In Hawaii, Punishment For Bad Cops Often Doesn’t Stick. Here’s Why

It was after midnight on March 5, 2014, and Peter Krog wanted more booze.

The problem was he couldn’t find his car keys. His wife hid them from him because she didn’t want her husband, a Honolulu police officer, back on the road after he had been drinking.

Their disagreement quickly escalated into violence.

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Krog pinned his wife to their bed, one hand around her throat the other pressed hard over her nose. She tried to turn her head just so she could breathe.

“I can end it all right now,” Krog told her as he pushed down on her face and neck.

By the time officers arrived, the two were separated and Krog had laid out his gun in the open for them to see. He was arrested for abuse of a household member and terroristic threatening, charges he would later plead down to assault in the third degree.

The details of Krog’s misconduct are documented in an arbitration decision obtained by Civil Beat through a public records request. The officer’s actions were disturbing enough that Honolulu Police Chief Louis Kealoha terminated Krog in March 2015, telling him he had violated the department’s standards of conduct, including for committing criminal acts.

At the time Kealoha and the Honolulu Police Department were under mounting pressure to crack down on domestic violence in the ranks after an off-duty sergeant, Darren Cachola, was caught on surveillance video pummeling his girlfriend in a Waipahu restaurant.

Firing Krog was part of that response. The termination, however, didn’t last.

The State of Hawaii Organization of Police Officers appealed Krog’s discharge to a third-party arbitrator, who ultimately ruled that stripping him of his badge and gun was too harsh a penalty. Krog was reinstated in May 2016 — more than a year after he was fired — and he was awarded back pay for his time off minus a 20-day suspension.

It would seem obvious that a clear act of domestic violence would cost an officer his badge. But not in Hawaii, where fired cops routinely get their jobs back.

Arbitration is built into the SHOPO contract, and is the last step in a lengthy appeals process that plays out behind closed doors and allows officers multiple opportunities to challenge their discipline.

A Civil Beat review of more than 50 arbitration awards covering nearly three decades of misconduct found that arbitrators regularly reverse police chiefs’ disciplinary decisions. Overall, the records show that in 65% of all cases that went before an arbitrator, an officer’s discipline was either reduced or overturned.

Discharged officers who appealed their terminations fared even better. Three out of four officers who were fired were eventually rehired through arbitration, oftentimes with back pay amounting to hundreds of thousands of dollars.

HPD patrol car and officer near the Chinatown HPD substation.
Dozens of Hawaii police officers have had their discipline reduced by third-party arbitrators. Cory Lum/Civil Beat/2021

The reasons for the reductions in punishment can vary, but the records obtained by Civil Beat make clear that it’s rare that the facts of the alleged misconduct are completely unfounded.

More often, Civil Beat found, arbitrators take issue with how a department conducts its investigations and whether it followed proper protocols as spelled out in the union contract and internal policy memos.

Flawed internal affairs investigations and conflicting witness testimony — particularly in domestic violence and sexual assault cases — also play a role. Arbitrators frequently overturn terminations and reduce punishments due to a lack of “clear and convincing” evidence.

The records show past precedent can also drive an arbitrator’s decision, particularly when it comes to judging how departments have meted out punishment over time and whether officers are being treated the same as other officers who had been disciplined previously.

Sometimes an arbitrator will consider other mitigating factors, such as whether an officer displayed heroism in the past or had encountered a rough patch in their personal life that might have led them to make the wrong decision.

Many decisions to overturn discipline don’t hinge on a single shortcoming, but instead involve some combination of reasons.

“Sometimes you just want to give up, but you can’t because you know you owe it to the public to have good police officers.” — Susan Ballard, former HPD chief

In Krog’s case, the arbitrator, Joyce Najita, largely based her decision to reinstate him on the fact that HPD had previously been lenient with domestic violence. Krog had a good work record as well.

Najita, who is the former director of the University of Hawaii Industrial Relations Center, noted that Krog would have been the first officer ever to be fired by the department after pleading guilty to a lesser charge of assault in the third degree.

