HOUSE OF REPRESENTATIVES

H.B. NO.

428

THIRTY-FIRST LEGISLATURE, 2021

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to LAW ENFORCEMENT reform.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


PART I

SECTION 1. Chapter 139, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"139-    Reports of criminal misconduct by law enforcement officers. (a) It shall be the duty of a law enforcement officer who observes criminal misconduct by another law enforcement officer to notify the department head of the officer who committed the criminal misconduct. The notice shall be submitted in writing immediately or as soon as is practicable after observing the criminal misconduct.

(b) Within fifteen days of receiving written notification, the department head shall complete an investigation pursuant to subsection (c) and notify the chief of police of the respective county of the outcome of the investigation in writing.

(c) Any department head who receives a report of criminal misconduct under this section shall immediately begin conducting an investigation, including a psychiatric evaluation of the officer reported to have committed the criminal misconduct, and reach a timely determination on the merits. If the investigation determines that, in the determination of the department head, sufficient evidence shows that the individual committed an act of criminal misconduct, the name of the individual and act of criminal misconduct shall be disclosed to the chief of police of the respective county. If the department head determines that evidence of criminal misconduct is insufficient, the department head shall still provide the chief of police with the outcome of the investigation but redact any personally identifiable information of the individuals involved in the investigation.

(d) Within fifteen days of receiving written notification of the outcome of the investigation, the chief of police shall notify the police commission of the respective county of the outcome of the investigation in writing.

(e) If the department head is the subject of the criminal misconduct report, the reporting officer shall report directly to the police commission of the respective county within seven days of observing the criminal misconduct, and the police commission shall complete an investigation pursuant to subsection (f) within fifteen days of receiving written notification.

(f) Any police commission that receives a report of criminal misconduct pursuant to subsection (e) shall immediately begin conducting an investigation, including a psychiatric evaluation of the officer reported to have committed the criminal misconduct, and reach a timely determination on the merits.

(g) No discriminatory, disciplinary, or retaliatory action shall be taken against any law enforcement officer for any information given or disclosed by the officer in good faith in the course of making a report of criminal misconduct under this section.

(h) For purposes of this section:

"Criminal misconduct" means assault, sexual assault, bribery, coercion, fraud, theft, tampering with physical evidence, tampering with a witness, use of a chokehold as defined in section 703-307, or excessive use of force.

"Department head" means the official or officer having the most managerial or administrative authority in the state or county agency or department."

SECTION 2. Section 139-1, Hawaii Revised Statutes, is amended by amending the definition of "law enforcement officer" to read as follows:

""Law enforcement officer" means:

(1) A police officer employed by a county police department;

(2) A public safety officer employed by the department of public safety[;], except an adult correctional officer; or

(3) An employee of the department of transportation, department of land and natural resources, department of taxation, or department of the attorney general who is conferred by law with general police powers."

SECTION 3. Section 139-6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) No person may be appointed as a law enforcement officer unless the person:

(1) Has satisfactorily completed a basic program of law enforcement training approved by the board; [and]

(2) Has passed a psychological screening test battery administered under the direction of a licensed psychologist or psychiatrist according to protocols adopted by the board and designed to detect behavioral traits that could adversely affect the person's ability to perform the essential functions of a law enforcement officer. The test battery results shall be valid for a period of one year from the date of administration for purposes of qualifying for appointment as a law enforcement officer; and

[(2)] (3) Possesses other qualifications as prescribed by the board for the employment of law enforcement officers, including minimum age, education, physical and mental standards, citizenship, good conduct, moral character, and experience."

SECTION 4. Section 139-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The board shall adopt rules, pursuant to chapter 91, that establish criteria for the denial, suspension, or revocation of a law enforcement officer's certification, including upon a finding by the board that the law enforcement officer:

(1) Knowingly falsified or omitted material information on the law enforcement officer's application for training or certification to the board;

(2) Has been convicted at any time of a felony offense under the laws of this State or has been convicted of a federal or out-of-state offense comparable to a felony under the laws of this State; provided that if a law enforcement officer was convicted of a felony before being employed as a law enforcement officer, and the circumstances of the prior felony conviction were fully disclosed to the employer of the law enforcement officer before being hired, the board may revoke certification only with the agreement of the employing law enforcement agency;

(3) Interfered with an investigation or action for denial or revocation of certification by:

(A) Knowingly making a materially false statement to the board; or

(B) In any matter under investigation by or otherwise before the board, tampering with evidence or tampering with or intimidating any witness; [or]

(4) Failed to report the criminal misconduct the law enforcement officer observed, as required by section 139-   , or committed an act of criminal misconduct, as defined by section 139-   ; or

[(4)] (5) Has taken other prohibited action as established by the board, by rule."

PART II

SECTION 5. Section 703-307, Hawaii Revised Statutes, is amended to read as follows:

"703-307 Use of force in law enforcement. (1) Subject to [the provisions of] this section and [of] section 703-310, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that [such] the force is immediately necessary to effect a lawful arrest.

(2) The use of force is not justifiable under this section unless:

(a) The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and

(b) When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.

(3) The use of deadly force is not justifiable under this section unless:

(a) The arrest is for a felony;

(b) The person effecting the arrest is authorized to act as a law enforcement officer or is assisting a person whom [he] the person believes to be authorized to act as a law enforcement officer;

(c) The actor believes that the force employed creates no substantial risk of injury to innocent persons; and

(d) The actor believes that:

(i) The crimes for which the arrest is made involved conduct including the use or threatened use of deadly force; or

(ii) There is a substantial risk that the person to be arrested will cause death or serious bodily injury if [his] the person's apprehension is delayed.

(4) The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a law enforcement officer is justified in using force which [he] the guard or other authorized person believes to be immediately necessary to prevent the escape from a detention facility.

(5) A private person who is summoned by a law enforcement officer to assist in effecting an unlawful arrest is justified in using any force which [he] the person would be justified in using if the arrest were lawful[,]; provided that [he] the person does not believe the arrest is unlawful. A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a law enforcement officer in effecting an unlawful arrest, is justified in using any force which [he] the person would be justified in using if the arrest were lawful[,]; provided that [he] the person believes the arrest is lawful, and the arrest would be lawful if the facts were as [he] the person believes them to be.

(6) The use of force by a law enforcement officer that is justifiable pursuant to this section shall not include the use of a chokehold unless the use of deadly force is justifiable pursuant to this section.

(7) As used in this section, "chokehold" means the application of any pressure to the throat, windpipe, or neck that prevents or reduces intake of air or oxygen to the brain."

PART III

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Law Enforcement Officers; Reports of Criminal Misconduct; Psychological Screening; Use of Force; Chokehold

 

Description:

Part I: Requires a law enforcement officer who observes criminal misconduct by another law enforcement officer to report the criminal misconduct. Requires passage of a psychological screening test battery to qualify for appointment as a law enforcement officer. Subjects a law enforcement officer to denial, suspension, or revocation of a law enforcement officer's certification for failure to report observed criminal misconduct or committing an act of criminal misconduct. Part II: Prohibits the use of a chokehold by a law enforcement officer unless the use of deadly force is justifiable. Defines chokehold.

 

 

 

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