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Police reform measures died quickly in last year’s legislative session. One after the next they were deferred, voted down or left without hearings by disinterested committee chairs, leaving advocates strongly disappointed by sine die.
This year is shaping up differently. Bills that would require body cameras and dashboard cameras for agencies statewide, establish an independent board to look into incidents involving serious bodily injury or death in police custody, establish a public database of officers fired or forced to resign over misconduct, lift confidentiality provisions in misconduct cases and establish a state standards board are all moving forward in the Senate.
Each now needs only a single or joint committee approval before going to the full Senate for passage. After that they’d cross over to the House for the same process.
The first and most important reason for feeling optimistic is because one of the biggest obstacles to police reform seems to have softened. Sen. Gil Keith-Agaran, chair of the Senate Judiciary Committee, killed bill after police reform bill in his committee last year, often with no hearing or explanation.
The facts that he remains the only sitting senator endorsed by the State of Hawaii Organization of Police Officers in the last election and that SHOPO opposed all of those 2015 measures was neither lost on us nor on many other Senate observers. Nevertheless, things appear different this year. At least so far; SHOPO endorsed many House candidates in 2014, most of whom won their races and are now in office.
Two bills — Senate Bill 2411, the body camera legislation, and Senate Bill 2304, the database for cops fired or forced to resign over misconduct — are set to go to Judiciary next. But both were introduced in part by Keith-Agaran, which would seem to ensure at minimum his willingness to hear the bills, if not his support.
The bill establishing the review board for police shootings, Senate Bill 2196, already earned Keith-Agaran’s vote and his committee’s passage, and is now referred to Senate Ways and Means.
Senate Bill 3016, would eliminate the exemption to the Hawaii public record’s law that covers police misconduct cases, and Senate Bill 2755 would establish a statewide training and standards board. While the fate of both of these final two pieces of legislation seems cloudier than that of the other three measures, senators should absolutely move both forward.
This isn’t to say that these measures are assured of Senate passage, face a certain future in the House or are slam-dunks to earn Gov. David Ige’s signature. But all five target police reform areas Civil Beat identified as critical in the lead-up last fall to this year’s legislative session.
Here’s why the efforts deserve legislators’ support, although the bills themselves need some fine-tuning.
Independent Review Board. Injuries or deaths at the hands of law enforcement officers too often are accompanied by suspicion — or worse. If internal investigators and county prosecutors are the only parties charged with looking into such incidents, community members might rightfully question the willingness of law enforcement colleagues to take an unbiased approach to such inquiries and confront police misconduct where it occurs.
Neither Hawaii nor its individual counties have independent review boards for such investigations, though they are commonplace in jurisdictions around the country. Though we strongly support the establishment of such a board, we’re deeply troubled by provisions of SB2196 that have the potential to undermine the board’s independence and keep too much of its investigative work under wraps.
The lack of any citizen voices is unacceptable. While the seven slots could certainly be filled by judicious professionals, the potential for bias toward law enforcement is obvious.
The bill’s problems begin with the membership it would establish for the board. Its seven members would consist of representatives of the state Attorney General and county prosecuting attorneys’ offices, a retired law enforcement officer and a retired judge.
The lack of any citizen voices is unacceptable. The potential for bias toward law enforcement should be obvious to anyone looking at the lopsided point of view of board members under this proposal.
Second, the bill’s elaborate restrictions on public release of the board’s work and its conclusions and recommendations run counter to the very idea of why an independent review board should be established. Under the provisions of the bill, a shooting or death would be investigated by the board, which would make recommendations to the prosecuting attorney of the county in which the death or injury occured. If a prosecution goes forward, the board’s findings and recommendation would be kept secret until any criminal prosecution related to the incident have been adjudicated.
That could be years. For this public body to be of real value to the public, its work ought to be made public as soon as it’s done.
Lawmakers must include citizens on the board and incorporate greater transparency into the measure. Senators should address both issues before this legislation moves further.