She cited several examples of other officers keeping their jobs, including one who had received a 20-day suspension after he “punched, shoved, and placed his body weight on his pregnant wife’s abdomen, causing her pain and extreme abdominal spasms.”

Fired Then Rehired

Maverick Kanoa, HPD, 2012: Accused of inappropriately touching a female subordinate, sexual harassment and witness intimidation.

Final Discipline: 25 Day Suspension

Najita pointed out that the Krog’s assault occurred while he was off duty and that, in her view, a distinction needed to be drawn between “criminal acts committed in public places against members of the public from those which take place in the privacy of a home and within the marriage relationship.”

Yet another consideration, Najita wrote, were the statements of Krog’s wife, who had sent a letter to Kealoha pleading for a “second chance” for her husband. She told Kealoha that she and Krog were both drunk the night he grabbed her by the throat and that in retrospect, “calling the police may not have been necessary.”

Najita ultimately ruled that Krog should be reinstated, and that he should receive back pay for the days he was out of work minus a 20-day suspension.

Krog is still with HPD, and is assigned to District 4, which covers Kaneohe, Kailua and Kahuku. He declined to comment for this story as did Najita.

HPD Chief Susan Ballard presser on 2nd cop shooting fatality.
Former HPD Police Chief Susan Ballard says unions have too much influence over how the department disciplines officers. Cory Lum/Civil Beat

“It’s frustrating and it can be deflating when an arbitrator rules against you,” former Honolulu Police Chief Susan Ballard told Civil Beat in a recent interview. “Sometimes you just want to give up, but you can’t because you know you owe it to the public to have good police officers.”

Ballard took the helm at HPD in 2017 after Kealoha was named the target of a U.S. Justice Department investigation into corruption and abuse of power. She retired earlier this year, but in nearly four years as chief she took an aggressive stance on officer misconduct. In 2020 alone, records show, she terminated 20 police officers, including several who were involved in the Kealoha scandal.

Ballard said keeping problem officers on the police force can tarnish the department’s reputation in the community. And the fact that arbitration is binding, she said, means there’s little recourse, which only exacerbates the cynicism surrounding the idea that the police don’t know how to police themselves.

“To me it’s disrespectful to the officers who are doing the right thing,” Ballard said. “Ninety-nine percent of our officers are good people, and for them to have to put up with these other officers who made the wrong choices isn’t fair.”

Inside The ‘Black Box’

For decades, most police disciplinary files, including arbitration decisions, were kept confidential due to a union-backed exemption in Hawaii’s public records law. The Hawaii Legislature eliminated that exemption in 2020 during the height of nationwide protests calling for more equity and accountability in policing.

Civil Beat received 58 arbitration decisions through a series of public records requests and legal challenges filed over the past year. The decisions — from all four counties, some going back 25 years  — are only those that officials could find once Civil Beat asked for them.

There’s no central clearinghouse for citizens to access past arbitration decisions, and Civil Beat has learned that county attorneys regularly lose track of or destroy past awards, something that can leave them at a disadvantage the next time they face off against SHOPO when trying to terminate an officer.

Maui Police Department vehicle parked in downtown Kaunakakai, Molokai.
Maui County officials have refused to turn over arbitration decisions due to concerns about officer privacy. Cory Lum/Civil Beat/2021

Maui County has also refused to release all of its arbitration awards, arguing that providing decisions in which an officer was exonerated or their discipline resulted in something less than a suspension would be a violation of their privacy rights.

The Honolulu Police Department, too, has yet to turn over all of the arbitration decisions it has on file, in part because it is undertaking an extensive legal review that includes redacting personal information. Officials said they have approximately 50 more decisions to disclose.

Loretta Sheehan, a former Honolulu police commissioner and outspoken critic of police arbitration, is concerned that the process plays out in secret and that the arbitrators are answerable to no one. That can be maddening, she said, especially when their decisions often contribute to undermining community trust in the police.

Fired Then Rehired

Nelson Johnson, MPD, 2015: Arrested for abuse of a household member after hitting his daughter and causing a concussion.

