY BELLAMY, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU; NICKOLAS T. HIRATA, OFFICER #1, in his individual capacity as a Honolulu police officer; DYLAN TORRES, OFFICER #2, in his/her individual capacity as a Honolulu police officer; BYRON MARFIL, OFFICER #3, police officer in his/her individual capacity as a Honolulu police officer; and DIANA A.P. MIRANDA, OFFICER #4, in his/her individual capacity as a Honolulu police officer, Defendants-Appellees, and DOE DEFENDANTS 1-25, Defendants
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CCV-XX-XXXXXXX)
NOVEMBER 24, 2025
HIRAOKA, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
Anthony Bellamy sued the City and County of Honolulu
and Honolulu Police Department officers Nickolas T. Hirata, Dylan
Torres, Byron Marfil, and Diana A.P. Miranda (together, HPD) for FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
torts allegedly committed while the officers were investigating a
report of a gunshot in the apartment building where Bellamy
lived. The Circuit Court of the First Circuit granted summary
judgment for HPD.1 Bellamy appeals from the Judgment.
Bellamy's declaration opposing HPD's motion for summary
judgment described what he saw and heard when the police officers
came to his apartment. It directly contradicted video and audio
from the officers' body-worn cameras. The United States Supreme
Court has held that a plaintiff's declaration, shown by video
evidence to not possibly be true, does not create a genuine issue
of material fact to defeat a defendant's motion for summary
judgment. But under current Hawai#i law,2 the weight of all the evidence — which would include body-worn camera footage — and the
credibility of the witnesses must be evaluated by the trier of
fact, in this case a jury. We vacate the Judgment in part and
remand for further proceedings.
I. BACKGROUND
Bellamy sued HPD on November 15, 2021, and demanded a
jury trial. His complaint alleged he was asleep in his apartment
on May 8, 2021, when police officers "knocked on his apartment
door with rifle and guns drawn at approximately 3:00 a.m. -
3:40 a.m. in the morning." He answered the door. The officers
"burst in and pointed a rifle and gun and their flashlights at
1 The Honorable Kevin T. Morikone presided. 2 Nozawa v. Operating Engineers Local Union No. 3, 142 Hawai#i 331, 418 P.3d 1187 (2018).
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him yelling to keep his hands up and yelled 'where is the gun.'"
They aimed their guns at Bellamy, telling him to keep his hands
up, while one officer searched his apartment. The officers
didn't have a search warrant or probable cause to believe Bellamy
had committed a crime, and no exigent circumstances justified a
search of Bellamy's apartment. No gun was found.
Bellamy's amended complaint alleged negligence,
assault, invasion of privacy, intentional and negligent
infliction of emotional distress, and improper search and
seizure. It prayed for general, special, and punitive damages.
HPD moved to dismiss for failure to state a claim upon
which relief can be granted. The Circuit Court dismissed
Bellamy's punitive damage claim against the City, but denied the
remainder of the motion.3
HPD moved for summary judgment under Hawai#i Rules of
Civil Procedure (HRCP) Rule 56. The Circuit Court entered an
order granting the motion, and the Judgment for HPD and against
Bellamy, on November 1, 2023. This appeal followed.
II. POINTS OF ERROR
Bellamy contends the Circuit Court erred by:
(1) granting summary judgment when there were genuine issues of
material fact; (2) granting summary judgment when there were
credibility issues; (3) disregarding another judge's denial of
3 The Honorable James C. McWhinnie presided.
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HPD's motion to dismiss Count VI (improper search and seizure);
(4) finding that HPD were entitled to limited, qualified, or
conditional immunity; and (5) not continuing the motion until
discovery was completed. He does not challenge the Circuit
Court's dismissal of his punitive damage claim against the City.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo. Nozawa
v. Operating Engineers Local Union No. 3, 142 Hawai#i 331, 338,
418 P.3d 1187, 1194 (2018). Summary judgment is appropriate if
the record shows there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter
of law. Id. at 342, 418 P.3d at 1198. The moving party has the
burden to introduce admissible evidence to establish the material
facts, show there is no genuine issue as to any of them, and
explain why it is entitled to a judgment as a matter of law. Id.
