Kawa Bay excessive force case nears trial

KAILUA-KONA — Part of the years long legal fight over Kawa Bay is now set to go to trial in federal court.

Kittrena Morgan, a former resident of the area, sued Hawaii County and the police officers involved in her arrest Oct. 25, 2012.

She alleges they violated her civil rights in 17 different counts, which the county sought to have eliminated in a summary judgment. The judge eliminated 11 of the counts in a filing on March 29.

Jury selection for the case is scheduled to start at 9 a.m. June 15.

Hawaii police and sheriff’s deputies were sent at the time to remove the people who were in the area, pursuant to a court order. They told them they had two hours to pack up and leave, and that items left would be stored at the police station for later retrieval.

Morgan is the hanai wife of Abel Lui, a Native Hawaiian activist who claimed he could continue to live in the area, although the county had acquired the land to use as a park and received a court order to evict him.

“Lui had lived at Kawa Bay for about 12 years, even though it appears he did not have written title naming him as having an interest in the land,” according to federal district Judge Susan Mollway’s findings of facts.

Lui was arrested more than 20 times for simple trespassing and trespassing, including a conviction that was upheld at the intermediate court of appeals.

Morgan began living there in 2009.

Morgan was the only person arrested during the removal. She alleged it was because she was filming the police, exercising her First Amendment rights and was the only white person and sole woman among the people present.

The county argued it was the result of her interference with police action, pointing to the fact she was found guilty of trespassing — although she was acquitted of resisting arrest.

The 17 counts she alleged include police brutality, unlawful seizure, false arrest and false imprisonment, sexual harassment, mistreatment based on race, unreasonable use of force, breach of confidentiality, discrimination based on gender, abandonment without a female officer, failure in police training, kidnapping and torture, abuse by police, conspiracy to obstruct justice, obstruction of life, liberty and the pursuit of happiness, negligent infliction of emotional distress, refusal to render medical aid and violation of the equal protection provision.

The judge allowed six charges to go forward, all related to the actions of the arrest and the use of handcuffs. The remaining 11 were denied for a variety of reasons.

The charges the jury will hear are that officers used excessive force to arrest Morgan, that the cuffs were too tight, that officers not rendering medical aid was excessive force, they did not loosen the cuffs, they allowed emotional distress and the arrest was an assault.

The video Morgan took was introduced as evidence which the judge described as showing “the officers talking to Morgan firmly but calmly, while Morgan can be heard becoming increasingly emotional and agitated.”

The transcript said officers offered to help pack, although Morgan said there was no way to pack up Lui’s belongings in two hours. There was no way Lui could afford to pay a removal and storage cost, she said.

As she spoke with officers, she entered a tent and called an unidentified party on her cellphone.

Officer Stanley Kaina testified that when Morgan entered the kitchen area, he was concerned that Morgan may pick up a knife or other implement. She disputed that, saying she was unarmed and outnumbered and there were no knives, pots or pans out.

While inside, she picked up a conch and attempted to blow it. Officers testified the attempt, and comments on her phone, led them to believe she was trying to alert other people to come to the scene.

Morgan said she was trying to contact Lui, as she was concerned for his health. When stressed he would work at the garden he had built in the area.

The transcript includes an officer saying Morgan was under arrest and to put her hands behind her back.

“I’m actively resisting? I didn’t do anything to get arrested. All my stuff is here; my life is here,” the transcript quotes her as saying.

The officers then moved to arrest her.

Morgan said she did resist the officers, but she “was afraid for Abel’s life, and I knew there was no reason for me to get arrested.”

Officers ultimately used a “leg sweep” to take her to the ground.

During the state court proceedings, Kaina explained, “I step to her left, outside of her left foot, and I assist by taking my left foot and placing it near her ankle and sliding it towards my right, which will in return throw her balance off and allow her to go to the ground. But with Officer Akina and myself holding on to her arms, it wouldn’t just drop her flat to the ground. We would assist her to the ground.”

Morgan disagreed.

“This arrest was done with a gang tackle take down, under conspiracy of officers to arrest Plaintiff for exercising her rights of freedom of speech …, freedom of associations, freedom of movement and to video tape police actions at a public place,” she wrote.

A later medical exam showed bruising to her forehead.

The police testified that Morgan was struggling as they tried to handcuff her, and Kaina said he did put pressure on her back to straighten out Morgan’s body for the handcuffs.

Morgan told police the cuffs were too tight, later comparing them to a tourniquet. Officer Carrie Akina testified she checked for tightness by sliding two fingers under the plastic flex-cuffs. Another officer witnessed it and said he saw no discoloration or red marks.

Her forehead injury was examined by on-scene medics, who determined she was safe to transport. She did not ask them to check her wrists, according to the county.

Morgan alleged an officer touched her breast while unbuckling her seat belt. She alleged that officer later said a number of sexual and racial insults against her. That left her fearful during the booking procedure, she said, and she sought to have a female officer present but police did not provide an additional officer to the two present.

An exam by her doctor showed bruises to her wrists and pain to her back, according to court reports. An X-ray also showed an injury to her spine.

A doctor for the county said the back pain was probably the result of “an old fracture or degenerative condition.”

Morgan, who is representing herself and declined to comment for this report, would later file a complaint with the police commission about the incident. When West Hawaii Today published details of the complaint, using testimony presented by supporters, she alleged the commission had leaked her personal medical information.

The judge found “one cannot both lodge an emotional distress claim and maintain that the existence of the claim or the existence of the underlying emotional distress may not be disclosed. The claimant herself discloses the emotional distress in making the claim.”

Her stated physical injuries included difficulty walking and pain in the lower back, pelvis and thighs. This resulted in an extended period of disability and took her off work for a year, she said. She also stated she suffered mental harm from the encounter, including anxiety, PTSD, depression and nightmares.

Morgan is seeking $1 million in damages and $37,386.78 for lost wages, fuel costs and other expenses.

While Morgan has advanced this case by herself, the county has three attorneys assigned to the case.

“The court understands that Morgan has unsuccessfully attempted to get legal representation in this action. Because trial may be very challenging for Morgan, the court encourages her to attempt to seek counsel again,” the judge wrote.

A message left with the county was not returned.