Friday, September 19, 2008

Off the Hook

I just went through a rather intense 24-hour period that began Wednesday night when I got home to find emails advising me a warrant had been issued for my arrest. Apparently the news had been posted on a Hawaiian sovereignty Yahoo forum, along with the names of three other persons who also were being charged with trespassing related to an Aug. 7 Naue burial site protest, which I’d covered for Honolulu Weekly and this blog.

After freaking out for a few minutes, I remembered I had the cell phone number of attorney Dan Hempey, Kauai’s resident civil rights maven, so I called and told him what was up. He then called the cellblock and confirmed that I had, indeed, been charged with criminal trespass in the second degree, a petty (literally) misdemeanor. He suggested we take care of it right away so I wouldn’t have to worry about the cops showing up at my door, and offered to accompany me to the cop shop so I could turn myself in.

I got $100 bail money out of the ATM, then we headed for Lihue and arrived at the impenetrable Babylon, where you must call and then wait for a police officer to come out and escort you into the fortress. We waited, then a woman came out and said it was going to be awhile, so make ourselves comfortable.

We waited some more, than the very polite Officer Nitta came out to tell us that they weren’t ready to accept us. It seems that Capt. Ale Quibilan (who I previously misidentified as a lieutenant named Ollie – sorry about that, Captain) had contacted Chief Darryl Perry, who said he wanted to review the warrant before I was arrested.

Now that was interesting, Dan said, and after receiving assurances that they wouldn’t serve me that night, or without calling him first, we left.

Dan, in his usual irrepressible style, jumped right into the case, researching the law, developing a strategy and most important, contacting Chief Perry the next day to discuss the First Amendment and the rights of journalists to cover the news. The Chief said to give him an hour to research the matter, then he sent out an email to key police officers and the prosecutor’s office that made it clear he “got” the bigger issue at stake. In asking them to rescind my arrest warrant he wrote:

Based on her credentials as a media representative; her complicity in the alleged trespassing charge is in doubt as she is covered by both State of Hawaii, and U.S. Constitutional Bill of Rights under the First Amendment with respect to Freedom of the Press to report relevant public issues.

Absent exigent circumstances, in this instant matter the applicability of Criminal Trespass in the 2nd degree, HRS, Section 708-814 did not raise to the level that out weighed her Rights to be present at or on the Brescia property located at 7342 Alealea Road, Haena.


Way to go Chief! Mahalo nui loa! Needless to say, both Dan and I were extremely happy. But would the prosecutor’s office go along with dropping the charges? If they didn’t, Dan said, we’d be looking at a trial where the Chief of Police would be the first witness for the defense.

At about 7:30 last night, almost 24 hours exactly from the time I first contacted him, Dan called to say the prosecutor’s office was dropping the charges.

Whew!!! It was all a bit nerve-wracking, but at least I got an answer to a question I posed last Saturday: “Is it trespassing for a reporter to go where something is happening in order to see what’s going on and question those involved?”

It seems that in this case, and this place, the answer is no. Still, I’m not sure it would have turned out like this if Dan hadn’t been representing me.

Now just one other question niggles at me: Who was pushing for that arrest warrant in the first place?

32 comments:

Katy Rose said...

Glad you're off the hook Joan - now let's help the folks who are still ON it!

Joan said...

Andy Parx just sent this link to an article about two Minneapolis City Council members calling for a "public hearing and independent investigation into law enforcement actions taken against protesters and the journalists who covered them during the Republican National Convention (RNC) in St. Paul.

There are reports of as many as 40 journalists being arrested during the convention."

nunya said...

Youʻve handled this whole thing very well.
I have a couple concerns:
1) Who keeps over-riding Chief Perry and muddling his job and authority? Is it Kaipo basking in his few months of kinglyness?
2) Was Blake Jones or any of TGIʻs reporters threatened with arrest warrants? If not, your case is probably harrassment and selective enforcement regardless of whether they dropped it or not.

This proves you had good reason to have fear and anxiety about being pulled into questioning by those 3 officers. And must be there are a few cops moonlighting for Brescia...similar to the ʻprivate detailʻ assigned to Magoober at Pilaʻa.

Anonymous said...

wasn't there a reporter from star-bulletin there also?

Joan said...

Yes, and the Garden island, too

Anonymous said...

This puts a whole different spin on your "meeting" with Arinaga and Perez.

Anonymous said...

The fact that other reporters were present committing the same acts you were, but you were the only reporter, as far as we know, targeted with a warrant indicates (as you noted in a previous blog) how the police can occupy your (and a lawyers) time, mind and money, and if they finally stop messing with your life you feel a great sense of relief.

