HomeMy WebLinkAboutCOM 0564.002 1996-1998 ~ ~~~,~L
To the Hawaii County Council,
County Building -Hilo Hawaii From He ~~A~~."" Ross, K ha Hawaii
RE Your Comm. No 564 on agenda of 3 Dec '97 ~~v~y
legal counsel for 6 uolice in Civil No 97.452
3 December 1997
I refer to my communication 564.01 in this matter and add the following information
that has transpired since and will be useful in your determination in executive session today
The interaction going on between the Police, the Police Commission and Corporation
Counsel in this matter obviously seems to border on corruption if it is not outright corruption
and it behooves the Coucil to defer the request from Dep.Corp.Counsel Joseph Kamelamela
in this matter for the following reasons, that I could clarify to you in the executive session:
1) If Kamelamela needs to discuss the amount to settle the case, I cannot sit in of course,
but he has already taken steps to go into arbitration and it would be premature for him to ap-
proach you for a settlement amount, because nothing is known to anybody until it happens.
i 2) He also had aself-declared conflict of interest to act on behalf of all defendants and
I harassed me to waste about $200 and a lot of time on personal-sheriff-service and had the 6
~ police involved go to the police commission that decided on 14 November that the police
must be given individual outside attomeys. If he approaches you about that, you ought to
know that he has on 26 November 1997 filed legal documents in court on behalf of the police
defendants (their Answer to the Complaint) that makes him their attomey, and no outside
attorneys are necessary. He can and must further represent them in the suit and you need
not allot any money for legal representation, even if he says that he does not plan to do so,
because he must petition the court to be relieved as their attorney for a good reason, and
until that happenes you should not waste public funds on this exceptionally confusing item.
One wonders how much of the $600,000 that you shelled out for the other police
squabble was really necessary. The trouble seems to be that you only talk to corporation
counsels in your executive meetings, and must take their word for all this, while you have no
way to verify any of their statements as to necessity. As I stated before mine is a well-docu-
mented case and this time it saves you from unnecessary wasting $150,000 in public funds.
I attach for your perusal copies of the Amended Complaint as Exhibit H, Kamelamela's
2 Answers to the complaint of 26 Oct. and 26 Nov. 1997 as Exhibits I and J, a partial trans-
cript of my testimony in the police commission as Exhibit K, where I was unnecessarily Limi-
ted to 5 minutes for testifying about a potential waste of $150,000.
To illuminate that illegal 5-minute limitation I also enGose Exhibit L, a newspaper
article of June 9, 1983, almost 14 years ago where 1 took 4 council members to the Ethics
Board, also as Exhibit M 2 newspaper articles about a cosy unannounced illegal meeting of
the police commission and the police in May 1996. And a follow up of recent Exhibit D, an
unimpressing article by the police chief praising his police force, of last Monday, as Exhibit
N. Then to show how flawed police commissioner Abdul's statement in Exhibit K was about
the police just being as fallible as everybody else there is Exhibit O. showing that policeman
Fragiau got probation for assault, while I was given a jail term for the petty misdemeanor of
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being "arrogant" (without a prior criminal record) by judge Choi of District Court recently. So
if we are all so equal why is the police not at least punished like us other fallible people to
set an example, as 1 advocated?
And just to show how a murder by a police woman was foozled away you will read in
Exhibit P how an illeoal Hawaii County Police Department Review Board was created by
Chief Carvalho to get her off the hook. This concerns a public complaint in the Waltjen case
to the police commission, that would be investigated but apparently never was. That "board"
does not exist at all and can only be created by following Chapter 91 HRS the Hawaii Admin-
strative Pocedure Act with public hearings and promulgating proper rules, and then can only
be convened by strict adherence to Chapter 92 HRS, the Sunshine Law. But the police with
its internal affairs division and this new review board shows how autocratic the police in this
County really is without getting proper punishment for its transgressions, while we have a
police commission that is fully in cahoots with the police and exchanges pleasantries with it
in its meetings, listening to overly long recitations of police statistics that were published in
the newspapers weeks ago, but not having more than 5 minutes for me as only one testifying
on the serious matter of wasting public money to the tune of $150,000.
Attached as Exhibit Q are 2 letters by Council member Aaron Chung of September 3.
1997 with an attached proposed bill for a Charter amendment (your recent Comm No. 478 &
478.01) They were addressed to Ms Sharon Scheele, Chair of the police commission, and
Chief Carvalho, but were filed and came to nothing! In the draft bill Chung proposed that
members of the police commission shall not engage in political support of candidates for any
office during elections and that the standard of the police must be raised to the highest stan-
dards, etc. Well Scheele is said to have been on Mayor Yamashiro's compaign staff and the
standard for police recruits has over the years roughly been an eight grade education plus 4
years of something else like experience as a prison guard or the like. It must be said that the
Chief has improved the recruiting requirements with lie-detector tests and psychological pro-
filing, but what about the old roughnecks that still linger? (see exhibits D and N)
Finally an illuminating article in the Hilo paper of 19 October 1997 about the situation
in the county police department. It shows that there is still a shortage of police. But if that is
so why are more than 50°~ of the arrests for bench warrants? (see daily newpaper statistics)
In Honolulu this is work for the sheriff's department. All it seems the Chief here has to do, is
refuse to deal with that issue and suddenly he will have more than enough police. The latter
article is attached as Exhibit R.
On 14 November we experienced the latest of the police commission's executive
sessions, -read kangaroo court events I urge the County Council not to alve in to this
stuuid idea of wills n111v orovldlna police with lea i ouneel If they really need counsel,
they can pay for themselves, like anybody else in that predicament, they make more money
than most or they can be protected by corporation counsel, or as a final resort be referred to
SHOPO, but not defended at public expense, unless the court wants to appoint an attorney
for them at $40 per hour, like other (only) poor people. We have lust heard a 'n from Mr
Abdul in the police commisakm lees Exhibit KI that "they aro human heinous as we are"
and they make mistakes Nlae ~ of us ff that is so then let's tr+s~ them like anybody
else instead of aivMa special treatmerrt. unlike all us "itnosrfsct" people
And as far as executive sessions are concerned the Council should tell the police
commission to read and heed the Attorney General's opinions 86-9, 86-5, 86-19 and 75-11.
h',:~rr it
Henry A. Ross ~ ~
P.O. Box 99, Kapaau, Hawaii, 96755; ~ ~
Temoorarv mailing address:
c/o 190 Keawe Street Suite 31, ru,^ I?!_ E r«~ iai~A'fJA
Hilo Hawaii, 96720
Phone 889-5587; CeII.Ph. 937-7739
Plaintiff pro se.
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
HENRY A. ROSS, )
Plaintiff, ) CIVIL N0. 97-452 (Hilo)
vs. ) (Assault an battery)
COUNTY OF HAWAII; STEPHEN K )
YAMASHIRO; WAYNE G. CARVALHO; )
STEVEN S. CLARK JOSEPH T. IALLY;) AMENDED COMPLAINT;
HENRY W. HICKMAN; J. KEALOHA; ) AMENDED SUMMONS
ALAN M. KIMURA; )
JAY KIMURA; WILLIAM SMITH; JANET )
GARCIA; DOE LEGAL ENTITIES 1 - 25 )
Defendants )
j~M~I~~E,1 COMPLAINT
COMES NOW, HENRY A. ROSS, as Plaintiff pro se and for causes of action
against the Defendants above named alleges and avers as follows:
JURISDICTION AND VENUE
1. All actions herein described and averred happened in this judicial circuit and
this Court has jurisdiction pursuant to Section 603-21.5 Hawaii Revised Statutes (HRS).
Venue also lies in this judicial circuit, where Plaintiff and ali Defendants reside or have
their principal place of business, pursuant to HRS 603-36(5).
P TI
2. Plaintiff above named (hereafter "Ross" or "Plaintiff) is and was at alt times
relevant herein, a resident of North Kohala, County and State of Hawaii.
1 i.. X~/0~~~
3. Defendant County of Hawaii is a political subdivision of the State of Hawaii, It
is a body politic, with ilis own charter and ordinances; its main business offices are loca-
ted in Hilo Hawaii, where the main police station and prosecutor's office are also located.
4. Defendant Stephen K. Yamashiro was and is at all times relevant herein the
duly elected Mayor of the County of Hawaii. He is sued herein as an individual and in his
official capacity as Mayor of the County of Hawaii.
5. Defendant ~?Vayne G. Carvalho was and is at all times relevant herein Chief of
Police of the County oi` Hawaii. He was appointed by the County Police Commission. He
is sued herein as an individual and in his official capacity as Chief of Police.
6. The above named defendants Henry W. Hickman, J. Kealoha, Steven S. Clark,
Alan M. Kimura and Joseph T. Lally are all members of the Hawaii County police force
as "sworn individuals" and were on 14 September 1995 when the events complained of
herein started employed as such in the Kamuela, Honokaa or North and South Hilo
police stations. They are sued herein as individuals and in their official capacities as
members of the county police force.
7. Defendant Jay Kimura was and is during all times relevant herein the elected
County of Hawaii Prosecuting Attorney. He is sued herein as an individual and in his
official capacity as Prosecuting Attorney.
8. Defendants William Smith and Janet Garcia are deputy county prosecutors
who are employed by Defendant Jay Kimura at his pleasure. They are sued as individu-
als and in their official capacities as deputy prosecutors. They were stationed in the Hilo
office while Garcia also had a satellite office in Kamuela at the relevant time herein.
9. The true names and capacities, whether individual, corporate, associate or
otherwise of the above captioned "DOE" Defendants are at this time unknown to Plaintiff,
who therefore sues said defendants, for amounts due under the claims, by these ficti-
tious names and will ask leave of court to amend this complaint and substitute the true
names and capacities when same become known. Due and.diligent search was done by
Plaintiff to ascertain the names and identities and parts thereof of these unnamed defen-
dants including the examination of reports, documents and records, as they pertain to
the alleged actions complained of herein.
GENERAL ALLEGATIONS AND CONSTRUCTION OF AMENDED COMPLAINT
10. Until it will appear by discovery or during trial that such is not the case, the
individual defendants, above named, are alleged to have been acting within the course
and/or scope of their employment at all times relevant herein. They were also acting
under the color of their elected, appointed, assigned or otherwise acquired authorities
and under the color of federal, state and county law, as well as applicable rules of
procedure, including the "General Orders" of the Hawaii County Police Department.
These orders are simply rules of procedure of the Hawaii County Police Department
adopted and/or authored by the chief of police.
11. The known defendants, and each of them, singly or jointly, were in some
manner, presently not fully known to Plaintiff, engaged in the activities alleged herein
and were in some manner responsible or liable to Plaintiff for actions and violations of
law and rules alleged herein, whether in their individual capacities or as agents, servants
or employees of other defendants herein, whether privately, or in their mentioned capaci-
ties, including "respondeat superior" responsibilities.
12. These paragraphs 1 through 12 are included by reference in and made part
of this Amended Complaint, as well as every document that follows hereafter. And every
count or paragraph by and of itself shall be deemed to be part of every other count or
paragraph of this Amended Complaint which is meant to be a fully integrated complaint.
Its division in counts and paragraphs is only to facilitate legibility, comprehension and
referencing of the averred activities, non-actions where actions were clearly indicated,
and/or violations of law or rules and oath of office, as well as the Constitutions of the
United States and the State of Hawaii and the Hawaii County Charter, herein alleged.
