Court weighs suspending Mauna Kea emergency proclamation; Honolulu police recalled to Oahu

Always Investigating

HONOLULU (KHON) — Dozens of Honolulu police officers are heading back to Oahu after a week among the law enforcement ranks keeping an eye on demonstrators at Mauna Kea. The department faces questions about how they got deployed and who is paying the bills.

It’s one of the largest interisland police operations in recent history, and the kind of help usually reserved for targeted operations such as drug busts, or during states of emergency after natural disasters. But the governor’s emergency proclamation over Mauna Kea is in the hands of judges who are deciding its fate.

Attorneys for Big Island cultural practitioner Paul Neves on one side, and the state on the other, went before a panel of Circuit Court judges in Honolulu this afternoon.

“The governor has manufactured an emergency to favor one private corporation’s right to access Mauna Kea over the constitutional rights of Native Hawaiian cultural practitioners such as the plaintiff, as well as the public,” said David Kopper, an attorney with the Native Hawaiian Legal Corp. which is representing Neves.

The plaintiff is seeking, among other relief, a temporary restraining order that would suspend the proclamation. State attorneys defended Gov. David Ige’s decision.

“We’re not saying there is no review at all,” said Craig Iha, counsel with the state Department of the Attorney General. “What we’re arguing is that the determination of the existence of an emergency is for the governor and the governor alone to make.”

Challengers say the state shouldn’t have to rely on sweeping emergency declarations to deal with what’s happening.

“The proper response in order to avoid infringing on constitutional rights,” Kopper said, “would be to ensure an adequate police force and enforce the laws that already exist.”

“Well, what you’re asking, then, is for law enforcement to have an equal to or greater number up there which means more than 1,000 officers,” said Judge Ed Kubo. “Isn’t that in and of itself asking for a volatile situation to become explosive?”

“I would disagree,” Kopper said, “just on the facts of this case, even with the large numbers that since the emergency proclamation have gathered, there still has been no incidents of violence.”

The law enforcement headcount is scaling back. The Honolulu Police Department is recalling 56 officers who have been on the Big Island since last Tuesday, along with vans, trucks and utility vehicles. They say the Hawaii Police Department asked for their help.

“Their salaries will be paid by the department, and other expenses, including overtime and airfare, will be reimbursed by the Attorney General’s Office,” the Honolulu Police Department said in a statement.

HPD added: “The four county police departments have a long history of joint missions and interagency assistance.”

“That is with natural disasters, when of course there is an imminent concern for life or injury, or loss of life, or other catastrophic events,” said Honolulu City Councilmember Heidi Tsuneyoshi. “However, I think in this situation it didn’t qualify for a state of emergency.”

Tsuneyoshi filed a resolution Monday (Res. 19-169) demanding more details on why Honolulu police went to the Big Island.  

“So that we have it on record as to what happened,” Tsuneyoshi said, “not just for this situation but for any situation that arise after this, as to how and when and what the policy is for these types of situations.”

Honolulu City Councilmember Ron Menor sent a letter to HPD Chief Susan Ballard questioning the deployment, too.

A separate lawsuit filed last week, by Kalani Flores of the Big Island, sought a restraining order to block Honolulu and Maui County police deployment. Flores says Honolulu’s recall doesn’t allay his concerns.

“How can we be sure they won’t just come back the following week?” Flores said. “So I think we will see how it plays out. We haven’t actually received confirmation that they are off island, but we know police officers from other counties are here on this island as of today.”

Maui County police have not yet responded to our request for details regarding the size of their force sent to Mauna Kea. Kauai County officers have not been seen there, and that county’s police department did not respond to questions as to whether they were asked to help, and if so what factored into their decision whether or not to go.

“The deployment of officers from City and County of Honolulu and Maui County was in violation of Hawaii Revised Statues 52D-5, and in reality it wasn’t even necessary,” Flores said. “Right now, we have a fake emergency that was put in after the deployment of the officers. The officers were up here in Hawaii Island way before, really, to intimidate and help orchestrate the removal of protectors. In essence they are out of their jurisdiction and that’s what our contention is. The officers were deployed here on Hawaii Island before the declaration of emergency.”

It’s the same emergency proclamation at issue in court today, where the state told the judges that the sheer number of protestors justifies the order.

“The threat of escalation is vastly increased your honor. And in fact in (Hawaii Police Department) Maj. Samuel Jelsma’s declaration he said that if the situation had arisen to where there was violence, the number of officers at the scene may have had to resort to using chemical tear gas and that’s why they had to pull back your honor,” Iha told the judges. “And the reason why there has been no outbreak of violence is because law enforcement has been extremely restrained throughout this entire situation.”

Judge Gary Chang responded to Iha: “I think credit goes to both sides. Perhaps law enforcement did restrain themselves but i think the protestors have also demonstrated quite a resolve toward peaceful demonstration on their side as well.”

Always Investigating asked the Attorney General’s office more about the tear gas threat revealed in court.

“The governor spoke and he said tear gas is not going to be used, so that’s how it is,” said A.G. spokesperson Krishna Jayaram.

KHON2 pointed out that the attorney for the state, Iha, told the judge that they would have had to have used tear gas, so why would he say that?

“I think had to if it was necessary to clear out the protestors,” Jayaram said.

“So tear gas is up on the mountain in reserve?” Always Investigating asked?

“I can’t comment on what we have operationally,” Jayaram said.

The panel of judges – Gary Chang, Ed Kubo and Paul Wong — said they would decide by end of day Tuesday whether to temporarily suspend the emergency proclamation. more hearings would follow over an injunction and other issues in the suit. The proclamation expires Aug. 2, but the state told the court it could be renewed.

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