Judge slows progress for case protesting arrest of a disabled Black girl

A Hawaii judge sent a complaint made by the mother of a 10 year old arrested for drawing a picture threatening a classmate back to the ACLU drawing board, at least for some claims.

by Candace Cheung,  Court House News, March 31, 2023

HONOLULU (CN) — A US District Court judge ruled Friday for amendments to be made to civil rights complaint brought by the mother of an elementary school student who was arrested for drawing an image threatening a fellow student.

According to the initial complaint filed on behalf of the student and her mother by the ACLU in Jan. 2022, the girl, 10 years old at the time of her arrest, had been involved in a squabble with a classmate, leading her and her friends later producing the offending drawing.

Police were called to Honowai Elementary School the next day, after school staff were alerted to the drawing’s existence by a concerned parent. The girl was then arrested, detained, and questioned alone by HPD officers named in the suit. The child was released after four hours in police custody and was not charged with any crimes.

The suit accused the officers of false arrest and excessive force. It also included racial and disability discrimination claims, citing the fact that the child had an ADHD diagnosis and was the only Black student involved in the drawing’s creation. The suit also names the Honowai Elementary vice-principal that called the police at the behest of a parent that insisted the girl was dangerous.

Judge Helen Gillmor issued a ruling dismissing inadequate training, negligent training, negligent supervision and Americans with Disability Act claims against the City and County of Honolulu and the state Department of Education.

Gillmor explained that allegations regarding the insufficiency of the police officer’s training ultimately did not convey liability to the government defendants, as the suit did not address any specific part of HPD’s procedures as to each individual officers training.

The judge also rejected an ADA claim, saying that there was no reasonable way that officers could have identified that the child had a disability at the moment of the arrest.

“The allegations in the Second Amended Complaint are that N.B. was calm, compliant, and did not act in a way that would have caused the Defendant Police Officers to have specific concerns regarding a potential disability,” Gillmor wrote. “There are no allegations that she showed signs of attention deficit. There are no allegations that she displayed signs of hyperactivity or that she acted irrationally, erratically, or in a manner that would cause the Defendant Officers to believe she was disabled.”

Judge Gillmor also dismissed outright claims citing violations of the Hawaii State Constitution under Section 1983, which only relates to civil rights abuses on a federal, not state, level.

“Courts in Hawaii have declined to recognize a direct private cause of action for damages resulting from alleged violations of the Hawaii State Constitution,” she wrote.

Although she dismissed these claims, Gillmor allowed plaintiffs to amend the four claims. The girl and her mother, who have since left the islands, are represented by Honolulu attorney Mateo Caballero and Hawaii ACLU attorney Jongwook Kim.

Despite the city attorney pushing hard for the dismissal of individual HPD defendants in a December hearing, insisting that the officers were acting under risk of terroristic threatening, Judge Gillmor refused to dismiss the police officers from the suit, confirms that there was no probable cause for the child’s warrantless arrest while also dismissing the officers request for qualified immunity, writing that “the drawing is a simplistic cartoon-style picture by elementary age students”, and officers should reasonably not have considered the artwork terroristic.

The drawing at the center of the issue has yet to be produced during any of the case’s proceedings, despite attempts by the city to make it publicly available.

Judge Gillmor reiterated in her ruling that the image will continue to remain under seal until issues surrounding the authorship and chain of custody can be resolved.

Only descriptions of the image have been offered to the public, including from a Nov. 2021 HPD letter that said the department would not be reviewing any of its policies or procedures for handling incidents involving minors that characterized the image as a “graphic depiction” of a figure holding a gun with a severed head at its feet, accompanied by threatening phrases, including, “Stand down B**th”, “Yo F**kin days are over NOW”, and “Fake to me and DED!”

HPD also denied in the letter that there were any racially motivated reasons for the girl’s arrest and maintained that the officers had acted in compliance with department procedures.

Trial for the case has been scheduled for February 2024.