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The highest court in the state recently drew a fine line between what police misconduct deserved taxpayer-funded legal representation and what did not.

The Hawaii Supreme Court decided March 7 that the Honolulu Police Commission erred in 2019 when it decided to provide former Honolulu police chief Louis Kealoha with taxpayer-funded legal representation after his federal indictment.

“Kealoha’s duties did not include overseeing a criminal conspiracy to hide his and his wife’s misappropriation of funds belonging to others,” Associate Justice Sabrina McKenna wrote. “His duties did not include conspiring to frame his wife’s uncle for a crime he did not commit.”

McKenna called Kealoha’s criminal charges “extraordinary” and his request to the City and County of Honolulu for representation “highly unusual.” 

But the ruling’s impact on officers facing more ordinary misconduct charges is yet to be determined.

Even if officers exceed their duty by using “unreasonable force or driving at excessive speeds” to arrest someone, McKenna wrote, “representation should be available because the officer was initially acting to perform the officer’s duty as a police officer.”

The law in question, 52D-8 of the Hawaii Revised Statutes, provides for the legal representation of police officers prosecuted for a crime or sued in a civil case “ as a police officer.”

“This case seems to split hairs,” said Ali Silvert, the defense attorney who broke open the Kealoha conspiracy. 

The ruling “muddies the water” when it comes to criminal civil rights prosecutions, Silvert said.

“If you’re committing a crime, even if you’re a police officer on duty, because you committed a crime, you’re not doing it in the scope of a police officer,” Silvert said.

“There’s material in here to help me argue, well, you can go after him as a civilian but you can’t go after him as a police officer,” he said.

The top police union official hopes that the ruling is interpreted “as narrowly as possible.”

“Providing police officers with legal representation based on the performance of their jobs is the right and the smart thing to do,” Robert Cavaco, president of the State of Hawaii Organization of Police Officers, said in a statement. “Any erosion of those rights could lead to officers hesitating to fully enforce the law, which would be a detriment to public safety.”

He added, “The Kealohas’ conduct does not represent the heroic actions that our officers do on a daily basis.”

Hawaii police commissions decide whether to approve officers’ requests for a defense attorney, and they often lean toward the affirmative.

In the past five years, the Honolulu Police Commission has approved 101 requests for legal counsel from officers, according to commission Chair Doug Chin. The commission does not track the subsequent expenses, and a spokesperson for the City and County of Honolulu was unable to provide the total cost of those legal services.

At the end of last year, the two HPD officers allegedly involved in a high-speed crash in Makaha in 2021 that left a teenager paralyzed were approved for legal representation in three separate lawsuits.

When the Honolulu Police Commission sits down Wednesday, its members will take up the issue of interpreting the Hawaii Supreme Court’s ruling for themselves.

“I think the commissioners feel differently about it,” Chin said.

Splitting Hairs

The Supreme Court ruling potentially has implications for cases elsewhere in the state.

Two years ago, after shopping with his wife at a Kahului mall, Tivoli Faaumu, then the Maui police chief, and drove off. An anonymous “Johnny Wishbone” posted on Nov. 18, 2020, almost two weeks later. 

A week after, two officers in the chief’s Criminal Intelligence Unit, Masa Kaya and Martin Marfil, kidnapped and interrogated Manuel Sorcy, the officer who investigated the hit-and-run, about whether he released the video, court documents allege.

By the time Sorcy sued Kaya, Marfil and Faaumu last November, the chief had already resigned.

Still, the three requested that Maui County provide them with legal representation, and the Maui Police Commission granted it Feb. 1, with seven yes votes and two commissioners excused. (The commission will vote again Wednesday because of a procedural error, according to Maui County Deputy Corporation Counsel Michael Hopper.)

Sorcy’s attorney, Joseph Rosenbaum, said the two MPD officers he’s suing qualify for the county-funded legal representation.

“I think that they were acting within the scope of their duties as a police officer,” Rosenbaum said. “They were directed to do the interrogation by the police chief, but I do believe it was criminal and illegal without question.”

Asked whether the commission found that Faaumu, Marfil and Kaya were performing their duty as police officers when they carried out the alleged acts, Hopper cited the commission chair’s one-sentence letter to the current chief that the commission “reviewed and unanimously approved” their request for legal representation.

Hopper did not provide the number of requests for legal representation Maui County has approved in the past five years, the number of lawsuits that included or the cost. That information “would take some time to gather,” he said.

Kauai police officers were approved for all 12 of their requests for legal defense in the past five years. The cost was $6,869, according to county attorney Matthew Bracken, though most cases are handled by salaried county attorneys, making it difficult to determine the exact amount.

“Each case was a civil case with some sort of alleged misconduct,” Bracken said in an email.