The U.S. Department of Justice is reviewing allegations by a Honolulu attorney along with other information to determine whether an investigation into the policing practices of the Honolulu Police Department and possible federal oversight are warranted.

On July 6, Honolulu attorney Eric Seitz sent a letter to Assistant Attorney General Kristen Clarke, head of the U.S. Department of Justice’s Civil Rights Division, requesting federal oversight of HPD management and operations through a consent decree or other form of federal relief.

In his letter, Seitz wrote that since 2010, an “epidemic” of police shootings, by Honolulu standards, has resulted in too many deaths. Since 2015, there have been 19 fatal shootings by police, according to HPD.

Seitz is involved in four active wrongful-death complaints and four complaints of excessive use of force against HPD.

“In addition to increased uses of force, the Honolulu Police Department has been seriously understaffed and mired in controversies involving corruption and poor performances of even the most routine law enforcement tasks,” wrote Seitz. “In my professional and personal opinions, there is at least as much need and urgency to assert forms of oversight regarding the Honolulu Police Department at this juncture in our history.”

He received written confirmation Tuesday from the Justice Department asking for additional evidence and saying the federal agency will review the allegations and other information to determine whether a formal investigation is warranted.

Seitz is familiar with the consent decree process as one of the attorneys who filed a class-action lawsuit that forced the state into the Felix Consent Decree that spurred special education reforms at a cost of more than $1 billion. The suit was filed on behalf of six children, including Jennifer Felix, and 19 organizations claiming the state was not complying with the Individuals with Disabilities Education Act or Rehabilitation Act of 1973.

“I believe that public opinion in Honolulu overwhelmingly has expressed concerns about the willingness and ability of the department and current city and county leadership to confront and find solutions for the problems we have been experiencing here,” the attorney told federal officials. “In part, my belief that federal intervention and oversight is necessary stems from the overt and highly unprincipled acts and statements of local politicians and leaders that continue to support the police and refuse to hold them meaningfully accountable.”

Interim Honolulu Police Chief Rade Vanic issued a statement but did not respond to a Honolulu Star-­Advertiser request for an interview about Seitz’s allegations and request for federal oversight. As of Friday, the department had not been contacted by the DOJ.

“Our officers take an oath to uphold the law and serve our community. They do difficult, challenging work to the best of their ability and are ready to risk their lives when called on,” said Vanic in the statement. “The officers who do not follow the rules and standards are few, and they are held accountable for their actions both criminally and administratively. The Honolulu Police Department is committed to serving our community with integrity, respect and fairness.”

From 2015 to 2019, force was used in less than 1% of all incidents resulting in a police report, according to a February presentation delivered to the Honolulu Police Commission.

In his letter to the DOJ, Seitz wrote about the over-policing of Native Hawaiians and Micronesians, and said the perception of Hawaii as the model of racial harmony is surface-thin.

“The Hawaiian community has long complained about the social and economic consequences of having a dominating Caucasian in positions of authority, resulting, among other things, in a significant disparity of part-Hawaiians populating state correctional facilities. More recently the Micronesian community has been victimized by poor housing, lack of access to medical care and educational opportunities and police violence,” wrote Seitz in his letter.

Use of force

In incidents where officers used force, Native Hawaiians/Pacific Islanders were involved 34.5% of the time and accounted for 38% of arrests in 2019, according to a Feb. 3 presentation to the Police Commission. Native Hawaiians/Pacific Islanders make up 23% of the population on Oahu, according to the U.S. Census Bureau.

The data also showed that Blacks were involved in 7.4% of force incidents and 5.2% of arrests, while comprising 4.2% of the island’s population.

Seven of the eight officer-­involved fatalities in 2019 were either Native Hawaiian, part-Hawaiian or Samoan.

Drugs or alcohol were involved in 58% of incidents where officers employed force in 2019, increasing from 2015 to 2019, according to the HPD presentation.

On April 1, HPD updated its use-of-force policies in response to a nationwide outcry over the May 25, 2020, murder of George Floyd by Minneapolis police officer Derek Chauvin. The updates were made in consultation with the State of Hawaii Organization of Police Officers union and nearly mirror some of the suggestions made by the federal government in consent decrees addressing use-of-force practices with other law enforcement agencies.

