GOVERNED BY HAW./FED. R. EVID. 408
Dear Messrs. Caballero and Kim: November 8, 2021
The Honolulu Police Department (HPD) is in receipt of your letter dated October 18, 2021, regarding an incident involving your clients. We have had an opportunity to revisit our current policies regarding the handling of juvenile cases as well as the facts and circumstances surrounding the arrest of your client on January 10, 2020. Based on our review of the facts in this case and the HPD's current policies at issue, the HPD will not adopt the four change-in-policy demands set forth in your letter. The HPD maintains that its policies and practices are constitutionally and legally compliant and that adoption of your demands will result in an unreasonable risk to the safety of all students and Department of Education employees and may very well harm the general public.
Presence of Parent/Guardian during interrogation:
The HPD respectfully declines to implement this policy change. This demand deprives minors of their constitutional right and places their parents' will above their own. Having a parent present at the time of a custodial interrogation is the right of the minor and not the parent. It is the minor's right to choose whether to have a parent present or not. Not all minors have healthy relationships with their parents and not all minors want their parents present. To deprive the choice from the minor curtails their right to choose. Further, the demanded policy change fails to address situations where minors exercise their Fifth Amendment right to remain silent only to have the parent demand they provide a statement. Such a conflict results in the minor's constitutional right essentially being overruled by the parent's will. In fact, while Hawaii Revised Statutes (HRS) § 571-31(b) mandates that parents be notified when their child is in police custody, it does not mandate that a parent be present during questioning.
Further, in In re Doe, 90 Haw. 246, 978 P.2d 684 (1999), Justice Klein held that the plain language of HRS § 571-31(b) "requires neither an opportunity for parent-child communication prior to police interrogation nor parental presence during the custodial questioning of a minor." Rather, Section 571-31(b) only requires that police contact a minor's parent, guardian, or legal custodian to notify them that their child is in police custody; it does not give a statutory right to a minor's parent, guardian, or legal custodian to communicate with the minor prior to and to be present at the minor's custodial interrogation.
In this case, the parent of the minor was notified by the school administrators. HPD officers spoke at length with the minor's mother at the school. The minor was not subjected to a custodial interrogation or questioning by the HPD nor did officers take any statement from her. Under these circumstances, the requested policy change is perplexing as a custodial interrogation or questioning did not occur so as to support such a policy change.
In situations where minors are questioned, HPD Policy 1.02, Constitutional Rights Warnings and Custodial Questioning applies. As stated in the HPD's policy, if the minor asks for a parent, all questioning ceases and the minor's parent or adult of choice is brought in. When advising minors of their constitutional rights consistent with Miranda, officers utilize Form HPD-11: Warning Juveniles Being Interrogated of their Constitutional Rights. With the form, minors are advised of their various rights prior to questioning and are informed, among other things, that they have the right to have their parent or guardian or other adult present. They are further asked whether they would like a parent, guardian, or other adult present. The HPD affords the minor more latitude and protection by allowing the minor to choose any adult rather than restricting them to only a parent or legal guardian. This allows the minor to bring in anyone with whom he or she feels the most comfortable. Given the HPD's current policy and practice that provide more protection to the minor than the demand to change current policies, the HPD will not make the requested change.
No Officer on school property absent an "imminent threat of significant harm:"
The second requested policy change is overbroad. The HPD stands by its current practices. A complete ban of officers on school property is unreasonable and unworkable, as HPD officers routinely enter school property for a variety of reasons that may be unrelated to law enforcement purposes. For example, HPD officers run the DARE (Drug Abuse Resistance Education) and JPO (Junior Police Officer) programs, attend career day functions, and conduct "Say 'Hi" events during which officers are on school campus to familiarize students with the HPD programs, equipment, and capabilities through live demonstrations and hands-on displays. Officers use these opportunities to build relationships with both students and faculty for public outreach and goodwill. As you well know, not all children learn through rote academics and class work. The HPD's programs provide another avenue for students to learn, connect, and thrive. These connections with officers build positive relationships and lay the foundation for all students that they too can have a career in law enforcement. Further, many HPD officers have experiences with students who have been in personal and familial crises. While on campus, HPD officers have been approached by students who have reached out to them to disclose feelings and fears that they are afraid to admit to others. Officers are looked at as role models and authority figures who are not parents and who can provide counsel, encouragement, comfort, and, when appropriate, formulate action plans to ensure the safety and well-being of the child. Adoption of your policy change would eliminate these positive opportunities for students and would significantly hamper relationship building efforts between the police and community.
The demand also places students and school employees at greater risk if they are not allowed to call for police assistance until a situation presents an "imminent threat of significant harm," at which point it may be too late for the HPD to effectively respond and will necessitate a higher level of response that could have been avoided if the HPD had been involved earlier. The HPD understands that Hawaii's school administrators are well trained in assessing student behavior, as they interact with students on a daily basis, and the HPD must defer to the educators' sound judgment and discretion to determine when the HPD's assistance and presence are required. When the HPD is called in prior to situations escalating to the level of "imminent threat of significant harm," the HPD is better able to assess the situation and work with the student and staff under less stressful conditions for all. Waiting until situations are at the level of "imminent threat of significant harm" is tantamount to waiting for a small fire to envelope a whole building before calling the fire department. What could have been put out with a garden hose may now require multiple fire trucks.
