Sunday, November 11, 2007

HI Superferry: Official Misconduct


Examples of Crimes and Civil Torts Committed by Those Involved in the Superferry Enterprise Subsequent to the Supreme Court Decision in The Sierra Club v. The Department of Transportation:

Malfeasance in office, or official misconduct, is the commission of an unlawful act done in an official capacity, which affects the performance of official duties. Malfeasance in office is often grounds for a “for cause” removal from office of an elected official.

Facilitating an illegal action is malfeasance in office or official misconduct.

Encouraging and facilitating the illegal operation of the Hawai′i Superferry after the Supreme Court ruled that an environmental assessment was required constituted malfeasance in office or official misconduct on the part of the Governor and the Director of the Department of Transportation.

Obstruction of Justice is committed by attorney generals and prosecutors when they fail to prosecute judges and other government officials for malfeasance, misfeasance or nonfeasance in office.

To the extent that the Attorney General and/or county prosecutors cooperated with the Superferry illegal enterprise and/or failed to prosecute the government officials cooperating in that enterprise, the Attorney General and country prosecutors are guilty of obstruction of justice.

Conspiracy (civil or criminal) is an agreement between two or more natural persons to break the law at some time in the future. The agreement between the Governor, the Director of the Department of Transportation, and the management/directors of Hawai′i Superferry, Inc. to continue operations of the Superferry illegally after the Supreme Court ruled that an environmental assessment is required constituted a conspiracy.

When the Governor then created the Unified Command to continue the illegal operation, all participants in the Unified Command joined the conspiracy.

Accessory is a person who assists in the commission of a crime, but does not actually participate in the commission of the crime as a joint principal.

Even though State and Federal officials in the highest positions of responsibility were not present on August 26 and 27, to the extent those officials acted to create and facilitate the situation, those officials are accessories to the events on those date.

False arrest is a common law tort, where a person is held in custody without probable cause or without an order issued by a court of competent jurisdiction. It is possible to sue law enforcement officials for false arrest.

An arrest predicated on a known legal act is clearly false arrest. An officer of the law participating in an illegal enterprise who arrests a person trying to stop the illegal enterprise is guilty of false arrest.

On August 26 and 27, law enforcement officials arrested numerous people trying to prevent the implementation of the illegal conspiracy to continue Superferry operations. All of those arrests were false arrests, subjecting the arresting officers to civil suit.

False imprisonment is a tort, and possibly a crime, wherein a person is intentionally confined without legal authority.

The people arrested on August 26 and 27 were falsely imprisoned. Those responsible face possible civil suit and criminal charges.

Theft, in the criminal law, (also known as stealing) is the illegal taking of another person's property without that person's freely-given consent.

Anyone participating in the Superferry enterprise who took from another person their boat, surfboard, boogie board, or other possession without their consent is guilty of theft.

Robbery is the crime of seizing property through violence or intimidation. More precisely, at common law, robbery was defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear.

The actions of law enforcement in seizing the property of people in the Nawiliwili Harbor area on August 26 and 27 took place with the implicit use of deadly force. Such actions can be prosecuted as robbery.

Kidnapping is any illegal capture or detention of a person or people against their will.

In the course of aiding and abetting Superferry in violating the law, law enforcement personnel arrested, and detained against their will, citizens trying to enforce the law. Such actions can be prosecuted as kidnapping.

Assault is the threat of violence caused by an immediate show of force.

The Coast Guard boat that de-tarped its large caliber machine gun in Nawiliwili Harbor committed an assault on those within range.

HRS §707-716 Terroristic threatening in the first degree. (1) A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening:
(a) By threatening another person on more than one occasion for the same or a similar purpose;
(b) By threats made in a common scheme against different persons;
(c) Against a public servant arising out of the performance of the public servant's official duties. For the purposes of this paragraph, "public servant" includes but is not limited to an educational worker. "Educational worker" has the same meaning as defined in section 707-711; or
(d) With the use of a dangerous instrument.
(2) Terroristic threatening in the first degree is a class C felony. [L 1979, c 184, pt of §1(2); am L 1989, c 131, §1; gen ch 1992; am L 2006, c 230, §31]

The press conference held by the Governor, the Coast Guard, and Superferry announcing the plan to return to Nawiliwili Harbor constituted the first action of official terroristic threatening.

The release of the statement of offenses and punishments aimed at those intending to enforce the law in Nawiliwili Harbor was the second act of official terroristic threatening. That second act triggers Section (a) of the State statute.

The Governor going to Kaua′i to again threaten people with arrest and prosecution is a third act of official terroristic threatening, reinforcing the application of Section (a) of the State statute.

The official threats made against hundreds of people to further the Superferry enterprise triggered Section (b) of the State statute.

The people trying to enforce the law in the face of official lawlessness assumed a position as “public servants.” The threats directed at these public servants triggers Section (c) of the State statute.

To threaten to arrest, prosecute, imprison and fine people acting in harmony with the law in order to further violations of law constitutes official terroristic threatening.

The inclusion of law enforcement personnel in the Unified Command added use of deadly weapons to enforce the threats, triggering section (d) of the statute.

The conspiracy to intimidate, arrest, prosecute, imprison, and fine the people trying to enforce the law against the illegal operation of Superferry constitutes a civil rights conspiracy with both state and private actors.

This list is not exhaustive.

An additional inquiry could be whether there are sufficient predicate acts to allege violations of the Racketeering and Corrupt Organizations Act (RICO).

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