Final Discipline: 7 Day Suspension

“The entire arbitration process is a black box,” Sheehan said. “And a system that’s a black box is inherently flawed.”

The fact that arbitration decisions are now a matter of public record, she said, gives citizens an opportunity to learn more about the type of misconduct that happens on the police force and ask themselves whether a 65% to 75% reversal rate on discipline is acceptable.

“That’s when transparency works,” Sheehan said. “When we can all take a look at what’s going on and ask if this is something we want to change.”

Of the 58 arbitration decisions released to Civil Beat, 38 involved cases in which an officer’s punishment was overturned or reduced on appeal.

Twenty-nine of the 38 related specifically to officers who were reinstated after being fired. Nine involved suspensions or some other lesser form of punishment.

The records show that arbitrators upheld only 10 terminations, three of which involved allegations of sexual assault. The remaining 10 cases in which the discipline was sustained involved suspensions of a week or less, including one incident in which a Kauai officer was forced to take five unpaid days off for trying to catch a wild pig at 4 a.m. when he was supposed to be on patrol.

While it can be hard to compare jurisdictions, a recent study of 624 arbitration awards issued between 2006 and 2020 from departments across the U.S. found that arbitrators overturned or reduced an officer’s discipline in about 52% of cases. For discharges, the number was slightly lower at 46%.

SHOPO officials did not return requests for an interview for this story.

But Alex Garcia, a retired HPD lieutenant and former member of the SHOPO board of directors, said it’s easy to blame the union for Hawaii’s high rate of reversals in labor arbitration, but that the criticism is often misplaced.

Union officials have a duty to protect officers’ due process rights, he said, especially in cases in which a police chief might be reacting to public sentiment and political pressure.

Fire Then Rehired

Frank Abreu, MPD, 2013: Lied about where he received information about a potential $50,000 hit on a fellow officer to protect his wife.

Final Discipline: Reinstated with unspecified suspension

Many times disciplinary actions are overturned, Garcia said, because internal affairs investigators didn’t do their jobs correctly or county lawyers were outgunned by SHOPO’s attorneys, who have much more experience litigating the nuances of labor and employment law.

“In my experience, the union has never argued that the officer is perfect,” Garcia said. “Everybody makes mistakes, but sometimes the sanctions imposed by the department go far beyond what the case is about.”

A Missed Deadline

The SHOPO collective bargaining agreement contains a number of special protections for officers accused of misconduct as well as provisions that allow for multiple chances at appeal.

For example, the contract states that when officers are accused of wrongdoing they must be given a full explanation of the charges, including details about who is making the complaint. Any interrogations, the contract states, cannot last longer than 30 minutes without consent and must be performed while the officers are on-duty, or else the officers must be paid for their time.

When a grievance goes before an arbitrator, these provisions as well as other strict departmental policies governing internal investigations can hamper efforts to get rid of a problem officer.

The records show that arbitrators cited technical violations in at least 19 cases in which a disciplinary action was reduced or overturned. Thirteen of those specifically involved terminations.

For example, HPD fired Nicholas Masagatani after he was arrested in 2014 on charges of kidnapping and sexual assault.

Masagatani and the alleged victim, who was described as a prior acquaintance, were at a club in Honolulu when he exposed himself to her. Surveillance video showed the woman trying to get away from Masagatani and hiding behind another person at the bar.

Investigators collected phone records and text messages showing the woman repeatedly calling and texting her boyfriend and asking him to come pick her up because Masagatani, she said, “is hitting on me.”

After the bar closed, Masagatani took the woman to his home. Once there, investigators said, she immediately went into the bathroom where she continued to call and text her boyfriend asking him to come get her. By the time he finally picked up the phone, he “sensed that something was wrong.”

The woman told investigators that when she left the bathroom, Masagatani assaulted her. He was arrested that same day and later fired by HPD.

Nicholas Masagatani’s booking photo from his 2014 arrest for kidnapping and sexual assault. HPD/2014

The criminal case against him was dismissed due to procedural defects that occurred when prosecutors presented their case to a grand jury. Specifically, the prosecutor in the case objected to the grand jurors asking the alleged victim certain questions to assess her credibility, something the judge said warranted dismissing the indictment.