A fact is material if it would establish or refute an element of
a cause of action or defense. Id. We view the evidence in the
light most favorable to the non-moving party. Id.
Bellamy criticizes the Circuit Court for not entering
findings of fact and conclusions of law. The criticism is
baseless. A trial court ruling on a motion for summary judgment
does not fact-find. If a material fact is genuinely
controverted, summary judgment should be denied. Uncontroverted
material facts in the record need not be the subject of findings.
And an appellate court reviews de novo the legal argument
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presented to the trial court; there is no need for conclusions of
law.
IV. DISCUSSION
A. Under current Hawai#i law, Bellamy's declaration established genuine issues of material fact that preclude summary judgment.
Bellamy argues that summary judgment should have been
denied "because there were disputed material facts involving
credibility." "Disputed material facts" is not the standard. It
is: The judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
HRCP Rule 56(c) (emphasis added).
1. HPD's Evidence
HPD offered a recording of a 911 call, a declaration
from each police officer, and video with audio from each
officer's body-worn camera. One or more cameras was recording
from the first officer's arrival at Bellamy's apartment building
until after the four officers left Bellamy's apartment.
Exhibit A was a recording of a call to 911. The caller
says, "I heard a really loud gunshot sound it was just a single
one and I could smell gunpowder. Um, I'm not sure it sounded
somewhat muffled and it sounded like it came underneath me,
honestly."
Corporal Marfil activated his camera at 3:21 a.m. as he
was driving to the 911-caller's building on Ala Wai Boulevard in
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Waikīkī. Corporal Marfil didn't turn his camera off until
3:36 a.m., after the officers left Bellamy's apartment.
The audio and video from the officers' cameras
collectively show that Corporal Marfil is the first officer to
arrive at Bellamy's building. Officers Torres and Miranda meet
him outside the secured entry door. They are buzzed in at
3:27 a.m. They go to the 911-caller's apartment, 2501.
Corporal Marfil and Officers Torres and Miranda enter
the apartment. The caller repeats what she told the 911
operator. She says her window was open when she heard the
gunshot. Corporal Marfil asks her if it could have been a car
backfiring. She says she's in the Air Force and was exposed to
firearms during basic training. She demonstrates where she
thinks the sound came from.
At 3:31 a.m. Officer Torres asks the 911 caller to let
someone (apparently Officer Hirata) into the building. The
caller lets Officer Hirata in at 3:32 a.m. After Officer Torres
gets the caller's contact information, he tells her "we can go
just check her out and then, um, we'll just document that we
spoke to you and basically what you just told us."
Officer Hirata arrives in the 25th floor hallway at
3:33 a.m. while Officers Torres and Miranda are in the 911
caller's apartment. An AR-15 rifle is slung on his shoulder.
Corporal Marfil tells him, "we go check 2401, she said mighta
came from, she not sure but might be downstairs, just one shot.
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She said she could smell carbon or something. I said 'I don't
know, you sure it wasn't like one backfire from Ala Wai or
something?'"
Officer Hirata (who hasn't yet activated his camera)
says something indistinct to Corporal Marfil, who responds,
"Yeah, she heard us, but . . . I guess we can go wake 'em up,
huh?" They walk to the elevator. Corporal Marfil, referring to
Officer Hirata's rifle, says "whoo 'ass one nice one. Which one
is that, what model is that?"
Officers Torres and Miranda meet Corporal Marfil and
Officer Hirata at the 25th floor elevator lobby. Officers Torres
and Miranda also admire Officer Hirata's rifle. Corporal Marfil
says, "locked and loaded, brah."4 They all get into the
elevator.
Officer Torres briefs Officer Hirata in the elevator.
He says the 911 caller said she's in the military, knows the
sound of gunfire, "and not only that, she knows the smell, too."
The four officers arrive on the 24th floor. They go to apartment 2401.
