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On New Year’s Day, a 16-year-old girl was smoking weed at Lalakea Beach Park on the Big Island when she was approached by Ethan Ferguson, a uniformed officer with the Hawaii Department of Land and Natural Resources.
The girl later said Ferguson told her that he wouldn’t take her to the police station if she paid him off with money, drugs or sex. She refused, but then, she said, Ferguson forced himself on her anyway. He was arrested six days later by Hawaii County police, and now faces multiple counts of sexual assault.
But state officials should have known Ferguson had a history of trouble. He was fired from the Honolulu Police Department in 2012 for falsifying reports and lying to investigators about transporting an underage runaway.
The Big Island incident outraged local politicians, and in particular, state Sen. Will Espero, who demanded answers from the heads of DLNR and the Hawaii Department of Human Resources and Development. How could Ferguson, who had already been stripped of his badge and gun by the largest law enforcement agency in the state, again be hired as a cop?
Espero introduced legislation that would have created a statewide database of law enforcement officers who had been terminated or forced to resign for misconduct.
But like most police reform measures, it met a swift and silent death at the hands of his colleagues.
“That was such a dereliction of our duties as legislators,” said state Sen. Laura Thielen, who, like Espero, has been a vocal advocate for more oversight and accountability of Hawaii’s law enforcement agencies. “Creating that database just seemed like a no-brainer.”
The same could be said for dozens of bills introduced over the past several legislative sessions, including those that would have mandated the use of body-worn cameras and others that aimed to eliminate a decades-old exemption in the public records law that keeps secret the disciplinary files of bad cops.
This year there were at least two bills that would have created a statewide standards and training board that would certify police officers and put in place a mechanism to take away their licenses if they were found guilty of serious misconduct.
Hawaii is the only state without such an agency, and one of only six that doesn’t have a police certification program. Had such a board been in place when Ferguson was fired from HPD, he likely never would have gotten the job with DLNR.
What makes this all the more perplexing is that there have been numerous high-profile cases of officer misconduct and other allegations of serious wrongdoing that have highlighted the need for common-sense reform.
But even a watered-down version of a bill that would have set bare-minimum training standards for all police agencies in the state disintegrated before reaching a final vote despite the fact that the new rules would have been voluntary. Like many other measures that fail at the Legislature, there was little public explanation as to why the bill died.
What makes this all the more perplexing is that there have been numerous high-profile cases of officer misconduct and other allegations of serious wrongdoing that have highlighted the need for common-sense reform. Ethan Ferguson is far from being the only cop who has made headlines for bad behavior.
Honolulu’s police chief, Louis Kealoha, is under a federal grand jury investigation for alleged corruption and abuse of power, yet he remains on the job and continues to receive stellar reviews from the Honolulu Police Commission. His officers have faced prison sentences for everything from extortion to covering up assaults on citizens.
In just the last few years, numerous officers, including some working for neighbor island departments, have been arrested or disciplined for troubling incidents including prostitution, embezzlement, kidnapping, drugs and domestic violence.
Some lose their jobs. Most don’t. Others resign to avoid the embarrassment and stigma of being fired.
Several people have died in police custody or after being shot by the cops, sometimes under questionable circumstances. There have been massive legal settlements that have cost taxpayers millions of dollars, including a recent case of alleged racial discrimination within HPD that left officers vulnerable in dangerous situations.
Yet despite the growing evidence that something is chronically amiss, the Legislature has repeatedly failed to act.
Media outlets repeatedly aired the grainy, black-and-white video showing Cachola taking full-bodied swings at this girlfriend and knocking her to the ground as others attempted to come to her aid. It was later revealed that although police were called to the restaurant, no arrest was made and no reports filed.
The video galvanized the Hawaii Women’s Legislative Caucus, which decided to take a strong stance on the need for more oversight and transparency surrounding police actions. The members issued a press release on Sept. 11, 2014 saying that they had had enough.
“This incident sends a dark message to victims of domestic violence and all residents of Oahu, that members of HPD, who are supposed to serve and protect, may turn a blind eye to domestic violence or other criminal acts committed by of one of their officers. The integrity of HPD has been mired and trust has been lost. We demand public accountability.”
But Cachola wasn’t the only officer the caucus members and other legislators were concerned about. There had been numerous reports of other officers committing acts of violence against women and bungling domestic abuse investigations.