The union appealed Masagatani’s discharge to an arbitrator, Ronald Fujiwara, who found that HPD had violated its own internal policies during the investigation and had failed to turn over key evidence, including the alleged victim’s original written complaint.

Fujiwara, a Honolulu labor attorney, called out the department for failing to complete its internal affairs investigation in 60 days as is required by HPD policy. Instead, the department took 87 days, which Fujiwara said undermined HPD’s case for termination.

The technicalities weren’t Fujiwara’s only concerns. He also questioned the credibility of the alleged victim, who was described as an acquaintance of Masagatani.

The union argued that the encounter between Masagatani and the woman was consensual, and SHOPO’s lawyers attacked her credibility by pointing out inconsistencies in her testimony.

Fujiwara described the case as a “classic ‘he said she said’ standoff,” albeit one without corroboration on either side.

‘No Excuse Is Offered For This Failure’

Civil Beat found that nearly two-thirds of all reversals — 23 cases — were based on the arbitrator’s belief that the police department had done a poor investigation or couldn’t provide substantial evidence.

Many of these cases involved allegations of sexual assault and domestic violence, those in which the arbitrators were asked to make judgment calls about the credibility of the accusers. Several others related to allegations of drunken driving and showed just how dogged SHOPO’s defense of its officers can be, especially when it comes to poking holes in police investigations.

HPD supporters wearing SHOPO shirts stand outside District Court during a preliminary trial in Judge Domingo’s courtroom.
SHOPO has consistently opposed efforts to open officer misconduct records to public scrutiny. Cory Lum/Civil Beat/2021

Take, for instance, the case of Joseph Feliciano, who was terminated from the Hawaii County Police Department in 2004 after he was accused by three women of sexual assault, one of whom was married to a fellow officer.

Russel Higa, a Honolulu lawyer, was the arbitrator who heard Feliciano’s appeal. According to Higa’s 44-page written decision, the first allegation came in January 2004 from an officer who claimed Feliciano had raped his wife after offering her a ride home when she was walking alone at night.

When internal affairs investigators interviewed the wife, whose name was redacted from the records, they asked if she knew of any other victims.

Over the next several weeks two more women came forward, including a prostitute who said several years prior Feliciano had picked her up for drugs and threatened to turn her in unless she “took care of him.” Both women signed prosecution waivers, meaning they did not want to pursue criminal charges. One of the women later recanted and was prosecuted herself for filing a false report.

In his decision, Higa seemed sympathetic to SHOPO’s argument that Feliciano was merely the victim of a jealous husband who sought to destroy his career by conspiring with his wife and two other women to paint him as “a serial rapist in a police uniform.”

“The HPD is committed to holding officers accountable for their actions and will issue appropriate discipline when necessary.”  — Interim Honolulu Police Chief Rade Vanic

He also noted that the department presented conflicting evidence about whether Feliciano’s conduct with his co-worker’s wife was consensual.

For his part, Feliciano had denied any wrongdoing. He even took a polygraph test voluntarily to prove his innocence. But when police administrators wanted to use the results, which were described in the decision as being supportive of their case for termination, the union fought back and convinced Higa to disregard the evidence. He said he would have made the same decision had the results been beneficial to the union.

In the end, Feliciano was suspended for 20 days, not for the alleged assault, but for saying he was on a meal break when having sex with a co-worker’s wife.

He’s no longer with the department.

Fired Then Rehired

Todd Tanaka, KPD, 1997: Took nude photographs of a woman who was in custody for alleged prostitution. Lied to investigators about his involvement.

Final Discipline: 333 Day Suspension

On May 16, 2006, David Hallums, an off-duty HPD officer and current member of the SHOPO board of directors, crashed his vehicle into another car while driving east on Farrington Highway. The department fired Hallums, who was believed to be drunk at the time of the accident, but SHOPO put up a vigorous defense in which it attacked the officers who arrested him.

