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Intervention of federal prosecutors a rarity in cases involving states’ rights

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In these divisive times, Census worker Russell Haas had come to expect some resistance when he went door to door to count the residents of the rugged communities near Hawaii’s Kilauea volcano. He did not expect to get arrested.

An attempt to get one resident, a county police officer, to fill out census forms landed Haas in the back of a patrol car with a trespassing charge.

His case is the latest example of disputes this year between census workers and residents who do not want to deal with them. It created a rare instance in which federal prosecutors stepped in to serve as criminal defense attorneys.

"I was trained to encourage everybody to be in the census," said Haas, 57, a former New Jersey police officer.

The case harks back to an argument that is as old as the nation itself: the tension between federal powers granted under the Constitution, such as census taking, and a state’s right to govern itself.

Whether it is state attorneys general opposing a new health care law or Arizona’s immigration law, challenges to federal authority abound. And for the past year many census workers have seen it face to face when they pull open gates or ring a doorbell.

Nationwide they have met more hostility than they did in the last count a decade ago. The agency tallied 436 incidents involving assaults or threats against its 635,000 enumerators through June 29, more than double the 181 incidents in 2000.

Hawaii had one of the nation’s lowest response rates in the 2000 count, and officials focused on getting a more accurate tally in 2010. They have tried to encourage people, especially native Hawaiians, to be counted so the state gets its fair share of federal dollars.

In the Big Island’s Puna district, where residents value privacy, independence and the simple life, Haas said he anticipated some resistance, especially from the area’s Vietnam War veterans and marijuana growers.

Instead, most of them took the census forms without a fight, "even the angry ones," he said.

When he went out on March 10, he said, he found trouble when a resident refused to accept census forms and told Haas to leave his fenced property. Census workers are told in their manuals that they should do their best to gain access to areas surrounded by gates.

"When this guy showed me his badge, I went, ‘Dude, you have to be in the census. What are you talking about?’" Haas said.

The resident continued to refuse to take the census, and Haas said he waited outside a chain-link fence while the resident called his co-workers at the Hawaii County Police Department.

When police arrived, instead of asking the resident to accept the forms as required by federal law, the officers crumpled the papers into Haas’ chest and handcuffed him, Haas said. The department has not released the name of the officer who told Haas to leave his property.

Haas said he told officers that it was his duty to leave the census forms with the resident and that he would leave as soon as he did it.

The officers were enforcing state law and had not been trained on the federal census law, Hawaii County Police Maj. Sam Thomas said.

Hawaii County Deputy Prosecutor Roland Talon argued that Haas overstepped his authority by opening the resident’s unlocked fence, entering his property and refusing to leave until he had been asked several times.

"There were other measures that he could have taken which would not have risen to the level of him trespassing onto the property," Talon said in an interview.

Assistant U.S. Attorney Larry Butrick said Haas was protected by the U.S. Constitution for actions taken in his capacity as a federal employee.

"Haas was instructed that when dealing with a reluctant respondent, he was to strive to gain the respondent’s cooperation and try to be persuasive," Butrick wrote in a motion to have the case dismissed. "Haas was told to be persistent in his attempt to talk to respondents."

Census officials were not aware of any other case where federal lawyers defended an arrested employee.

 

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