Johnny Helm says he suffered broken bones in his face after he and a friend were mistaken for burglary suspects by Honolulu police officers while hiking on the Koolau mountains in 2012.

The two men said two of the cops slammed them face-first into the ground while arresting them for a crime they didn’t commit. They filed complaints with the Honolulu Police Commission over excessive use of force.

The commission agreed that the police overreacted, but court records in a lawsuit filed by Helm and his friend, Jonah Wellins, indicate that neither officer was punished by the department. Other officers who were found to have acted unprofessionally during the arrest also avoided punishment.

In fact, court documents show that top Honolulu Police Department officials, including Chief Louis Kealoha, found that the officers were well within their realm of authority when violently detaining Helm and Wellins.

Still, the city recently paid $167,500 to the two men to settle a lawsuit.

The case raises the question of how effective the Honolulu Police Commission is when it comes to overseeing officer misconduct. The commission has come under fire recently for the perception that it’s soft on bad behavior. Some Hawaii lawmakers have advocated for a new statewide oversight authority that would have more power.

Helm’s attorney, Myles Breiner, said his client is afraid to speak out for fear of possible retribution. He said Helm and Wellins’ lawsuit highlights how “toothless” the commission is when it comes to holding officers accountable.

“We sued to punish the police and hopefully get HPD to clean up its act,” Breiner said. “But the position that HPD has taken is essentially that they bought their way out of the case without taking any responsibility.”

He added that the department — through city attorneys — also tried to undermine the commission’s investigation by hiring an expert witness to write a report that essentially found that the commission’s findings were bogus and based on flawed information.

“They didn’t simply ignore the Police Commission,” Breiner said. “They attacked it.”

‘Not the Guys’

Neither the commission nor HPD would provide records of their investigations into the case. But court documents based on those records illuminate some of the conflicting points of view.

On Feb. 29, 2012, Helm and Wellins were hiking on the Lanipo Trail off of Wilhelmina Rise when, according to their lawsuit, they saw an HPD helicopter flying above them. The officers inside said something over a loudspeaker the hikers couldn’t hear, and directed them to start descending the trail.

Helm and Wellins, a childhood friend visiting from the mainland, began to hike down the trail when they were approached by “eight heavily armed men dressed in combat gear.” The lawsuit says the officers had their guns drawn and were screaming profanities at Helm and Wellins.

According to court records, HPD Officer Nalei Sooto ordered Helm to get on the ground. Helm said when he went to his knees, Sooto slammed him face-first into the dirt from behind, splitting open the skin near his eye and nearly knocking him unconscious.

Documents say Officer Patrick Sung took down Wellins as he was going to his knees, pushing his face into the ground and causing scrapes to his cheek. Wellins said in court records that he could feel a gun barrel pressed to the back of his head and a foot on his neck as he was handcuffed.

Wellins said he too had a foot on his neck.

Johnny Helm's attorney says a metal rod need to be inserted through his client's eyelid to repair broken bones in his face.

An attorney says a metal rod needed to be inserted through Johnny Helm’s eyelid to repair broken bones in his face.

Submitted

The officers then marched the two men in handcuffs down a steep trail back into the Palolo Valley. According to the lawsuit, parts of the trail were so precarious that the hikers needed to use rope to descend.

Barry Brodd, a retired California cop hired by Breiner as an expert witness to analyze the case, says in court records that the two men never should have been detained in the first place.

Police had been searching for a robbery suspect who was seen fleeing a home in the Palolo Valley. The suspect was described as a 20-something male of mixed ethnicity who was 5-foot-7 to 5-foot-9 inches tall and wearing a dark blue shirt and shorts.

Helm and Wellins are both white. The only similarities to the suspect, Brodd said, is that Helm is approximately the same height and was wearing a blue shirt. Helm, who was 39 at the time, also had a full beard and hair down to his collar.

The Police Commission has no control over HPD’s disciplinary process. It’s charged with hiring or firing the police chief, reviewing departmental rules, overseeing the budget and investigating citizen complaints about officer conduct.

Brodd added that one of the officers who provided the initial description of the suspect even broadcast over his radio before the encounter that the men spotted by the police helicopter on the trail were “not the guys.”

Breiner said the commission unanimously sided with his clients after hearing their testimony. He said the commission found that both Sooto and Sung had used unnecessary and excessive force against the hikers.

The commission also found that Sooto, Sung and the six others at the scene of the arrest had engaged in “conduct unbecoming an officer.”