INTRODUCTION OF FACTS LEADING UP TO ALLEGATIONS
13. On 14 September 1995 Plaintiff Ross, on the way from his home in Kapaau
to Hilo where he needed to do research in the Law Library for anext-day hearing in Hilo
Circuit Court (for an unrelated case) stopped off at the KTA supermarket in Kamuela at
8:15AM, to buy some coughdrops to facilitate his speaking in court. He often bought
coughdrops in that store. Finding that the coughdrops were on sale he took some to a
female cashier, later known to him as Beau Schutte. That was a few minutes later,
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14. A dispute arose about the price ($1.23 as indicated on the coughdrop rack
and $1.69 on the computerized scanner) which led to an unnecessary loss of time at the
customer service office and Ross (then age 73) asked Schulte (age 22) to hurry it up.
Schutte (much heavier than Plaintiff) was uncivil and became more enraged for having to
wait at the customer service office while her supervisor inside remained on the phone for
a long time. She yelled twice that she was going to hit Ross, raised her right arm and did
hit Ross, who In self defense moved his left arm to his face to fend the blow at his head
off. But when her arm went up again he tried to hold her arm for a moment to prevent yet
another blow. There were no witnesses. It happened at 8:35AM, 20 minutes later.
15. The female supervisor/customer-service-clerk, Merlyn Botelho, in front of
whose office the altercation occurred, while she was on the phone, finally came outside,
sent the cashier to an office upstairs to cool off, and rang up the coughdrops for Ross, at
the indicated sales price. Ross paid with a credit card and also gave her his name,
address and phone number in exchange for the cashier's name, so he could complain to
the management later. Then he left the store at about 8:40AM.
16. Another female clerk in the upstairs office, Patricia Schwarz, made a 911 call
from the upstairs office and on behalf of the Schutte lodged a false complaint, at about
8:46AM, stating that Ross had attacked the cashier. For further details see Civil No. 97-
264 in this Court.
COUNT 1 -INCOMPETENT AND UNWARRANTED START OF POLICE ACTION
17. At 8:55AM on 9/14/95 Defendant Steven S. Clark, a policeman on duty at the
Kamuela Police Station was assigned by "Central Dispatch" to a reported "domestic"
at the Kamuela KTA store and arrived at the store at 9:OOAM, as stated by him in police
report E-76105.
18. He spoke to supervisor Merlyn Botelho (item 15 supra) for 2 minutes, who
had NOT seen Ross hit Schutte in front of her glass office-window and then for a couple
of minutes spoke to cashier Beau Schulte. He did not report seeing any blood or bruises,
or other signs of violence and Schutte refused medical attention. He did not record any
conversations on tape, although the Kamuela police station has tape recorders. He also
4
did not talk to any others in the store at that point, but "determined" while speaking to
Schutte "that a crime had occurred". At 9:05AM Clark put out an APB (All Points Bulletin)
to have Plaintiff arrested immediately, instead of first obtaining an arrest warrant, which
no judge would have signed on such scant information (a judge was sitting in Honokaa).
19. Clark had no probable cause for ordering Plaintiffs immediate arrest.
as he did, and thus violated his oath of office: Section 803-1. 5. and 6 of the Hawaii
Revised Statutes IHRSI: County of Hawaii Police General Orders IGOI 606x1. III.
VIII, X and XI: GO 300A-IV: the Hawaii Constitution Art. 1 Section 5. 6 and 7 and cor-
respondina articles of the U.S. Constitution: Section 1983 of Chapter 42 of the Uni-
ted States Code IUSC) and Rule 8 of the Hawaii Rules of Penal Procedure (HRPPI.
COUNT 2 - SADISTIC AND ILLEGAL SHOW OF FORCE AND ARREST
20. At about 9:10AM Plaintiff s car was spotted by Defendants Alan M. Kimura,
a policeman from the Honokaa station and Joseph T. Lally (station unknown), He was
stopped at Kaohe appr. 25 miles east of Kamuela and surrounded by five police cars.
NONE OF THEM ANNOUNCED THAT THEY WERE OFFICERS OF THE LAW. OR
SHOWED A WARRANT OR INFORMED PLAINTIFF WHY HE WAS STOPPED. At a
loss what could possibly be wrong, Ross opened his left window and asked Defendant
Joseph T. Lally (Lally) "What is the probable cause?" because he had not violated any
traffic laws. There was no answer. He was then asked if he was Henry Ross, he said
"yes". Lally then commanded him to give his driver's license which he did, and was told
to get out of his car. He did not do that but instead asked for Lally's name and again
what the probable cause was for stopping him, as without probable cause people could
not be commanded out of their car. Policeman Alan M. Kimura (Kimura) then said: "We
had a call from an officer in Kamuela", probably meaning the APB of item 18 supra.
21. Ross was not told that he was under arrest for for whatl. Kimura opened
the car door and Dulled Ross. who is very visibly an old man. forcefully out of the
car and immediately nut a handcuff on one wrist while Lally very rudely and pain-
fully put his other wrist in the cuff and then kicked his leas apart with his boots.
Then from behind Lally stuck his hands in Ross' front Want pockets. Dulled out
keys and a roll of guarters and then out his hands in Ross' pockets again and
began sgeezing his penis and feelina his testicles after which he squeezed Ross'
testicles from behind through his pants which was extremely painful and stuck a
finger in his anus which because of hemorrhoids was excruciatingly painful) Then
Kimura, who had been standing there watching this all that time started the same
treatment. feelina with his hands from behind through Ross' front pockets rubbing
Roas' penis and feeling his testicles. then feelina up into his crotch from behind
through his pants. ALL OF THIS WHILE ROSS WAS STANDING UP HANDCUFFED
BEHIND HIS BACK. This was not patting down or frisking for concealed weapons
THIS WAS PERVERTED HOMOSEXUAL RAPE OF A 73 YEAR OLD DISABLED AND
HELPLESS MAN IN SHACKLES. WITHOUT A RECORD. BY POLICEMEN WHO ARE
OBVIOUSLY TOTALLY OUT OF CONTROL. A SADISTIC POWER-PLAY BY POLICE
WHO BY LAW MUST PROTECT THE PUBLIC and may never exert unnecessary
force. Plaintiff mentioned thev had to accomodate him under the Americans with
Disabilities Act (ADA) but it was obvious thev had never heard of that
Immediately when Lally and Kimura arrested him he asked to be taken before a judge,
which could easily have been done because on that morning Judge Chillingworth was
holding court in Honokaa and passed on the way to Kamuela. This was totally ignored.
22. After having been arrested by Lally and Kimura (without an arrest warrant or
probable cause Ross complained repeatedly that the handcuffs were too tight and
hurting, making his hands numb. Lally "checked" and then sadistically tightened the left
cuff one more ratchet, making it bite more into the skin. An open cut and bruises on
Ross' wrists were diagnosed by a physician later that same day.
After all this brutality Ross cowered because he became afraid that he might otherwise
get the "Rodney King" treatment. After all there were no witnesses, no cameras, only 5
policemen, two of whom were visibly angry and irritated to where they might be eager to
rough him up even more. He decided to suffer through it with the least further trauma.
23. Lally and Kimura had no probable cause for arresting Plaintiff without
a warrant or on information. nor for exerting unnecessary force and certainly not
for tormenting him under the guise of a bodv search. nor for doing it twice one
6
after the other in each other's presence as thev did. neither for not declaring the
arrest with reasons or charge and not orouerly identifvino themselves• and thus
violated their oath of office: Sections 803-1. 5. and 6 HRS. GO 606-II. III V VI VII
IX. X. XI: the Hawaii Constitution Art. 1 Section 5.6 and 7 and corresoondina
articles of the U.S. Constitution: Section 1983 of Chanter 42 of the United States
Code (USC1. Lally and Kimura further also violated GO 300-N. V. VI. VII and VIII GO
603-II. III. V and VI. GO 605-III. IV. V. VI. VII and VIII. GO 804-III and N: GO 300A-IV•
and thev also violated HRS 707-710 and/or 707-711and/or 707-712.707-713 and/or
707-714.707-721and/or 707-722. 707-732 and/or 70733: and finally Kimura
violated GO 802-III.
COUNT 3. BEASTLY TRANSPORTATION BACK TO KAMUELA
24. Ross was then pushed and shoved into the front passenger seat of a mini-
compact (that does not qualify for use by police) on top of a lot rubbish lying on the seat,
hard and protruding metal things that he could not see (a clipboard etc.), with handcuffs
behind his back while having severe osteo-arthritis in all joints, worst in the knees, bursi-
tis and tendonitis in all extremities so bad that he cannot even shake hands, a dislocated
fused disk in his back and two such disks in his neck, which limit his normal motions.
The front seat of Kimura's mini-car was all the way upfront because of his short legs.
Ross asked to push it backward because even without being shackled he could not have
sat there. It was refused so his head kept bouncing against the driver's headrest with the
car in motion, his feet were tight against the door while his shins were being severely
bruised against the glove compartment and his left shoulder was jerked against the back
of the seat, pulling through the handcuffs on his right shoulder. Then a seatbelt was
strung over him and tightened, that would have lead to certain death in case of any acci-
dent with handcuffed hands behind his back. This was reckless endangering, because,
aside from the immediate pain suffered, in case of any accident Ross would have been
unable to free himself from the wrecked or burning car. It was also reckless driving.
Upon a second feeble complaint about that transportation Kimura asked Plaintiff angrily
what he at the time, dazed as he was, understood as: "would you rather have a `black
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and blue'?", meaning too him: to be beaten up. Ross, who does not watch police shows
on TV is not familiar wiith police lingo, and heard later that it probably meant an official
police car: a "white and blue" with a screen behind the front seat. So he endured.
25. At the South Kohala district line Ross was was transferred to a car from
Kamuela, driven by Defendant J. Kealoha, and he was pulled out of his hog-tied position
in Kimura's car and immediately stuffed into Kealoha's car and tied again with a seat belt
over him, lying diagonally over the seat and on all kind of junk that police keep on their
front seat. Only a big radar speed monitor was moved from the seat to the floor below.
The rest stayed in a pile on the seat. His hands and arms were completely blue, numb,
and the wounds cut by the cuffs were hurting, as was the rest of his body. It then took
about ten minutes of bantering between the police outside before the trip was continued.
Though Kealoha's car was a little bigger this constituted again a series of violations of
state law, constitutional rights and police G0, especially the needless waiting.
26. By transaortin9 a arisoner in the above described manner Kimura and
Kealoha violated their oath of office: Sections 803-1. 5. and 6 HRS and 291-2 HRS:
GO 806-i1. III. V. Vi. VII. IX. X. XI: the Hawaii Constitution Art. 1 Section 5. 8 and 7
and corresoondins~ articles of the U.S. Constitution: Section 1983 of Chanter 42 of
the United States Code (USCI. Kimura and Kealoha further also violated GO 300-IV.
V. VI. VII and VIII: GO 603-11.111. V and VI: GO 605-III. IV. V. VI. VII and VIII: GO 804-III
and IV: GO 528-11 and III: GO 802-III: GO 300A-IV: and thev also violated HRS 707-
710 and/or 707-711and/or 707-712. 707-713 and/or 707-714: 707-721and/or 707-722.
