The Hawaii Supreme Court issued an opinion on Tuesday reversing a decision by the Honolulu Police Commission that found former Honolulu Police Chief Louis Kealoha was entitled to a criminal defense at public expense after his indictment on federal criminal charges. The commission’s decision was later upheld by the Intermediate Court of Appeals.

The high court’s decision overturning the previous rulings was relatively simple and straightforward.

The case hinged on the interpretation and application of Haw. Rev. Stat. § 52D-8.

Whenever a police officer is prosecuted for a crime or sued in a civil action for acts done in the performance of the officer’s duty as a police officer, the police officer shall be represented and defended:

(1) In criminal proceedings by an attorney to be employed and paid by the county in which the officer is serving; and
(2) In civil cases by the corporation counsel or county attorney of the county in which the police officer is serving.

The court spelled out the elements of its decision.

First, on its face, the statute requires that an officer is entitled to representation “for acts done in the performance of the officer’s duty as a police officer.”

Second, the court found there is no presumption that someone employed as a police officer was “acting in the performance of the officer’s duty as a police officer….”

HRS § 52D-8 does not provide for representation for “acts that police officers generally perform.” If that were the standard, police officers who effectuate arrests without probable cause for personal, non-law-enforcement-related vendettas, or who fabricate and submit false police reports for personal purposes, would be entitled to representation because arrests and preparation of police reports are “acts that police officers generally perform.”

Third: “The officer has the burden of establishing entitlement to representation.”

Finally: Based on the record before the Commission, Kealoha did not meet his burden of establishing entitlement to representation.

Here, the court noted: “Kealoha had the burden of establishing entitlement to representation, but presented no evidence in addition to the indictments and administrative record letters received in evidence by the Commission.”

Kealoha’s duties did not include overseeing a criminal conspiracy to hide his and his wife’s misappropriation of funds belonging to others. His duties did not include conspiring to frame his wife’s uncle for a crime he did not commit. Kealoha failed to meet his burden of establishing that he was being prosecuted for acts done in the performance of his duties as Chief of Police. Hence, the Commission’s decision was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.”

The court’s decision follows. And here is a link to the earlier decision of the Intermediate Court of Appeals.

Hawaii Supreme Court opinio… by Ian Lind