A SAD SCENE IN “PARADISE”
Hawaii, the 50th State, known for the best weather and most beautiful scenery in the world and for world class hospitality in the spirit of aloha today witnessed our friends and neighbors being arrested and/or cited for a peaceable protest on the grounds of the Hawaii State Capitol. It is unclear at this point exactly what Honolulu Police Department Officers charged them with.
PARSING THE SCENE
This is not going to be a philosophical or political essay on religious liberties or civil rights. There is much to be said about that also. But here, I want to deal specifically with the matters of constitutionality and law that need to be safeguarded now and going forward.
In due time, we need to fully consider why Hawaii churches and places of worship are still shuttered while other states are entrusting pastors and other religious leaders with holding congregational worship services while applying appropriate social distancing necessities. Apparently Hawaii Governor David Ige has taken to heart the provision in the Hawaii Revised Statutes that grant him unaccountable emergency powers.
- HRS §127A-14
- State of emergency
- (c) The governor or mayor shall be the sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency in the State or a local state of emergency in the county, as applicable….
Governor Ige has now even suspended the provision of this statute that enables the four county mayors to issue their own emergency declarations. Now the Mayor of the City and County of Honolulu along with the Mayors of Kauai, Maui and the Big Island of Hawaii must get permission from the Governor before issuing or even amending any such emergency proclamations.
WHAT ACTUALLY HAPPENED ON MAY 1ST?
Rather than looking at this in general terms, rather let us focus upon the sorry scene of Hawaii residents being cuffed and taken to jail cells as they assembled at the square building on South Beretania Street that serves as the Hawaii State Capitol. Apparently not everyone was cited and certainly not everyone was arrested, so the question is what specific charges were laid by HPD against those who were.
Were any specific statutes of the Hawaii Revised Statutes violated and/or any Honolulu City and County Ordinances? Communication with those who were present there yesterday thus far indicates only that charges involved violating the Governor’s emergency orders but without any indication of what specific provision. I have just received a copy of a citation that was issued which indicates Law(s) Violated & Committed “HRS 127a-25” and Description “Emergency Rules.” This Hawaii Revised Statute basically just says that the governor has the authority during an emergency to adopt rules which have the force and effect of law. But it does not indicate which such rule has been violated.
It appears that those who did not immediately disperse were also asked for their name and ID and either cited and/or arrested if they did not comply. For those who were standing on the Capitol grounds and not in a vehicle, the laws related to traffic stops do not apply. Did the HPD Officers who asked for name and ID suspect that a law had been violated and if so what law? If it was the Governor’s emergency order, what specific provision was being violated? If no violation of law was suspected, did the HPD Officers demand name and ID? If so, by what Authority?
LOCAL MEDIA REPORT
Police arrest 3 protesters, cite another 5 at ‘reopen Hawaii’ rally in front of State Capitol
“Honolulu Police Department officers moved in after a half-hour to enforce an emergency order from Gov. David Ige that prohibits gathering in public places.”
THE CONSTITUTION OF THE STATE OF HAWAII
- Article I Bill of Rights
- FREEDOM OF RELIGION, SPEECH, PRESS, ASSEMBLY AND PETITION
- Section 4. No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. [Ren and am Const Con 1978 and election Nov 7, 1978]
No law shall be enacted … abridging … the right of the people peaceably to assemble and to petition the government for a redress of grievances.
Section 4 of the Hawaii Bill of Rights applies the 1st Amendment of the U.S. Bill of Rights. Therefore all laws and emergency orders in Hawaii must comply with both Hawaii State Constitution and the United States Constitution.
Any violation of the 1st Amendment to the United States Constitution should be investigated by the U.S. Department of Justice and by the FBI.
HAWAII STATE LEGISLATURE AND BALANCE OF POWERS
This Hawaii Revised Statute needs to be amended immediately as it is too vague & lacks checks & balances.
Any Proclamation or suspension of statute or ordinance must be constitutional.
- §127A-14 State of emergency
- My Proposed Amendment:
- “A State of Emergency Proclamation by Governor or Mayor will take effect immediately but will become null and void unless ratified within 24 hours by a simple majority of both Hawaii Senate and House of Representatives.”
The Constitution of the State of Hawaii Article III, § 19
- The governor and lieutenant governor, and any appointive officer for whose removal the consent of the senate is required, may be removed from office upon conviction of impeachment for such causes as may be provided by law.
THE OPTIONS
- Hawaii State Legislature would need a veto-proof majority to amend statutes concerning emergency powers.
- Hawaii State Legislature could impeach and convict and remove from office the Governor of Hawaii.
- The United States Department of Justice could intervene to ensure that all emergency orders and police actions in Hawaii are in accordance with the United States Constitution and federal statutes.
- Cases could be filed in state and/or federal court challenging the legal authority and constitutionality of the arrests at the State Capitol and of the Governor’s emergency orders.
COMMON SENSE SOLUTIONS
- Governor Ige could immediately terminate his emergency order and apologize to the good people of Hawaii for his unconscionable overreach.
- Hawaii State Legislature could exercise its responsibility.
- United States Department of Justice could find Hawaii on the map and proceed accordingly.
- Patriotic citizens could take their case to court.
A NOTE ABOUT MY MOTIVES IN DOCUMENTING THIS SITUATION
As one who enforced the law my entire career as a Federal Officer, I do not take these matters lightly and absolutely do believe in the rule of law. While the violation of just laws must be duly punished, unconstitutional laws and emergency orders must be invalidated by the courts and those who commit such violations by enacting the unconstitutional laws and emergency orders should be held accountable under the law as well as by the voters.
I also want to say that I take the COVID-19 health crisis and pandemic extremely seriously. I personally am happy to wear the uncomfortable mask when I go out in public. I have read detailed explanations by medical professionals about how excruciating and agonizing this unique illness is both to the victim and to their families.
I do understand that everyone here in Hawaii is thankful that we have not experienced the spread here that has taken place elsewhere. We do not need to go on a witch hunt against everyone who may have overreacted up to this point. But we need to ensure that both the U.S. and Hawaii Constitutions are fully respected.
We absolutely must not degenerate into a nanny state where the government dictates to us every element of our lives and we are no longer free to make our own decisions for ourselves, our families, our businesses, and our communities. No man or woman, be he or she a Governor or a Mayor, has the capacity to unilaterally make all decisions in our behalf.
- Power tends to corrupt; absolute power corrupts absolutely.
- An observation that a person’s sense of morality lessens as his or her power increases. The statement was made by Lord Acton, a British historian of the late nineteenth and early twentieth centuries.
A WORD TO HAWAII AUTHORITIES
- The Governor and the four Mayors need to rethink the propriety of their emergency declarations and take remedial action.
- Hawaii State Senators and Representatives need to understand that only they right now can stand in the gap between the people and the Governor.
- Men and women of HPD need to ensure that they are following the orders of their chain-of-command. Their higher-ups and ultimately the Chief of Police must guarantee that they uphold the law and the Constitution. The State of Hawaii Organization Of Police Officers [SHOPO] ~ the police union ~ should represent and stand by their officers as they ensure that they are following only lawful orders.
- U.S. Attorney General William Barr and the FBI/Honolulu should review the constitutionality of all emergency orders and arrests/citations issued pursuant thereto in Hawaii.
- We the People must obey the law while making our voices heard. This article you have just read is one such attempt.
DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
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