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If there was ever a year for Hawaii legislators to get serious about police reform, this would seem to be it.
Lawmakers convene next week after recent cases involving Honolulu police officers made headlines:
• Former police chief Louis Kealoha is a defendant in one of the largest public corruption scandals the state has ever seen, one that involves several other officers and the prosecuting attorney’s office. He was indicted in October and faces a litany of charges, including conspiracy.
• Ethan Ferguson was convicted in February of sexually assaulting a minor while working for the state Department of Land and Natural Resources. His victim filed a lawsuit in December alleging the state knew he had a history of trouble as a cop but hired him anyway.
• Anson Kimura was sentenced to 60 days in jail after he shot a bartender in the stomach while drunkenly fiddling with his gun. Her medical bills so far exceed $1 million, and it was recently revealed in court records that he was investigated at least three times by HPD’s internal affairs division for other matters.
“Definitely, the environment is right,” said state Sen. Will Espero, who once led the Senate Public Safety Committee and is now running for lieutenant governor.
“Kealoha and the officers who helped him and his wife, allegedly, have done great harm,” Espero said. “So I’m hoping that my colleagues will understand that we need reform and we need change. And, hopefully, this could be the year to pass something, and something with some teeth in it so that we can show some progress.”
But Rep. Gregg Takayama, who heads the House Public Safety Committee, says he hasn’t seen any bills in response to the charges facing the former chief and others.
“I really haven’t received a single proposal from anyone resulting from the Kealoha case,” Takayama said. “And my suspicion is because, number one, there’s a new chief in town and maybe they want to give her an opportunity to clean house and reform things on her own and, secondly, the Honolulu Police Commission seems to have taken on a new kind of membership.
“So my suspicion is that most people want to give these changes a chance to take place before clamoring for any drastic new changes.”
Espero has been a persistent advocate for police reform.
And while most of his reform measures have fallen short of becoming law, he’s found some success, including in 2016 when the Legislature passed his bill to create an independent review board to analyze police killings and in-custody deaths for possible prosecution.
But two “common sense” measures pushed by Espero and others have yet to take hold.
One would create a statewide standards and training board for law enforcement officers to make sure they meet minimum qualifications to wear a badge and carry a gun.
Hawaii is the only state without such an agency. Most states have licensing programs that allow an officer’s certification to be revoked if they get into trouble or are convicted of a crime. That information can then be entered into a national database that tracks decertified officers.
Espero believes that had such a system been in place, Ferguson might not have ever been hired by the DLNR since he had already been fired by HPD for misconduct.
(According to the records that are still available, he lied to investigators and falsified police reports involving his transport of a teenage runaway.)
The other legislation would eliminate a union-inspired provision in the state’s public records law that helps shield bad cops from public scrutiny.
“The secrecy and lack of misconduct information has obviously been helpful to the officers themselves,” Espero said. “But it has to end. It really has to end. Because we don’t even know if there’s other stuff out there that we just haven’t heard about yet that we need to know.”
In the mid-1990s, the State of Hawaii Organization of Police Officers was successful in convincing lawmakers that county cops were different than other public employees, and therefore their disciplinary records should remain mostly secret.
The Legislature passed a law that carved out an exemption in the state’s public records law that said an officer’s disciplinary record, including name, should not be released unless terminated. Their suspension and termination records were still considered public records under the state’s Uniform Information Practices Act.
Since then, a Civil Beat analysis of records found that hundreds of police officers had been suspended — often for serious offenses including domestic violence, drunken driving and kidnapping — without ever having to reveal their identities or the substance of what they did.
The Hawaii Supreme Court weighed in after Civil Beat filed a lawsuit against HPD to release the records, saying in a 2016 ruling that county police officers don’t have an absolute right to privacy when it comes to hiding their misconduct from the public.
The court stopped short of nixing the public records exemption, however, and kicked the case back down to a lower court to balance the public’s interest versus the officers’ privacy interests.
“If there were greater transparency there would be greater trust.” — Gerald Kato, University of Hawaii journalism professor
Gerald Kato, a journalism professor at the University of Hawaii Manoa, says it’s way past time for the exemption to go. He was involved in the fight to oppose it in the mid-1990s along with several of his students who were trying to get access to officer misconduct records.
Dozens of police officers have been arrested over the years, and not just on Oahu. Legal settlements — including one for $4.7 million that is the largest in HPD history — have undermined the credibility of the police departments.
“A lot of things have happened that I think justify transparency,” Kato said.
“During the period when they kept all of these secrets it just fueled the cynicism about the police department and the disciplinary actions taken against the officers. If there were greater transparency there would be greater trust.”
Bills to modify the public records law or create a statewide standards board have been perennial losers at the Legislature.
Since 2013, lawmakers have proposed at least 18 pieces of legislation to address both topics, almost all of which have failed.
In recent years, Sen. Gil Keith-Agaran, who headed the Senate Judiciary Committee, has been one of the biggest obstacles to reform. Keith-Agaran was one of only a handful of lawmakers who had been endorsed by SHOPO, although he said that wasn’t a factor in his decision-making.
Now the Judiciary Committee has a new chairman, Sen. Brian Taniguchi, who last year chaired the Committee f0r International Affairs and the Arts.
Taniguchi said he doesn’t know why he was selected as Judiciary chairman. In an interview with Civil Beat, he admitted he wasn’t as familiar with some of the police reform legislation that will be coming before him as some of his colleagues.
“I haven’t really thought about it,” Taniguchi said. “But I don’t have any particular ax to grind.”
He added that in the case of Louis Kealoha and his alleged co-conspirators, there doesn’t seem to be any “gap or puka” that the Legislature needs to fill since the former chief and his wife, Katherine, a city prosecutor, are now facing federal prosecution.
Taniguchi did say, however, that he will rely on his vice chair, state Sen. Karl Rhoads, to help him navigate the various reform measures that might come his way.
Rhoads was the head of the House Judiciary Committee before he was elected to the Senate in 2016, and had considered numerous reform bills, including those related to the statewide standards and practices board and the public records law exemption.
He also advocated for a change in the public records law to put county police officers on the same footing as all other public employees.
“The Legislature needs to step up, we need to take some bold action, and we need to show that we are on the side of the people.” — State Sen. Will Espero
Rhoads said there’s still a compelling argument to be made that police officers should lose the exemption. He also said certification for police officers seems appropriate, especially considering Hawaii already requires certification and licensing for everyone from hairdressers and teachers to doctors and lawyers.
As for whether the bills will move in 2018, he said that all comes down to the politics.
While outside groups such as the American Civil Liberties Union and The Civil Beat Law Center for the Public Interest might push for greater transparency and oversight, he said the average person in the community might not be as interested in putting heat on lawmakers.
There’s still a general sentiment among some, he said, that police officers have a unique job — one that relies on split-second, life-or-death decisions — and that they should be treated differently than their peers in the public sector. But Rhoads doesn’t necessarily subscribe to that.
“With regard to what the law should be,” he said, “I think you can make a pretty strong argument that because they do occupy a special place in society that the standard should be even higher.”
He’s not sure that the recent scandal involving the Kelohas will be enough to drive change.
Espero said it’s the job of lawmakers to take a stand for their constituents, even if they’re not beating down the doors at the Capitol.
“I’m hoping that my colleagues will finally get it, and that the fear of reprisal or lack of endorsement from any union, in particular, that that fear will not stop them from doing what’s right or making the decisions that are in the best interest of the state of Hawaii and the best interest of our residents,” he said.