HPD Policy No. 1.04 is more than 20 pages and emphasizes clear communication. It features a detailed list of de-escalation tactics and techniques. The section walks officers through how to gain control of difficult situations without using deadly force, while giving them broad discretion in how they react to escalating and fast-moving situations.

Consent decrees

A consent decree is a negotiated agreement entered as a court order as the result of the DOJ investigating and then filing a civil lawsuit against a police department alleging unconstitutional policies and practices.

A DOJ review of consent decree documents in cases that included use-of-force issues showed that the agreements typically require local police policies to include certain elements, including clearly identified types and levels of force and consequences for “unreasonable” use of force.

Other requirements that are common include certification of officers in use of certain types of force; the use of de-escalation techniques; reporting, documentation and investigation of force incidents; supervisor response; and auditing and review of incidents.

Several consent decrees have required police to implement “early intervention systems” that flag officers who may be engaging in inappropriate behavior, according to the DOJ. Policies against biased policing are often enforced and clearly articulated in consent decrees.

Under former President Barack Obama, the DOJ entered into 15 consent decrees with law enforcement agencies. But during President Donald Trump’s term, Attorney General Jeff Sessions issued an order declaring it was not the federal government’s place to investigate police.

U.S. Attorney General Merrick Garland rescinded that order in April.

The DOJ and independent monitors have executed consent decrees with the police departments of Los Angeles, Chicago, Cincinnati, Seattle and Baltimore.

Randal Lee, an attorney and retired Circuit Court judge who teaches criminal justice at Hawai‘i Pacific University, said consent decrees can be constructive but at the cost of a “hamstrung” leadership team that is handed a court-enforced, detailed set of instructions for managing and reinventing the department.

“It’s hard to codify a discretionary act. … I think consent decrees are good and bad. The bad thing about consent decrees, from a police management perspective, you lose control of your department. The feds now control your department,” Lee said. “I think it’s good because you tend to reexamine your organization. It’s good you have some recognized standards, but do you really need a consent decree? The implication is that your organization is bad and did something wrong. Is HPD at that stage now? Are they that bad they need a consent decree?

“In my opinion, give the new chief a chance to right the ship, before we go to the very extreme.”

Lee pointed out that the federal government and the courts may impose standards that work in Los Angeles or Chicago but are simply not applicable to Hawaii’s unique community and cultures.

Mired in controversy

HPD’s reputation was dealt a serious blow when former Chief Louis Kealoha and his wife, Katherine, were convicted of conspiracy and fraud.

The former chief was sentenced in November to seven years in prison for his role in one of the worst public corruption scandals in Hawaii history. Katherine Kealoha, a former city deputy prosecutor, received 13 years in prison for masterminding a scheme that bilked her grandmother out of her home and framed her uncle for a crime he did not commit.

Two former HPD officers also were convicted for their roles in the conspiracy.

Alexander Silvert, a former federal public defender who was instrumental in exposing the allegations and outlining the case against the Kealohas, said their convictions, along with the resignation of Police Chief Susan Ballard two days after receiving a poor performance review from the Police Commission in April, and the ongoing search for the city’s 12th police chief suggests “dysfunction” at HPD.

“Given the disarray of the department as it is, and given that it’s in flux and in transition again and we haven’t seen real change, I don’t think it’s outrageous that the DOJ might step in,” Silvert said. “They (DOJ) may take a wait-and-see approach … that means a lot of pressure is on the Police Commission to make a real choice for change” in selecting the next chief.

Silvert has authored a book about the Kealoha case, “The Mailbox Conspiracy: An Inside Look at the Greatest Corruption Case in Hawai‘i History.”

Seitz told the Star-Advertiser, “It just doesn’t seem that the city and county, from the top on down, wants to address horrible events in which the police are involved, and because of that I think the public is at risk.

“I think the Justice Department is in a unique position to determine are there rules, regulations and policies that address the abuses, since we are in process of choosing a new chief, to see if the criteria for new leadership is in place.”