A Statewide Database Of Fired Officers. The database proposed under SB2304 would require creation of a public database of cops fired or forced to resign due to serious misconduct.
Such a database would have been a godsend for the state Department of Land and Natural Resources when Ethan Ferguson applied for a job as a law enforcement officer. DLNR officials could have learned why Ferguson was fired by the Honolulu Police Department and might not have given him a badge again. Ferguson is now charged with five counts of sexual assault relating to an alleged incident while he was serving as a DLNR officer.
A separate bill, SB3016, would bring greater transparency to misconduct matters by repealing the confidentiality protection afforded under the Uniform Information Practices Act in misconduct cases that result in suspension. While this bill deserves to move forward, it appears increasingly unlikely that it will, given that it passed nearly two weeks ago and is still not scheduled for a necessary hearing by Keith-Agaran’s Judiciary Committee. He has killed similar bills the last couple years.
One only need review the misconduct reports that county law enforcement agencies are required to submit to the Legislature each year to understand why SB3016 is a good idea. HPD’s report this year included a record 17 cases in which the department sought to dismiss officers, part of a total of 58 disciplinary cases overall. But in none of those cases were the identities of the officers made public, and each included only brief summaries of the case, leaving the public to piece together names and facts from previous news coverage and other public disclosures, where possible.
Discovering the names of those who have abused positions of unparalleled authority and influence in our society shouldn’t be reduced to a guessing game. SB2304’s creation of a firings/resignations database is a move in the right direction, and it’s not too late for senators to finally take action to eliminate the UIPA exemption that does not apply to any other public employee, only county police officers.
Body Cameras. In a year in which video proof of police misconduct in cases around Hawaii and throughout the country was on shockingly prominent display, the failure to pass legislation in 2015 requiring body and dashboard cameras was disappointing.
But legislators have returned this year with a bill that not only would make both types of cameras standard police tools throughout the state, but that would appropriate grant-in-aid funding to make those tools a reality in every county police department.
These cameras can serve as silent witnesses to police-citizen encounters and are protective of both individual and law enforcement interests. They can expose both criminals who make false claims of abuse or other misconduct against cops, as well as police officers who use excessive force against citizens or otherwise violate their rights.
But only when the cameras are working and the footage is not locked away from public inspection.
That’s why we’d like to see broader requirements around when body cameras are to be used than those included in the bill. Currently, the measure calls for the cams to be activated only when an officer responds to a call for service or at the start of a law enforcement-related encounter between a police officer and a member of the public.
The bill is also too restrictive in the types of recordings it would keep confidential. For instance, a law enforcement encounter with a member of the public that is the subject of a complaint ought to be releasable. Likewise, a recording that an officer argues has evidentiary or exculpatory value should be releasable, as well.
Video recordings made by police doing the public’s work should simply be presumed to be public records. Hawaii’s public records law already requires a balancing test of privacy vs. public interest. The Legislature doesn’t need to go beyond that with body cam recordings.
Statewide Standards Board. Measures in the House and Senate that would have established a statewide law enforcement training and standards board have mostly run into brick walls. As these bills noted, Hawaii is the only state without state-level regulation of police; security guards are regulated under state statute, but not police.
The lone such measure with a fighting chance is SB2755, which passed a joint committee hearing last week and is now referred to a second joint hearing by Judiciary and Labor in conjunction with Ways and Means. It isn’t calendared yet, though, and even if it moves forward, it includes a fundamental flaw: It does not address officer licensing or certification, which are required in all but five other states.
Licensing officers, just as the state does in professions ranging from accountants to hair stylists, enables the state to revoke licensure if an officer is found guilty of wrongdoing or otherwise found not fit for duty. If SB2755 moves forward, licensing must be addressed.
SB2196, SB2304, SB3016, SB2411 and SB2755 represent significant potential progress on meaningful reform. Lawmakers should continue the bills’ progress with swiftly scheduled hearings and attention to the problems noted above.