The ability of county police departments to rapidly deploy resources to other counties in the state is in the hands of the Hawaii Supreme Court, which on Thursday heard oral arguments in a case challenging the presence of Honolulu and Maui police officers on Mauna Kea during telescope protests in 2019.

During the protests, Hawaii County Police Chief Paul Ferreira entered into agreements with the former police chiefs in Honolulu and Maui to dispatch officers and assist with controlling the growing crowds opposing the Thirty Meter Telescope.

E. Kalani Flores, a cultural practitioner, brought a suit against the three police chiefs to halt the deployment of off-island officers to Mauna Kea under a statute that would typically prohibit officers from exercising their police powers in a different county unless they were in the middle of an ongoing investigation.

The Hawaii Supreme Court heard arguments from attorneys over a case of police jurisdiction during a virtual hearing Thursday. Screenshot

The Circuit Court dismissed the case in favor of the counties, and the Intermediate Court of Appeals in February said that the statute shouldn’t apply to this case.

On Thursday, attorney Peter Olson tried to convince the state’s highest court that the law should apply in the case and that counties were wrong to use it to get more law enforcement to Mauna Kea.

“The legislators did not envision or intend for off-island county police to go to another jurisdiction at the beck and call of a local chief, unless of course there’s an investigation,” Olson said.

The justices took the case under advisement.

County attorneys and a national group of government lawyers worry that adopting Olson’s reading of the law could hinder the counties’ response to natural disasters or other emergencies in the future.

They said that the counties have often provided each other with mutual aid during emergencies, and this case is no different. Lerisa Heroldt, deputy corporation counsel for Hawaii County, said this was the first time the Hawaii Supreme Court is taking up this issue.

Olson said that the government has other tools at its disposal to react to disasters, including the governor’s emergency powers or asking the Legislature to amend the law in a way that favors the counties.

Heroldt said that in disaster situations, like hurricanes or floods, that might take too much time.

“Politicians take time to come to a decision to announce an emergency. Our law enforcement needs to be able to act quickly and have lots of flexibility,” she said, adding that the police departments on the Big Island, Maui and Kauai are much smaller than HPD.

“We’ve seen the Kilauea eruption, we’ve seen the flooding on Kauai (during Hurricane) Iniki,” Heroldt said. “These were all instances in which the counties needed to help each other.”

Based on the justices’ questions Thursday, the state Supreme Court doesn’t appear ready to place stringent limits on how county police departments can send officers to other islands.

“Are you saying — say there’s a terrorist action in Lihue – that Hawaii County or Maui County cannot go over there and help out? That’s basically the logical extension of your argument,” Associate Justice Todd Eddins asked Olson.

Olson said the county police could still respond to these emergencies. They would just need to ask the governor to suspend laws that he argues would otherwise prevent them from doing so.

Also at issue in the case is whether or not Flores should be able to sue the government in this situation. Peter Hanano, deputy corporation counsel for Maui County, argued that citizens should not have that right.

“If you start allowing private people to attack that statute, you could have a situation where police are investigating cross-county … and a private person could challenge that investigation,” Hanano said.

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