As the Legislature reaches the halfway point of the 2021 session later this month, most measures that sought to reform police practices in Hawaii will probably be shelved for another year.
Lawmakers were considering measures to ban chokeholds, allow individuals to record police activity, require police to report instances of misconduct in their own ranks, strip convicted officers of retirement benefits, ban military-style equipment in police departments, and give citizens more representation on boards charged with overseeing police.
The measures were all introduced in the wake of high-profile police killings and protests nationally led by the Black Lives Matter movement calling for greater police reform. While Hawaii legislators appear ready to move forward on bills to ban “no-knock” warrants and collect data on use of force, most other reform-minded bills appear dead for the 2021 session.
“It’s really disappointing,” said Nikkya Taliaferro, one of the Hawaii teens who helped to organize a 10,000-person march to the State Capitol last year. “We had all this action last summer, and then to have the legislators defer, or not give hearings … it’s upsetting.”
Hundreds of bills are expected to drop off in the next two weeks as the Legislature heads toward crossover on March 11. That’s the final day for Senate bills to move to the House and vice versa.
While there is still time for bills banning chokeholds and allowing people to record police to make it to crossover, they don’t appear likely to get a hearing in a key Senate committee by a legislative deadline this Friday — the day all bills must clear their last committees in the House and Senate.
But another measure, authorizing forfeiture of some retirement benefits for state or county employees convicted of an employment-related felony, is moving at the Legislature. Hawaii News Now reports that the Kealoha scandal is fueling momentum for the bill.
Former ex-Police Chief Louis Kealoha collects $9,700 a month from his pension in spite of felony convictions stemming from his time leading the Honolulu Police Department.
Two of the reform bills set to expire could still be heard, but a key committee chair says it probably won’t happen.
The measure also bans chokeholds, defined in the bill as “the application of any pressure to the throat, windpipe, or neck that prevents or reduces intake of air or oxygen to the brain.”
A separate measure, Senate Bill 529, would give citizens the right to record police.
SB 529 creates an affirmative defense against certain offenses for those recording police activities, and makes it illegal in most instances to interfere with the recording. The Hawaii Supreme Court weighed in on the issue regarding a 2012 incident involving a Maui journalist who spent five years fending off county prosecutors.
In 2017, the state Supreme Court ruled in favor of Russo, effectively putting an end to the case. While the justices wrote in an opinion that filming or photography may be restricted under certain circumstances, photographing public employees is generally allowed under the First Amendment of the U.S. Constitution.
SB 529 and SB 532 only need to make it past the Senate Judiciary Committee by March 5. But Sen. Karl Rhoads, the committee chairman who introduced both measures, said he probably won’t give either bill a hearing.
“It’s not that I don’t support it. It’s just too much to do,” Rhoads said. “There are a lot of bills that are moving. And at some point, you can’t move only your bills.”
Other reform measures never even got a hearing.
Senate Bill 783 would put into law a legal right of action for individuals to go after officers who deprive them of constitutional rights. The bill would also remove qualified immunity as a defense for police in those cases.
Senate Bill 30 would ban police from using military equipment like certain rifles and armored vehicles. It would also prohibit the use of bean bags, foam batons and tear gas against protesters.
Senate Bill 781 would forfeit officers’ retirement if they are charged with a crime, while Senate Bill 782 would make a police shootings board permanent and add more citizens to the state’s police standards board. Law enforcement and government officials outnumber citizens on both boards.
Sen. Stanley Chang introduced those four measures. Companion measures in the House also stalled.
“These would help ensure that Hawaii has the best policing practices, and to gain the public’s sense of trust and confidence,” Chang said of the stalled measures.
Taliaferro, a 17-year-old senior at Moanalua High School, believes there’s still momentum for some police reform measures to make it through the Legislature eventually, but she understands there may be hesitation among the greater population to push forward with those reforms.
“We have personal relationships with a lot of police here. It’s hard to determine there’s fault, it feels personal — more personal than calling out an institution on the continent,” she said.
At least one piece of legislation inspired by national events remains alive.
Senate Bill 726 would prohibit officers from executing “no-knock” warrants, court-issued documents that allow law enforcement to enter a residence without knocking and announcing their presence first.
Banning the use of those warrants has been a goal of activists around the country after a botched raid in Louisville, Kentucky, led to the police killing of Breonna Taylor. SB 726 and measures like it across the country have been called “Breonna’s Law.”
This year, at least eight other states have introduced similar legislation, according to a National Conference of State Legislature bill tracker. Oregon, Florida and Virginia have already banned no-knock warrants.
Honolulu Deputy Prosecutor Tricia Nakamatsu told lawmakers that there is no reference to no-knock warrants in state law. A 2017 New York Times investigation found that the practice is not widespread here.
Chang also introduced SB 726. He said he wasn’t aware of any no-knock warrants being executed in Hawaii, but wanted to prevent a situation like what happened to Taylor in Louisville.
