Hawaii’s statewide police union lost yet another legal challenge Wednesday in its months-long attempt to overturn Act 47, the landmark measure put in place by the Legislature last year to shed more light on officer misconduct.
Circuit Court Judge Dean Ochiai ruled that the new law and its provision requiring the disclosure of officer names to the Legislature in annual reports when they are suspended or terminated for misconduct is both constitutional and appropriate even in cases in which appeals to the discipline are ongoing.
His message to the police union was direct and unequivocal — “That’s the law.”
Act 47 passed amidst protests as a national awareness grew over racial inequity and police killings of Blacks, sparked in large part by the death in Minnesota of George Floyd.
The law overturned decades of secrecy when it eliminated a provision in Hawaii’s public records law that was used to shield most officer misconduct records from disclosure except in rare cases in which an officer was terminated.
The State of Hawaii Organization of Police Officers mounted a legal campaign against Act 47 in November after Civil Beat had filed a series of public records requests seeking arbitration decisions involving officer misconduct.
SHOPO wanted to block the release of the records by having Act 47 declared unconstitutional.
The union argued, among other things, that disclosure of officer misconduct records would infringe on officers’ privacy rights and was a violation of its collective bargaining agreement, which contains its own series of secrecy provisions meant to hide officer misconduct from the public.
Additionally, SHOPO took issue with Act 47’s requirement that officer names be disclosed to the legislature in annual misconduct reports regardless of whether they had a union grievance pending.
Ochiai held a hearing in November in which he rejected SHOPO’s request to withhold the arbitration records. He then scheduled a separate hearing on the legislative reports, which took place Wednesday.
Ochiai made clear from the outset that SHOPO would have difficulty in convincing him that Act 47 was unconstitutional.
For the most part, SHOPO’s attorney Keani Alapa did not present any arguments that Ochiai found convincing. Alapa questioned whether the public has a right to know the names of officers who retired or who had been disciplined long ago.
He said he also worried about the stigma for officers whose discipline is overturned after having their name released through the legislative reports.
“That cannot be undone,” Alapa said. “That damage is irreparable.”
Attorneys for Honolulu and the Hawaii Attorney General’s Office dismissed SHOPO’s concerns and defended Act 47 as a tool for citizens to hold police departments and their officers accountable.
“The Legislature has found that there’s a need for transparency and accountability in the process of handling incidents of police misconduct to rebuild the public’s trust in the police departments,” Deputy Attorney General Robyn Chun said.
She added that SHOPO’s arguments to overturn Act 47 were “misguided.”
The ACLU of Hawaii and the Lawyers’ Committee for Civil Rights Under the Law, a national nonpartisan organization that combats racial discrimination and inequity, filed a joint legal brief in opposition to SHOPO.
The Civil Beat Law Center for the Public Interest, which represented Civil Beat in the case, was also a party to that brief.
While the ACLU and Lawyers’ Committee were not allowed to argue before Ochiai on Wednesday, they reiterated in their submission, written by ACLU attorney Wookie Kim, the importance of Act 47 for a state that for too long has been kept in the dark about officer misconduct.
“The people of Hawai‘i have often waited years to learn the names of officers who have engaged in reprehensible misconduct, yet SHOPO is again attempting to delay disclosure, this time by seeking to hide the identities of officers whose grievance processes are not yet final,” Kim wrote.“The people have spoken, and they should be heard — now.”
Alapa did not respond to a Civil Beat request for comment after Wednesday’s hearing about whether the union would appeal.
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