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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TARN CHRISTIAN, Petitioner-Appellee, v. CLAYTON FRANK, Director, State of Hawaii Department of Public Safety, Respondent-Appellant,

Wilkins, U.S. Attorney for the District of Hawaii, William J. Briggs, Senior Assistant Attorney General, Paula M. Pyle, Associate Attorney General, and Thomas G. Keller, Jr., Assistant Attorney General. William D. Although, Senior Assistant District Attorney, and James E. Began, Assistant District Attorney, for the State of Hawaii. Benjamin M. Lawless, Special Assistant State's Attorney, Lawrence J. K. Weightier, Assistant District Attorney, and Thomas L. Scatter, Assistant District Attorney, for the United States of Hawaii. BRIAN H. DOUGLAS, District Attorney, and William J. Briggs, Senior Assistant District Attorney, for Clayton Frank, Director, Hawaii State Police. I. Background This civil action arises out of claims made against Clayton Frank, Director, State of Hawaii Department of Public Safety (the “Department”). Plaintiffs are employees of the Department and/or are relatives of current or former employees. The Department is an agency within the Executive Branch, created and governed by statutes to regulate the conduct of Hawaii's executive officers and employees under Chapter 31 of Title 5, Hawaii Revised Statutes (the “HERA”). The HERA governs the Department's investigatory powers. Under this law, the Department's role is to “investigate and prosecute suspected criminal violations in criminal matters and to perform all other functions to further the enforcement of laws relating to criminal law enforcement by the Department.” Hera § 31.1-13 (2007). II. The Issues. A. Claim #1—The Public Use of Force Policy Plaintiffs' principal claim in this action is that a portion of the Department's public use of force policy violates the HERA, by permitting the use of force in cases where it has been determined that it is “more likely than not … that another person's use or threatened use of violent force against … another person … may result in death or serious physical injury to … that person.” Hera § 31.1-16 (2007). Under this definition, the plaintiff, an employee of the Department, is justified in the use of deadly force when deadly force has been “used against another person” to defend against a “death threat in the same situation in which the death threat occurred.” I'd. (internal quotation marks omitted).

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