Further, the proposed policy change would not have resulted in a different response in the present case, as threatening to shoot and kill fellow students would qualify as an "imminent threat of significant harm" and, at the very least, is not a threat that school authorities should be required to wait in order to contact the HPD.
As you know, the "drawing" in question was taken as a credible threat that instilled fear in the victim and was of significant concern to school authorities and the victim's family. Characterizing your client's drawing as an "offensive sketch of a student" is extremely misleading. To be clear, the "drawing" was a graphic drawing of a girl holding and pointing a gun with a severed head at her feet. Your client also wrote a clear message addressed to two classmates by name, using foul language: "Stand down B**ch! Yo F**kin days are over NOW' and "Fake to me And OED!"
The threat was taken seriously by one of the named victims who was upset, distressed, and scared enough to tell her parent who, in turn, brought it to the attention of the school administration. The school authorities called the HPD to respond and the HPD acted consistent with its policies and applicable law. The HPD is not in a position to second-guess school administrators over the phone as to whether a situation is "imminent" enough for the HPD to respond especially in light of the escalation in school shootings and violence on the mainland. Once the HPD is on the scene, a better assessment can be made of the situation and appropriate action taken. To ask school administrators to call back when it reaches a level of "imminent threat of significant harm" is unacceptable, irresponsible, and risks the safety of all persons involved.
The additional demand to promulgate policy changes that (1) forbids officers from arresting students on school property "unless the student is an imminent threat of significant harm to someone" and (2) requires officers to issue citations in lieu of arrest for misdemeanors committed by minors on school property are also rejected. The requested policy changes significantly impair officers from taking necessary, appropriate, and reasonable measures to ensure the safety of all students and faculty on school campuses. The HPD believes that its current policies and procedures are appropriate, reasonable, and legally compliant that protect the safety and welfare of all students and faculty.
As stated in HPD Policy 4.33, Handling Juveniles, officers are ordered to "be sensitive to the age of the youth and the circumstances surrounding the incident when faced with an apprehension situation on school grounds (or in the educational setting) during school hours."
Officers must consider "any and all information given to them by educational professionals, teachers, or mental health providers about any disabling conditions and behavioral disabilities before determining whether a youth will be apprehended." When dealing with juveniles in a law enforcement capacity, officers must exercise reasonable discretion with regards to appropriate actions. They are provided with a number of alternatives to apprehension including, but not limited to: (1) releasing the juvenile with no further action; (2) verbally warning the juvenile; (3) counseling the juvenile regarding the consequences of the juvenile's actions; (4) consulting with and arranging for corrective actions by a parent/guardian; and (5) dropping charges at the request of the complainant.
Further, mandating the issuance of citations in lieu of arrest for all misdemeanor offenses is far too restrictive and places the grade of the offense above the safety of individuals and appropriate response to specific situations. Officers cannot ignore the totality of facts and circumstances when responding to calls for law enforcement intervention. Every situation presents its own set of facts and circumstances that must be evaluated individually; not addressed with a blanket, one-size-fits-all rule.
Officers must be afforded the flexibility and discretion to assess the situation in order to determine the best response for each situation. A situation involving a high school student who is mentally and physically "out of control," throwing items around the classroom and punching fellow students in a rage requires a significantly different response than a student who is calm after being involved in an on-campus fist fight. Both involve misdemeanor offenses but both require different approaches and responses. Your demand for the policy change removes that individualized response to each situation, which is more damaging and dangerous for all involved.
Finally, it is important to remember that the HPD responds to 911 calls for law enforcement intervention and service from any and all schools on Oahu. The HPD's response on the scene is incident specific and dictated by numerous factors such as the severity of offense, assessment of risk of ongoing violence/disruption, among other case specific factors. It is NOT motivated by race. It is very unfortunate that you and your clients have injected race in this matter. The incident and the response were not racially motivated. The HPD does not and will not respond to 911 calls for law enforcement intervention and service based on race. If someone calls 911 for police assistance, the HPD responds regardless of race. In the present case, the HPD responded to the call for law enforcement intervention and service at the school as it would to any call from our educational partners. The HPD's response was need-based because your client's actions dictated the HPD's response and not the color of her skin. As stated in the HPD's policy, the HPD "does not train, teach, endorse, support, or condone law enforcement practices based solely on race, ethnicity, color, gender, age, religion, national origin, ancestry, sexual orientation, marital status, mental or physical disability, or source of income." A violation of the HPD's policy regarding bias will result in disciplinary action up to and including termination.
In your client's case, there is no evidence to suggest that officers acted with racial animus. In fact, as you acknowledge in your letter, officers were trying to de-escalate the situation and expressed empathy for your client. They worked to find alternative solutions and did not immediately jump to arrest your client despite the fact that they already had probable cause to believe that your client committed a crime. To now claim race or racism as a factor is disingenuous and very unfortunate as the officers were clearly trying to diffuse the situation rather than rushing in and arresting the minor without question.
Again, if the requested policy changes were in place, this would not have changed the outcome of the present case. A threat to shoot and kill another student is, and must be considered to be, "a threat of significant harm to someone," which you acknowledge is something officers could arrest a student for on school property. Thus, the arrest of your client on school property is consistent with your own assessment of the situation.
RADE K. VANIC
Interim Chief of Police