Not too long after the Cachola case was raising eyebrows and ire, another video was sent to local media outlets. This one showed an HPD officer assaulting two men inside a Chinatown game room while two of his colleagues watched. The officer, Vince Morre, was caught on tape kicking one man while he was sitting down and throwing a chair at another, knocking him over. Morre and two other officers — who stood by and did nothing to stop the attack — were charged under federal law. Morre pleaded guilty and was sentenced to 30 months in prison.
By the end of the year, the FBI was also investigating Kealoha and his wife, Katherine, who is a high-ranking city prosecutor, for allegedly framing her uncle for stealing their mailbox. The investigation has since ballooned, and a special federal prosecutor from California has been appointed to the case.
Still, lawmakers struggled to gain any traction when it came to putting in place rules aimed at forcing better oversight of police.
Bills were introduced to improve domestic violence training and reshape the makeup of county police commissions, which have been blamed for failing to rein in officer misconduct.
Also on the agenda were measures that sought to create a statewide standards and training board as well as a bill to reform the state public records law to make disciplinary action involving problem officers more transparent.
The bills all failed with one exception. County police departments would be required to post their domestic violence policies on their official websites, a rather meaningless exercise given the context of what had been going on up to that point.
In 2016, lawmakers once again hoped for a change, especially in light of the Ethan Ferguson case and the ongoing federal investigation into Kealoha. A record number of officers had been fired from HPD in 2015, and several others had been arrested for serious offenses.
“It is puzzling to me that it takes so long to do something that seems so obviously needed. But I also know that things that have controversy, things that cost money, sometimes take a little bit longer to build momentum.” — State Sen. Roz Baker
Many of the same measures were introduced, including one for body cameras, a statewide set of minimum training standards and the elimination of the public records law exemption for disciplined county police officers. There was also a push to develop a new database to allow state and local agencies to track bad cops. Still, only one significant bill made it.
The Legislature passed a bill to create an independent review board to oversee officer-involved shootings, although critics are concerned it lacks adequate public disclosure of the board’s findings. Another measure clarified that the public can record officers in public. Everything else failed.
“It is puzzling to me that it takes so long to do something that seems so obviously needed,” said Sen. Roz Baker, who co-sponsored much of the failed legislation. “But I also know that things that have controversy, things that cost money, sometimes take a little bit longer to build momentum.”
Many of the reform bills introduced in 2015 and 2016 came to an end in Sen. Gil Keith-Agaran’s Judiciary Committee. Keith-Agaran was the only Democratic state senator endorsed by the State of Hawaii Organization of Police Officers during the 2014 election.
Keith-Agaran did not respond to a request for an interview for this story, but he has said in the past that he has not been influenced by the police union’s political backing.
Lawmakers and lobbyists say it’s hard to pinpoint a specific reason why it’s been so hard to implement lasting reform. There are lots of closed-door negotiations, and rarely are there political fingerprints left behind when a bill dies.
Sometimes there’s pressure from SHOPO to modify or defer a bill it disagrees with. Other times it’s the departments and agencies that protest, saying that new regulations imposed by the state would be too onerous or too expensive to implement.
Occasionally, a piece of legislation can be so poorly written or mired in problematic amendments that it’s better the measure fails so it doesn’t become law.
For instance, in 2015 Sen. Jill Tokuda, who heads the powerful Ways and Means Committee, said she couldn’t move a standards and training bill being pushed by Espero because the language needed too much work and there were too many questions about funding. Espero revamped the measure for 2016, but it still wasn’t enough to get it through.
“Sometimes there’s no rhyme or reason why bills don’t pass, and sometimes it’s not logical,” Espero said. “I’ve had bills that I think should pass and they don’t. But I learn not to hit my head on the wall and think too hard about it. I try again the next year.”
Espero, who is Senate vice president, is arguably the most active proponent of police reform in the Legislature. He’s the former chairman of the Senate Public Safety Committee, and has used that position to help drive the discourse about the need for more oversight and transparency.
In 2014, he was successful in passing a bill that requires county police departments to disclose more information about officers who have been suspended for misconduct even though most details, including the officer’s name, is still exempt from disclosure under the state’s public records law.
