Category Archives: Law

State law enforcement agency awards contract for AI tech

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Earlier this month, the state’s Department of Law Enforcement announced that it has awarded a contract with Microoft to incorporate the company’s Azure artificial intelligence technologies into the agency’s operations.

“DLE is leading the way in leveraging the latest Azure AI technologies to enhance public safety and improve the efficient operation of the department,” said Ernie Fernandez, vice president, state and local governments at Microsoft Corp. “This collaboration demonstrates how industry and public safety agencies can work together to responsibly deliver technology innovations to improve communities across the U.S.”

Modernization. Streamlining. Enhanced public safety. Improved response times.

Big promises.

But a department news release announcing the AI contract contained no details about what is going to be done, what oversight will be established, and how problems, including “hallucinations” where AI systems invent their own data, will be identified and corrected.

What could possibly go wrong? Apparently quite a lot, if AI tools aren’t incorporated carefully, transparently, and ethically, and with proper oversight and public buy-in.

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Pounding the table

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There’s an old bit of advice for lawyers that has been repeated many times over the years. It goes something like this.

“If you have the facts on your side, pound the facts; if you have the law on your side, pound the law; if you have neither the facts nor the law, pound the table.”

The old adage came to mind as I was thinking about Gov. Josh Green’s recent rather intemperate public statements blasting the insurance companies who are, he says, delaying a “global settlement” of the Lahaina fire lawsuits based simply on their sheer greed for profits.

Honolulu Star-Advertiser writer Dan Nakaso reported earlier on Green’s comments before the newspaper’s editorial board.

“They’ve been running roughshod over communities for decades,” Green said.

He praised local attorneys for being willing to give up the right of their insurance company clients to sue those ultimately responsible — including the state — in order to reach a settlement because “it was for the good of the community” by getting settlement money into the hands of Maui victims over three years, beginning in 2025.

But Green repeatedly told the Honolulu Star-­Advertiser editorial board on Wednesday that he blames mainland lawyers representing State Farm Insurance for demanding to be able to sue to recoup their insurance payouts.

“They don’t care about Hawaii at all,” Green said. “They just want their money.”

Among several names, he called State Farm “greedy” and “ruthless” and more interested in profits than helping Maui victims become “whole.”

He accused the company of wanting to pursue lawsuits to maintain “massive profits” and “giant profits.”

At issue is a provision of the proposed global settlement that would bar insurers that have paid out fire claims from suing those responsible for the fire to recover the amount of claims paid. Nearly 150 insurance companies, which were not parties in the lawsuits, have gone to court challenging the settlement provision that would prohibit them from pursuing reimbursement through a standard insurance practice known as “subrogation.”

According to the website, Investopedia.com:

Subrogation is a term describing the right held by most insurance carriers to legally pursue a third party that caused an insurance loss to an insured. This allows the insurance carrier to recover the amount of the claim it paid to the insured for the loss.

Subrogation refers to the act of one person or party standing in the place of another person or party. It effectively defines the rights of the insurance company both before and after it has paid claims made against a policy. Also, it makes the process of obtaining a settlement under an insurance policy easier.

When an insurance company pursues a third party for damages, it is said to “step into the shoes of the policyholder.” Thus, the carrier will have the same rights and legal standing as the policyholder when seeking compensation for losses. If the insured party does not have the legal standing to sue the third party, the insurer will also be unable to pursue a lawsuit as a result.

States differ in the way they allow or restrict subrogation in different types of insurance claims, and it isn’t unusual to have disagreements over how a state’s insurance laws are to be interpreted.

But the governor’s broadsides against “greedy insurers” fail to recognize any of the legal complexities.

Indeed, maybe I’m confused here. The governor says getting money into the hands of fire victims is vital. And yet that’s what the insurance companies have been doing. In court filings, they say they have paid out $2.3 billion in claims, with another billion already in the pipeline. On the other hand, Green’s global settlement, if it is finally approved, provides for payments that will not even begin until 2025, and will be spread out over several years.