COUNT 4 - "PROCESSING" IN THE KAMUELA POLICE STATION
27. In Kamuela Ross was put in a dirty stinking holding cell with excrement
floating in the toilet bowl, a dirty cot and 2-inch cockroaches crawling around, after he
was again searched by Kealoha and Clark, this time without fondling of genitals; some
loose change and his wallet were taken from his pockets and thrown on the very dirty
floor in front of the cell. When the cuffs were removed he showed his hands that were
blue, swollen, cut and bruised. It was about 10:OOAM. Ross asked again to be taken
before a judge before being put in a cell. It was again ignored. So far nobody had read
8
Ross his Miranda rights, but Kealoha nevertheless asked questions, like whether he
used illegal drugs and how often, etc., this under the guise of a health screening form
that Kealoha signed at 10:20AM. After about a half hour in the cell standing in one loca-
tion so as not to have to touch the filth and leaning against the wall, Clark came to get
him and Ross asked what he was charged with. No answer. He asked who complained
about him. No answer.. Clark started to fill out forms, asked his name, address a.s.o. and
he had to sign some forms. WHEN, BEFORE 11:OOAM, PLAINTIFF REFUSED TO SIGN
A FORM THAT HIS RIGHTS HAD BEEN READ TO HIM, WHICH WAS NOT THE CASE,
HE WAS THREATENED BY CLARK WITH BEING PUT BACK INTO THE CELL. So he
finally sinned UNDER DURESS, after which Clark signed the top of the form without
any reading of rights at 11:OOAM. Clark and the others would have gotten high grades in
the earstwhile German Gestapo (secret nazi police) that also employed such methods.
28. Ross was asked by Clark to give a statement without being told what
the chagoe was. CLARK HIMSELF DID NOT KNOW WHAT THE CHARGE WAS FOR
WHICH HE HAD PLAINTIFF ARRESTED, UNTIL DEFENDANT HICKMAN, WHO WAS
STATION COMMANDER HAD TALKED TO DEFENDANT WILLIAM SMITH, A DEPUTY
PROSECUTOR IN HIL.O OVER THE PHONE. But Clark had vet known within 3 minutes
of listening to Schutte's premeditated show with drv tears that A CRIME HAD BEEN
COMMITTED (see item 18 supra). So much for the expertise of policeman Clark. In a
triple hearsay discussion Smith who had seen nothing determined at 10:35AM that Ross
could be charged for "Assault III" and "Disorderly Conduct", which Hickman conveyed to
Clark and this was obviously the reason Ross had to spend a half hour in the filthy cell.
29. Peculiarly Deputy Prosecutor Defendant Janet Garcia, who 6 weeks later
arraigned Ross in Kamuela District Court found these FANTASY charges untenable and
changed them into "Harassment", equally fantastic, as could have been established by
an investigator of the Prosecuting Attorney's office. But obviously the "system" had to
save face and do something to cover up its blunders. It is clear that Ross (and the gene-
ral public) are exposed to the incompetence and dilettantism of some of their local inept
police, who by law and oath are obliged to know and apply the law and protect them, but
scandalously HAVE THE POWER TO HAVE PEOPLE ARRESTED WITHOUT AWAR-
9
RANT OR VISIBLE SIGNS OF ANY CRIME HAVING TAKEN PLACE. Clark after all this
still did not understand the real charge because he filled out a notice for Ross to appear
in court on a charge of "assault" without indicatino the deflree. one. two or three. This
was areiudicial for Ross who then wasted 5 weeks oreoarino for a felony charge.
30. Ross was then "processed": mugshots, finger and handprints. Clark could not
even put the proper date on these documents. Back to his desk. A man in vacation dress
appeared, announcing that he was Hickman who started to ask questions, also without
reading of rights. Ross told him he wanted to have a phonecall with the Chief (Carvalho)
or his deputy. Hickman refused. He talked a lot of nonsense. He told Ross there was a
complaint from KTA of Ross attacking an employee. Ross stated whatever did happen
there was in self defense. All refused to say who filed the complaint because Ross might
go after that person. None of this was recorded although the station has tape recorders
for the purpose, but of course that would expose their blundering, so they are not used.
31. Then Clark had typed out some small forms that he wanted Ross to sign.
They were improperly filled out, undated notices to appear in court. By then it seemed
clear that they had nothing to hold him on and Ross refused to sign these forms, Clark
again threatened with lockins~ him uo but Ross told him to ask Defendant Kealoha in
the next room, who said it was not necessary. The notices showed charges of disorderly
conduct without indicakion of location or circumstances and assault without a degree.
Ross had asked to be taken back to his car which was refused. He then wanted to talk to
the Chief or his deputy. A while later however he was called to Hickman's office who had
talked to Deputy Chief Correa and they would take him back to his car "as a courtesy".
All the while he was in great pain especially because his back, neck, shoulders and
knees had been twisted during the hog-tied illegal transportation to Kamuela, that would
rank as cruelty to animals if it had been done to a dog. More suffering to come, see infra.
32. By treating a prisoner in the above described manner in the Kamuela po-
lice station. Clark. Kealoha and Hickman violated their oath of office: Sections 803-
1. 5. and 6 HRS: GO 606-II. III. V. Vi. VII. VIII. IX. X. XI and XN: the Hawaii Constitu-
tion Art. I Section 5, 6 and 7 and corresoondinfl articles of the U.S. Constitution:
Section 1983 of Chanter 42 of the United States Code (USCI. They also violated GO
70
300-iV, V. VI, and VII; GO 300A-IV: GO 605-III. IV. V, V1. VII and VIII. and HRS 707-710
and/or 707-711and/or 707-712, 707-713 and/or 707-714: 707-721and/or 722. Clark
further violated env statute or rules that prohibit obtaining signatures from priso-
ners under duress. as he did twice. Plaintiff presently cannot name specifics but
will do so later. except that his intimidation and threats violated Plaintiff s civil
rights and due process rights as laid down in the Constitutions of Hawaii and the
United States. it was a criminal act. Hickman is responsible for his own participa-
tion in the above violations as well as for those of the policemen in his command.
Cleric and Kealoha. under the doctrine of respondeat superior and GO 302x1.
Hickman is also solely responsible for the filthy detention cell in his police station
and thus violated GO 301-11.-C.~. and 301-1.
COUNT 5. - RESPONDEAT SUPERIOR OF CHIEF OF POLICE AND MAYOR
33. UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR DEFENDANT
CHIEF OF POLICE CARVALHO IS CO-RESPONSIBLE FOR ALL THE ABOVE, EVEN
IF HE WAS NOT PERSONALLY INVOLVED. He writes and/or maintains the "General
Orders", which are mainly about proper procedures and discipline of his troops. In many
cases their education and training was and still is insufficient, discipline and supervision
are lacking or insufficient, many policemen like Lally, Kimura, Kealoha, Clark and Hick-
man have scant or no knowledge of state laws, let alone current Hawaii Supreme Court
decisions (case law), or if they do know, violate them, not by accident but because there
exists a kind of cowboy mentality among many who feel that they have to rule the public
instead of to protect it, they feel powerful because of their guns; and there is insufficient
enforcement of the General Orders.
34. An unofficial and misdirected "buddy" system, where police cover up each
other's mistakes and bend laws and rules, combined with the "kill haole" mentality that is
manifest on the BIG ISLAND detracts many policemen from their real duties -misplaced
hostility is rife. Haole policemen like Lally and Clark want to be accepted by the "local"
police as "buddies" and obviously try to do this by being more vigorous and hostile with
the haole public than others. Lally who knew that Kimura would be transporting Ross to
f~
Kamuela need not have done apat-down or body search as it turned out, but apart from
other motives, he obviously was showing off how brutal he could be with another haole.
35. Although the last two recruit classes have been psychologically profiled, all
policemen in this case were never examined for suitability to their jobs or hidden perso-
nality problems, as is done on Oahu and Maui. And there is definitely something wrong
with the police force as long as people like Plaintiff without a criminal record (and too old
even to have committed the indicated crime) can be and are brutalized without probable
cause and picked up from the street without due process of law and in violation of the
GO, the laws and Constitution, on the whim and false accusations (without witnesses or
any visible signs of violence) of immature grocery store clerks, whose personnel records
show severe shortcomings in dealing with customers and who lack store dicipline to an
extent that their defiance of management's admonitions then subsequently leads to their
firing, as happened in Schutte's case: fired later for ongoing insubordination by KTA.
36. Chief Carvalho and the County of Hawaii are responsible for all violations of
law by their employees as shown supra, under the doctrine of Respondeat Superior. And
the Mayor of the Country is equally responsable in a respondeat superior capacity, as he
is, pursuant to the Hawaii County Charter, the administrative head of the police and has
manipulated the police budget in a way that insufficient money is available for adequate
supervision, training, psychological profiling and testing for suitability of all individuals.
37. DEFENDANTS STEPHEN K. YAMASHIRO AND WAYNE G. CARVALHO.
RESPECTIVELY AS MAYOR AND CHIEF OF POLICE OF THE COUNTY OF HAWAII.
AND THE COUNTY OF HAWAII ITSELF are therefore liable for all violations. that
are cited above in items 18.23.26 and 32, as oer~etrated by their em~lovees.
COUNT 6 -CONTINUED MANIPULATION OF FACTS AND TESTIMONIES
38. After Ross had been taken back to his car at about noon, Clark went back
to KTA, where the store manager who had been absent when Schulte attacked Ross that
morning had already had meetings with KTA personnel to all speak the same language
to the police when investigated, a kind of indoctrination that is usually done under such
circumstances and amounts to conspiracy. And Clark obviously felt that he must make
f2
good on the disorderly conduct charge, so it was stressed in the testimony of the other
store personnel that Ross had been yelling all the time when in effect the yelling came
from the irate cashier who had attacked Ross. This dumb scenario did not work because
Defendant Garcia, the deputy prosecutor dropped that charge in the first district court
hearing in Kamuela for "harassment", see infra. KTA employs a security guard part-time
from Wackenhut in Kona. There was no guard in the store during the altercation, which
makes KTA liable for ALL that happened as supported by case law.
39. Although tape recorders are available in the Kamuela police station, Clark
has stated that he never uses them. This is convenient if statements of suspects and
witnesses can be molded at will and non-reading of rights by police can be denied. As
already mentioned supra collusion among police and between police and prosecutors is
rampant. This abuse of power in unconstitutional, especially when writing material of
arrestees is impounded under the guise of it possibly being a dangerous weapon. GO
should therefore mandate the use of tape recorders where available, as some caselaw
does. Why else were they bought in the first place with public money?
40. The county police erases 911 tapes after two months, except when ordered
to copy them first. Plaintiff timely requested Chief Carvalho, Defendant Jay Kimura and
Defendant Janet Garcia to preserve all tapes relevant to this case and many other items.
The tapes disappeared and no copies were made of the all-important 911 APB by Clark
and further conversations among the police Defendants that would show their criminal
violations herein averred. Nobody did anything to save this useful documentation as they
were legally obligated, whether intentionally or by neglect an possibly conspiratorially.
41. All Defendants, whether Individually or by conspiracy. either pereonally
or by respondeat superior. violated Plaintiff
s right to due process by Iving: by not
speaking when required: for illegal assumptions: misconatruing or omitting facts
or witnesses: suggestive interrogatlona of witnesses: false or distorted reports:
failure to fully investigate: pumoseful. reckless or negligent destruction of govem-
ment records containing exculpatory information for Plaintiff. They are liable there-
for under the Hawaii Constitution Art. I Sections 5.6 and 7 and corresponding arti-
cles of the U.S. Constitution: USC 42 sections 1983 and 1985 and 18 USC 241. and
13
further all ac~licable state and counri laws and rules of practice and procedure.
COUNT 7 - OTHER ILLEGALITIES BY THE PROSECUTORS
42. When documentation was requested by Plaintiff, the police hid behind the
prosecutor and vice versa. The agreement with Garcia about exchanging discovery
material was never followed, and stopped almost totally when Defendant Jay Kimura at
the request of Plaintiff disqualified his whole office from the case and then instead of
stepping back and sending the criminal case files to the Attorney General, as his legal
superior, for disposition, illegally turned those files over to the Honolulu prosecutor for
further prosecution in Hawaii County, without authorization, while that prosecutor has no
jurisdiction here. This vas a violation of state law, backed up by case law and of county
law, to the detriment of Plaintiff, who was plagued by deadlines for pre-trial motions and
even had to postpone two shoulder operations to repair torn ligaments, caused by being
hog-tied during transportation by the county police as per Count 2. above.
