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Hawaii Supreme Court: Pretrial Solitary Wrong, but Warden Protected by Qualified Immunity

by Derek Gilna

Mukadin Gordon, who had an extensive criminal record, was arrested for a non-violent offense in August 2010 and placed in solitary confinement for several months. 

He sued under 42 U.S.C. § 1983 and state tort law, arguing that his nine months in solitary were punitive in nature and thus improper. Although the state Supreme Court found his civil rights were violated, the defendants were shielded by qualified immunity.

Pursuant to Bell v. Wolfish, 441 U.S. 520 (1979), pretrial detainees who have been arrested and charged, and remain in jail while awaiting trial, have a due process right to be free from punishment until after they have been convicted. 

Gordon’s lawsuit against warden Petra Cho for monetary damages, however, was denied by the circuit court, and the Intermediate Court of Appeals affirmed. Gordon then appealed to the Supreme Court of Hawaii.

The high court disagreed with the finding of the circuit court, which held that “Gordon’s constitutional rights were not violated based on the lack of substantive evidence showing that Defendants categorized him as a maximum custody pre-trial detainee purely to impose punishment upon him.” 

“We hold that Gordon’s placement in solitary confinement for more than nine months constituted unlawful pretrial punishment in violation of the due process clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 5 of the Constitution of the State of Hawaii,” the Supreme Court wrote in its November 2, 2018 decision. “We also hold, however, that although the circuit court applied an incorrect standard for federal qualified immunity, defendant Petra Cho (“Cho”) is not liable for damages under 42 U.S.C. § 1983 for the federal constitutional violation because the basis of her decision to retain Gordon in pretrial solitary confinement did not violate a clearly established constitutional right of which every reasonable official would have known.” 

Consequently, Cho was entitled to qualified immunity. Justice Michael D. Wilson issued a dissenting opinion. See: Gordon v. Maesaka-Hirata, 431 P.3d 708 (Hawaii 2018). 

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Related legal case

Gordon v. Maesaka-Hirata