The hope is that next time, knowing what you now know, you will be chilled and stay home.

Anonymous said...

Sorry, but I think it is just another example of how Chief Darryl Perry is prone to misinterpreting the law. I wonder what his third act will be like.

I also don't agree with the concept that Joan can skate on this just because arrest warrants weren't issued for the other two reporters that supposedly were there. That would mean that I can skate on a speeding ticket anytime I want as long as there's at least one other car doing it with me. Woo Hoo!

Anonymous said...

> Woo Hoo! <

Spoken like a true clown. What's next, a "Honk Honk" when you squeeze your red rubber nose?

Anonymous said...

Wasn't the same situation occurred with Chief George Freitas, "Hindering Prosecution"? Why is Perry exempt from this wrong doing?

Anonymous said...

> I also don't agree with the concept that Joan can skate on this just because arrest warrants weren't issued for the other two reporters that supposedly were there. <

If you don't like that concept, try this one:

"Congress shall make no law 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."

Next life, try going through high school without your brain pickled on pakalolo, and you might understand some of those big words like "abridging" and "freedom."

nunya said...

The procedure has been, at least since those incompetants from the mainland arrived at the prosecutorʻs office, canʻt seem to make their cases so they arrest, release, arrest again w/ higher bail, dismiss without predjudice, arrest again, and it goes on for about 2 years.
Yes, believe it or not, maybe this has been the reason for so many sanctions at this office...and the county council voted to appropriate funds to cover these incompetents as opposed to them paying out of their own pockets.
My take on these clowns: They are the dregs that get sent to rural counties to practice because no one will hire them anywhere else.
And they probably came pretty close to flunking the bar.
They are practicing with peopleʻs lives.
Well, maybe their little careers have higher priorty that totally screwing up someoneʻs life due to INCOMPETANCE.

Joan said...

Let's avoid personal attacks, please.

Anonymous said...

Next life, try going through high school without your brain pickled on pakalolo, and you might understand some of those big words like "abridging" and "freedom."

So what are you saying? That holding journalists to the same laws as everyone else abridges the freedom of the press? I don't think so.

nunya said...

"Let's avoid personal attacks, please."

Yes, usually I wouldnʻt disagree with you Joan but if you had an idea of the depth of destruction and malisciousness they have exercised in quite a few peopleʻs lives here, the term ʻpersonal attackʻ could almost become ʻpublic attackʻ.

When it comes to government officials and tax funded abuses against citizenry because ʻthey canʻ there are no etiquettes.

Public officials are to be held to the highest standards for the priviledge of that position and if that position is used to harm individuals, then they are also entitled to the highest level of criticism. And for what I have seen and am aware of, in this instance, my words were too soft.

Joan said...

I tend to agree, Nunya.

I was not referencing your comment but the brain pickled on pakalolo bit.

nunya said...

Thank you Joan and sorry about the oversight.

Anonymous said...

i agree that reporters don't get special privileges to trespass, but if the prosecutors knew that there were at least 3 reporters there all day, and the police were aware of the reporters being there, and no one objected, and the reporters had been allowed to enter and cover the story on previous days - the question becomes WHY would the prosecutors choose to single out just one of the reporters? Was it because of the way she reported it? OK, so reporter for the National Republic - you get to come in and report. NPR, You go to jail - its trespassing. And lowly writer for Honolulu Weekly, with a left-leaning point-of-view..... watch out - you might want to start thinking about Canada.

Anonymous said...

The land owner can pick and choose who he invites and doesn't invite. The First Amendment doesn't apply to him.

Manawai said...

Anon. September 19, 2008 1:23 PM said, “Spoken like a true clown. What's next, a "Honk Honk" when you squeeze your red rubber nose?”

Joan - Now there’s an intelligent person with something valuable to say. Glad you posted that.

Anon. September 19, 2008 2:34 PM said:
‘Congress shall make no law....'

“Next life, try going through high school without your brain pickled on pakalolo, and you might understand some of those big words like "abridging" and "freedom."

Of course, you make a totally erroneous interpretation of the law regarding freedom of the press. At least try and be witty when making a statement which goes against the consensus of the entire legal community and the judiciary. If what you said were true, then I could write a blog and be legally entitled to walk into your living room at will. No, it’s quite established and obvious to most people who aren't disabled that journalists have to follow the same laws as everyone else.