The union took the case to arbitration and argued, among other things, that HPD failed in its investigation. SHOPO attacked the officers who administered Hallums’ field sobriety test, saying they didn’t follow proper procedures.

The union also sought to undermine the credibility of another officer at the scene by pointing out that he had been disciplined in the past for falsifying police reports.

One of the biggest failures, however, was that HPD officers didn’t interview the sole witness at the scene who was not involved in the accident and could have provided an objective account of what actually happened.

As the arbitrator, Martin Henner, an Oregon attorney, noted in his decision to reinstate Hallums: “No excuse is offered for this failure.”

‘I’m Right Here, Brah’

Previous disciplinary actions can influence an arbitrator’s decision to reinstate or reduce the punishment for an officer accused of misconduct.

The records show that arbitrators reversed a termination or reduced a suspension in 12 cases, at least in part because the punishment was considered too harsh when compared to previous actions taken against other officers. Most often, disparate treatment was cited in cases involving Honolulu police officers accused of domestic violence, but it has also been argued to reduce suspensions in at least two cases of sexual harassment.

SHOPO regularly argues in arbitration proceedings that officers are being punished unfairly when compared to their peers. Take the case of Hillarion Oliva III, who was discharged after he punched a man in the head so hard that 11 stitches were needed to close the wound.

Hillarion Oliva III testified at his own trial in 2006 in which he faced charges for assaulting a man who had earlier challenged him to a fight during an arrest. Hawaii News Now/2006

Oliva, a sergeant, had arrested Levi Kaai earlier in his shift for having an open container. While handcuffed, Kaai challenged Oliva to a fight.

“You know, you cops, you only tough in uniform with a badge,” he said. “Take off your badge, I kick your ass. Take off my cuffs, I kick your ass. I kick all your cops’ ass.”

The next morning, when Oliva’s shift had ended, he saw Kaai on South Hotel Street, near the police station.

What happened next is a matter of dispute. Oliva said the man waved him down and again challenged him to a fight. When the man made a sudden movement, Oliva said he punched him in self defense.

Oliva was asked during the arbitration hearing why he stopped in the first place. He said it was because he thought Kaai was in need of help or wanted to apologize.

Kaai, however, told a different story, one in which Oliva was the aggressor.

“He said, ‘I’m right here brah, I no more gun, I no more badge, what, hah?’” Kaai recounted. “I told him I ain’t stupid, I ain’t going to get arrested again … I wouldn’t think he would hit me.”

Russel Higa was again hired as the arbitrator to decide the case, but he didn’t buy into Oliva’s story. He said Oliva appeared to attack Kaai “for no reason other than to vent his own frustration.”

SHOPO presented a similar argument that it does for domestic abusers, noting that assault cases typically end in suspension and not termination.

The union also highlighted the case of Dennis Yuen, an HPD lieutenant, who was charged with several counts of extortion, kidnapping and sexual assault against two prostitutes. Yuen, like Oliva, had been fired by HPD, but after his criminal trial ended in a deadlocked jury, an arbitrator forced the department to reinstate him.

In Oliva’s case, he had been charged with assault in the third degree, but was found not guilty.

Higa decided to reinstate Oliva with a 20-day suspension.

In 2013, Oliva would again face suspension for threatening a citizen outside of HPD’s headquarters, an incident that was caught on video. He no longer works for HPD.

Hillarion Oliva III was suspended again for losing his temper with a citizen outside of HPD headquarters. This is a screen shot from a video that captured the incident. Hawaii News Now

Honor vs. Dishonesty

Arbitrators have significant latitude when it comes to analyzing whether an officer should be suspended or fired for misconduct. They often consider an officer’s past disciplinary actions as well as any commendations they might have received to help determine whether an individual might be salvageable even after making a mistake.

According to the records, nearly 40% of cases in which a punishment was reduced included some sort of mitigating circumstances that influenced the arbitrator’s decision.

Fired Then Rehired

Shayne Souza, HPD, 2006: Conspired with someone in witness protection to commit robberies and burglaries of drug dealers.