43. Garcia while handling the case initially further changed the original charges
of assault and disorderly conduct, that had been determined over the phone by deputy
prosecutor Defendant NVilliam Smith with Hickman (see item 28 supra) in a way that was
legally totally unacceptable, to harassment, which again caused much grief to Plaintiff.
44. On 6 Deceimber 1995, almost 3 months after Ross' arrest, Garcia announced
the disqualification of the Prosecuting Attomey and his staff, but refused to give a reason
which was condoned by district court. It was only after filing for a writ of Quo Warranto in
this Court many months later that the reason was given, namely to avoid the appearance
of impropriety. This reflected back to a case (92-380) where this Court (Judge Kubota)
had enjoined the Prosecuting Attorney from prosecuting Plaintiff in a matter that involved
police brutality, which is still unresolved, and/or another civil case in this Court (Judge
Nakamura) 95-390, where Plaintiff tried to have the County Prosecuting Attorney fulfill
his ministerial duties under HRS 92. The latter one was and still is pending in appeal to
the Supreme Court (No.19389) before the KTA arrest took place. This of course means
that the disqualification of Defendant Jay Kimura and his staff must be held to be retro-
active and neither Smith nor Garcia should ever have appeared as prosecutors in the
tl-
criminal KTA case in district court, and everything they did must be held null and void.
Thus there was a false arraignment of Plaintiff in district court, which was not repaired,
Plaintiff was (figuratively) pushed around in district court as a commom criminal in a
matter where the prosecutor had not even gone to the trouble of having her own investi-
gators check the illegal procedures of the county police. Unfortunately that criminal case
is now pending in the Supreme Court, while Ross through neglect of the Prosecuting At-
torney and his deputies, has had to endure two years of unending court procedures.
45. The actions of Defendants Jav Kimura. Smith and Garcia as above
described whether done singly. in concert or in consoiracv with other Defendants
violated Ross' constitutional rights as laid down in the Hawaii Constitution Art. I
Sections 5. 6 and 7 and corresaondin9 articles of the U.S. Constitution: USC 42
sections 1983 and 1985 and 18 USC 241: and HRS 27-2.5 d~ 27-8 as suooorted by
caselaw and also HRS 91 for not having oromuloated valid Rules of Procedure for
their Counri Department. and further all an~licable state and counri laws.
COUNT 8 - HARM. SUFFERING AND MONETARY LOSS OF PLAINTIFF
46. The problem of being stoic is that one suffers later. The brutal torture of these
policemen, Defendants Lally, Kimura, Kealoha, Clark and Hickman has set Ross back
many years of living carefully with his earlier disabilities, mainly arthritis in all his joints.
Physically he must take increased pain- and other medications that would otherwise
have been minimal. But he has had to endure operations and infections and a number of
strokes to try and restore some of the damage caused by the illegal inhumane arrest and
transportation to Kamuela that nobody would do to a dog. Mentally it has left scars that
are incurable. Ross went to see Dr Linden in Hilo the very day of the arrest. The diagno-
sis was post traumatic stress disorder (PTSD). The doctor took notice of the scrapes and
bruises suffered and predicted that Ross would suffer sleepless nights which has indeed
been the case to this day. Plaintiff cannot sleep without sedation and has constant night-
mares going back to the arrest and the unending criminal prosecution that followed.
47. ALL THE VIOLATIONS OF LAW AND RULES ABOVE DESCRIBED LED
TO ENDLESS COURT PROCEDURES THAT CAUSED PLAINTIFF MUCH HARM AND
a5
RIEF as follows: In Clctober 1995 he suffered a TIA (minor incapacitating stroke) As he
found out much later this was caused by the caving in and dislocation of the bottom 3
cervical vertebrae, caused by the hog-tie transport of the police, see item 24-25 supra,
(his prior neck problems, caused by a car accident to his top two cervical vertebrae,
remained unchanged). After this he suffered many more ministrokes, because the neck
arteries run through the vertebrae and are pinched when fuming his head, thus cutting
off blood flow to the cerebellum in thr brain and resulting in an overall fuzzy feeling, loss
of equilibrium, loss of memory and in extreme circumstances temporary total or partial
loss of consciousness and falling flat to the floor. Neuro-surgeons have over a period of
many months (and ongoing) performed many tests, and are considering if operations to
the caved-in neck vertabrae, that are extremely dangerous to perform, are a worthwhile
risk for relief and improvement, but might also lead to death. At night Plaintiff must wear
a neck collar to immobilize his head. This was a direct result of above police actions.
48. The illeslal actions of the Defendants durinsl arrest and tranauortatfon of
Plaintiff as described above also led to a very serious recurrence and aoaravation
of his back and neck iniuries and sciatic nerve uroblems of old accidents. that he
had been able to adaut to by livins~ very carefully.
49. Ross' shoulders, which had given him problems before due to bursitis, tendi-
nitis and osteo arthritis, became much worse and more painful from the barbaric police
treatment described supra in Counts 1 to 3, causing the caving in of his lower cervical
vertebrae so that he had to be operated over a period of a year for complete tears in his
rotator cusp supra spinatus tendons which were repaired with metal pins drilled into the
bone through 4-inch incisions on his shoulders, that were unfortunately followed by post-
operative infections which repeatedly required a number of very heavy double dose anti-
biotic treatments that in tum upset other body systems.
50. Ross suffered many months through very high doses of pain killing morphine
type drugs that he must take in lower doses to this day along with sleep medications that
cause long periods of sedation. lie suffered through endless series of physio-therapy
sessions that he should still pursue to regain strength in his arms, but simply had to give
up, because of overall weakness and the pressure of constant court appearances and
~6
preparations. ALL THIS WAS DIRECTLY CAUSED BY THE ABOVE ILLEGAL AND
RECKLESS ACTIONS OF THE DEFENDANTS. WITHOUT ANY PROBABLE CAUSE
51. During most of the last two years Ross has also suffered from stomach pro-
blems that did not exist prior. Ultimately this has led to bleeding stomach ulcerations for
which he is still being treated by gastro-enterologists with antibiotics and diets that are
even more restrictive than his usual diet, causing weight loss and much grief, because it
is irreversible. This is the same affliction that Governor Cayetano is suffering from, it is
caused by too much stress that the body cannot cope with. to Ross' case at age 75. the
never ceasing prosecution and related litigation. that was caused by the illegal and
reckless actions of some and negligent actions of the other police Defendants did
unnecessarily cause permanent stomach damage with daily pain and suffering.
The criminal case is presently in appeal to the Hawaii Supreme Court and the case file
is appr. 10 inches. It will take years to get resolved because of ancillary legal problems.
52. The condition that Ross finds himself in, and that was directly caused by
the reckless illegal actions complained of supra, has totally destroyed his ongoing
plans to build a number of houses on the land at his domicile that when completed would
give him the income that he now cannot attain, to the extent that even the first house has
not been completed and may not be completed ever. He has now no money left.
53. The constant medications that Ross may have to use indefinitely are mostly
sedatives, that on this island, without public transportation, have made it impossible for
him to travel between his domicile and Hilo unless he is driven by somebody else. So for
continuous court actions in Hilo, as there have been for years now, he must stay in Hilo
at an extravagant and under normal conditions unnecessary cost, that has rendered him
broke and this was caused by the negligent actions of all Defendants.
54. It was the duty of all Defendants herein, but especially of the County police
to protect Ross as the Naw requires as prime reason for the existence of the police, pur-
suant to HRS 52D and the County Charter. Whenever a complaint comes in, police must
tread carefully and not like a bunch of cowboys hunting down run-away cattle. Ross has
a clean criminal record and should not be treated worse than a criminal. lust because the
Defendants do not like him, or because they think that the war on drugs makes every-
17
body fair game, as is hiappening at an increasing rate, judging from the newspapers. The
General Orders are saecific that no excessive force may be used and treating a 73 year
old, physically limited, man as they did in defiance of these General Orders, the law and
other applicable rules, making Ross fair game for their sadistic inclinations is an outrage
of illegality and misconduct, that has caused and will further indefinitely cause Plaintiff
great suffering and medical expense that he cannot afford. His life has been ruined.
55. The Defendants failed to protect Plaintiff as law and rules require
instead of attacking him and therefore they are jointly and severally responsible
for failing to do so. They have wantonly violated Ross' constitutional rights.
especially those of due process and the right to liberty and ha~ainess.
56. The resultant injuries to Plaintiff, the aggravation of his physical disabilities
and his inability to lead a normal life hereafter, were caused purposefully, recklessly, and
in part negligently and by the carelessness of all Defendants, singly or jointly. So is the
deprivation of his enjoyment of life in the country and loss of consort, in North Kohala,
with its quiet atmosphere that he deserves at his advanced age of 75. It has also caused
lonalasting and unnecessary suffering, areal Dhvsical harm that cannot be overcome.
severe and permanent mental anguish and suffering and intolerable financial distress in
the form of very expensive medications that Ross cannot afford and the above indicated
lack of providing for a reasonable income because of increasing age and physical dis-
abilities caused by the Defendants. The medical costs by itself will exceed 5150.000 .
57. The material cost of building materials that are rotting away, an unfinished
house that is subject to the ruinous forces of nature and restauration of extensive land-
scaping and orchard Ross created, which is now overgrown and changed into a wilder-
ness, worse than where the land was undeveloped, also exceeds a sum of 5150.000.
58. It also causes great and permanent mental anguish to have to live in
constant fear of ever being arrested again, which with rogues that the Hawaii County
police seems to have in plentiful supply is not imaginary, while again being handcuffed
on the back as required by the GO would result in the loss of use of both his arms,
because the operations cannot be repeated, and of course no price can be set on that,
no money will ever suffice to compensate for such a loss and its dire consequenses,
~g
caused by the above described illegal and despiccable actions of Defendants herein..
COUNT 9 - CONCISE RECAPITULATION OF DAMAGES
59. Ross now suffers mental torment and anguish, physical pains and lack
of sufficient income. poverty and lack of eniovment of Ilfe, inescapable endless
degrading court sessions. shortening of his life lacking the necessary medical
treatment at age 75, extensive property damage resulting in future lack of income.
caused directly by the recklessness. negligence, carelessness and aaressive
illegal and irresponsible behavior and actions or the lack of required action. of the
above named defendants. individually or in concert. Hence he comes to this Court
for relief as paved for.
PRAYER FOR RELIEF
WHEREFORE Plaintiff hereby demands judgment against all of the foregoing
Defendants, jointly and severally in an amount in excess of the minimum jurisdictional
requirements of this Court for the following:
A. Special damages in an amount to be shown at trial
B. General damages in an amount to be shown at trial
C. Property damages in an amount to be shown at trial
D. Damages for lost income to date and in the future.
E. Punitive damages as the law allows
F. Reasonable attorney's fees and costs, and pre judgment interest and costs.
G. Such further irelief as the Court may deem proper in the premises
Dated: H' o Hawaii, 28 September 1997
Henry A. Ros ,Plaintiff pro se
T9
i
STATE OF HAWAII CASE NUMBER
CIRCUIT COURT OF THE A~I~IWY~D SUMMONS
THIRD CIRCUIT TO ANSWER CIVIL COMPLAINT 97 - 4-Sz
PLAINTIFF vs. DEFENDANT COUNTY OF HAWAII;
WAYNE G. CARVALHO; STEVEN S.
CLARK; JOSEPH T. LALLY; HENRY W.
HENRY A. ROSS HICKMAN; J. KEALOHA; ALAN M.