Officer Hirata knocks on apartment 2401's door at
3:34:52 a.m. He announces, "HPD police. Checking if everything
okay." He holds his AR-15 rifle in the "low ready" position —
the stock is near his shoulder, the barrel pointed at the ground.
Officer Torres stands behind him, his weapon holstered. Corporal
4 Bellamy argues that Corporal Marfil's comment evidences the police officers' "intentional or reckless" conduct.
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Marfil and Officer Miranda are further behind, in the hallway to
Bellamy's apartment. Their weapons are also holstered.
Officer Hirata's declaration states that Bellamy
"opened the door with one hand and kept the other out of sight."
The videos show Bellamy cracking the door open and waving a hand.
Officer Hirata asks Bellamy to see his other hand twice before he
shows it, with the door still just cracked. After Bellamy shows
both of his hands are empty, Officer Hirata removes his hands
from his rifle, which then hangs from the strap on his shoulder,
barrel facing the ground. Officer Hirata never raises his rifle.
He never raises his voice.
Officer Hirata explains to Bellamy that his upstairs
neighbor heard "a loud bang and it sounded like gunfire," and
asks Bellamy if he heard anything.
Bellamy says, "you can come check everything in here, there's nothing in here." The video shows Bellamy opening the
door for the officers. Officers Hirata and Torres enter
Bellamy's apartment at 3:35:56 a.m. and search the living room
using flashlights. They enter no other room.
Corporal Marfil is heard in the hall asking, "Are you
okay?"
Bellamy responds, "No, not now."5
Officer Hirata asks Bellamy, "So you were sound
asleep?"
Bellamy says, "I was."
5 Bellamy argued his statement showed he "felt intimidated, coerced[,] and threatened" by the officers' alleged conduct.
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Officer Hirata apologizes, "Oh sheez, sorry to disturb
you, cause I guess yeah one of your neighbors heard a bang and
they thought it was gunfire coming from downstairs. Okay, sorry
for disturbing your night."
As Officer Hirata speaks with Bellamy, a young Asian
woman opens the door of apartment 2402 across the hall, looking
sleepy. Corporal Marfil says, "police, hi, just making sure
everything is okay. Someone said they heard a loud pop or a
bang, so we just making sure. Did you hear anything?"
The woman says, "No. Do you need anything?"
Corporal Marfil responds, "Just making sure everything
okay. You okay?" As he says this, Officers Hirata and Torres
are leaving Bellamy's apartment at 3:36:31 a.m., less than a
minute after they entered. Officer Hirata never pointed his
rifle at Bellamy. None of the officers unholstered their service
pistols.
On the way to the elevator, Officer Hirata says to the
others, "Maybe one more floor down?"
Officer Miranda asks, "Is it reasonable to wake up 2301
too and everybody?" She answers her own question, "No."
Officer Torres says, "Odds are the people are in deep
sleep so they're not gonna recall hearing it." The time was then
3:37 a.m.
2. Bellamy's Evidence
Bellamy submitted a declaration opposing the motion for
summary judgment. He stated he is African American and a retired
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United Airlines flight attendant.6 He was asleep in his
apartment when he heard a loud knocking on his door at 3:40 a.m.
He got out of bed. "When I opened the locked door, I saw an AR
automatic rifle pointed right at me and a police officer shouting
at me. I was extremely shocked and surprised and disoriented
since I just woke up."
Bellamy stated: "At least two officers told me to put
my hands up. I put one of my hands up and the officers demanded
I put both hands up. I had to open the door to show both my
hands. The officers kept asking me 'where's the guns, where's
the guns'. . . . I did not consent for them to enter my
apartment. I felt threatened when they pointed weapons at me and
felt I had no option but to let them into my apartment."
Bellamy stated, "I was in shock that this happened to
me. Just a few months earlier Breanna [sic] Taylor was killed in
her own house and shot by police officers while she slept. . . .
I was also very aware of what happened to many African American
men on the mainland who have been killed by police officers and
who have been unarmed. . . . I suffered sleeplessness,
nightmares, anxiety, paranoia, depression and post traumatic
[sic] stress disorder."
