LIHU‘E — Fifth Circuit Judge Kathleen Watanabe on Tuesday upheld her order requiring the state to return a Native Hawaiian sovereignty activist’s law enforcement badge.
The decision stems from a July 26 hearing where Watanabe granted the prosecution’s request to delay an order granting the defendant’s motion to strike an illegal term from a previous plea bargain and for the state to return Dayne Gonsalves’ “Hawai‘i Federal Marshal” badge.
Kaua‘i County Deputy Prosecutor Melinda Mendes said the state would exercise its right to appeal the order and will present its case at a pretrial hearing at 3 p.m., Aug. 17.
Watanabe said the state had failed, “both procedurally and substantively,” in its argument to reinstate the order to return the badge. The state filed its motion requesting the stay on July 27 as instructed by the court, but did not file the memoranda on the legal basis for reconsideration until Thursday, the same day the defendant’s response was due and just three days prior to Tuesday’s hearing.
Watanabe said this failed to meet the conditions for extraordinary relief.
Mendes argued that the badge issue was introduced as part of an attempt by the defense to force an earlier version of the plea agreement, and that the order on the plea meant the state could not negotiate terms with the defendant.
The plea, if valid, would have reduced charges to petty misdemeanor obstructing, and dismissed remaining charges of trespassing, disorderly conduct and obstructing government operations, but required Gonsalves to surrender the badge.
Mendes said the unanticipated order to return the badge in violation of the rights granted to Native Hawaiians was “sua sponte,” in effect claiming the court had acted on authority without a formal motion request from either party.
The issue should have ended with the court’s decision on the plea agreement and not included the badge, she added.
This “caught the state off guard,” Mendes said.
Responding to the judge’s questions, Mendes expanded on initial concerns that the badge was evidence, asserting that its public use could come in conflict with the rights of citizens and in accordance to Hawaiian and U.S. laws.
Gonsalves reportedly displayed the badge at a county meeting a few years ago, representing himself as the leader of the Kingdom of Atooi, a group fighting for Native Hawaiian sovereignty rights.
Daniel Hempey, the court-appointed attorney for Gonsalves, said the state is holding the badge by non-judicial means when it is considered non-contraband property that is protected by the U.S. Constitution and the Fourth Amendment of the State Constitution.
For three years the state has not identified it as contraband, or as an item that may be seized under forfeiture laws without a warrant or a court order, he added.
In his written opposition, Hempey described the state’s delayed documentation in the stay motion as “procedural gamesmanship” and an attempt for a “do-over of the original hearing.”
Without presenting a new issue that could not have been produced at the initial hearing, he said the state is in violation of the Hawai‘i Rules of Penal Procedure.
Hempey said the state’s motion also did not address legal arguments regarding changing laws on the rights of Native Hawaiian people or the notion that the badge is protected property.
Hempey was present with Caren Dennemeyer, the court-appointed attorney for Robert Pa. Gonsalves and Pa together face charges in four consolidated cases dating back to the Hawai‘i Superferry protests in 2007.
Gonsalves, 47, of Kekaha, entered the court stating that he is a recognized royal of the Pacific Nations, Te Moana Nui A Kiva, and the United Nations of the Turtle Islands.
He was called out of order once by Watanabe for responding to a statement by Mendes about potential problems with the badge.
Gonsalves and Pa both qualify as Native Hawaiian. Gonsalves is recognized as an ali‘i nui, or king, of Atooi, a nation of indigenous Native Hawaiian residents. Atooi citizens awarded Gonsalves with the marshal badge for his work with other indigenous nations, including Rapanui, Tahiti, Canada and Aotearoa, that in turn recognize Atooi, a member state of the United Nations of Turtle Islands in Polynesia.
Gonsalves contends that he is not pretending to be a State of Hawai‘i law enforcement officer. He identifies himself as a law enforcement officer in the Kingdom of Atooi, a legitimate and legal title that he claims is not in violation of U.S. laws.
Gonsalves was arrested in October 2008 at a county meeting. He reportedly presented his Atooi badge to the police at which time an impersonating-an-officer charge was added.
Hempey’s initial motion referenced the U.N. Declaration on the Rights of Indigenous People, which President Barack Obama signed in 2010, making it the official policy of the United States. He also referenced the rights of indigenous Native Hawaiian people as granted by the Hawai‘i State Constitution, and the State Native Hawaiian Recognition Act recently signed by Gov. Neil Abercrombie.
The motion stated that law enforcement is part of the right to “maintain and strengthen distinct legal institutions” to encourage nation-building within an indigenous nation.