KIMURA;
Plaintiff pro se JAY KIMURA; WILLIAM SMITH; JANET
GARCIA; DOE LEGAL ENTITIES 1 - 25
PLAINTIFFS ATTORNEY (NAME, ADDRESS, TEL NO.I
Henry A. Ross
P.O. Box 99, Kapaau, Hawaii, 96755;
Temoorarv maillna address:
Go 190 Keawe Street Suite 31,
Hilo Hawaii, 96720
Phone 889587; CeII.Ph. 937-7739
TO'I'I-LE DEFENDANT(S):
You ace hereby summoned and required to serve upon plaintiff's attorney, whose address is stated above, an answer to the
A Kdad complaint which is attached. This :ICtion must be taken within twenty days after service of this summons upon you, exclusive of
the day of service.
If you fail to make your answer within the twenty day time limit, judgment by default will be taken against you for the relief
demanded in the~complaint.
G, Gt tM¢ nd~i-
This summons shalt not be personally delivered between 10:00 p.m. and 6:00 a.m. on premises
not open to the public, unless a Judge of the District or Circuit Courts permits, in writing on }ham R ti d ~cj
-~?summona, petwoal ddlvery during those hours.
R~.ti? l1Ci Q[6
Failure to obey Uter~summons may result in an entry of default and default judgment against
the person summoned.
DATE ISSUED CLERK
31:'r ~ 1~>1 CIiWRLENE K OKAWp (SEJ1L)
I do heroby certify that this Ie a }ull, true, and correet copy CIRCUIT COURT CLERK
of the original on }lie In thle o}Hce.
SUMMONS TO ANSWER CNIL COMPWNT
3GE-133
RICHARD D. WURDEMAN 911
Corporation Counsel
JOSEPH K. KAMELAI\r1ELA 2493
Deputy Corporation Counsel
County of Hawaii
Hilo Lagoon Centre ~~2~~ / ,
101 Aupuni Street, Suite; 325 - ~ ~6+f-~/
Hilo, Hawaii 96720
Tel. No. 961-8251 a~ lj
Attorneys for Defendants County of Hawaii, ~ ~ (f •c
Mayor Stephen K. Yamashiro,
Jay Kimura, William Smith and Janet Garcia
CN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
HENRY A. ROSS, Civ. No. 97-452
(Assault And Battery)
Plaintiff..
DEFENDANTS COUNTY OF HAWAII,
v. STEPHEN K. YAMASHIRO, JAY
KIMIJRA, WILLIAM SMITH AND JANET
COUNTY OF HAWAI:[; STEPHEN K. GARCIA'S ANSWER TO AMENDED
YAMASHIRO; WAYNE G. CARVALHO; COMPLAINT FILED SEPTEMBER 29,
STEVEN S. CLARK; JOSEPH T. LALLY; 1997; DEMAND FOR JURY TRIAL;
HENRY W. HICKMAN; J. KEALOHA; CERTIFICATE OF SERVICE
ALAN M. KIMURA; JAY KIMURA;
WILLIAM SMITH; JANET GARCIA; DOE
LEGAL ENTITIES 1 -7,5,
Defenda~its.
answer2.jkk
DEFENDANT'S COUNTY OF HAWAII. STEPHEN K. YAMA HIRO
JAY KIMURA WILLIAM SMITH AND JANET GARCIA'S AN WER
TO AMENDED COMPLAINT FILED SEPTEMBER 29. 1997
Defendants County of Hawaii (hereinafter "County"), Stephen//K. Yamashiro r
L~Xhi~i~-;L
(hereinafter "Yamashiro"), Jay Kimura (hereinafter "Kimura"), William Smith
(hereinafter "Smith") and Janet Garcia (hereinafter "Garcia"), by and through their
undersigned counsel, answer plaintiff's amended complaint as follows:
First Defense
The amended complaint fails to state a claim upon which relief can be granted.
Second Defense
All defendants rf;ly upon the defenses of absolute immunity and defendants
Yamashiro, Kimura, Smith and Garcia upon the defense of qualified immunity.
Third Defense
The County has no unconstitutional practice, policy or custom which caused
plaintiff any injury.
Fourth Defense
If the plaintiff sustained the injuries and damages alleged in the amended
complaint, the negligem~e of the plaintiff was the sole proximate cause of or contributed
to such injuries and damages to such an extent that the negligence of the plaintiff was
comparatively greater than that of all of the defendants and plaintiff cannot recover
against all of the defendants therefor.
Fifth Defense
As a matter of law, the County cannot be held liable on any claim based on its
failure to enforce statutf;s, ordinances, rules and regulations and other applicable laws.
-2-
Sixth Defense
If plaintiff sustained injuries alleged in the amended complaint, such injuries were
the proximate result of'such force as was reasonable and necessary to effect a lawful
arrest.
Seventh Defense
The arresting officer(s) employed by the County had probable cause to arrest
plaintiff for an offense (or offenses) committed by him.
Eighth Defense
If plaintiff sustained the injuries or damages alleged in the amended complaint,
such injuries and damages were the result of his own wrongful, intentional, reckless and
malicious misconduct in harassing and interfering with the police officers of the County
who were then and there in the performance of their duty in attempting to arrest the
plaintiff or in the performance of their duty in booking the plaintiff after the lawful arrest.
Ninth Defense
If the County's police officers and/or agents, employees, servants or
representatives are immune from liability because they legally arrested, subdued and
detained the plaintiff based upon probable cause, then their employer the County is
likewise immune from liability for any of the police officers' actions.
Tenth Defense
The County is not liable for punitive damages in this case.
-3-
Eleventh Defense
The action of arty public employee in this case cannot be attributed to any of his
superiors under the theory of respondeat superior.
Twelfth Defense
1. The County, Yamashiro, Kimura, Smith and Garcia admit the allegations in
paragraph 3 of the amended complaint.
2. The County, Yamashiro, Kimura, Smith and Garcia deny the allegations in
paragraphs 19, 21, 23, :Z4, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42,
44, 45, 46, 47, 48, 50, !il, 52, 53, 54, 55, 57 and 59.
3. As to all iremaining allegations in the amended complaint, the County,
Yamashiro, Kimura, Srnith and Garcia are without knowledge or information sufficient
upon which to form a belief as to the truth or falsity thereof and the same are therefore
denied.
WHEREFORE, defendants pray as follows:
1. That plaintiff s amended complaint be dismissed.
-4-
s
i
2. That defendants have and recover their costs and attorneys' fees.
Dated: Hilo, Hawaii, October 20, 1997.
COUNTY OF HAWAII, STEPHEN K.
YAMASHIRO, JAY KIMURA,
WILLIAM SMITH and JANET
GARCIA, Defendants
By
JOSEPH K. KAMELAMELA
Deputy Corporation Counsel
Their Attorney
-5-
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
HENRY A. ROSS, Civ. No. 97-452
(Assault And Battery)
Plaintiff;
DEMAND FOR JURY TRIAL
v.
COUNTY OF HAWAII; STEPHEN K.
YAMASHIRO; WAYNE G.
CARVALHO; STEVEN S. CLARK;
JOSEPH T. LALLY; HENRY W.
HICKMAN; J. KEALOHA; ALAN M.
KIMURA; JAY KIMTJRA; WILLIAM
SMITH; JANET GARCIA; DOE LEGAL
ENTITIES 1 -25,
Defendants.
DEMAND FOR JURY TRIAL
Defendants County of Hawaii, Stephen K. Yamashiro, Jay Kimura, William Smith
and Janet Garcia, by and through their undersigned counsel, hereby demand trial by jury
in the above-entitled action.
Dated: Hilo, Hawaii, October 20, 1997.
COUNTY OF HAWAII, STEPHEN K.
YAMASHIRO, JAY KIMURA,
WILLIAM SMITH and JANET
GARCIA, Defendants
B~-=--~__--;
JOSEP K. KAM LAMELA
Deputy Corporation Counsel
Their Attorney
CERTIFICATE OF SERVICE
I HEREBY CER'.TIFY that a copy of the foregoing documents has been served on
the following, by mailing the same, postage prepaid, on October 20, 1997:
HENRY A. RO',iS
c/o 190 Keawe Street, Suite 31
Hilo, Hawaii 96'720
Plaintiff Pro S~°
JOSEPH K. KA AMELA
Deputy Corporation Counsel
County of Hawaii
Y
RICHARD D. WURDEMAN 911
Corporation Counsel
JOSEPH K. KAMELAMELA 2493 '~~'1~'~
Deputy Corporation Counsel
County of Hawaii ~
Hilo Lagoon Centre
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Telephone No. 961-8251
Attorneys for Defendants Wayne G. Carvalho, Steven S. Clark,
Joseph T. Lally, Henry W. Hickman, Joseph Kealoha and Alan M. Kimura
IN TH:E CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
HENRY A. ROSS, Civ. No. 97-452
(Assault And Battery)
Plaintiff;
DEFENDANTS WAYNE G.
v. CARVALHO, STEVEN S. CLARK,
JOSEPH T. LALLY, HENRY W.
COUNTY OF HAWAII, et al., HICKMAN, JOSEPH KEALOHA AND
ALAN M. KIMURA'S ANSWER TO
AMENDED COMPLAINT FILED
~E.PTEMBER 29, 1997; DEMAND FOR
Defendants. JURY TRIAL; CERTIFICATE OF
SERVICE
amdansw:jkk
DEFENDANTS WA1'NE G. CARVALHO. STEVEN S. CLARK JOSEPH T. LALLY.
HENRY W. HICKMAN. JOSEPH KEALOHA AND ALAN M KIMURA'S
ANSWER TO AMENDED COMPLAINT FILED SEPTEMB R 29 1997
Defendants Wayne G. Carvalho, Steven S. Clark, Joseph T. Lally, Henry W.
Hickman ,Joseph Kealoha and Alan M. Kimura (collectively known as "the
defendants"), by and through their undersigned counsel, answer plaintiff's amended
complaint as follows:
First Defense
The amended complaint fails to state a claim upon which relief can be granted.
Second Defense
All defendants rely upon the defense of qualified immunity.
Third Defense
Plaintiff's contributory fault and/or comparative negligence bars his claims against
the defendants.
Fourth Defense
If plaintiff sustained injuries alleged in the amended complaint, such injuries were
the proximate result of such force that the defendants believed to be reasonable and
necessary to lawfully arrest and to detain the plaintiff.
Fifrh Defense
The defendants had probable cause to arrest plaintiff for an offense (or offenses)
committed by him.
_2_
Y
Sixth Defense
If plaintiff was injured or damaged as alleged in the amended complaint, such
injuries or damages were entirely due to his own wrongful, intentional, reckless and
malicious misconduct in harassing and interfering with the defendants who were then and
there in the performance of their duty in attempting to investigate, arrest and process the
plaintiff for an alleged criminal offense.
Seventh Defense
The defendants are immune from liability on the state tort claims because they
used reasonable force and/or acted without any malice.
Eieht Defense
Factually and Iel;ally, the defendants are not liable for punitive damages in this
case.
Ninth Defense
Plaintiffs claims against the defendants are barred by the doctrines of collateral
estoppel and res judicata.
Tenth Defense
1. The defendants admit the allegations in paragraph 3 of the amended
complaint.
-3-
2. The defi~ndants deny the allegations in paragraphs 19, 21, 23, 24, 25, 26, 27,
28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 50, 51, 52, 53, 54,
55, 57 and 59.
3. As to all remaining allegations in the amended complaint, the defendants
are without knowledge or information sufficient upon which to form a belief as to the
truth or falsity thereof and the same are therefore denied.
WHEREFORE, defendants pray as follows:
I . That plaintiff s amended complaint be dismissed.
