                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DILLON L. BRACKEN,                       No. 14-16886
               Plaintiff-Appellant,
                                            D.C. No.
                v.                       1:11-cv-00784-
                                           LEK-BMK
AARON H. OKURA; KYO-YA HOTELS
AND RESORTS, L.P.,
                    Defendants,            OPINION

               and

KINCHUNG CHUNG,
             Defendant-Appellee.


     Appeal from the United States District Court
               for the District of Hawaii
     Leslie E. Kobayashi, District Judge, Presiding

         Argued and Submitted June 15, 2017
                 Honolulu, Hawaii

                Filed August 23, 2017

      Before: Raymond C. Fisher, Richard A. Paez
       and Jacqueline H. Nguyen, Circuit Judges.

               Opinion by Judge Fisher
2                       BRACKEN V. CHUNG

                            SUMMARY*


                             Civil Rights

    The panel vacated the district court’s summary judgment
granting qualified immunity to a Honolulu Police Department
officer in an action brought under 42 U.S.C. § 1983 and state
law by Dillon Bracken, who alleged that Officer Chung
violated his rights under the Due Process Clause of the
Fourteenth Amendment by failing to intercede to stop an
assault on him by hotel security guards.

    Officer Chung had been hired by a hotel as a special duty
officer to provide security for a private event. Although
Chung wore his police uniform, and the Honolulu Police
Department approved his employment at the hotel, the
Department considered him off-duty while working there.
Chung, wearing his police uniform, helped detain Bracken in
order to issue an internal trespass warning and then failed to
intercede when Bracken was assaulted by private security
personnel.

    The panel held, first, that Chung could not assert qualified
immunity because he was not serving a public, governmental
function while being paid by the hotel to provide private
security. On the merits, the panel held there was a triable
issue as to whether Chung violated Bracken’s right to liberty
by placing Bracken in danger and then failing to protect him
from harm. The panel held that a reasonable jury could find
Chung exposed Bracken to harm he would not otherwise have

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    BRACKEN V. CHUNG                         3

faced, that this harm was foreseeable and that Chung acted
with deliberate indifference in the presence of a known
danger, created by his conduct. The panel remanded for
further proceedings.


                         COUNSEL

Charles S. Lotsof (argued), Honolulu, Hawaii, for Plaintiff-
Appellant.

Sarah T. Casken (argued) and Curtis E. Sherwood, Deputies
Corporation Counsel; Donna Y.L. Leong, Corporation
Counsel; Department of the Corporation Counsel, Honolulu,
Hawaii; for Defendant-Appellee.


                         OPINION

FISHER, Circuit Judge:

    Qualified immunity protects government officers in the
performance of their public, governmental functions. It does
so “not to benefit [the] agents” of government, but “to
safeguard government” itself, “and thereby to protect the
public at large.” Wyatt v. Cole, 504 U.S. 158, 168 (1992). In
this case, Honolulu Police Department (HPD) Officer
Kinchung Chung seeks the protection of qualified immunity
for actions he took, or failed to take, while hired and paid by
a hotel to provide “special duty” security for a private event.
Although the police department considered Chung off-duty,
he wore his police uniform, and he used the badge of
authority it conveyed to help detain a hotel patron, Dillon
Bracken. Chung does not contend that Bracken had
4                   BRACKEN V. CHUNG

committed a crime. Rather, hotel personnel had decided to
issue Bracken an internal “trespass” warning for entering a
New Year’s Eve party without permission. After Chung
helped detain him, hotel security guards allegedly assaulted
Bracken. Bracken sued under 42 U.S.C. § 1983, alleging
Chung violated his rights under the Due Process Clause of the
Fourteenth Amendment by failing to intercede and stop the
assault. The district court granted Chung summary judgment
based on qualified immunity and on the merits.

    We hold, first, that Chung may not assert qualified
immunity, because he was not serving a public, governmental
function while being paid by the hotel to provide private
security. We also hold, on the merits, that a reasonable jury
could find Chung exposed Bracken to harm he would not
otherwise have faced, that this harm was foreseeable and that
Chung acted with “deliberate indifference . . . in the presence
of [the] known danger, created by [his] conduct.” L.W. v.
Grubbs, 92 F.3d 894, 896 (9th Cir. 1996) (L.W. II). We
therefore vacate and remand.

                       I. Background

    On New Year’s Eve in 2009, Bracken attended a party at
the Kyo-ya Hotel and Resort’s Rumfire Restaurant. Aaron
Okura, a security guard for Kyo-ya, saw Bracken step over a
rope without a wristband indicating he was entitled to be
there. Okura moved toward Bracken, while Bracken tried to
walk further into the party.

