Editor’s note: This is the first in an ongoing series of stories that will examine police practices and policies, including officer-involved shootings, police misconduct, the influence of the police union and police reform efforts.
For decades, every time an on-duty Honolulu police officer killed someone, prosecutors issued a memo to the police chief.
While the facts differed in each case, every memo came to the same conclusion: The use of deadly force was legally justified.
Now, in the aftermath of two fatal shootings by the Honolulu Police Department this month, the Honolulu Prosecuting Attorney’s Office says it is rethinking how it reaches those conclusions.
Tom Brady, the first deputy in the prosecutor’s office, said the decisions were based on a flawed process in which HPD investigated itself, prosecutors were not allowed to ask questions of the officers who used deadly force and the findings were not routinely shared with the public.
Honolulu Prosecuting Attorney Steve Alm, who took office in January, is scheduled to hold a press conference Thursday to discuss reforms to his office, including the process of reviewing police shootings. Brady said the office is examining how it can make the investigative process more transparent and accountable.
“Steve Alm will be addressing this issue specifically and making recommendations as to a new way of approaching these matters,” Brady said. “It’s something we’ve taken a hard look at over the past month.”
A Civil Beat review found that, for years, Honolulu’s procedures for reviewing fatal encounters with police officers, although far from unique, are out of step with some other cities and states and at odds with emerging best practices.
Some see change as long overdue.
“We just look terrible compared to other jurisdictions,” said Meda Chesney-Lind, a University of Hawaii criminologist. “We have very opaque systems of oversight and very little information given to the public about these incidents.”
It’s unclear how HPD views the status quo. Honolulu Police Chief Susan Ballard did not respond to an interview request for this story.
But retired HPD lieutenant Alex Garcia, who chaired the police union’s Honolulu chapter, said he sees little need to change the process. The fact that no officers have been charged with a crime in these cases, he said, is evidence that they are working within the law.
“How come no one’s being convicted? Because they’re doing a good job,” he said.
Historically, Honolulu police and prosecutors have not given the public a comprehensive accounting of what occurs in officer-involved shootings.
The details of what happened in each instance, and the officers’ names, rarely see the light of day unless there is a civil lawsuit. Even then, cases tend to result in settlements in which the city does not admit fault.
The Law Enforcement Officer Independent Review Board, a body created by the Legislature to independently investigate these cases and publish its findings, is dormant. It has issued only one report in its nearly three-year existence and is set to be disbanded next year unless state lawmakers take action.
As for what happens to officers, it’s not easy to find out.
If an officer is suspended or fired for injuring or killing someone, the incident is included as a one-paragraph summary in HPD’s annual misconduct report to the Legislature. But it doesn’t include officers’ names unless the disciplinary action was upheld and they have exhausted the appeals granted to them via collective bargaining.
By that time, months or even years may have passed since the incident. And if officers receive discipline short of a suspension, their names won’t appear at all.
“There’s a process of delay, and it’s effectively obfuscation because after a certain amount of time, public attention wanes, media attention wanes, and then it becomes forgotten,” said Nick Chagnon, a University of Hawaii sociology lecturer.
“And if you talk to a lot of the families of people shot by HPD, they’ll tell you they don’t get any answers. A lot of times, it leaves them just absolutely desperately seeking some help from somebody to clarify why their loved one is gone.”
When prosecutors assess cases of deadly force by police, they’ve been limited to reviewing information mostly gathered by HPD itself.
Before 2018, investigators from the prosecutor’s office could visit the scene and listen in to HPD officials as they collected basic information about the incident. But they were not allowed to ask any substantive questions of the officers involved, according to Brady.
Prosecuting attorney’s staffers could only take photos, draw diagrams and take witness statements from civilians and other officers who were not “in the primary area of the shooting itself,” Brady said.
“They weren’t allowed to ask questions of the primary witnesses, but they were allowed to listen in to the responses,” Brady said. “We’re not touching any evidence. We’re not collecting any evidence. We’re just observing and listening in to statements.”
Brady – who started working for the prosecutor’s office in January after a two-decade career at the U.S. Attorney’s office – said he couldn’t identify a rule or law that constrained their work.
“That was the practice, and that’s all I’m aware of,” he said.
Then, in 2018, prosecutor investigators were banned from scenes of officer-involved shootings altogether, according to Brady. This occurred around the same time that former Prosecuting Attorney Keith Kaneshiro was identified as a target of a federal investigation and Ballard refused to work with him.
“It’s no surprise that, when those are the rules of the investigation game, it’s difficult even for an earnest and honest prosecutor to build a case against the police,” said David Johnson, a UH professor who researches and teaches criminal justice.
Ultimately, an investigator with the prosecutor’s office put together a preliminary report with witness statements, scene details, diagrams and photographs and an outline of the facts and circumstances of the shootings, according to Brady.
After that, a screening deputy received HPD reports, body-worn camera footage if there was any and conducted an investigation – “really a review,” Brady said.