2. That defendants have and recover their costs and attorneys' fees.
NOV 2 6 1991
Dated: Hilo, Hawaii,
WAYNE G. CARVALHO, STEVEN S. CLARK,
JOSEPH T. LALLY, HENRY W. HICKMAN,
JOSEPH KEALOHA AND ALAN M. KIMURA,
Defendants
BY -
JOSEPH K. KAMELAME
Deputy Corporation Counsel
Their Attorney
-4-
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
HENRY A. ROSS, Civ. No. 97-452
(Assault And Battery)
Plaintiff;
DEMAND FOR JURY TRIAL
v.
COUNTY OF HAWAII, et al.,
Defendants.
DEMAND FOR JURY TRIAL
Defendants Wayne G. Carvalho, Steven S. Clark, Joseph T. Lally, Henry W.
Hickman, Joseph Kealoha and Alan M. Kimura, by and through their undersigned
counsel, hereby demand trial by jury in the above-entitled action.
Dated: Hilo, Hawaii, NOV 2 6 1997
WAYNE G. CARVALHO, STEVEN S. CLARK,
JOSEPH T. LALLY, HENRY W. HICKMAN,
JOSEPH KEALOHA AND ALAN M. KIMURA,
Defendants
l
By
JOSEPH K. KAMELAMELA
Deputy Corporation Counsel
Their Attorney
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing document was served upon the
NOV 2 6 1997
following by mailing the same, postage prepaid, on
HENRY ROSS
c/o 190 Keawe Street, Suite 31
Hilo, Hawaii 96720
Plaintiff Pro Se
JOSEPH K. KAMELAMELA
Deputy Corporation Counsel
County of Hawaii
Re HAWAII COUNTY POLICE COMMISSION meeting of 14 November 1997, at 10:07 AM
(Partial transript on determining if legal counsel for police indicated in Civil 97-452)
Secretary: Roll Call: Chair Sharon Scheele (here), Vice Chair Francis Smith (here),
Commissioner Donald Abdul (here), Commissioner Deborah Baker (yes),
Commisioner Clarence Mills (yes), Commissioner Charles Sakamoto (yes),
Commissioner Burnalyn Yee (yes), Madam Chair -Commissioners Clyde
Williams and Clarence Souza are unable to make today's meeting.
Chair Scheele: The next item on the agenda is the approval of the agenda. The chair wants
to hear a motion to add correspondence 515 to the agenda for a request of
legal counsel and also to amend the agenda (different item)
Members: So move.
Second.
Chair: Any discussion?, all in favor signify by saying aye (ayes by members), opposed
say nay. Motion is carried. At this time we have public statements on the agen-
da. Do we have any public statements? I would like to remind anyone that is go-
ing to testify during this public statement time that we have a limitation of 5 mi-
nutes and the testifier will be timed and you will get a one minute warning when
4 minutes is up and then you must stop speaking when the 5 minutes are up.
Secretary: We have one public statement from Henry Ross.
Chair: Okay Mr Ross, would you like to please move up here for your statement?
Henry Ross: I will make this as brief as possible.
Chair: You have :i minutes.
Ross: Now, actually I have a number of items, when you multiply that by 5 minutes
Chair: I am not multiplying by 5 mintes. You have 5 mintes to make your public state-
ment.
Ross: I feel I have to tell you something. This, Madam Chair, is a public forum and I
appear to be the only speaker. If you find it necessary to limit me to 5 minutes,
I won't be able to make my presentation in full. I object to that. You are here to
serve the public and as such, if there is time available, I think you should give
me more time. Be that as it may, I would like to inform the Commission that I am
against the request for legal counsel for the police officers who sent in their
correspondence, 5 items and apparently there is one more to come. I have good
reasons for doing so and want to inform you about that. I don't think that public
EXl~~6?t-K,
funds should be used for actions of the police, that they have performed in this
particular matter. - I filed a swum declaration in Circuit Court today, and I will
quote some sections of that. - I was brutalized by the Hawaii county police on
14 September 1995 and arrested without probable cause. -Reference is made
to my swam complaint to the Police Commission of November 1995, exactly 2
years ago, of which copies were distributed to all County Council members at
the time. A copy of my amended civil complaint that we are talking about here is
presently in the possession of the Commission. Another copy will be deposited
with the County Council shortly. -With the exception of the Defendant Hickman
all police at the time were in uniform and Plaintiff assumes in his action in court,
the Plaintiff is me, that all the averred actions by police took place in the pertor-
mance of their duty as is clearly expressed in paragraph 10 of the amended
complaint. -Admittedly all the Defendants are mentioned in their official and
private capacities but it's merely because of a recent case in Honolulu where a
policeman Rogelio Mata stole from and helped burglarize George and Mae Wil-
liams while on duty, under the color of authority, which our corporation counsel
took to pointing out possible conflicts of interest in the defense of this case be-
tween the County and/or other defendants. Therefore corporation counsel insis-
ted that I make personal service on everybody individually instead of on Corpo-
ration Counsel who I thought would represent all defendants, as is stipulated, by
the way, and is mandated in the County Charter. -Requests for individual repre-
sentation are now coming to the Police Commission, because corporation coun-
sel has obviously been in contact with them and some of these are on today's
agenda, with more on the way. Concurrently corporation counsel had a request
pending on yesterday's council agenda under Communication No.564 to discuss
funds necessary from the county for this law suit. That is public money from
county residents, including myself, to defend and pay for police brutality, etc.
perpetrated on myself. - I was maliciously accused, tried and convicted for
hitting a female cashier bigger than me and 50 years younger, in a supermarket.
- Half the island population knows me and no one believes a thing like that
Chair: Henry, excuse me, but we got all of this in the report that you submitted before.
[NOTE from Ross: the °reporf" was given, shortly before the meeting, to the
secretary and there were many items in my presentation that are not in the
report; it is my contention that the commission simply did not want to listen]
Ross: You don't
Chair: I haven't heard anything different in what I heard, that I haven't been able to
read in the report that you have submitted or law suit that you filed. What we're
here for is
Ross: What report are you talking about, Madam Chair?
Chair: Well, you submitted a letter before, we've seen that, There is not any new infor-
- mation sofar
2
Ross: Are you talking about the law suit years ago?
Chair: We haven't got any new information that you've given us thus far. What we are
here to do is to find out if there is any new information that you want us to know
about.
Ross: yes, I'm coming to that.
Chair: Well, I don't want you to read that whole thing to us.
Ross: I am not going to read all of it.
Chair: You gave copies to us and we can read it. We are as capable of reading as you
are. So, I don't want it all read to us. Tell us what you want else.
Ross: Madam Chair, I want to say something. This is a public forum.
Chair: You are right.
Ross: Whatever you have, the public here does not necessarily have. Maybe some do.
Consequently I have the right to tell the public, that is here, what has happened,
what is necessary for the public to know. I am not talking to the police commis-
sion per se. I am talking to a forum, a public forum that you represent. You are
the (unintelligible). You do not represent the police, do not forget that please.
Chair: I am very honored at that, but if you are addressing the police commission, if you
do want to do a public forum, then you go rent a hall and do a public forum. We
want information that is new, anything that you want to add, but we don't have to
hear everything that we have already read that we already know about.Tell us
Ross: Madam Chair, I don't need to rent a hall or something. If you would kindly tell me
what law tells me to rent a hall if I want to address the public in a public meeting.
This is a public meeting.
[NOTE. Ross wants to refer to the preamble of the Sunshine Law HRS 92-1,
where it says "the public has a right to know'; not the police commission. ]
Chair: This is a meeting of the Police Commission and you are here to speak to the Po-
lice Commission, and therefore we ask for anything new. That's what we want to
hear. Anything new that you have that you want us to know?
Ross: Madam Chair, you are talking for yourself, I would like to know if all the members
agree with you. If there is nothing new here and nobody wants to hear anything
more. Maybe you can put it to a vote.
Chair: Okay.
3
6
Member Abdul: Mr Ross, Madam Chair if I may. Mr Ross, I know that you are here today
because you object to the community giving counsel to the police officers, who
you say arrested you illegally and did these other things to you. May 1 advise
you that under Chapter 52-D of the statute (unintelligible), where we are in-
structed that we have to provide that if they acted under the color of law, if they
are on duty and performing their duties under the law, and if we feel they were
performing their duties under the law, then we are obligated to provide them with
counsel. You made comments, sir, that this is the taxpayers' money, it is your
money, it is our money, it is their money too. They pay taxes. They are human
beings the same as we are. I am not perfect, I don't think anybody is perfect in
this room. 1 think you know, if you feel that a mistake was made, they were being
malicious, they should be given counsel and let it come out in court. Prove it in
court, you know, you will have your chance to proof it if they have counsel
(unintelligible). Ithink it is my obligation as a police commissioner to provide
them with legal counsel if I see fit and nobody is going to tell me that I cannot do
it, because I know what the law says.
Ross: Madam Chair, Mr Abdul, if I may give a brief answer. I have here item 16, that
was one of the items
Chair: Wait a minute. We are going to see, first off, I want to see if we have a motion
from any of the commissioners to allow you to continue because your 5 minutes
are up.
Ross: I wanted to answer in 3 lines.
Chair: Three lines, okay.
Ross: The statute, Mr Abdul, Madam Chair, where it states in 52-D that the determina-
tion of the police commission shall be conclusive for the purpose of this section
and section 52-D(8) is clearly unconstitutional on its face. I wanted to elaborate
on that but I (unintelligible)
Abdul: May I say something to that?
Ross: Yes.
Abdull: Take it up with the legislature because they make the laws.
Ross: No, you check it out with corporation counsel.
Abdul: Okay, let rrie check it out with corporation counsel, but this is a law. As long as it
is law and iit instructs me to do things a certain way
[NOTE b.y Ross: Abdul does not seem to feel about the Sunshine law like that]
K4
,1
0
Ross: This wmrnission, Mr Abdul, has the right to say that something in a particular
law is not constitutional and bring it to the authorities that be. This is the way it
always happens in commissions, in meetings, etc.
Abdul: Mr Ross, you sat with us
Ross: Not like that.
Abdul: You pass;'
Ross: Yes.
Abdul: Okay, we don't want want to answer any more questions, I pass too, I vote along
with the chairperson.
Chair: There is a motion to allow Mr Ross to continue speaking? Do I hear a motion?
Thank you. If there is any new thing that you wanted to say, that was the oppor-
tunity you had.
Ross: Okay, thank you. Under protest, I am leaving it.
Chair: You are welcome to stay, Mr Ross.
Ross: I'm not leaving the room, only this chair.
Chair: Are there any other public statements?
secretary: There are ino more public statements.
AT THIS POINT OTHER MATTERS WERE BEING DISCUSSED, THEN:
Chair: Correspondence items 510 to 515 will be handled in executive session.
OTHER MATTERS WERE DISCUSSED AGAIN, AND THEN FOLLOWED BY:
Chair: Okay, this time I want to hear a motion for the Commission to meet in executive
session to review charges filed against members of the the Hawaii County Police
Department, where matters affecting privacy will be considered and a closed
meeting as requested by the parties involved.
Members: So move.
Second.
Corp.Counsel O'Toole: Madam Chairman, could you also add that as far as the request for
_ legal counsel that you will be consulting with the attorney (unintelligible)?
s
a
Chair: Oh -okay - so: matters affecting privacy and consultation requiring legal
counsel, - is that it?
Somebody: (Inaudible)
Chair: Any discussion? All in favor signify by saying aye.
Members: Aye.
Chair: Opposed nay. Thank you, the motion is carried.
Ross: Madam Chair, I would rather object on the record that you cannot go into execu-
tive session for the request for legal counsel as stated on your agenda because
it is not one of the six items that are mentioned in Chapter 92-5 of the statute for
which an executive session can be held.
