A federal judge said information was still missing about the origin and intent of the drawing.
Three Honolulu police officers believe they should not be part of a lawsuit alleging they used excessive force and wrongfully arrested a 10-year-old girl at school for an allegedly offensive drawing in 2020.
The officers, Christine Nevez, Warren Ford and Corey Perez, handcuffed the girl at the Honowai Elementary School in Waipahu and detained her for hours at the Pearl City police station. A school administrator called police after the girl got involved in drawing a cartoon about another student who may have been bullying her.
The girl’s mother, Tamara Taylor, sued officers, as well as the city and county of Honolulu, the Hawaii Department of Education, and the school’s assistant principal in January 2022.
Lawyers for the girl, identified as NB in the lawsuit, wrote that while several children were involved in creating the image, she was selected because she was black. The lawsuit adds that the officers did not read the girl her Miranda rights before questioning her and that when they learned that she told the school nurse that she “wondered what it would be like to spend a day in jail,” the officers “were bothered” and handcuffed her.
The drawing featured “a girl holding and pointing a gun with a severed head at her feet” as well as offensive writing, according to a letter written by then-acting HPD chief Rade Vanic. “It is NOT motivated by race,” Vanic wrote.
The state Attorney General’s office called it a “death threat” in a filing filed last May on behalf of the Department of Education.
But the drawing “was delivered against her wishes” without anyone named in the lawsuit knowing “who wrote or drew what part of the drawing,” Mateo Caballero, a lawyer representing the girl, wrote in an email to an attorney general. attach.
The officers appealed to the US Court of Appeals for the Ninth Circuit this April after US District Court Judge Helen Gillmor rejected their requests for qualified immunity, citing a paucity of information about what happened. .
Qualified immunity, according to the Cornell Law School Institute for Legal Information, protects a government official from lawsuits alleging that the official violated a person’s rights, unless it was a “clearly obvious” statutory or constitutional right. established”.
“The court does not have the facts that are necessary to determine qualified immunity with respect to false arrest claims,” Gillmor wrote in a March ruling. “There is insufficient information about how many children participated in the drawing, which children contributed to which parts of the drawing and/or words, and whether the drawing ever presented a threat. Questions of knowledge, intent, and reasonableness are also raised,” she wrote.
HPD spokeswoman Michelle Yu said in an email: “HPD acted appropriately under the circumstances of this case.” The officers remain on full duty, Yu said.
The Corporation’s deputy attorney, Robert Kohn, declined to comment. In a court filing, Kohn wrote that the officers admitted to arresting, handcuffing and taking the girl to the Pearl City police station. He also wrote that the court no longer had jurisdiction because the appeal was pending.
Jongwook Kim, an attorney with the Hawaii American Civil Liberties Union who also represents Taylor and her daughter, declined to discuss the case. But he said appeals to the Ninth Circuit regarding qualified immunity are common, especially when suing police officers. Police often mention qualified immunity to protect themselves from civil liability.
In December, the Ninth Circuit found that qualified immunity could not stop a lawsuit against a Los Angeles Police Department officer who shot and killed 30-year-old Albert Dorsey in 2018, the LA Times reported. A three-judge panel ruled 2-1 that enough about the incident was uncertain that Officer Edward Agdeppa’s request for qualified immunity should not prevent a lawsuit from advancing to a jury. Agdeppa had appealed a lower court’s decision to reject his qualified immunity request.
In the summer of 2020, after the murder of George Floyd, the US House of Representatives nearly removed qualified immunity with the George Floyd Justice in Policing Act, but the law failed.
“Officers don’t need qualified immunity to protect them from bankruptcy when sued; local governments almost always foot the bill,” writes UCLA law professor Joanna Schwartz in “Shielded: How The Police Became Untouchable.” In a study of 81 jurisdictions over six years, Schwartz found that police officers paid 0.02% of the $735 million plaintiffs won, with an average of $4,194 per payout.
While the qualified immunity appeal doesn’t necessarily jeopardize Honolulu’s case, it will likely set it back.
In some 1,200 cases that Schwartz studied, less than 4% were dismissed on grounds of qualified immunity. But every time a defendant files a qualified immunity motion, more investigation, briefings, and arguments take place.