CourtListener 10741533

Testo completo

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

---o0o---

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.