Anonymous said...

but the trespass statute requires that the person "knowingly enter unlawfully" - so if reporter walks onto some land where there are other reporters there reporting and the police not objecting to the reporters being there - then it seems unlikely that the government could prove that the reporter "knew it was unlawful" to enter. Maybe the first amendment does not apply at all.

Anonymous said...

Good thing you got the lawyer which seemed to cause them to back off for now. Very akamai.

There are always rogue policemen in every force. Can't trust them completely. They are probably reading our comments too.

nunya said...

With respect to the other reporters compared to Joanʻs situation of SELECTIVE ENFORCEMENT, Brescia also gave tacit consent.
And if the police were there and said nothing, a reasonable person who think what they were doing was not controversial or violating any laws.
Only in Kauai... Due to lack of understanding of the laws. Now what would cause that?

Anonymous said...

How did Brescia give tacit consent? Everyone knew it was no trespassing. He wasn't even there to give consent.Were there no trespassing signs? If so, everyone not hired to be there by Brescia was trespassing.

Katy Rose said...

There are two issues here, at least.

Those who engaged in direct action knew that they were violating trespassing law but engaged in direct action consciously in order to stand up for a greater good which superceded the "problem" of trespassing. There is nothing new about people acting in defense of a principle and in the process "violating" a law. This is the nature of civil disobedience, and our world would be an impoverished place indeed without it.

Also, there is a basic contradiction, which is at the heart of this matter, between private property rights - a Western concept - and the rights of Native Hawaiians to preserve and perpetuate their people and culture. This is an issue which can never be resolved in a Western court system.

Then, there is the question of how we as a community want our journalists - and by extension the institution of journalism - to be handled. If we believe that journalists should have free range to cover important stories, then we will be disturbed if they are arrested for civil disobedience when they are present at an action in order to report.

Sometimes, we see important stories in the press about people involved in the drug trade, or some other illicit activity. Do we agree that those journalists are doing an important job by covering those stories, or do we prosecute them for being present during an illicit transaction as somehow being complicit in it? Do we demand that journalists hand over the names of the people involved? You see, there are higher principles at play.

Even if the cops did nothing technically illegal by questioning Joan - and I'm not sure about that - we still are called upon to judge what we believe would be the appropriate approach to journalists by law enforcement. Dickering over the legalities is interesting, but bypasses some central ethical questions which we as a community can answer.

nunya said...

"Blogger Katy Rose said...

There are two issues here, at least.."

I agree with this whole comment and would want to expound on its point as to how far the law can go to protect an individual from police oppression:
Faced with arrest - entitles one to assert their common law right of self help to resist an unlawful arrest. U.S. v Garcia, 516 F.2nd 318,_____(9th Cir.1975) (right exists when there is "bad faith, unreasonable force, or provocative conduct on the part of the arresting officer"); U.S. v Moore, 483 F.2d 1361, 1364 (9th Cir. 1973) citing John Bad Elk v. U.S., 177 U.S. 529, 535 (1900) (right to resist unlawful arrest well established in common law)
The purpose of the privilege is to deter abuses of police authority. Moore, supra. at 1365.
Judging from a lot of comments, itʻs true that most people are willing to ROLL OVER and let the authorities call it as they want, regardless of their rights. Thatʻs a big shame and why weʻre in this mess to begin with.
Oh, duh?/? Trade a little freedom for security...sure.
Not me, my freedom is my security. And the cops need to be challenged at any time they are breaking the laws, rules or your legs. Besides, doing so, may make them better at their jobs.

Anonymous said...

The cops didn't break any laws, rules, or legs.

Manawai said...

K.R. said, "...do we prosecute them for being present during an illicit transaction...."

Maybe not for being complicit in the transaction, but if they're interfering with police business, yes. It's be done before and has held up. The press' right to access information and to enter private property are just like everyone else's...limited.

Anonymous said...

I can't believe this sh*t. Joan, you report for Honolulu Weekly and Island People almost every week. You are a reporter. Chief Perry must have a bunch of frickin' *orons below him, or else this whole thing might have been done on purpose to "chill" you as one of the commentors mentioned and make you "greatful" to the Chief for "intervening and setting things straight." I would say this whole KPD charade was done to try and get you under control for the next big protest issue, Joan.

Anonymous said...

The paranoia of the Left seems to be without limit. One mustn't give the Right that much credit.

Anonymous said...

> The paranoia of the Left seems to be without limit. One mustn't give the Right that much credit. <

Nixon.
Haldeman.
Erlichman.
Mitchell.

How quickly we forget.

Anonymous said...

And now I suppose Carvalho.