Honolulu police officers accused of crimes or named in lawsuits may not be getting the legal representation they deserve under state law. And the problem may go back years.

If true, the problem could have serious ramifications for the Honolulu Police Commission and the decisions it has made.

On Wednesday, the police commission voted to revisit how it approves or denies legal counsel for police officers who find themselves accused of civil or criminal wrongdoing.

HPD Commissioner Judge Steven Levinson meeting. 2 feb 2017
Former Hawaii Supreme Court Justice Steven Levinson believes the Honolulu Police Commission hasn’t been following the law when it comes to providing legal representation for police officers accused of wrongdoing. Cory Lum/Civil Beat

The issue was raised by Commissioner Steven Levinson, a former associate justice on the Hawaii Supreme Court.

Levinson said during a break in Wednesday’s meeting that he has grave concerns with how the commission has analyzed officers’ requests for taxpayer-funded legal representation.

He thinks the commission’s process may actually be “illegal.”

“It probably means that fewer police officers have been granted representation than the Legislature originally intended,” Levinson said.

Under state law, Levinson said, the commission must provide legal representation for an officer if their actions were done in the “performance of the officer’s duties as a police officer.”

But the commission hasn’t been following that standard, Levinson said.

Instead, the commission’s own rules say the determination is based on whether the officer’s actions were done in the “course and scope of employment.”

To the layperson that might not mean much. But to Levinson it’s a big deal.

Under the “course and scope” language, Levinson said, the commission would only approve legal counsel for an officer if there was “vicarious liability” for the city.

State law, however, appears to expand that definition to mean that the city must provide legal counsel even if the city isn’t liable for the officer’s wrongdoing.

How this all shakes out remains to be seen. The commission didn’t change the rule on Wednesday but simply began the process needed to do so.

Levinson said he has no idea how many officers could be affected by his proposed rule change, but he did indicate he’s anxious to see how the city’s Corporation Counsel responds.

Police Commission Chairman Max Sword also refused to speculate as to how many officers might be affected if Levinson turns out to be right.

Sword also did not want to comment Wednesday on what recourse those officers might have.

“That’s for the lawyers to determine,” Sword said. “I can’t say.”

The commission delayed a decision on approving legal counsel for an officer who was sued after allegedly crashing into another motorist while driving 70 miles per hour in a 35 mile-per-hour zone.

The commission is also expected to make a decision soon as to whether the city will pay for the attorneys of former police chief Louis Kealoha and two other police officers in a civil suit tied to an ongoing corruption probe being conducted by the U.S. Justice Department.

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