Musings: Stinking Badges

Walking with the dogs after a rain so big it muffled the clank, whine and grind of the garbage truck, skirting a just-made stream racing down the road toward the real stream, looking up to see steel gray over Waialeale, white tendrils atop Makaleha, the sky a mosaic of blue, charcoal, pink and ivory, and in the west, pearlescent clouds edged with rainbows.

The long-running — as in all the way back to the Superferry protests of Aug. 26, 2007 — case of Dayne Gonsalves, Alii Nui of the Kingdom of Atooi, edged forward in a similarly dramatic way yesterday when Judge Kathleen Watanabe directed Kauai police to return Dayne’s badge.

Corrected The badge, which bears his family’s coat of arms and reads “Hawaii Federal Marshall – Kingdom of Atooi,” wasn't used that night at the harbor when Dayne and Robert Pa allegedly tried to prevent the vessel from unloading. But it reportedly was displayed, to the great annoyance of Assistant Chief Roy Asher, when they were arrested on Oct. 23, 2007 for obstructing, trespassing and obstructing government operations, resulting in an additional charge of impersonating a law enforcement officer. A second impersonation charge was added when the cops arrested Dayne on an outstanding warrant in a heavy-handed, SWAT-style manner on April 30, 2008, and found the badge in a pouch in his truck. He never flashed it, but made a reference to the cops having to answer to the Kingdom if they took him in, which they didn’t like.

Deputy prosecutor Melinda Mendes didn’t like Watanabe’s order to return the badge, either. In fact, she reacted so strongly that Watanabe had to issue a reminder about the rules of the court: she is the judge and Mendes is the attorney. It seems Mendes couldn’t figure out how she could prosecute Dayne for impersonation without the badge, which she claims is being held as “evidence.”

His trial — estimated to perhaps cost as much as $100,000 and last two weeks, with the prosecution calling some 25 officers — is set for Aug. 29.

But Watanabe had determined, after reviewing a motion filed by Dan Hempey, Dayne’s court-appointed attorney, that the police and prosecutors essentially were acting illegally by withholding his badge.

The motion came before the court after Dayne agreed to a plea bargain in which he would pay a $250 fine for obstructing, with the other charges dropped. But then the prosecutor added a condition that Dayne also had to surrender his badge. Hempey responded that such a condition was not only a deal-killer, but a violation of Dayne’s human rights under the United Nations Declaration on the Rights of Indigenous Peoples, which Obama signed in December 2010.

In his motion to strike the condition from the plea agreement, Hempey argued:

Various articles to this U.N. declaration to which the United State’s is now a signatory and party are directly relevant to whether defendant and the other citizens of Atooi have the right to their nation, the right to identification cards, and the right to form their own legal and political institutions including but not limited to a group of federal marshals who use badges for their internal government purposes.

Defendant contends that this United Nations declaration clearly obliges the United States and its political subdivisions to recognize, at a minimum: 1) Defendant’s right to a position in government in his Atooi nation; 2) Defendant’s right to possess an identification card identifying hi as a citizen of his Atooi nation; and 3) Defendant’s right to possess a badge, identifying him as a Federal Marshall in the Kingdom of Atooi.

Defendant contends that the Kauai Office of the Prosecuting Attorney violates his human rights by demanding, as a condition of a plea bargain in a criminal case involving misdemeanors and petty misdemeanors, that he surrender any of his human rights to self-determination as an indigenous person of these islands – including his right to be identified within his Kingdom by his title and badge.

Defendant was not pretending to be a State of Hawaii law enforcement officer; rather he is a law enforcement officer in the Kingdom of Attooi, as he is legally entitled to be.

It’s still unclear whether the cops are actually going to return Dayne’s badge. The judge ordered Hempey to prepare an order to that effect, but Mendes was saying the prosecutor’s office might appeal the ruling, which would be an unusual step before the trial, and further delay that proceeding. It was also unclear whether the prosecutor’s office would agree to the plea bargain if it didn’t include the condition that he surrender the badge.

Mendes told the court she wasn’t in a position to make such decisions. However, Prosecutor Shaylene Iseri-Carvalho, who is running for re-election, is. The question now is whether she will push on with this case, potentially alienating the Native Hawaiian vote and Watanabe, who has been pushing both sides to spare the court the time and expense of a lengthy trial.

Another question is whether KPD, or more specifically, Roy Asher, can put aside its pride and let this four-year-old matter be resolved.

Or as one court observer noted: what, really, is the big deal about returning a badge that the cops don’t even recognize?