Knowing that Green can’t be accused of being an anti-corporate crusader, it seems to me that he’s simply pounding the table. And that makes me wonder whether the unusual table-pounding is because neither the law nor the facts are on his side.

It’s going to be interesting to see how the Hawaii Supreme Court sorts through the issues and attempts to balance the varied and conflicting interests of the parties without throwing a monkey wrench into the gears of the property insurance system that we all rely on directly or indirectly.

Judge Alan Kay remembered

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I was very sorry to learn of the recent death of retired Federal Judge Alan C. Kay, who served from 1986 to 2000 before moving to senior status.

I remember Kay quite well as the author of a lengthy April 1993 opinion invalidating a state law limiting the disclosure of information about complaints filed with the Campaign Spending Commission. Kay ruled the law was a clear violation of First Amendment rights.

The law made it a criminal misdemeanor for “any person” to disclose information about a complaint unless the commission first found “probable cause” that a violation had occurred. A violation was punishable by up to a month in jail and a fine of up to $1,000.

Kay’s decision was a strong affirmation of the First Amendment and a rather scathing comment on the state’s defense of what he saw as a clearly unconstitutional law.

Here’s a short version of the story.

At that time, I was publishing a monthly newsletter, Hawaii Monitor. An article in the June 1992 issue described a complaint I had filed with the Campaign Spending Commission that accused the University of Hawaii Professional Assembly (UHPA), the union whch represents faculty in the UH system, of failing to properly disclose expenditures in support of Gov. John Waihee’s 1990 reelection bid (“Commission sets hearing on UHPA complaint/UH faculty union PAC belatedly reports cost of Waihee ad“).

That short article prompted UHPA to complain to the commission that I had violated the confidentiality provision of the law. In an attempt to head off further commission action, my lawsuit was filed asking for the law to be declared unconstitutional and an injunction issued to prevent its enforcement. I was represented by Honolulu attorney Clayton Ikei, who recently passed away.

• Read Judge Kay’s 1993 decision in the case of Lind v. Grimmer on Justia.com

Kay’s decision was upheld by the 9th Circuit Court in a decision still cited in First Amendment cases.

• Read the 9th Circuit Court’s decision filed July 22, 1994.

Problems in Honolulu’s FDC?

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During a hearing in Honolulu’s federal court last week before Magistrate Judge Kenneth Mansfield, the attorney representing Jacob “Jake” Smith, a convicted drug dealer and self-confessed member of the racketeering organization directed by Michael Miske, accused administrators of the Federal Detention Center (FDC) of being unable to protect his client from a series of assaults believed to be in retaliation for his 6-days of trial testimony that contributed to Miske’s conviction on 13 charges including murder, kidnapping, racketeering, and conspiracy.

Honolulu attorney Louis Michael Ching, who was appointed to take over Smith’s case last November, said Smith had been assaulted three times in the past four months, beginning just a day before he was scheduled to appear as a witness, and ending with another beating two days after Miske’s conviction.

Although Mansfield denied Ching’s motion that would have allowed Smith to be transferred to house arrest at the home of his parents, Ching’s disclosures provided an unusually unflattering assessment of security and management in the federal facility, which is more typically viewed as the “gold standard” for corrections administration, standing in stark contrast to state’s troubled prison system.

Just a few days later, during a follow-up status conference on Smith’s case, the FDC provided notice that Smith would soon be moved to another federal facility.

Neha Kahn, attorney for the FDC, operated by the Federal Bureau of Prisons, told Magistrate Mansfield during a status conference on Monday that Smith “will be transported to another facility in short order,” according to minutes of the hearing.

Taken in context of the reported assaults, it would appear this transfer is indeed for Smith’s personal safety.

The FDC opened in 2001 near Honolulu’s Daniel K. Inouye Airport. It is designed to handle up to 992 inmates, although the average daily population over the past 12 months was 290, according to a 2024 federal audit.

When I began checking further, I found Smith had filed an earlier complaint in March 2022, alleging he had been wrongly sent to “the hole” the previous month based on a correctional officer’s false claim of drug use despite a negative urine test. “The hole” is what inmates call the Special Housing Unit, where they are held in solitary confinement in their cells for up to 24 hours a day, either for administrative reasons (such as protective custody) or as punishment for rule violations.