   Chung observed this interaction, approached and, together
with Okura, stopped Bracken. Kyo-ya had hired Chung as a
“special duty” officer to provide security for the event.
Although Chung wore his police uniform, and HPD approved
                       BRACKEN V. CHUNG                               5

his employment at Kyo-ya, the HPD website says “HPD
officers hired for special duty assignments are off-duty.”
See Ask HPD: Hiring Special Duty Officers,
www.honolulupd.org/news/index.php?page=main&story=1
610 (last visited Aug. 16, 2017).1 Chung was paid directly by
the hotel for his employment at Kyo-ya – not by HPD.
Chung also acted at the hotel’s direction in helping to stop
Bracken, doing so because hotel personnel had decided to
issue Bracken an internal “trespass” warning, pursuant to the
hotel’s internal policies.2

    When Chung and Okura confronted Bracken, Bracken
began recording video on his cell phone. The video shows
Chung asking Bracken for his identification and telling him
he was being “trespassed,” while Bracken repeatedly asked
whether he could leave. Shortly thereafter, other Kyo-ya
security guards arrived. The security guards then tackled
Bracken, allegedly assaulted him and took him to the hotel’s
security office. Except for the initial takedown, the video
does not show the alleged assault, because Bracken’s phone
fell to the ground. The audio continues, however, and
Bracken’s voice can be heard screaming in pain, cursing and
asking the guards to stop hurting him. Bracken allegedly lost
consciousness at several points, suffered a vocal cord and
larynx injury and incurred bruising on his wrists. Once the
group reached the security office, Bracken provided his

    1
     Chung does not contend he was on-duty while providing security for
Kyo-ya.
    2
      When the hotel decided it did not want a given person on its
premises, it would “trespass” them – an in-house warning stating the
person was not welcome at the hotel for a period of one year and that if
the person returned, the hotel would “call the police” and pursue legal
remedies.
6                       BRACKEN V. CHUNG

identification. He was then issued the written trespass
warning, examined by paramedics and allowed to leave.
Although Bracken does not argue that Chung was involved
physically in the alleged assault, the phone audio and video
show he was present the entire time.

     Bracken filed suit against the hotel, the hotel security
guards and Chung. He brought claims under state law, along
with § 1983 claims under the Fourth and Fourteenth
Amendments for unlawful seizure, excessive force and failure
to intercede. The district court granted Chung summary
judgment on all claims, both on the merits and based on
qualified immunity. Bracken appeals only the § 1983 failure
to intercede claim. We review de novo a district court’s grant
of summary judgment, see Blankenhorn v. City of Orange,
485 F.3d 463, 470 (9th Cir. 2007), and we vacate and remand.

                           II. Discussion

                     A. Qualified Immunity

    We first address whether Chung may invoke the doctrine
of qualified immunity. “There are two questions that must be
answered” when an officer seeks qualified immunity. Jensen
v. Lane Cty., 222 F.3d 570, 576 (9th Cir. 2000). The first is
“whether qualified immunity is categorically available” to the
type of officer at issue. Id.3 “Second, if qualified immunity

    3
      Chung contends Bracken waived this argument by not raising it
below. We disagree. “To have been properly raised below, ‘the argument
must be raised sufficiently for the trial court to rule on it.’” Broad v.
Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996) (quoting In re E.R.
Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)). Bracken raised this
argument both in opposition to the motion to dismiss and in his motion for
reconsideration after summary judgment.
                      BRACKEN V. CHUNG                           7

is available generally, we must determine whether [the
officer] is entitled to it in this case,” i.e., whether the officer
“violated a clearly established constitutional . . . right.” Id.

1. State action for purposes of § 1983 is not co-extensive
   with state action for which immunity is available.

    Chung conceded at oral argument that he “absolutely”
acted under color of state law in helping detain Bracken, and
he argues that, because of this, qualified immunity is
necessarily available to him. We agree that Chung acted
under color of state law for § 1983 purposes: In preventing
Bracken from leaving the party, Chung invoked the authority
conveyed by his police uniform and badge. See Wyatt,
504 U.S. at 161. We disagree, however, that this
automatically entitles him to invoke qualified immunity.

