The Police Files Project BadgeA volunteer board made up of former prosecutors, judges and Hawaii residents tasked with reviewing investigations of police killings was just getting started this year after spending almost all of 2020 on a hiatus.

The panel has only finished a handful of cases since getting back to work in April, but it’s already set to come to an end in July absent action from state lawmakers.

When the Legislature reconvenes on Jan. 19, it will take another look at the Hawaii Law Enforcement Officer Independent Review Board, its powers and its duties.

Hawaii is unusual in the U.S. when it comes to investigating police shootings. While some cities like Chicago and Cincinnati have citizen commissions that independently review cases of police killings, few states conduct such reviews on a statewide level.

“Up until 2020, with George Floyd, it’s simply been accepted that only the police can conduct criminal investigations of the police,” Richard Rosenthal, a former head of police oversight agencies in Los Angeles, Denver and Canada, said.

police shooting Law Enforcement Officer Independent Review Board meeting.
The Law Enforcement Officer Independent Review Board, pictured in one of its first meetings in 2019, will end unless lawmakers take action this legislative session. Cory Lum/Civil Beat/2019

Floyd died while pinned to the ground by a Minneapolis police officer. The officer, Derek Chauvin, was found guilty of murder earlier this year.

Floyd’s death reignited the Black Lives Matter movement and spurred a nationwide reexamination of police practices. Earlier this year, lawmakers in Washington and Maryland set up new state agencies to investigate police killings.

Rosenthal is a consultant to Washington’s Office of Independent Investigations, its statewide police oversight agency. Agencies like it are more common in Canada, where police in each province are overseen by a province-wide investigative agency, according to Rosenthal.

What lawmakers may decide to do here is yet to be seen. Bills that would make the board permanent and give it additional powers to investigate police misconduct never got hearings in the 2021 session. Other measures that dealt with police also failed to gain traction.

Since 2010, at least 61 civilians have died from police use of force, according to a Civil Beat database. More than half of those fatal incidents occurred since the board was created in 2017.

In Hawaii, law enforcement agencies typically conduct an internal review of police shootings to see if an officer acted appropriately. Cases are also reviewed by county prosecutors to see if criminal charges should be brought against an officer.

The fatality review board can examine those internal investigations and send a recommendation to a prosecutor to determine if charges should be filed. The board can rule that a shooting was justified or it could send the case back and ask for additional investigation.

The board can only make non-binding recommendations and isn’t able to conduct its own investigations.

While 31 civilians have died at the hands of police since the board was formed in 2017, the panel has only completed and publicly posted its decisions in 10 of those cases, nine of which occurred on Oahu. The board ruled that officers were justified in using deadly force in all those incidents.

Honolulu Police Department officer stands fronting crime scene vehicle after police shot and killed a person at 1325 School Street early this morning.
The board found that officers were justified in using deadly force in all the cases it has reviewed so far. Cory Lum/Civil Beat/2021

Families brought lawsuits against the Honolulu Police Department and its officers in two of the cases the board deemed justified.

In one, the family of Steven Hyer Jr. allege that Hyer was in the throes of a mental health crisis when police encountered him in his apartment one night in 2018.

In another, the family of Kyle Thomas alleges that officers used excessive force when they shot Thomas after a shoplifting incident at the Walmart in Mililani.

Gary Yabuta, board chairman and executive director of the federal High Intensity Drug Trafficking Area in Hawaii, declined to discuss specifics of those cases or how the board reached its conclusions.

Since reconvening in April, the board has held almost all discussion on the cases it is reviewing in sessions closed to the public. The board also doesn’t announce which cases it’s completed and which cases it plans to take up next.

Until this year, county prosecutors have also ruled that officers were justified in almost every instance of a police killing.

Prosecutors have sought charges in only one shooting: the April death of 16-year-old Iremamber Sykap. Honolulu Prosecuting Attorney Steve Alm accused three officers of murder and attempted murder for shooting at Sykap and occupants of a stolen vehicle he was driving following a police chase.

Prosecutors failed to secure an indictment against the officers and a judge later dismissed the case.

Earlier this year, Alm said an independent agency should take the lead on investigating police shootings.

“But you need to staff it with people that are experienced in prosecuting and investigating homicides and are up to date with current techniques and other things. And that is not on the horizon anywhere,” Alm said during an interview with Civil Beat’s editorial board, adding that staffing such an agency might prove difficult in Hawaii.

Until such an agency is created, Alm said his office is in the best position to investigate police killings on Oahu.

Rosenthal, who is working with Washington’s independent investigation agency, agreed with Alm and emphasized that staffing is an important part of any investigation. A former director of an oversight agency in British Columbia, Rosenthal said that agencies typically hire former police officers or people with experience in detective work – like insurance investigators or coroners.

“But the first step is getting that outside agency to independently look at these issues without necessarily having the ruby-colored glasses that will otherwise limit how you look at the incident,” Rosenthal said.

Washington’s new agency would have the power to direct law enforcement agencies to conduct investigations of officers in another agency. The new office could also hire investigators, and would manage regional teams that could be dispatched to police shootings.

Rosenthal said boards like Hawaii’s that can only review an investigation already conducted by police are limited, especially since the board’s decisions only deal with whether or not prosecutors should pursue charges.

“One of the challenges is a prosecutor has to make a decision that is not based on community demands but is objective and based on the law and whether you can successfully prosecute a case,” Rosenthal said.

“Anyone who thinks the criminal justice system will solve all the ills of an urban policing agency will be sorely disappointed.”

police shooting Law Enforcement Officer Independent Review Board member Gary Yabuta.
Gary Yabuta, chairman of the review board, said policy decisions on the board’s powers need to be left up to lawmakers. Cory Lum/Civil Beat/2019

Hawaii doesn’t seem ready to take on those goals yet. The review board outlined its position on any legislative proposals in a report that it approved in early December.

The board has not taken a position on whether or not it should stick around after July, according to Yabuta. But the board members have sent lawmakers a modest list of requests.

They are asking lawmakers for legal representation by the state Attorney General’s office if they are called to testify in legal proceedings related to a police shooting. The board also wants police to turn over their investigations sooner.

Right now, police departments have no deadline to submit their materials to the board. The members want those reports within 30 days of a shooting investigation being sent to a county prosecutor.

The board is also asking the Legislature to allow it to hire a full-time administrative coordinator who would collect investigations from the departments and help the board prepare for its meetings.

Those duties are currently handled by the AG’s office.

Yabuta said that the board doesn’t plan on asking the Legislature for more resources. The board has access to the state’s criminal forfeiture fund for expenses. The fund contained $462,790 in cash at the start of this fiscal year, according to a report from the AG’s office.

The board also won’t ask for more power to pursue investigations of police.

“Whether it should expand its powers or go into other scopes of authority is not up to the board members. It’s up to the legislators who listen to the public and listen to constituents,” Yabuta said.

Rep. Adrian Tam, one of the lawmakers who supports making the review board permanent, said it’s hard to predict what changes the Legislature might make. Though he believes the board should include more members of marginalized communities, he wouldn’t take a position on expanding its powers.

But he expects the oversight issue to pick up steam in the aftermath of the Sykap shooting as well as the death of Lindani Myeni at the hands of Honolulu officers.

Alm decided not to pursue charges against officers who shot Myeni.

“What we really need to do is to ensure there’s transparency and accountability in this process,” Tam said. “I think, as it is right now, we just take the word of investigations done in the police department. Quite frankly, that’s not enough.”

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