Consequently the request for legal counsel must be held public. I also want to
object, and I missed that this morning because I am slightly deaf, against the
way you have added an agenda item, that should not be added, with a request
for legal counsel by officer Clark because it was not on the agenda. It should not
be, it should be on the next agenda. You cannot make any deliberation or dis-
cussion of officer Clark's request.
Chair: Thank you, Mr Ross. Okay, we are closing the meeting now, so if you would all
step outside, until we call you back to make a statement......... Thank you.
Ross: Madam Chair, ? also object to the way in which you go into executive session, it's
illegal.
POLICE COMMISSION THEN WENT INTO EXECUTIVE SESSION AFTER EVERYBODY
ELSE LEFT THE ROOM, EXCEPT THE SECRETARY AND CORP.000NSEL O'TOOLE
Chair: Okay, we are going to meet back into regular session and executive session re-
quest for legal counsel in Civil 97-452. The request for legal counsel. Were you
able to make a decision on that one?
Member: Civil Case 97-452 I move that we grant legal counsel to all officers who have
requested it because their actions were within the scope of duty.
Other member: I will second that motion.
Chair: Okay, any discussion? All those in favor signify by saying aye.
Members: Aye.
Chair: Oppose, nay? Thank you The motion is carried. The next item on the agenda
f OTHER MATTERS WERE DISCUSSED UNTIL ADJOURNMENT AT MOON
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Nesting wrong HILA, HAWAII, SUNDAY, IW?Y12, 1998
F,ditor. ~ _ _
On April 19 the Hawaii County police Commission & Sunshine
Police Commission held its month-
ly meeting in the Kabala court- ~W '
house. Unfortunately no public Oa April ~9 the l~aa"tiati Couary Police Commis-
attended, so it was over at I I:IS. sioa held its taonthly meeting is the Kabala cortrt-
The commission, like all other house. UafoRtlm~ately p~p ~!~atlbd~d ao it was
county and state boarids and cam- oveei a~1:IS If aayon6 is iatl~ eaZC theta to be
missiana and the County Counril, put oa their mailing list for dtts. The wmmis-
is subject [o the state Sunshine Law sioa, like all other eotmry sad state boards and eom-
thaz mandates all meetings be held missioas and the calmly ~tmcil, is snbjecr to the
in public and not in backrooms. State Sttnshiae law that aandates m hold all meu-
becaux the public has a right to lags is public attd not in baclQOOtas, beeaase the ptib-
know how they are governed. I was lic has a right to know how thty are governed. So L
appalled to find the commissioners was appalled to find the cor*r*+«~oners havinglnach,
having lunch, all at one long table, all at one loag table, in the bacJQOOm of the Kabala
in the backroom of the Kohala Village Restauraat is Iiswi. Even if they would claim
Yllsge Restaurant in Hawi. Even if sot to have distssaed say btssiness they must avoid
they would claim not to have dis• ~ ~s~~ of ~ProPttu9•
closed any business they mus[ What I pardculatly did not like is tha fact that the
avoid even the appearance of deputy chief of politx and a polka captain were at the
impropriety. same table along with the commisson's investigator
who handles public cottrplaiats agaiart the caanty
What I particularly did nor like is Pollee' The Police Commission is the oversight
the fact that the deputy chief of agenry of the politx and has power to hire and fire the
police and a police captain were az chief of palice, so this Cory illegal get-together that
the same table along with the cam- ~ prnbably gone on for yeas m other ateetiag
mission's investigator who handles Places hit me like a brick.
public complaints against the coon- Apart from the secretary of the commission, who
ry police. The Police Commission did sot tape the t:omersatioas as in the offitaal taeet-
is the oversight agency of the police mgS, I also saw a deputy corporation counsel present
and has power to hire and fire the az ~ tables As the advisory county attorney he v
chief of police, so this cosy illegal very familiar with the Suashiae law requirements
geatogether thaz has probabl but apparently condoned this serious violatioa that he
y gone should havepmvented. -
on for years in other meeting places It0»
hit me like a brick. H
Apart from the secretary of the
commission, who did not tape the
conversations as in the official p}~.
meetings, 1 also saw a deputy car- L G "Ql i7
potation counsel present :tt the
able. As the advisory county actor- _
nay, he is very familiar Wirth the
sunshine law requirement.> but Hawaii Tdbune-Herald, Sunday, Msy 12. 1896-11
apparently condoned this serious
violation, that he should have pre-
vented.
Henry Ross
Koltala
t
fetters
Chief's response to Schiszler
I'm writing [o respond to a letter (T-H 11/21) to the
editor written by Michael Schiszler, of Pahoa. ?
In his letter, Mr. Schiszler says it is frightening O
beyond belief that veteran Hawau County police officers ~
aren't being given psychological, lie detector or dmg tests. t.,
Mr. Schiszler's article is full of inaccuracies and ~
omissions. While the department in the past did not
administer psychological and lie detector tests to appli-
cants who wanted to join the force, since last year we have ~
been actively utilizing the tests to staeen prospective recnrits. y
Furthermore, Mt Schiszler is incorcect in stating Q
that police officers do not have to undergo drug testing.
Pursuant to departmental policy and union contract,
every police officer, including myself, must submit to stan-
dardized drug testing administered by a certified inde-
pendgnt climical lab.
aks for psychological and lie detector tests, our vet-
eran police officers work under a negotiated contract with
SHOPO, and the department cannot arbiuazi]y require
every officer on the police force to take a battery of psy-
chological and lie detector tests. Besides, there is no com-
pelling reason that they should be mandated to under-
go retroactive testing.
In addition, any time police officers may display ^ l
behavioral problems, they are required to submit to a psy- ~h/
chological assessment to determine their fitness for
duty.
In short, before we started employing psychological
tests to screen police recruits in July 1996, we had ^
selected [he most qualified and best suited candidates to ti{
serve the public. And over the years, the vast majority ~
of our officers have served their county professionally rLl
with pride and distinction. L
One of the things that apparently frightens Mr. Schis-
zler is that police officers carry firearms. Our officers,
like other police officers in the United States, do carry
sidearms. But they use them judiciously. Since I've
been police chief, we've had only two incidents in
which police officers have shot an assailant. In both cas-
es, apolice officer had been wounded before our offi-
cers responded.
I'm sorry Mr. Schiszler is frightened beyond belief,
but I would like to assure him that there is no cause for
alarm.
We hold our ofi'icers up to a higher standard of
behavior than we expect from the general public. We are
an organization in which our officers strive to act pro-
fessionally, respect and uphold the due process of law
and protect the rights of our citizens.
Wayne G. Carvalho
Police Chief
~x~~~6>-~~~~
y
- -
`Hilo co is se`nten~ea to
p
? Manuel Fragiao probation in assault
also must perform
community service ~ `
- nearby 7-Eleven store where Fra- including the history
BY Crytttsl Kua~' giao sprayed Otani a second time between the two men.
Tribune-Herald while trying to handcuff him, Alter listening to Fragiao and
Otani said. readin; letters from his su rters„
A Hilo police officer convicted g PPo
of assaulting a constmction worker Otani testified that he and Fm- she also believed that he regretted)
with pepper spray said he was sor- giao have had a "mutual dislike for what happened.
ry for what he dtd and, in hind- each other" since about 1989. But Amano also admonished)
sight, would have done things dif•. Fragiao about the public tmst with)
ferently. That's the yeaz Otani and his which he holds as a police officer.,
"I want to apologize to the court wife, a former police officer, sepa- "That trust is very important," she
rated, and it was during that time told him.
and the victim," patrol Officer that Fragiao was "seeing" Otani's
Manuel Fragiao, 54, told a Circuit wife. Otani and his wife reconciled In sentencing Fragiao, she also
Court judge Tuesday aftemaon. later that yeaz. ordered him to complete 200 hours
Fragiao's apology came just Fragiao testified that he sprayed of community servrce, continue
before Circuit Judge ltiki May Otani with the pepper spray with counseling and have na con-
Amano sentenced him to a year on because Otani resisted being tact with Otani. F
probation and a suspended 30-day arrested for harassment.
jail term. Fragiao said he took several Hawaii County is footing the
After a three-day Vial in years of taunting from Otani and bill for Fragiao's criminal defense.
December, a Circuit Court jury, was tired of it. That's because the county Police
found Fragiao guilty of third- Fragiao said that his actions that Commission has determined that
degree assault, a misdemeanor day were in line with his training Fragiao acted within the scope of
punishable by up to a year im jail. as a police officer. his duties as a police officer.
He was chazged with using pep- Fragiao is appealing the verdict. The Count Council recent!
per spray improperly on Tracy But Fragiao acknowledged dur- a roved u to $27,500 for Fra
Otani of Hilo on Sept. 21, 1994. ing Tuesday's sentencing that he PP P
[t was on that day Fragiao was could have done things differently giao's appeal.
directing traffic at the junction of in order "not to get into this silos- Otani has also filed a civil law-
Kaumana Drive and Punahele lion" by calling on a supervisor or suit against Fragiao.
Street due to road constmction. other officers for help instead of
Fragiao at the time was on special)- handling it himself
duty, which is when a police offi- Randall Page, a deputy prosecu-
cer is off-duty and in uniform for from Maui who prosecuted the
workimg for a private company or case as a special deputy attorney ,
another government agency for general, asked Amano to sentence
traffic control or security. Fragiao to a six-month jail teen.
Otani, who works for hiis
father's constmction fum, testified Page argued that Fragiao used
that he passed through the interseo- the color of his uniform and his
lion four times to get to and from police-issued pepper spray to
the company's base yard. ;`exert some sort of revenge over
Otani testified that Fragiao gave !a citizen he did not like:'
But Amano said she was sus- ,,y
him "stink eye" during one pasts, pending the jail teen because of
and later in the day Fragiao the "mitigating circumstances of
stopped him at the intersection. v -
The two them got into verbal
exchange which led to Fragiao MANUEL FRAGIAO
pepper-spraying Otani in the face.
Otani eventually made it to Uie
February a 997 ~ ~ ~ _ d
Tribune-I~[erald
n
' i
Tribune-Herald
v ~ ~ ~
~ q
a..
Board: Officer was justified in
? Nielemai acted use of deadly force
properly when she
shot and killed man
By Dave Smith
Tribune-Herald caliber rifle, police said Waltjen
A review board has found that a `waz terrortztng residents of the
P°~ officer who shot and home and threatening to commit acrests•
~ armed tnan a standoff ~ suicide. Shinoda, 33, waz treated at HIlo
Hllo a year ago was justified in Police said they convinced Medical Center and released.
using deadly fwee Waltjen, 47, to walk outside the police said the bullet grand Shin-
Police Chief Wayne Carvalho home where he made threatening ode, missing abullet-proof vest 6e
said the action by the ~iMaii gestures with the rifle and threat- w,az w.e~g•
~y Po~•ISe`partmeat erred to kill himself and a police Shinoda, at the time a nine-year
Board. absolved Officer Lucille °~Cm• veteran of the department, was
Melemai of any violations of the Police then attempted to subdue only the third Big Island police
department's general orders in the Waltjen with pepper spray. During °g-tcer ever to be shot in the line of
June 4, 199$, incident. an ensuing scuffle for the gun duty.
It is believed to be the first Waltjen fired a shot which wound-,
iastattce of a Big Island police offs- ed Officer Jason Shinoda in the Carvallto said police officers
cer fatally shooting a suspect. back. involved in a shooting death must
The incident began az adomes- At that point Melemai, 33, shot undergo both as administrative
tic disturbance on Kttkuau Street, and killed Walry'en. investigation, which is now com-
less than ahalf-block from the An autopsy later showed that pleted, and acriminal investiga-
police station. Waltjen had a blood alcohol con- tion. The results of the criminal
Officers responding to the scene' tent of 0.10 percent, which is con- investigation were forwarded in
fotmd Allan Waltjen of Ktutistowri sidered legally intoxicated. Police September to the prosecutor's
inside a house, armed. with a 30- said Waltjen had no record of office for fmal disposition.