    State action for § 1983 purposes is not necessarily co-
extensive with state action for which qualified immunity is
available. See Jensen, 222 F.3d at 576 (“[A] finding of ‘state
action’ on the part of Dr. Robbins does not require this court
to find that he is entitled to qualified immunity.” (citing
Richardson v. McKnight, 521 U.S. 399 (1997)). “The
purpose of § 1983 is to deter state actors from using the badge
of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such
deterrence fails.” Wyatt, 504 U.S. at 161. Qualified
immunity, on the other hand, “protect[s] government’s ability
to perform its traditional functions.” Id. at 167 (emphasis
added). Courts, therefore,

        have recognized qualified immunity for
        government officials where it was necessary
        to preserve their ability to serve the public
8                        BRACKEN V. CHUNG

          good or to ensure that talented candidates
          were not deterred by the threat of damages
          suits from entering public service. In short,
          . . . qualified immunity . . . acts to safeguard
          government, and thereby to protect the public
          at large, not to benefit its agents.

Id. at 167–68 (emphasis added) (citations omitted). Thus, the
availability of immunity does not necessarily overlap with
state action under § 1983 when a government officer uses the
“badge of their authority,” id. at 161, in service of a private,
non-governmental goal. See generally Richardson, 521 U.S.
at 404–12.

    2. Neither a firmly rooted tradition of immunity nor the
       purposes underlying the doctrine justifies qualified
                     immunity for Chung.

    Neither this court nor the Supreme Court has addressed
the general availability of qualified immunity to off-duty
police officers acting as private security guards.4 In other
contexts, however, we have followed the Supreme Court’s
instruction to “look both to history and to the purposes that
underlie government employee immunity in order to find the
answer.” Richardson, 521 U.S. at 404; see Jensen, 222 F.3d
at 576. The first inquiry is whether “[h]istory . . . reveal[s] a

      4
       We are also not aware of any case from other circuits squarely
addressing the issue. See Saenz v. G4S Secure Sols. (USA), Inc., 224 F.
Supp. 3d 477, 481–82 (W.D. Tex. 2016) (noting “nation[-wide]
uncertainty regarding this issue”); see also Morris v. Dillard Dep’t Stores,
Inc., 277 F.3d 743, 753 (5th Cir. 2001) (assuming without analysis that
immunity was available to an off-duty officer acting as a security guard);
Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 763 & n.5 (7th Cir. 2006)
(taking a similar approach).
                     BRACKEN V. CHUNG                         9

‘firmly rooted’ tradition of immunity.” Richardson, 521 U.S.
at 404. We look principally to “the common law as it existed
when Congress passed § 1983 in 1871.” Filarsky v. Delia,
566 U.S. 377, 384 (2012). The next question is whether
granting immunity would serve the purposes underlying the
immunity doctrine – such as “protecting government’s ability
to perform its traditional functions,” “preserv[ing] the ability
of government officials to serve the public good,” “ensur[ing]
that talented candidates [are] not deterred by the threat of
damages suits from entering public service,” and “protecting
the public from unwarranted timidity on the part of public
officials.” Richardson, 521 U.S. at 407–08 (citations and
internal quotation marks omitted).

    Applying that framework, we conclude qualified
immunity is unavailable to Chung. First, he has shown no
“firmly rooted” tradition of immunity for off-duty or special
duty officers acting as private security guards. Indeed, Chung
has not cited any supporting historical authority. Nor has our
own review revealed a “firmly rooted” tradition of immunity.
Cf. Filarsky, 566 U.S. at 387–89 (explaining that immunity
was historically available to “public servants and private
individuals engaged in public service” when they were
“carrying out government responsibilities” (emphasis
added)); Richardson, 521 U.S. at 404 (“History does not
reveal a ‘firmly rooted’ tradition of immunity applicable to
privately employed prison guards.”). We are not aware of
any state that offers immunity where an officer serving as a
private security guard did not act in service of a public duty,
and some states have held immunity is simply unavailable in
10                       BRACKEN V. CHUNG

this context.5 Thus, the historical inquiry does not support
immunity for Chung here.

     Second, Chung has not shown that the policies
underpinning qualified immunity warrant invoking the
doctrine here. In detaining Bracken, Chung did not act “in
performance of public duties” or to “carry[] out the work of
government.” Filarsky, 566 U.S. at 389–90 (emphasis added)
(citing Richardson, 521 U.S. at 409–11). He does not
contend, for example, that he was preventing Bracken from
committing a crime. Instead, Chung – acting on behalf of the
hotel, at the hotel’s direction and while being paid by the