Bellamy also stated: "While I was at the door my
neighbor who is Asian American opened her door to ask what was
going on. The four (4) police officers told her they were
investigating gun shots and did not point any rifle at her or
6 The record contains no evidence the police officers knew who occupied apartment 2401 before Bellamy answered the door that night.
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guns at her. They did not ask to enter her apartment. They told
her to go back to bed."
3. Analysis
HPD argued, "No reasonable juror could rule in
[Bellamy]'s favor, given not just the officers' declarations, but
the consistent and clear video evidence showing that what
[Bellamy] attested to is false." HPD cite cases from other
jurisdictions for the proposition that a declaration directly
contradicted by video footage cannot create a genuine issue of
material fact to defeat a motion for summary judgment.
For example, in Scott v. Harris, 550 U.S. 372, 127
S. Ct. 1769, 167 L. Ed. 2d 686 (2007), a deputy sheriff (Scott)
ended a high-speed pursuit by pushing the rear of Harris's car
with the front bumper of his patrol car. Harris lost control of
his car, which left the roadway, ran down an embankment, and
overturned. Harris was rendered a quadriplegic. He sued Scott
in federal court for violating his constitutional right against
unreasonable seizure.
Scott moved for summary judgment based on qualified
immunity. The district court denied the motion. The court of
appeals affirmed. Quoting the court of appeals, the Supreme
Court summarized Harris's opposition:
Taking the facts from the non-movant's viewpoint, [Harris] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed
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[Harris], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.
Id., 550 U.S. at 379 (brackets omitted).
The Supreme Court then stated:
The videotape tells quite a different story. There we see [Harris]'s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the occasional center left- turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.
Id. at 379–80 (footnote omitted).
After acknowledging that the facts must be viewed in
the light most favorable to the non-moving party, the Supreme
Court concluded:
When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. That was the case here with regard to the factual issue whether [Harris] was driving in such fashion as to endanger human life. [Harris]'s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
Id. at 380–81 (emphasis added).
Scott is not binding on us. Nozawa is. There, Nozawa
worked for Operating Engineers Local Union No. 3 (Local 3).
Local 3 terminated her employment "due to a reorganization and
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restructuring of the Hawaii district office operations[.]" 142
Hawai#i at 334, 418 P.3d at 1190. Nozawa sued Local 3 for gender
discrimination. Her complaint alleged that she was "suddenly and
without cause terminated from her position as dispatcher . . .
and immediately replaced with a male dispatcher who received a
pay raise and an increase in work hours[.]" Id.
Local 3 moved for summary judgment. The motion was
supported by evidence including a warning letter telling Nozawa
"you continue to make numerous mistakes in the discharge of your
duties as Dispatcher." Nozawa, 142 Hawai#i at 334, 418 P.3d at
1190. A declaration stated that Local 3 "engaged in an effort to
train Nozawa but she continuously failed to fully comprehend the
dispatching rules and procedures." Id. at 335, 418 P.3d at 1191.
Another declaration stated that the person who replaced
Nozawa (Gentzler) was a Local 3 organizer who was going to be
displaced from that job. Gentzler "performed the role of
dispatcher when Nozawa was absent" and "had extensive experience with the [union's Job Placement Regulations] and the collective
bargaining agreement and had not received any written warnings
for deficient work performance." Id. at 334, 335, 418 P.3d at
1190, 1191. It also explained that the increase in work hours
for Gentzler "was based on a preexisting plan to return
dispatchers to the forty-five-hour week, as well as the lack of a
backup dispatcher." Id. at 335, 418 P.3d at 1191. Local 3
argued there were "legitimate, nondiscriminatory reasons for
Nozawa's termination." Id.
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In opposition, Nozawa's declaration stated she was
falsely accused of making an error; her supervisor never informed
her of any performance problems; she signed the warning letter
but disputed making a mistake; she had always received excellent
employment evaluations; she did not have performance problems;
she was fully capable of performing her job; she was terminated
without cause; and Gentzler had little experience as a dispatcher
but when he replaced her, his work hours and pay increased. Id.
at 335, 418 P.3d at 1191.
