KEALAKEKUA — An attorney for an off-duty police officer acquitted of assaulting his 72-year-old upstairs neighbor is considering taking legal action against the county.
Jamie L. Harper was acquitted of second-degree assault stemming from a physical altercation Jan. 22 at the Kalanikai condominium complex in Kailua-Kona in which Harper was accused of going up to his neighbor’s apartment, arguing with him and starting a fight. Both men were hospitalized.
“As counsel for Mr. Harper in this nearly year-long prosecution, we have been committed to focusing our efforts on obtaining justice for him in the criminal justice system separate and apart from any civil remedies he may have as a result of this matter,” said Attorney Michael Schlueter. “At this time, we are focused on working with Mr. Harper to pursue his civil rights and all damages he may be entitled to as a result of his arrest and prosecution.”
The ruling was handed down last week by Kona Circuit Court Judge Ronald Ibarra, who determined after a bench trial that Harper suffered from a physical or mental disease, disorder or defect that resulted in him not having the capacity to have the particular state of mind for the charge filed.
Ibarra also granted a motion for discharge seeking Harper’s release from the court without conditions and without having to be committed to the Department of Health filed by Schlueter. Harper had been slated for jury trial Nov. 29.
The motion was based on confidential reports submitted by three court-appointed doctors who examined Harper as part of the court proceedings finding he did not have penal responsibility for the alleged acts; suffered from “significant, acute and temporary physical condition(s) leading to an acute and temporary mental defect or disorder rendering him incapable of being held liability for penal responsibility;” and no longer suffered of the mental disease or defect and is not a danger to himself or others.
“We’re definitely very pleased with the result. We definitely believed from pretty early on that he deserved an acquittal and automatic discharge — it’s one of those cases that is unfortunate it really had to be litigated,” Schlueter said. “It was clear and unanimous by the three court-appointed mental health professionals that he was suffering from a very serious physical ailment and that physical impairment to his health literally rendered him unable to form a state of mind for the offense. That was sort of our position and it became more and more clear as the case went on.”
During the January altercation, the victim suffered a broken nose, a cut above his right eye that needed six stitches, bruising to his right eye and bruising to his arm and Harper suffered an abrasion on his right forearm.
During a March preliminary hearing, Harper testified he went upstairs as a result of loud noise about 11 p.m. While at the door the man grabbed at him, he said, and that’s what led him to take the man to the ground and restrain him, as his training dictated. Harper also called for police and an ambulance after the incident.
Schlueter’s office is currently looking at pursuing legal action against the county for the treatment of Harper but has yet to file anything with the courts. In addition, they are working with the Hawaii Civil Rights Commission “in order to secure his rights related to matters relevant to the commission and we will be assisting him in that effort” And it is Schlueter’s understanding, he said, that SHOPO, Hawaii’s police union, has instituted action on Harper’s behalf.
SHOPO said Thursday that information is confidential and was unable to comment.
Hawaii County Corporation Counsel Molly Stebbins said in an email that the county had no comment regarding potential litigation.
Hawaii Police Department Assistant Chief Marshall Kanehailua, who oversees the department’s Administrative Bureau, said the department does not comment on “personnel matters.” West Hawaii Today asked if the department was aware of any potential mental or health concerns with Harper upon his hire or during his time in the force.
“We are in receipt of a complaint filed by Mr. Harper which is being handled by Corp Counsel. It would be inappropriate for me or anyone within the department to comment at this time,” he said via email Thursday.
The Office of the Prosecuting Attorney responded Friday with the following statement:
“The facts in this case, which Mr. Harper stipulated to as part of the bench trial that took place November 22, 2016, are that at around 11:30 p.m. on January 22, 2016, Kent Olson, was home alone in his apartment when Mr. Harper knocked on his front door. When Mr. Olson answered the door, Mr. Harper threw Mr. Olson to the ground, breaking his nose. As a result of this incident, Mr. Olson, a 72-year-old member of the community, was injured and hospitalized.
Mr. Harper was acquitted of the charge of Assault in the Second Degree on the grounds of physical or mental disease, disorder, or defect excluding responsibility, pursuant to Hawai‘i Revised Statutes Section 704-411. Once this defense was asserted, the parties follow ed the requirements of Hawai‘i Revised Statutes Chapter 704, which outlines Penal Responsibility and Fitness to Proceed. After reviewing the reports of three qualified examiners, the prosecution did not oppose Mr. Harper’s Motion for Judgment of Acquittal based on a lack of penal responsibility.
The Office of the Prosecuting Attorney did not treat Mr. Harper any differently than any other criminal defendant because of his employment with the Hawai‘i Police Department. His occupation was not relevant in the prosecutionor resolution of the case. Mr. Harper’s criminal case was resolved appropriately in accordance with the requirements of the law, based on the facts and the reports that were submitted to the Court.”
Schlueter also noted that while police don’t deserve special treatment, “I think police and law enforcement have earned the right to be treated fairly.”
“We are quite disappointed in Mr. Harper’s treatment by the county police department and prosecuting attorneys. It’s apparent in the case to us that the Office of the Prosecuting Attorney knew very well that he was suffering from this physical ailment and that it very much likely did allow for him this defense. To us, that indicates that they had full knowledge of this disposition,” said Schlueter, noting his client was terminated from his position in the Hawaii Police Department.
He continued, “from what I saw, it was life threatening what was happening to his body physically. It was so dangerous, he was hospitalized for numerous days. The prosecutor knew, the police department knew this, and as far as I understand, they didn’t even allow him to be discharged from the hospital, the police department came to the hospital and arrested him there. To me, I think there should be equal justice and access to the law for all people and I certainly think it should be afforded to our law enforcement officials, and that police should not be misjudged.”
“At this time, we have some work to see if that was the case in this case,” he said.
Harper was one of 12 graduates of the department’s 76th recruit class in 2009. He was honored by a letter from the public for his professionalism, by the chief for his participation in the 2013 Shop with a Cop event and another letter for his “assistance and good deed at the Kona Library.”
He was also the Officer of the Month in March 2012, where he “was honored for his investigation of car break-ins, resulting in the arrest of a male suspect for 15 offenses.”