Final Discipline: 10 Day Suspension

For example, Sgts. Duke Zoller and Aaron Bernal were both fired by HPD in 2013 after they were caught falsifying police reports at DUI checkpoints as part of a scam to collect more overtime pay. More than 200 DUI cases were dismissed as a result of their misconduct, and they both faced criminal charges for tampering with government records.

The duo pleaded no contest to the charges and eventually agreed to a deferred acceptance of guilty plea, or DAG, which allows the convictions to be scrubbed from their records.

That wasn’t enough to end their careers, however. Arbitrator Lou Chang, who performs mediation in Hawaii and other Western states, reversed HPD’s discharge decision because Zoller and Bernal seemed to regret their actions and displayed a history of heroism.

Bernal in particular, Chang said, had received one of HPD’s highest honors after he was wounded in an exchange of gunfire while trying to arrest a fleeing suspect. Zoller, too, Chang noted, had put his own safety at risk when trying to save a distraught citizen from jumping off a freeway overpass.

“Both have records showing that they were dedicated officers of the Department,” Chang wrote. “They have incurred significant penalties and consequences for their improper actions. The Arbitrator concludes that these officers are deserving of an opportunity to re-earn the respect and trust of their peers, the Department and the public.”

Chang demoted both Bernal and Zoller to corporal and gave each a 60-day suspension. He said neither would be eligible for back pay. Bernal and Zoller are no longer with the department.

‘Why Not Take My Chances?’

Civil Beat reached out to all four county police departments for interviews about the arbitration process and how it affects their efforts to hold their officers accountable. Not a single police chief agreed to participate.

Acting Honolulu Police Chief Rade Vanic, however, did issue a written statement through a department spokesperson.

“The HPD is committed to holding officers accountable for their actions and will issue appropriate discipline when necessary,” Vanic said.

“At the same time, the HPD respects the decisions issued by arbitrators even when they conflict with the department’s findings. It’s disappointing when cases are overturned on technicalities, but the department will continue to conduct thorough investigations in an effort to prevent that from happening.”

Acting Honolulu Police Chief Rade Vanic speaks to media.
Acting Honolulu Police Chief Rade Vanic did not agree to an interview, and has avoided most questions about police arbitration since taking over the department. Cory Lum/Civil Beat/2021

SHOPO President Malcolm Lutu also did not respond to Civil Beat’s request to discuss this issue, but in previous interviews said the union has an obligation to defend its officers.

That doesn’t mean the union takes on every appeal, he has said. If there’s evidence showing an officer actually did what they’re accused of and the department followed all the rules in terms of meting out discipline, then the union won’t push to take a case to arbitration, which he described as a “crap shoot.”

Darryl Perry, a former Kauai police chief, meanwhile, says arbitrators can hurt a department’s ability to rid itself of problem officers.

They don’t necessarily account for evolving societal norms, he said, particularly those related to domestic abuse and sexual misconduct, which can make it difficult for a department to implement new policies targeted at reining in bad behaviors.

Perry pointed to the case of Nelson Agni, a Kauai police officer he was forced to reinstate in 2010 after a prostitute accused him of sexual assault.

Although the department couldn’t prove that Agni assaulted the woman as she claimed, he did admit to having sex with her for money in a hotel room. Perry said instead of paying her the $100 she said she normally charged, the evidence showed Agni threw $35 on the ground and told her it was the “SHOPO discount.”

Glenn Choy, a Honolulu lawyer who was selected as the arbitrator, overturned Perry’s decision to terminate Agni in part because of procedural errors, but also because he was off-duty when he decided to break the law. Choy said Agni’s demeanor during the disciplinary proceedings also played a role in his reasoning not to uphold the termination because it “suggested true regret and remorse.”

“In some of the cases I was involved with I don’t feel that the arbitrator took a holistic view of the situation and by that I mean they didn’t consider the impact their decision would have on the larger police department,” Perry said. “The officers know when an arbitrator makes the decision to bring someone back. They’re going to see that this guy got away with it and then ask themselves, ‘Why not take my chances?’”

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