������Ƶ

Three Honolulu police officers believe they shouldn’t have to be part of a lawsuit that contends they used excessive force and wrongfully arrested a 10-year-old girl at school over a supposedly offensive drawing in 2020.

The officers, Christine Nevez, Warren Ford and Corey Perez, handcuffed the girl at Honowai Elementary School in Waipahu and detained her for hours at the Pearl City police station. A school administrator had called the police after the girl was involved in drawing a cartoon about another student who might have been bullying her.

The girl’s mother, Tamara Taylor, sued the officers, as well as the City and County of Honolulu, the Hawaii Department of Education and the school’s vice principal in January 2022.

Lawyers for the girl, identified as N.B. in the lawsuit, have written that while a number of kids were involved in creating the picture, she was singled out because she was Black. The lawsuit adds that officers did not read the girl her Miranda rights before interrogating her and that when they learned she told the school nurse she “wondered what spending one day in jail would be like,” the officers “got upset” and handcuffed her.

The drawing depicted “a girl holding and pointing a gun with a severed head at her feet,” as well as offensive writing, according to a letter written by then-interim HPD chief Rade Vanic. “It is NOT motivated by race,” Vanic wrote.

The state Attorney General’s office called it a “death threat” in a filing last May on behalf of the Department of Education.

But the drawing “was delivered against her wishes” without anyone named in the suit knowing “who wrote or drew what part of the drawing,” Mateo Caballero, a lawyer representing the girl, wrote in an email to a deputy attorney general.

The officers appealed to the 9th U.S. Circuit Court of Appeals this April after U.S. District Court Judge Helen Gillmor rejected their requests for qualified immunity, citing a shortage of information about what happened.

Qualified immunity, according to the , protects a government official from lawsuits alleging that the official violated a person’s rights, unless it was a “clearly established” statutory or constitutional right. 

“The Court does not have the facts that are necessary to determine qualified immunity concerning the false arrest claims,” Gillmor wrote in a March ruling. “There is insufficient information as to how many children were involved in the drawing, which children contributed to which parts of the drawing and/or words, and whether the drawing was ever presented as a threat. There are also questions raised concerning knowledge, intent, and reasonableness,” she wrote.

HPD spokesperson Michelle Yu said in an email, “HPD acted appropriately under the circumstances of this case.” The officers remain on full duty, Yu said.

Deputy Corporation Counsel Robert Kohn declined to comment. In a court filing, Kohn wrote that the officers admitted to arresting, handcuffing and taking the girl to the Pearl City police station. He also wrote that the court no longer had jurisdiction as the appeal was pending.

Jongwook Kim, a lawyer with the American Civil Liberties Union of Hawaii who also represents Taylor and her daughter, declined to speak about the case. But he said that appeals to the 9th Circuit regarding qualified immunity are common, especially when police officers are sued. Police typically bring up qualified immunity to protect themselves from civil liability.

In December, who shot and killed 30-year-old Albert Dorsey in 2018, the LA Times reported. A three-judge panel ruled 2-1 that enough about the incident was uncertain that officer Edward Agdeppa’s request for qualified immunity shouldn’t prevent a suit from moving forward to a jury. Agdeppa had appealed a lower court’s decision to reject his request for qualified immunity.

In the summer of 2020, after the killing of George Floyd, the U.S. House of Representatives almost got rid of qualified immunity with the George Floyd Justice in Policing Act, but the act failed.

“Officers do not need qualified immunity to protect them from bankruptcy when they are sued; ” writes UCLA law professor Joanna Schwartz in “Shielded: How The Police Became Untouchable.” In a study of 81 jurisdictions over six years, Schwartz found police officers paid 0.02% of the $735 million that plaintiffs won, averaging $4,194 per payment.

While the appeal for qualified immunity does not necessarily jeopardize the Honolulu case, it will likely delay it.

In some 1,200 cases that Schwartz studied, less than 4% were dismissed on qualified immunity grounds. But each time a defendant makes a qualified immunity motion, further research, briefings and arguments ensue.