~~~1-P
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oJM~~ w y,~ _ _ _
AARON S.Y. CHUNG 1d;~' ~ Phone: (808) 961-8396
Cauncilmc~nb~+ i ~
FAX: (808) 969-3291
CCO L! i i k ~7
3
v~~
or Nor
C~,.'
COUNTY COUNC~ou ~ - ,
County of Hawaii
Hawaii Cmrnty Building
25 Aupuni Street
Hilo, Hawaii 96720
September 3, 1997
Ms. Shazon Scheele, Chair
Hawaii County Police Commission
101 Aupuni Street, Room 228A
Hilo, Hawaii 96720
Re: Attached Bill
For your information, attached is a copy of a draft bill for an ordinance initiating a
charter amendment o1'the Hawaii County Charter (1991 Edition), as amended, relating to
the Police Commission, for your review and comments.
Please feel free to submit any comments which you may deem appropriate.
Should you have any questions, please call myself or my Legislative Assistant Liana Cox
at 961-8492.
Sincerely,
Aaron S.Y. Chung, Ch it
Committee on Finance
ASYC/Ikc
Attach.
!Vote: Attactment is C-478.
~X~j/~~7~=~~
~7s.v ~
x4{. x~: FG
,.,a,~ sEP o a Iss~
irwN
AARON S.Y. CFfUNG y~,;, _ _ _ Phone: (808) 961-8396
Counnlmembn ~ ~ ~ ~ C FAX: (808) 969-3291
i
COUNTY COUNCIL COU,, ~
County of Hawaii
Hawaii County Building
25 Aupuni Street
Hilo, Hawaii 96720
September 3, 1997
Mr. Wayne Carvalho, Chief
Hawaii County Police Department
349 Kapiolani Street.
Hilo, Hawaii 96720
Re: Attached Bil:f
For your information, attached is a copy of a draft bill for an ordinance initiating a
charter amendment of the Hawaii County Charter (1991 Edition), as amended, relating to
the Police Commission, for your review and comments.
Please feel free to submit any comments which you may deem appropriate.
Should you have any questions, please call myself or my Legislative Assistant Liana Cox
at 961-8492.
Sincerely,
Aaron S.Y. Chung, Ch '
Committee on Finan
ASYC/lkc
Attach.
~~2
~0.~_
F71e P(o. L'
>~t. FG
Aet. Date 0 4 1997
COUNTY OF HAWAII _ _ .STATE OF HAWAII
BILL NO.
ORDINANCE NO.
A BILL FOR AN ORDINANCE TO INITIATE A CHARTER AMENDMENT OF THE
HAWAII COUNTY CHARTER (1991 EDITION), RELATING TO THE POLICE
DEPARTMENT.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Purpose. The Police Department is responsible for the protection of life
and property and the enforcement of State and County laws. These duties must be performed by
qualified, professional police personnel, and more importantly, the leadership of the police
personnel must also be qualified and professional, making imperative an upstanding selection
and promotion system based on merit, ability, and work performance.
The Hawaii County Police Commission, created by voters of the 1990 general election,
appoints the Chief of Police and reviews the rules and regulations for administration of the Police
Department.
The Council finds that the professionalism and integrity of the Police Department will be
compromised if political considerations influence personnel decisions in any way. The Council
finds that the County's interest in assuring the professionalism and high quality of the Police
Commission outweighs the right of Police Commissioners to engage in political activities. The
Council Finds that same prohibition on political activities is imposed on members of the Civil
Service Commission pursuant to Section 76-51 of the Hawaii Revised Statutes.
SECTION 2. Article VII, Chapter 2 of the Hawaii County Charter (1991 Edition), as
amended, relating to the Police Department is amended to read as follows:
"CHAPTER 2
POLICE DEPARTMENT
Section 7-2.1. Organization. There shall be a police department consisting of a police
commission, chief of police, a deputy chief of police, and the necessary staff.
1 -
f
. ~
. ~
Section 7-2.2. Statement of Hiring Policy It is hereby declared to be the p~~pose of
thi ch ter to establish in the county a system of police protection and prevention which shall be
based on qualified and professional leadership and personnel In order to achieve this pp~roose_
t~nolice denartment shall be conducted in accordance with the followine:
(a) Standazds for recruitment shall be desiEned to attract into [he department ep rsons
with hip~~yrees of education- intelligence. and personal stability
Q~ Promotions and other personnel actions shall be based upon fair and appropriate
standards of merit. ability. and work performance.
Appronriate training shall be provided to the maximum extent possible and
pl3Clis~l2lg.
Section [7-2.2.J7-23. Police Commission. The police commission shall consist of nine
members. One member shall be appointed from each of the respective nine council districts.
The members shall be appointed by the mayor and confirmed by the council in the manner
prescribed in Section 13-4. The police commission shall:
(a) Adopt such rules as it may consider necessary for the conduct of its business and
the regulation of the matters committed to its chazge and may review the rules and regulations of
the department.
(b) Review the annual budget prepazed by the chief of police and may make
recommendations thereon to the mayor.
(c) Submit an annual report to the mayor and the council.
(d) Receive, consider, and investigate chazges brought to the public against the
conduct of the department or any of its members and submit a written report of its findings to the
chief of police. A summary of the chazges filed and their disposition shall be included in the
azutual report of the commission. There shall be budgeted sufficient funds in the annual budget
of the police department for use by the police commission to fulfill the intent of this section.
(e) Advise the chief of police on police-community relations.
(f) Hire personnel necessary to carry out its functions. Except for purposes of
inquiry, neither the commission nor its members shall interfere in any way with the
administrative affairs of the department.
Section 7-2 4 Political Activities Prohibited Except for exercising the right to vote-
no member of the p~li ommiccion shall cuor+.~R advocate or aid in the election or defeat of
2
candidate for public office Anv violation of this section by a member of he co mission
shall a ~ P for c ~mm rv dismissal from the commission.
Section (7-2.3.]7-2.5. Chief of Police and Deputy The chief of police shall be
appointed by the police commission and may be removed by the police commission at its sole
discretion. Any motion for removal of the chief of police must contain a statement of reasons,
and the commission shall not vote to remove the chief of police unless the chief of police has
been given an opportunity to respond to the statement of reasons at a hearing before the
commission. The deputy shall be appointed by the chief of police with the co~rmation of the
police commission and may be removed by the chief of police with the approval of the
commission, without cause being stated. The chief of police shall have had a minimum of five
yeazs of training and experience in law enforcement work, including at least three yeazs in a
responsible administrative capacity
Section (7-2.4.]7-2.6. Powers, Duties, and Functions of the Chiet of Police. The chief
of police shall be the administrative head of the police department and shall:
(a) Be responsible for the preservation of the public peace, prevention of crime,
detection and arrest of offenders against the law, protection of the rights of persons and property,
and enforcement and prevention of violations of all laws of the state and ordinances of the county
and all regulations made in accordance therewith.
(b) Train, equip, maintain, and supervise the force of police officers and employees.
(c) Promulgate Hiles and regulations for the organization and administration of the
police force.
(d) Make periodic reports to the police commission about the activities of the police
department and about actions taken on cases investigated by the police commission.
(e) Have such other powers, duties, and functions as may be required by the police
commission or provided by law.
Section [7-2.5.]7-2.7. Dismissal, Suspension, Demotion, or Grievance. The dismissal,
suspension, demotion, or grievance of any police officer or employee in the police department
shall be under procedures sei forth by civil service laws and regulations.
Section ]7-2.6.]7-2.8. Administrative Supervision. The police depaztment shall come
under the general supervision and control of the mayor."
SECTION 3. Material to be repealed is bracketed. New material is underscored. In
printing this ordinance, the brackets, bracketed material and underscoring need not be included.
3 -
~Y
SECTION 4. If any portion of this ordinance, or the application thereof to any person or
circumstance, is held invalid, such invalidity shall not affect other provisions or applications of
the ordinance which can be given effect without the provision of the application, and to this end,
the provisions of this ordinance aze declazed to be severable.
SECTION 5. Upon adoption of this ordinance, this council, by appropriate resolution,
shall provide that this amendment be submitted to the electorate of the county for approval at the
next general election.
SECTION 6. Upon approval of the Charter amendments proposed in this ordinance by a
majority of voters voting thereon, as duly certified, the Charter amendments shall take effect on
January 1, 1999.
INTRODUCED BY:
COUNCILMEMBER, COUNTY OF HAWAII
ASYC/lkc
Hilo, Hawaii
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Date of 3rd Reading:
Effective Date:
4
` ~ r ~ y
r ~
Nevr screening process making it harder
to fill police officer vacancies
? But tougher tests
mean incoming cops
better, official says'
By Crystal Kua
Tribune-Herald
The Police Department is hav- And it's during those steps that "It's a continuous, never-ending
ing a hazd time filling police offs- many candidates are weeded out, process," Lyman said.
car vacancies with qualified appli- Lyman said.
cants as a result of a tougher He also d the background If a candidate fails to go on to
screening process, officials said. checks are n~w more thorough and any next step, Civil Service is then
"It has eliminated quite a few detailed. For example, investiga- asked for a new batch of names
candidates," acting Assistant tors now travel to the outer islands and the process is started all over
Police Chief Newton Lyrnan said. to conduct interviews if the appli- .again.
but L Boa: cant lives outside of the Big Island. The biggest void has been in the
' riteaa5 In the past they wouldn't make field operations or patrol division,
that the new " ~ `rig police offs- such a trip. and the vacancies are islandwide,
cars are the cream of the crop. Those who want to apply to be a Lyman said.
"That's what we're getting, the police officer must first take awrit-
best candidates," Lyman said. ten Civil Service test and a physi- While vacancies are being
"There's no doubt about that." cal agility test. The applicants are filled, patrol officers have been
Lyman told the Police Comnus- then ranked by Civil Service. trying [o take up the slack left by
lion on Friday that the department A fist of eligible applicants is the empty positions, Lyman said.
curtently has the following vacan- sent to the department whenever it Carvalho has said in the past
cies: 22 police officer positions, seeks to fill a vacancy. that vacancies do have an effect on
one Kona vice lieutenant position, The candidates fill out applica- morale which is why the depart-
one internal affairs captain position [ions and then background checks ment is trying [o fill the slots with
and three assistant chief's posi- are done. the most qualified applicants as
lions. After the checks, each candidate quickly as possible.
The large number of vacancies goes through an interview process
go back to [he 1994 exodus of before a boazd made up of depaR-
senior police officers who took ment officials. After the inter- r ~ )~L
advantage of the state's early views, successful candidates will J~(~ / ,f / / ~ /J
retirement incentives. receive a conditional offer of
The amount of vacancies is employment. ~ Q
down to about half of what i[ was The candidates who go on to the
after the mass retirements, but next step then undergo the psycho- f n/~
police aze still having [rouble till- logical and polygraph exams. [ ~ (s~ ~ ~ O ~ er ~7
ing the vacancies with qualified if those exams are passed, the
personnel. candidate then takes a medical and
"We have difficulty getting eli- drug screening.
Bible applicants," Deputy Chief
James Correa told the commission APPlicants who fulfill all the
Friday. steps are then eligible for hire.
Part of [he reason is that the The selection process used to
application process has added two take a few months to complete. Bu[
more crucial steps - a psycholog- now because of the constant need
ical exam and alie-detector test to till vacancies, the quest [o come
since Police Chief Wayne Carval- uP with the right candidates is
ho came on boazd, Lyman said, ongoing. r