HPD, which opposes the bill, said in written testimony that it does not use such types of warrants but would still like to have the option available. And the Maui Police Department told lawmakers that it only pursues a no-knock warrant if the target of the warrant possesses firearms and police are able to prove that the individual is willing to use the weapons against law enforcement.
Rhoads, the Judiciary chairman, said during a hearing Wednesday that he expected police to be concerned with breaking into a home.
“There’s plenty of guns in Hawaii, and you’re liable to get shot,” he said.
That’s been a criticism of no-knock warrants elsewhere in the country.
Ken Lawson, who teaches criminal law at the University of Hawaii, agreed that the warrants may be useful in situations involving armed individuals, but they may also create dangerous situations for residents and officers.
“At 2 o’clock in the morning, people bust in your door, guns drawn — how do you know it’s police? How do you know whether to defend yourself?” Lawson said, alluding to the Taylor case in which her boyfriend fired at police out of fear they were about to be victims of a home invasion.
Watch legislative hearings live on the House and Senate YouTube channels. Click here for a schedule and to access cable broadcasts, too. This year, the public can testify remotely via Zoom. Click here to find out how. Written testimony is also accepted. Click here for instructions on how to create a legislative account. For more information on how to participate in Hawaii’s legislative process, check out our Hawaii Civics 101 video. But remember, the State Capitol is currently closed to the public due to the pandemic.
Watch legislative hearings live on the House and Senate YouTube channels. Click here for a schedule and to access cable broadcasts, too.
This year, the public can testify remotely via Zoom. Click here to find out how.
Written testimony is also accepted. Click here for instructions on how to create a legislative account.
For more information on how to participate in Hawaii’s legislative process, check out our Hawaii Civics 101 video. But remember, the State Capitol is currently closed to the public due to the pandemic.
While Lawson said he hasn’t heard of cases involving no-knock warrants in Hawaii, the possibility that they could be used here is reason enough for SB 726 to pass, he said.
Meanwhile, a provision in SB 726 that requires officers to wait 30 seconds after knocking until breaking into a residence drew concerns from law enforcement as well as county prosecutors, the state attorney general and state public defender.
James Tabe, the public defender, wrote that the provision might be unconstitutional. He and others cited a 2020 state Supreme Court decision, State v. Naeole, in which the high court vacated a drug conviction because officers gave a woman about 25 seconds to answer calls before breaking down her door just after 6 a.m.
However, the justices did not set a specific time period for how long officers must wait for an answer, or how quickly residents must respond.
“What constitutes a reasonable period of time must be determined by the circumstances of each case,” the court wrote.
The American Civil Liberties Union of Hawaii supported the 30-second wait period, however. Mandy Fernandes, ACLU’s policy director, told lawmakers that the 30-second period should only be viewed as a baseline. The bill would still allow officers to break into a house before the period ends if exigent circumstances exist where evidence might be destroyed or the occupants may be trying to arm themselves.
Under the current law, police are already allowed to break in if those circumstances exist.
SB 726 cleared the Senate Judiciary Committee Wednesday and now awaits a floor vote from the full 25-member chamber.
Also still advancing at the Legislature is Senate Bill 742, which would require county police departments to collect data on use of force, police stops and arrests.
The data required includes the location of stops and arrests, any alleged violation, whether a search was conducted and the ethnicity of the person involved, among a slew of other data points. That would all need to be included in an annual report to the Legislature.
Lawmakers are forwarding the measure to “allow greater overall academic analysis of policing in the state,” a report from the Senate Public Safety, Intergovernmental and Military Affairs Committee says. One of the goals of the exercise would be to figure out what offenses, if any, should be decriminalized.
Senate Judiciary Chair Karl Rhoads
“We need this data to make informed judgments on police practices,” Chang said.
The bill cleared its last committee on Thursday and is now set to go before the full Senate.
Hawaii’s four county police chiefs opposed the measure.
In written testimony to lawmakers, the chiefs questioned why other state law enforcement officers were not covered in the reporting requirements and noted that the data would be incomplete. They also raised concerns over violating the constitutional rights of individuals they are stopping if police must hold them longer to get information required by the legislative reports.
The chiefs also worried that requiring data from victims may discourage reporting of crimes.
“The collection and publication of this information does nothing but further traumatize and victimize individuals who have done nothing to warrant such an invasion of privacy,” Kauai Police Chief Todd Raybuck, Honolulu Police Chief Susan Ballard, Maui Police Chief Tivoli Faaumu and Hawaii Police Chief Paul Ferreira wrote to lawmakers.
Police, particularly in Honolulu, have come under scrutiny over disparities in use of force reported by HPD. A Hawaii Public Radio analysis last year also found that Honolulu Police disproportionately arrested Micronesian, Samoan and Black people for violations of stay-at-home orders.
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