     5
       See, e.g., Traver v. Meshriy, 627 F.2d 934, 940 (9th Cir. 1980)
(“Under California law, . . . [immunity] is not available to an off-duty
police officer . . . who was acting in the scope of his employment as a
private security guard.” (citing Cervantez v. J.C. Penney Co., 595 P.2d
975 (Cal. 1979), abrogated in part by statute as explained in Melendez v.
City of Los Angeles, 73 Cal. Rptr. 2d 469, 473–77 (Ct. App. 1998)));
Lovelace v. Anderson, 785 A.2d 726, 739–40 (Md. 2001) (“[W]hile acting
as a private security guard for the hotel, [off-duty officer] Anderson was
clearly not entitled to public official immunity.”); Duran v. Furr’s
Supermarkets, Inc., 921 S.W.2d 778, 793–94 & n.6 (Tex. Ct. App. 1996)
(denying summary judgment on qualified immunity where the off-duty
officer moonlighting as a security guard did not establish “that he was
acting within the scope of his authority as a police officer during the
incident”); cf. Smith v. Norton Hosps., Inc., 488 S.W.3d 23, 28–30 (Ky.
Ct. App. 2016) (granting immunity to an off-duty “peace officer” serving
as a security guard because the officer’s conduct fell within the statutorily
defined authority of an off-duty officer; construing broadly the
circumstances where immunity would be available); cf. also Dickson v.
Waldron, 34 N.E. 506, 509–10 (Ind. 1893) (explaining in the context of
respondeat superior liability, where a “special policeman” served as a
theater’s “doorkeeper,” that “[b]ecause he was a police officer, it does not
follow that all his acts were those of a policeman . . . . [and] [e]ven if he
were a regular patrolman, called in off the street by [the theater] or [its]
agents to aid in enforcing the regulations of the theater, he would, for such
purpose, be only an agent of [the theater].”).
                        BRACKEN V. CHUNG                               11

hotel – aided the hotel in realizing its goal of issuing Bracken
a warning. Thus, shielding Chung from suit would not
advance the policies underlying qualified immunity. See id.
at 389–91. We hold that qualified immunity is not available
to Chung. The district court erred in concluding otherwise.6

                      B. Failure to Intercede

    We turn next to the merits of Bracken’s failure to
intercede claim. On summary judgment, we view the
evidence in the light most favorable to the non-moving party
(here, Bracken). See Zetwick v. Cty. of Yolo, 850 F.3d 436,
440 (9th Cir. 2017). Summary judgment is inappropriate if
“a reasonable juror drawing all inferences in favor of
[Bracken] could return a verdict in [Bracken’s] favor.” Id. at
441 (quoting Reza v. Pearce, 806 F.3d 497, 505 (9th Cir.
2015)).

    Bracken contends that because Chung helped detain him
and prevented him from leaving the party, Chung had a duty
to intervene once the security guards began assaulting him.
“Although the general rule is that the state is not liable for
its” failure to protect an individual from harm, “there are
several exceptions to this rule.” Munger v. City of Glasgow
Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000). One of
these “is the ‘danger creation’ exception,” which imposes a
duty to intercede on an officer “where there is ‘affirmative
conduct on the part of the [officer] in placing the plaintiff in
danger.’” Id. (quoting L.W. v. Grubbs, 974 F.2d 119, 121


    6
      We do not decide whether qualified immunity might be available to
an off-duty officer who steps back into a police officer role, for example,
to prevent a crime from occurring. That is a different case for a different
time.
12                      BRACKEN V. CHUNG

(9th Cir. 1992) (L.W. I)); see, e.g., Wood v. Ostrander,
879 F.2d 583, 590 (9th Cir. 1989) (holding an officer’s
affirmative conduct that placed a woman in danger
“trigger[ed] a duty of the police to afford her some measure
of peace and safety”). For this duty to be triggered, the harm
the plaintiff suffers as a result of the officer’s affirmative
conduct must have been foreseeable at the time of the
officer’s conduct placing the plaintiff in danger. See
Lawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003)
(“[I]n each of the cases in which we have applied the danger-
creation exception, ultimate injury to the plaintiff was
foreseeable.”). When an officer’s affirmative conduct creates
a foreseeable risk of harm to the plaintiff, the officer will be
liable for failing to intercede if the officer demonstrates
“deliberate indifference” to the plaintiff’s plight. See L.W. II,
92 F.3d at 896 (“We have not deviated from the principle that
deliberate indifference on the part of the responsible official,
to the safety of [others,] in the presence of known danger,
created by official conduct, is sufficient to establish a due
process violation under Section 1983.”); see also Nicholas v.
Wallenstein, 266 F.3d 1083, 1088 (9th Cir. 2001) (declining
to impose liability where the plaintiffs did not show officials’
“deliberate indifference to known or obvious dangers” that
arose after the allegedly danger-creating conduct occurred).7