That bill, as well as a companion in the House that would have eliminated the public records law exemption altogether, was vigorously opposed by SHOPO. The Honolulu Police Department had also pushed back against the House measure to make suspended officers’ disciplinary files a matter of public record. The House bill ultimately failed.
But while Espero has found some success over the years, he’s often struggled to see his bills become law in large part because he has been the only person raising his voice.
One bill that many thought would pass but ultimately failed would have required county police departments to implement body-worn and vehicle-mounted cameras by July 1, 2018. The legislation, which was also introduced by Keith-Agaran, laid out how the technology should be used and when the cameras should be turned on and off.
While SHOPO and the county police departments generally support the use of body-camera technology, there’s a lot of disagreement over who should be writing the policies and whether the union needs to sign off. SHOPO is currently in a disagreement with the Kauai Police Department over this very matter, and has filed a complaint with the Hawaii Labor Relations Board.
The fact that the legislation failed during last-minute conference committee negotiations at the State Capitol highlights just how influential law enforcement agencies can be when opposing a particular measure.
Mandy Finlay, of the American Civil Liberties Union of Hawaii, said that nearly every police reform measure her organization tracked during the 2016 session, including the two bills that passed, had one commonality — police opposition.
Convincing lawmakers to move the needle on police transparency is tough, she said, when departments oppose standard practices, such as a standards and training board or body cams, which is now considered a national best practice.
“The benefit of the doubt goes to the police because the people they have to deal with in most cases are not nice people. They have to deal with these guys all the time and once in awhile they make a mistake.” — State Rep. Karl Rhoads
“Unfettered deference to the police force is hindering reform efforts and diminishing the public’s trust in our officers,” Finlay said. “The longer we allow our state to trail behind the rest of the nation on matters of police reform, the more we put our local communities at risk.”
Lawmakers generally find it politically easier to pass a bill if there’s widespread support. But, as Findlay and others pointed out, that’s not always the case for police reform measures.
The same handful of good government types testify in support while police agencies and the union are opposed. And in Hawaii, there’s hasn’t been the kind of widespread community outcry like on the mainland where some outspoken organizations, such as Black Lives Matter, have been successful in getting their voices heard.
State Rep. Karl Rhoads, who chairs the House Judiciary Committee and is now running for a seat in the Senate, said there’s a natural tendency to defer to the police on controversial measures because they’re putting their lives on the line every day to keep the community safe.
“Most people view their jobs as very difficult, as do I,” Rhoads said. “The benefit of the doubt goes to the police because the people they have to deal with in most cases are not nice people. They have to deal with these guys all the time and once in awhile they make a mistake.”
Leaders in the House and Senate concede that police reform hasn’t been a priority for the Democratic majority.
While there are a few lawmakers who speak out about the need for more oversight — such as Espero and Thielen, who are both Democrats — they are not always in the positions of influence and power.
Hawaii Senate President Ron Kouchi said he leaves a lot of decisions on whether legislation should move forward up to the committee chairs. In both chambers, those lawmakers have outsized influence on which bills live or die.
Kouchi said he didn’t want to second guess the actions of the chairs, who he appointed.
“The media did an excellent job of highlighting the issues surrounding homelessness and affordable housing that were certainly high on our priority list. Clearly, cooling classrooms was also high on the list and rural health care.” — Senate President Ron Kouchi
“We’ll go through the caucus process and come up with the priorities that we’re going to highlight as a majority,” Kouchi said. “The media did an excellent job of highlighting the issues surrounding homelessness and affordable housing that were certainly high on our priority list. … Clearly, cooling classrooms was also high on the list and rural health care. Much work was put into those.”
He anticipates police body cameras will be back on the legislative agenda next year. The bill pushed this session by Keith-Agaran fizzled during conference committee negotiations in large part because of pushback from county police departments that didn’t want state lawmakers dictating what rules they had to follow when implementing the technology.
But even having an influential committee chair backing a bill doesn’t guarantee success.
Besides Keith-Agaran’s body cam legislation, another case in point in 2016 was a bill introduced by Senate Majority Leader Kalani English, considered one of the most influential senators and in a position to help decide which bills move and which ones don’t.
English introduced legislation this year that would have eliminated the exemption in Hawaii’s public records law for officers who have been suspended.
As it stands, these officers are the only public employees who are exempt from disclosure. As a Civil Beat investigative series, “In The Name Of The Law,” revealed, significant police misconduct has been taking place for the last 20 years without public scrutiny or serious oversight by the county police commissions or prosecutors.
