by Andrew Walden
Honolulu lawyer Eric Seitz is demanding the City of Honolulu cough up a settlement for his client, Honolulu security company owner Mansour Arekat, after the Ninth Circuit Court of Appeals refused to reconsider the November 19 decision of a Ninth Circuit Court three-judge panel. The City will also be required to pay his legal fees which now exceed $500,000.
Arekat sued after being arrested in 2003 and held for about eight hours under a Hawaii mental health law allowing police to detain anybody deemed to be a “danger to himself or others” for a 72 hour mental health evaluation. Police also confiscated several guns.
The Circuit Court decision overturns a 2006 Honolulu federal court jury decision that police were not liable for the arrest.
In her dissenting opinion, Federal Judge Consuelo Callahan, a judicial moderate who has been considered for nomination to the US Supreme Court, hammers the majority for re-trying the case—a practice barred on the Appellate level. Judge Callahan points to behavior by plaintiff which could have created cause for alarm, but is now deemed insufficient cause for police action by the Court’s majority:
…reasonable minds could consider Arekat's ownership of a security company with access to firearms a reason to be concerned with Arekat's aberrant behavior. Moreover, the FBI's report did describe a threat: it stated that "Arekat alluded that he might kill  if this harassment continued and he slept with his `finger on the trigger.'" Indeed, it appears that Arekat's own statements to the FBI were one of the reasons the FBI reported Arekat to the Health Suicide and Crisis Hotline.
Callahan explains that the majority’s November decision is based on hindsight. She points out:
The real harm worked by the majority's decision is not just its impact on the officers involved, but in leaving police officers no safe course. If the officers had done nothing and Arekat had proceeded to shoot someone, defendants undoubtedly would have been sued for failing to detain Arekat. One of the officers explained in her deposition that this case reminded her of a prior case in which the police had not removed a firearm from a person who exhibited signs of paranoia, and that person had used it to kill a person, resulting in a huge civil liability for the police department and the city. In this case, the defendants made a courageous decision to detain Arekat. After considering all the evidence presented during a full trial, a jury found that the officers had probable cause to believe that Arekat was dangerous to himself or others.
The scenario Callahan is warning of parallels with the lead-up to the Tucson shootings. In recent months, Jered Lee Loughner was contacted at least five times by Pima Community College Police due to his erratic behavior and eventually expelled from school--without being held for mental health evaluation. In other jurisdictions he had been arrested on drug charges.
If Loughner had a diagnosed mental illness, he would have been unable to pass a background check last November 30 and legally purchase the handgun later used in the shootings.
Seitz recently turned down an offer from Governor Abercrombie to become Attorney General.