POLICE DEPARTMENT

CITY AND COUNTY OF HONOLULU

801 SOUTH BERETANIA STREETS HONOLULU HAWAII 96813
TELEPHONE (808) 529-3111 INTERNET: www bonolurupdorg
-

RADE K VArIIC
RICK 8LANGARDI
1JTER!M CHIEF
MAY OR

OUR REFERENCE RV—TA

November 8. 2021

Mr. Mateo Caballero

Principal Attorney
Cabellero Law LLC
P.O. Box 235052
Honolulu, Hawaii 96823

Mr. Wookie Kim

American Civil Liberties
Union Foundatinon
P.O. Box 3410
Honolulu, Hawaii 96801

VIA ELECTRONIC MAIL AND REGULAR MAIL

GOVERNED BY HAVQ/FED. R. EVID. 408

Dear Messrs. Caballero and Kim:

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 alt students and Department of Education employees and
may very well harm the general public.

Presence of ParentiGuardian 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

ccfl•Uzç it Ed Pn’frcting 14’ith .1/’/,i

Messrs. Caballero and Kim
Page 2
November 8, 2021

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-1 1:
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 ppy 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,
Messrs. Caballero and Kim
Page 3
November 5, 2021

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 DED!” 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
Messrs. Caballero and Kim
Page 4
November 8, 2021

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.

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.

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
Messrs. Caballero and Kim
Page 5
November 8, 2021

mailer. 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.

Based on the above, the HPD stands by its policies and procedures and respectfully declines to
implement the demands for policy changes set forth in your letter. The HPD believes that its
current practices and policies are legally compliant and protect the rights of all as well as better
ensures the safety of all students and faculty on school campuses. The HPD rejects all other
demands in your letter

Sincerely,

RADE K. VANIC
Interim Chief of Police

cc: Dana MO. Viola, Corporation Counsel

Keith T. Hayashi, Interim Superintendent
Carter Siu, Deputy Attorney General
Catherine Payne, Board of Education Chairperson