The incident report was later dismissed for lack of evidence, but Smith also said it wasn’t the first time he was wrongly punished.

And this is where it gets interesting.

Smith was among a group of inmates placed in the hole for “investigation of fighting” following what he called “the well-known July 12, 2021 riot,” according to his complaint.

Well-known? Perhaps among FDC inmates, but quick online check failed to turn up any public reports of a riot in the FDC in or around that date in 2021, or at any time, for that matter. Reference to the riot was incidental to Smith’s primary complaint, which provided no additional details, so I hesitated to take it at face value.

However, a bit of digging located two other inmate complaints also referring to the alleged incident and adding further specifics.

Reading through the complaints filed in federal court, it seems likely that they were not completely independent, and may have copied from a common source. There were also numerous legal deficiencies in the elements needed to

But generally, the judges’ orders did not deny an incident took place with up to 35 (or more) inmates fighting or that at least 20 inmates were sent to the hole as a result, nor did they address the underlying allegation that correctional officers condoned illegal gambling within the FDC, with or without the knowledge of top FDC officials. Of course, the judges role is to rule on the narrow legal claims, not to initiate investigations into the allegations made. On that basis, it seems fair to take a closer look at what has been alleged.

“Gang riot” allegedly triggered by gambling debt

The inmate complaints describe a volatile mix of rival gang members housed together in 5A, including members of domestic gangs (La Familia, USO, Murder Inc.) as well as international gangs (MS-13, Nothenos, Paiso’s, Soreno’s, and Tango’s) which allegedly created “an extremely dangerous environment.”

Eric Hurst, who at the time was held in unit 5A while awaiting sentencing for possession of an unregistered sawed-off shotgun, was sentenced in March 2023 to 63 months behind bars.

Hurst, who claims he had no gang affiliation, said in his complaint the fighting started after an inmate lost over $1,000 in a poker game. Hurst said he had “never participated in the gambling that goes on in the unit at large tables that frequently have 6-8 participants.”

Correctional officers “watch as tables of inmates play poker for substantial sums of money….The gambling tables can clearly be seen by overhead cameras as well,” according to the complaint. It alleges official “indifference” contributed to the riot.

Hurst alleged that a counselor in the housing unit told inmates at an orientation meeting, “we know you are gambling, just make sure you pay your debts and don’t get us involved.”

Hurst said he was watching television in front of cell 125 when “a group of 5 Paisa gang members attacked inmate (Kekai) Watanabe over the issue of gambling.”

“When innate Watanabe was attacked, one of the Paisa gang members shouted instructions up to the second tier of the unit for more gang members to join the fight and bring weapons,” according Hurst’s complaint later filed in federal court.

Hurst claimed that he remained seated but was attacked by three Paisa gang members wielding a combination lock placed in a sock and swung as a weapon (“lock in a sock”).

He said it took more than 10 correctional officers with pepper spray to end the fighting.

Hurst’s complaint said he was placed in the hole (the SHU or Special Housing Unit) for 74 days, although eventually released without penalties.

He alleges that none of the Paisa gang members or any others involved in the fighting were charged for the incident, and none received penalties, such as loss of “good time.”

Another complaint was filed by Kekai Watanabe, who Hurst identified as the inmate who was attacked first. Watanabe said he is affiliated with USO, the United Samoan Organization, which started as a prison gang but now boasts members in and out of prison, both locally and on the U.S. mainland.

Watanabe also spent months in the hole after the riot, and was later diagnosed with a broken coccyx, or tailbone, suffered in the beating. But when he complained about the pain and asked for medical treatment while in the SHU, Watanabe’s complaint says he told by staff “to stop being a cry baby.”

It seems surprising that an incident involving 30+ inmates fighting resulting in injuries could be hushed up and kept out of the public eye, so I’m reluctant to take these complaints at face value. On the other hand, I’ll be interested to see whether additional confirming information emerges in response to this post.

After gathering more information, I’ll check whether the FDC has any official or unofficial comment.