But the city and HPD both refuted those findings. In fact, the city hired its own expert witness — retired Bellevue, Washington, police chief D.P. Van Blaricom — who found that the officers’ arrest of Helm and Wellins was “textbook.”

Van Blaricom said that some of the officers believed that Helm and Wellins were attempting to hide from police when they were first contacted. He also said it’s “routine police practice to ‘prone-out’ felony suspects at gunpoint, when they are being detained.”

There was also a question about how exactly Helm injured his face. Some of the officers, including Sooto, said Helm told them he might have fallen on the trail.

While Helm and Wellins “experienced some inconvenience,” Van Blaricom said, they were immediately released by HPD once it was realized they were not the burglary suspects. “That is exactly how the system is supposed to work.”

Van Blaricom dismissed the police commission’s investigation, saying that its findings were “incorrect” and based on a “he said/she said” review of the incident. The commission’s investigator, he said, “merely chose to believe the plaintiffs and disbelieve the officers.”

‘That’s Just How It Works’

The commission’s acting executive officer, George Ashak, says it’s rare for the department to disregard or overturn a commission finding. It’s even more surprising when considering just how often the commission sides with officers when a complaint is lodged.

The commission only sustained 12 of 71 complaints it investigated in 2013. In 2011 and 2012 the commission sustained a total of 29 cases out of 191 complaints it reviewed. Many of the sustained cases involve officers acting unprofessionally, arrogantly or overbearing toward the public.

Ashak, the lead investigator in the Helm case, said he could not comment on the specifics of the investigation or the secret deliberations among commissioners. He did say, however, that there’s little the commission can do to push back when HPD decides to ignore its findings because its power is limited by the Honolulu city charter.

The commission has no control over HPD’s disciplinary process. It’s charged with hiring or firing the police chief, reviewing departmental rules, overseeing the budget and investigating citizen complaints about officer conduct.

Still, the commission is limited in its oversight capacity as it does not investigate the most egregious cases of misconduct, such as that involving alleged criminal activity. Those cases are typically left up to HPD’s internal affairs division.

“There’s a system that’s set up and we have to go by what the system says,” Ashak said. “That’s just how it works. Right or wrong.”

Honolulu Police Commissioner chair Ronald Taketa speaks to media following executive session at HPD headquarters. 17 dec 2014. photograph Cory Lum

Honolulu Police Commission Chairman Ron Taketa believes the commission provides a valuable service to the community, even if it can be overruled by the Police Department.

Cory Lum/Civil Beat

Honolulu Police Commission Chairman Ron Taketa said top HPD officials hold a closed-door meeting with commissioners whenever there’s a disagreement about an investigation. He said the department will then discuss other factors that turn up during its internal affairs investigation.

In the Helm and Wellins case, Taketa said the department believed that the officers were justified in using force because they believed the two hikers were acting suspiciously. Taketa said the officers felt they needed to detain Helm and Wellins so they didn’t fall from the trail and down a steep cliff.

“The department is well within its right to reverse the commission,” Taketa said. “They did not feel that the officers acted improperly in what they did. But I don’t think the department went so far as to say the officers were totally right in what they did.”

Taketa described the commission’s role in the disciplinary process as that of a grand jury in which the standard to sustain a charge against an officer is based on probable cause and the preponderance of evidence.

He said HPD’s process, on the other hand, is more rigorous and requires a higher burden of proof before an allegation of wrongdoing can be substantiated.

“We’re OK with it because we live within the guidelines of the charter,” Taketa said. “We do what we’re allowed to do and what we’re charged to do.”

There’s little the Police Commission can do to push back when HPD decides to ignore its findings because its power is limited by the Honolulu city charter.

The HPD declined to comment on the Police Commission investigation, its own internal review or the recent settlement.

But Deputy Police Chief Dave Kajihiro said, in general, he believes the current process works, even if there are occasional disagreements between the commission and the department.

He said HPD’s internal affairs investigators tend to get fuller pictures of events, especially since they can compel police officers to give statements that cannot be used against them in court if criminal charges are pending. Officers don’t have that protection when talking to Police Commission investigators, Kajihiro said, which means many of them won’t talk unless they have to.

Kajihiro also noted that the most common conflicts between HPD and the commission involve use of force cases because it can be difficult for commissioners to grasp the “intricacies” of police tactics. He said that after department officials meet with commissioners those disagreements tend to dissipate.

“In this case that’s what happened,” Kajihiro said. “They fully understood the facts. They weren’t upset or anything.”

He added that the city deciding to settle the case isn’t an indication or wrongdoing on the part of the department. Sometimes it’s just cheaper than going to trial, he said.

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