In a ruling that could force more police transparency, a Circuit Court judge ordered the city to turn over unedited body camera footage, 911 recordings and other evidence to attorneys representing the family of an unarmed citizen of South Africa who was shot and killed last month during a fight with patrol officers.
The decision by Judge Dean E. Ochiai came on the first anniversary of George Floyd’s murder by former Minneapolis police officer Derek Chauvin, a fact highlighted by attorneys pushing for disclosure as another reason why evidence in the case must be made public.
The court granted some of the city’s attempt to delay discovery in the wrongful death lawsuit filed against the officers and the city in connection with the death of 29-year-old Lindani Myeni until after the Honolulu Police Department’s and the Prosecuting Attorney’s separate investigations conclude.
“It’s a very measured ruling. I think it is an absolutely appropriate ruling to begin to chip away at police secrecy which has, so far, here and elsewhere, been dominated by police-related interests,” said Jeffrey S. Portnoy, an attorney with Cades Schutte LLP who represents the Honolulu Star-Advertiser in First Amendment proceedings. “I do hope that it begins a trend towards more openness. This can’t be seen in the abstract. The police, SHOPO (State of Hawaii Organization of Police Officers), fought for years to keep any critical information regarding police activities, police shootings, police incidents, arrests from the public. (This is) an important and necessary trend towards transparency in policing.”
HPD declined to comment on the ruling.
“The Department of the Prosecuting Attorney respects Judge Ochiai’s ruling,” Steven S. Alm, Honolulu prosecuting attorney, said in a statement issued to the Star-Advertiser. “Our independent investigation into this matter continues on the expedited timeline I announced last week.”
The city department of the Corporation Counsel thanked Ochiai for the portions of the protective order he did implement.
“We appreciate Judge Ochiai’s consideration of our motion and the issuance of a protective order,” said Krishna F. Jayaram, first deputy corporation counsel, in a statement to the Star-Advertiser. “As to the remainder of his ruling, we are in the process of parsing through it.”
Myeni died of multiple gunshot wounds April 14 during a violent struggle with officers responding to a 911 call from a woman alleging he walked into and out of the home she was staying in at 91 Coelho Way in Nuuanu.
In denying parts of the protective order sought by the city, Ochiai questioned how the police could release some of the body camera footage but not all of it.
He ordered the city to produce the unedited body camera footage from the three responding officers,
all incoming 911 calls from the geographic area of the shooting between 8 and
9 p.m. April 14, and a copy of the clone of Myeni’s phone by June 10.
Ochiai also blocked the city’s attempt to delay attorney James J. Bickerton from deposing the woman who called 911, Shiying “Sabine” Wang; her husband, Da Ju “Dexter” Wang; and the registered owner of the home, James H. Hall, and obtaining a copy of the clone of Myeni’s mobile phone.
Police reports, investigations, personnel files and anything related to the actions of the officers under investigation for possible criminal liability by the prosecutor will not be disclosed in the civil case prior to July 16, in accordance with a timeline issued by Alm, Ochiai ruled.
If Alm finds no evidence to support criminal charges against the officers, the protective order will be dissolved. If charges are brought, the order will remain in effect.
Deputy corporation counsel Audrey L.E. Stanley would not answer a question from Ochiai in open court about whether police accessed Myeni’s phone. Bickerton filed a declaration from a friend of Myeni’s, Mpho Mapoulo, who stated that police detective “Takaki” called and spoke to him for five to 10 minutes and said he knew that Mapoulo spoke frequently with Myeni and that they talked the night he was killed.
“It is extraordinary and unfounded for a party to seek to block discovery on grounds it might interfere with its own internal investigations of its own employees’ conduct being conducted in two different City departments (both of which are being spoken for in the motion by the same lawyers, whose job is to defend HPD from civil liability),” Bickerton wrote in opposition to the city. “It is particularly disturbing given the intense public interest and concern in police killings of unarmed black men that has gripped this country in this past year.”
In opposing Bickerton’s motion, deputy corporation counsels Donovan A. Oda and Stanley claimed the filing of the civil suit in the weeks following the incident was unprecedented and that city attorneys had no intention of delaying discovery in the civil case for any longer than police and prosecutors need to complete their investigation.
“The City’s Motion for a protective order seeks a reasonable time-limited stay of discovery until the investigations are complete surrounding an incident occurring a mere forty days ago,” the city’s attorneys wrote. “This case presents a highly unusual, perhaps unheard of, situation where Plaintiff files a civil lawsuit immediately after a serious event, and demands immediate discovery. Law enforcement investigations invariably take precedence, and civil discovery can interfere with those investigations.”
Bickerton argued that leaving unchallenged false statements by HPD in the public record and on the internet is much likelier to have an impact on jurors’ open minds.
“And in this year of the George Floyd case, the public interest and right to know is at its height. A civil case serves that important purpose,” he wrote.