     7
       Our cases also permit liability for officers who demonstrate
deliberate indifference in creating a danger, as distinguished from
responding to the foreseeable danger they created. See, e.g., Kennedy v.
City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006) (holding the
evidence “establish[ed] that [the defendant] acted deliberately and
indifferently to the danger he was creating” (emphasis added)). Chung
does not argue these cases preclude liability for an officer’s deliberately
indifferent response to foreseeable danger the officer creates, see
                        BRACKEN V. CHUNG                               13

    Here, a reasonable jury could find that Chung engaged in
affirmative conduct that exposed Bracken to foreseeable
harm. Even as the situation escalated, the alleged assault
began and it became foreseeable that Bracken would suffer
harm, Chung affirmatively prevented Bracken from leaving
the party and ensured that Bracken remained under the
control of the hotel’s security guards. The cell phone video
shows that while the other security guards surrounded
Bracken and physically grabbed his arm and shoulder, Chung
stood directly in front of Bracken asking him for
identification and telling him he was being trespassed. As the
jostling and yelling became more intense, Bracken looked at
the group of people detaining him and said, “Do not do this.”
Chung did not step away or intimate that the situation was
now under the security guards’ control. Instead, he again
asserted his authority over Bracken, again telling Bracken he
was being trespassed and needed to show identification.
Seconds later, as Chung asked for Bracken’s identification
yet again, the takedown occurred. At this point – while
Chung was still an active participant in the incident – Chung
could foresee that his conduct “expose[d] [Bracken] to a
danger” he “would not have . . . faced” had Chung let him
leave, triggering a duty to intercede. Kennedy, 439 F.3d at
1061; see Wood, 879 F.2d at 588, 590 (officers exposed a
woman to foreseeable danger by leaving her on the side of a
road in a high-crime area, where the officer knew or should
have known of crime reports and “common sense” suggested
the woman might suffer harm); see also Dan B. Dobbs, Paul
T. Hayden & Ellen M. Bublick, Dobbs’ Law of Torts § 159
(2d ed. 2017) (describing foreseeability as whether “a


Answering Br. at 19 (accepting the theory that an officer can be liable for
“affirmatively act[ing] to create a danger and then show[ing] deliberat[e]
indifference to the danger created”), and we do not read them as doing so.
14                       BRACKEN V. CHUNG

reasonable person would recognize a risk of harm”). As a
trained police officer, Chung should have known the guards
were overreacting and exposing Bracken to injury.

    A jury could also find that Chung showed “deliberate
indifference . . . in the presence of [the] known danger,
created by [his] conduct.” L.W. II, 92 F.3d at 896. After the
takedown, the alleged assault continued for more than ten
minutes. During this time – although only audio is
discernable on the recording – a voice that reasonably could
belong to Chung can be heard along with Bracken’s screams
and requests for the security guards to stop hurting him. At
no point, however, did Chung take any action to stop the
assault. Thus, a jury could find that Chung knew the security
guards were hurting Bracken and deliberately chose to do
nothing about it. See id. at 900 (“The deliberate indifference
standard . . . requires that the defendant have actual
knowledge of, or willfully ignore, impending harm.”). In
short, a reasonable jury could find Chung liable on a failure
to intercede theory. The district court therefore erred by
granting summary judgment to Chung on Bracken’s due
process claim.8

     8
      The district court did not address the danger-creation exception. It
granted summary judgment on the failure to intercede claim addressing
only a different “route to police officer liability” for failure to intercede:
“police officers[’] . . . duty to intercede when their fellow officers violate
the constitutional rights of a suspect or other citizen.” United States v.
Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994), rev’d in part on other
grounds by Koon v. United States, 518 U.S. 81 (1996). Bracken does not
appear to contest the district court’s conclusion regarding the “fellow-
officer” exception, relying instead on the danger-creation exception. See,
e.g., Opening Br. at 16 (“The essence of a failure to intercede cause of
action is the off[i]cer’s deliberate indifference to the victim’s exposure to
a known risk that was increased by the officer’s action.”). Thus, we do
not address whether the fellow-officer exception applies here.
                    BRACKEN V. CHUNG                       15

                      III. Conclusion

    We hold that qualified immunity is unavailable to Chung,
and that a reasonable jury could find Chung liable for failing
to intercede against the harm to which he exposed Bracken.

   VACATED AND REMANDED.

   Costs on appeal are awarded to Appellant Bracken.