But English’s bill — which appeared to meet the Senate majority’s goal of encouraging “effectiveness, transparency and accountability across all branches of government” — didn’t even make it to a second reading.
The bill easily passed the Senate Public Safety Committee, which is chaired by Sen. Clarence Nishihara. But it died without so much as a hearing in Keith-Agaran’s Judiciary Committee. Keith-Agaran has said in the past that he is waiting for a Hawaii Supreme Court ruling in a case that challenges the constitutionality of the police officer exemption in the public records law.
Civil Beat is the plaintiff in that case, and has argued that suspended police officers’ names and disciplinary records should be public. A lower court judge sided with the news outlet in a case that involved disciplinary files on 12 Honolulu Police Department officers who appear to have committed egregious misconduct. HPD declined to pursue an appeal but SHOPO, the police union, is fighting the decision. The case is now before the Supreme Court.
English said recently he didn’t spend a lot of time trying to shepherd his own bill through the Senate, and noted that there are a lot of other measures that co-opt his time and attention during the throes of a four-month legislative session. He added that such a hectic schedule doesn’t allow him to perform an autopsy on every bill that dies in committee.
“I was busy,” English said. “I had to make sure that as many of the Senate bills as possible got through. My job is to manage the frenzy at the end of the day.”
The 51-member House is similarly distracted. It’s also subject to many of the same power dynamics as the Senate when it comes to who sits at the head of key committees.
“My inclination is that the more we hear of these kinds of issues that there will be a point where the House will have to take up these issues. Because within any context, abuse of power is something that needs to be addressed.” — State Rep. Scott Saiki
What’s missing, though, is a clear champion of reform. There’s no Will Espero or Laura Thielen who has emerged to take up the cause.
A two-year election cycle also means that many members bend to political pressure, whether exerted by the union, county police departments or other special interest groups that might hold sway with the voters. Senators, who are elected every four years, tend to have more autonomy.
House Majority Leader Scott Saiki said there are any number of reasons why police reform has failed to captivate his membership. It just hasn’t been a priority, he said. And just like the Senate, the House tends to defer to its committee chairs.
But Saiki also said representatives can’t ignore everything that’s been playing out in the press — from the numerous reports of officers getting arrested to the continual coverage of a federal grand jury investigation into Honolulu Police Chief Louis Kealoha and his prosecutor wife for alleged corruption, abuse of power and civil rights violations.
“My inclination is that the more we hear of these kinds of issues that there will be a point where the House will have to take up these issues,” Saiki said. “Because within any context, abuse of power is something that needs to be addressed.”
An ongoing debate at the Legislature, he said, is whether the state needs to impose strict guidelines on the counties in a number of areas, not just when it comes to their police departments. It’s an issue of home rule, and something that stymied a series of bills that were introduced in 2015 that would have mandated changes to the makeup of county police commissions, which are supposed to act as oversight agencies.
Saiki said that personally he has lost faith in the county police commissions to effectively oversee the police departments.
“Whenever I read or see a report on alleged police abuses I get kind of frustrated because I feel that the police commissions should be a little more aggressive in addressing these situations,” Saiki said. “Part of the issue is that the commissions seem to operate in secret so the public has no idea whether these matters are being taken seriously or they’re being resolved at the commission level.”
The Honolulu Charter Commission is currently drafting a proposal that will ask voters in November if they want to give the city’s police commission more authority to investigate officer conduct and to discipline the chief. Espero and Thielen have been instrumental in driving the debate at the Charter Commission.
But Thielen said state lawmakers must continue to weigh in because the proposed ballot measure doesn’t go far enough to improve accountability, oversight and transparency. She and Espero are expected to introduce more legislation in 2017 to address the reform issues that they still believe are necessary.
Thielen hopes that her colleagues will sign on this time around, instead of waiting for another major embarrassment to play out in the news.
“Unfortunately, historically it’s taken a very high-profile incident, and I’m just hoping that we don’t have to wait for another video being released of somebody being injured or killed,” Thielen said. “We should be able to take some common-sense steps to improving accountability and oversight of the police departments without having to risk that type of injury or increased cynicism or loss of faith in the police, who for the most part are hard working and good public servants.”