U.S. Surgeon General Jerome Adams and his aide, whom police cited at an Oahu beach park in late August for allegedly violating an emergency order during a shutdown of the island’s beach parks, should not be prosecuted, said an attorney who spoke on behalf of a tour guide who took the men to the park.
“Why are they going after the admiral who came here to help us?” said attorney Eric Seitz, who is representing Kelmer Beck. “It’s just outrageous.”
A jury trial potentially may be held in the coming months for Adams and his aide, Dennis Anderson-Villaluz, for the alleged emergency order violation, a misdemeanor punishable by up to a $5,000 fine, a year in jail or both. Attorney Michael Green is representing the two men.
At a hearing Tuesday at Circuit Court, Judge Rowena Somerville granted a continuance at Green’s request on court proceedings in Adams’ and Anderson-Villaluz’s case, resulting in postponement of the trial, which is now tentatively scheduled for March. The jury trial was originally scheduled for Dec. 14.
“This case continues to be an embarrassment to this state and the good people of Hawaii,” Green said after the hearing. He plans to file motions arguing the emergency order statute that police cited Adams for alleged violating is “unconstitutionally vague.”
Police cited Adams, Anderson-Villaluz and their tour guide at Kualoa Regional Park in Kaneohe on Aug. 23. Seitz said Beck took the men there to go swimming, but when they got there and observed the murky water, they decided not to swim.
According to Green, the men were walking back to their vehicle when Beck stopped to take a photo of them with the Koolau Mountains in the background. Police then cited the three men.
In Adams’ citation, a police officer reported he observed Adams standing with two other males “looking at the view taking pictures.” The officer further stated in the citation that they moved to the center of the park where they took more photos, and “Adams put his mask on as he walked back toward his vehicle.”
Adams was in Hawaii helping the state with surge testing to reduce the spread of the coronavirus outbreak. He told the officer he was working with the governor for COVID-19 and didn’t know the parks were closed.
At the time, Honolulu Mayor Kirk Caldwell closed Oahu’s beach parks to prevent crowd gatherings in response to a surge in COVID-19 cases. During the closure, people were allowed to traverse beaches only to access the ocean.
Deborah Kwan, spokeswoman of the city Department of the Prosecuting Attorney, said they are treating Adams’ case like any other case.
Defense attorneys said prosecutors have offered many people who were cited to reduce the misdemeanor emergency order charge to a noncriminal violation.
In October, Beck pleaded no contest to simple trespassing at Kaneohe District Court and paid a $100 fine.
Seitz, who is not representing Adams, pointed out the surgeon general’s situation is different and that a deferred plea could be detrimental to his future in the military and security clearance.
Seitz, who taught constitutional law at the University of Hawaii at Manoa’s William S. Richardson School of Law, said if Adams accepted a deferred plea, it would be a mark on his record because the federal government considers a deferred plea a conviction.
“The options for military people are very limited,” he added, noting there are serious consequences.
The large number of emergency order violation cases, meanwhile, continues to overwhelm the court system. “It’s clogging the courts. Everybody is unhappy about that,” Seitz said.
From the beginning of the pandemic in March through October, the prosecutor’s office declined to prosecute more than 43,000 emergency order misdemeanor charges out of approximately 60,000 charges issued by Honolulu police, according to data by the state Judiciary.
Kwan said they declined to pursue charges in those cases because of insufficient evidence.
Another 15,700 or so charges were also dismissed.
The data showed there were only about 960 convictions of the 60,000 charges.
Honolulu Police Chief Susan Ballard said in a statement issued Monday that the dismissal of tens of thousands of citations gives the impression the citations were issued in error, “and that is not the case.”
“Violations were observed and enforcement actions were taken. We understand that the Prosecutor’s Office and Judiciary are not set up to handle the unprecedented volume, but enforcement is only effective when all parts of the system work and support each other,” Ballard said.
She added they expressed concern the misdemeanor classification for an emergency order violation was problematic and a “disproportionate response that would clog the courts.”
“HPD believes that a fine would have accomplished the desired change in public behavior without flooding the courts. Despite the warning, there were no attempts to lower the classification to a violation or petty misdemeanor which would have made the penalty a fine except in rare cases,” Ballard said.
In response to Ballard’s statement, Kwan said the dismissal of the thousands of citations “is not, nor should it be construed as,” a means to reduce the volume for the prosecutor’s office or the courts.
The office has taken an “all hands on deck” approach and “remains fully prepared to prosecute as many of emergency order citations as the law allows, but will only seek charges when the evidence is sufficient to sustain a conviction,” she said. “Although violations may have been observed by officers, prosecution is not in the field and we can only rely on what is recorded by the officer. We continue to fulfill our obligation to review each and every citation independently and make a charge decision based on the facts presented.”