The circuit court rejected Nozawa's declaration,
finding it did not satisfy HRCP Rule 56(e)7 because it was "uncorroborated, self-serving, and conclusory." Nozawa, 142
Hawai#i at 338, 418 P.3d at 1194. The circuit court granted
Local 3's motion for summary judgment. Nozawa appealed. We
affirmed. Nozawa v. Operating Engineers Local Union No. 3,
No. CAAP-XX-XXXXXXX, 2017 WL 2670800 (Haw. App. June 21, 2017)
(mem. op.), rev'd, 142 Hawai#i 331, 418 P.3d 1187 (2018).
On certiorari, the supreme court held that "HRCP Rule 56(e) does not preclude an affidavit from being self-serving."
Nozawa, 142 Hawai#i at 339, 418 P.3d at 1195.
HRCP Rule 56(e) provides that affidavits shall set forth facts based on personal knowledge. Thus, an affidavit by its nature includes an affiant's own perception of the matter. See Commentary to Hawaii Rules of Evidence (HRE) Rule 602 (1993) ("'Personal knowledge,' for purposes of [HRE
7 HRCP Rule 56(e) provides, in relevant part: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
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Rule 602], means that the witness perceived the event about which [the witness] testifies and that [the witness] has a present recollection of that perception.").
Id. at 338, 418 P.3d at 1194.
The supreme court also held that statements in an
affidavit need not be corroborated. Id. at 339, 418 P.3d at
1195. "Indeed, a requirement that an affidavit be corroborated
would establish a higher standard for admissibility than that
required for the introduction of evidence at trial." Id.
Here, Bellamy's declaration was based on personal
knowledge. He says he "saw an AR automatic rifle pointed right
at me and [heard] a police officer shouting at me" when he opened
his door; "two officers told me to put my hands up" and "kept
asking me 'where's the guns, where's the guns'"; and "I did not
consent for them to enter my apartment." These were his
perceptions. His declaration satisfied HRCP Rule 56(e).
HPD argue that Bellamy's statements are "directly
contradicted by the video evidence" and "at no time has [Bellamy]
suggested that there are any specific facts outside of what is
captured in the video that are pertinent to the alleged
'pointing' of guns, shouting, and/or 'consent' or lack thereof by
[Bellamy]." But Bellamy's statements need not be corroborated to
defeat HPD's motion for summary judgment. Nozawa, 142 Hawai#i at
339, 418 P.3d at 1195.
HPD also argue that Bellamy's declaration is conclusory
and "in no way supported by underlying specific facts in the
record." An assertion in a declaration expressing an inference
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without setting forth the facts on which the inference is based,
or stating a conclusion that is not reasonably drawn from the
facts, is considered conclusory and cannot be used against a
motion for summary judgment. Nozawa, 142 Hawai#i at 339, 418
P.3d at 1195. But an inference "based on stated facts from which
the conclusion may reasonably be drawn is not conclusory and may
be used to support or oppose a motion for summary judgment." Id.
Bellamy's statements that he saw an AR-15 pointed
directly at him, two officers shouted to put his hands up and
kept asking "where's the guns, where's the guns," and he didn't
consent to the police entering his apartment, were factual, not
conclusory. The jury must decide which version of events it
believes; it is not for a judge, on a motion for summary
judgment, to weigh competing evidence and determine which version
of events should be accepted as true. See Mehau v. Gannett Pac. Corp., 66 Haw. 133, 145, 658 P.2d 312, 321 (1983) ("The question
to be resolved at summary judgment is whether plaintiff's proof
is sufficient such that a reasonable jury could find malice with
convincing clarity, and not whether the trial judge is convinced
of the existence of actual malice."); Fisher v. Fisher, 111
Hawai#i 41, 46, 137 P.3d 355, 360 (2006) (noting it "is the
province of the trier of fact" to pass on the credibility of
witnesses and the weight of the evidence).