However, that review would not include everything that HPD knew about the fatality.
In addition to HPD’s criminal investigation into its own police shootings, there are separate, concurrent investigations by the Professional Standards Office. PSO officers look for potential violations of HPD policy that can lead to discipline ranging from divisional counseling to termination.
Officers are required by their union contract to cooperate with Professional Standards investigations, but those interviews are strictly confidential. Prosecutors never see that information, Brady said.
Instead, prosecutors have to apply the law only to the facts they collected themselves and those that HPD’s criminal arm has provided. Officers have a right not to participate in the criminal investigation.
Brady said prosecutors’ legal assessments typically rely on Hawaii Revised Statues 703-305, which relates to the legality of civilians using force to defend themselves and others, and HRS 703-307, which allows deadly force by law enforcement in certain circumstances during felony arrests.
When prosecutorial reviews were complete, final dispositions would be sent to the police chief, Brady said.
In the institutional memory of the Honolulu Prosecuting Attorney’s Office, which spans about 30 years, there has not been a single fatal encounter with a police officer that was found to be unjustified, Brady said.
Some critics argue that the system is tainted because Honolulu police cannot objectively investigate their own colleagues. A recent HPD press conference about the killing of Lindani Myeni, a 29-year-old father of two from South Africa, inflamed that concern.
Acting Deputy Chief Allan Nagata told the media his officers were brave and he was proud of their conduct. He described a “fight for their lives” after Myeni allegedly attacked them and that officers were only defending themselves. At least one officer sustained serious facial injuries including multiple broken bones and was hospitalized.
“I was very impressed with what they did,” Nagata said.
For the department to make such a declaration while investigations are still underway is troubling, said Chagnon, who has researched police reform.
The statements “suggest maybe that the investigation is not as open-minded and as critical as it needs to be,” he said.
Garcia, the retired HPD officer, rejects the idea that there is a conflict of interest. He said he wouldn’t object to another agency doing these investigations instead, but he doesn’t feel it’s necessary.
“I think people should be happy that you’ve got a police department that is this well trained and qualified to do the work,” he said.
“We’re not constantly being arrested for violating civil rights or shooting people in the back or shooting unarmed people unnecessarily or whatever. People should be happy with that.”
As for prosecutors, Garcia said they do a thorough review and don’t just take an officer’s story at face value.
“I don’t believe they take it lightly,” Garcia said. “Officers have been disciplined for some of the things that have happened because maybe they didn’t follow a proper procedure, but it wasn’t a criminal act. It was an administrative act.”
How police departments and prosecutors’ offices handle cases of deadly police force varies widely across the country, according to a 2018 report by the Major Cities Chiefs Association.
And the Honolulu Police Department is not unique in being given the responsibility of investigating its own officers.
A survey of 81 police departments by the Major Cities Chiefs Association found that about half conducted investigations into shootings involving their own officers. When it comes to making charging decisions, most agencies reported that their local prosecutors make the call.
But several jurisdictions offer models with greater independence and transparency than Honolulu.
In Wisconsin, a state law passed in 2014 requires officer-involved deaths to be investigated by at least two investigators – neither of whom are employed by the same agency as the officer who killed someone.
Those investigators provide a report to the district attorney who has jurisdiction over the area where the shooting occurred. If the district attorney determines there is no basis to prosecute, the investigators release a public report and post it online.
Some states farm out the responsibility of prosecutorial review to agencies that don’t work with the department of the officer under investigation.
Connecticut requires a special prosecutor or a prosecutor from a different jurisdiction to investigate deaths caused by police.
In New York and Delaware, the attorney general is the key decision-maker. The Delaware Department of Justice publishes public reports outlining the facts of each case and explaining its legal conclusion.
But transparency doesn’t necessarily mean officers face criminal consequences.
For instance, since at least 1996, all of Delaware’s reports have come to the conclusion that officers who killed people were justified, Delaware DOJ records show.
And that’s in line with national trends. Investigations of police violence nationwide have, for decades, been narrowly focused on officers’ split-second decisions before pulling the trigger, thanks to a Supreme Court ruling in the 1980s. Experts say that legal doctrine has given police wide latitude to use deadly force as long as they feared for their lives in the moment.
Johnson said he has mixed feelings about the kinds of reviews Delaware does.
“If it’s done well, it’s probably an improvement,” he said. “But it strikes me as quite possibly just another organ of legitimization for police behavior.”
He feels the same way about Hawaii’s Law Enforcement Officer Independent Review Board. It only has the power to issue recommendations about whether an officer should be prosecuted. Its conclusions are not binding, and prosecutors can make up their minds before the recommendation is even issued.
Chesney-Lind said Honolulu needs an independent investigative body – made up of people with backgrounds in law and justice and also communities of color – that will actually give police violence a critical review.
“We should be doing a lot more,” she said. “If nothing else, figuring out what went wrong, training opportunities, looking at each of these fatalities in a very public way to try and figure out what could have been done differently to avoid them.”
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