This is so even when the opposing declaration "is
blatantly contradicted[,]" Scott, 550 U.S. at 380, by video
evidence supporting the motion. This would not be the only case
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where Hawai#i has not followed Supreme Court decisions on
parallel rules of civil procedure. See Bank of Am., N.A. v.
Reyes-Toledo, 143 Hawai#i 249, 257, 428 P.3d 761, 769 (2018)
(rejecting "plausibility" pleading standard under Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173
L. Ed. 2d 868 (2009) for HRCP Rule 12(b)(6) motions to dismiss),
overruled on other grounds, Wilmington Sav. Fund Soc'y, FSB v.
Domingo, 155 Hawai#i 1, 556 P.3d 347 (2024).
HPD also cites Jenkins v. Liberty Newspapers Ltd., 89
Hawai#i 254, 971 P.2d 1089 (1999), for the proposition that a
defendant's motion for summary judgment should be granted "where
no reasonable juror could rule in plaintiff's favor." In that
case Liberty, doing business as the Honolulu Star-Bulletin,
incorrectly named Maui lawyer Brian Jenkins instead of Brian's
father, Bill, in an article about the state insurance
commissioner's seizure of an insurance agency run by Brian's
parents. Brian sued Liberty for defamation. Liberty moved for summary judgment, arguing it did not
act with "actual malice." Its reporter signed a declaration
explaining how the mistake happened. Brian does not appear to
have submitted a declaration controverting the reporter's
testimony. Brian instead argued the evidence showed actual
malice by the Star-Bulletin. The supreme court affirmed the
summary judgment, but not because no reasonable juror could
believe Brian's evidence. Rather, it held that the evidence did
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not show actual malice as a matter of law. Id. at 258-65, 971
P.2d at 1093-100. Brian's defamation claim would not go to the
jury. That was why no reasonable juror could have ruled in
Brian's favor on that issue.
We hold that Bellamy's declaration created genuine
issues of material fact about HPD's potential tort liability for
the police officers' alleged actions on May 8, 2021. The Circuit
Court erred by granting HPD's motion for summary judgment.
B. HPD did not argue they were entitled to qualified immunity; there is a genuine issue of material fact about whether qualified privilege applies.
HPD's motion for summary judgment argued that the
doctrine of qualified privilege applied because there was no
"clear and convincing evidence" that the police officers were
"motivated by malice and not by an otherwise proper purpose."
HPD relied on Medeiros v. Kondo, 55 Haw. 499, 522 P.2d 1269
(1974).
Bellamy argued there was sufficient evidence of malice
to submit the issue to the jury, citing Runnels v. Okamoto, 56
Haw. 1, 5, 525 P.2d 1125, 1129 (1974) ("The existence or absence
of malice is generally a question for the jury.").
The audio and video from the body-worn cameras do not
appear to show any of the police officers acting with malice — in
general, or directed at Bellamy. But Bellamy's declaration,
viewed in the light most favorable to him, is evidence of malice
by the officers and creates a genuine issue of material fact.
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For the reasons explained above, Bellamy's argument that summary
judgment should not have been granted has merit under Nozawa.
HPD's answers to Bellamy's complaint also asserted the
affirmative defense of qualified immunity, but HPD's motion for
summary judgment did not argue that defense. The record does not
show that the Circuit Court's decision to grant summary judgment
was based on the doctrine of qualified immunity. We express no
opinion about whether summary judgment would be appropriate as to
that affirmative defense.
We need not reach Bellamy's other points of error.
V. CONCLUSION
The Circuit Court's Judgment, entered on November 1,
2023, is vacated in part; the dismissal of Bellamy's punitive
damage claim against the City and County of Honolulu is affirmed.
This case is remanded for further proceedings not inconsistent
with this opinion.
/s/ Keith K. Hiraoka On the briefs: Presiding Judge
Daphne E. Barbee, /s/ Sonja M.P. McCullen for Plaintiff-Appellant. Associate Judge
Nicolette Winter, /s/ Kimberly T. Guidry Sheena M. Crail, Associate Judge Deputies Corporation Counsel, City and County of Honolulu, for Defendants-Appellees.