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Morgan v. County of Hawaii

United States District Court, D. Hawaii

March 29, 2016

KITTRENA L. MORGAN, Plaintiff,
v.
COUNTY OF HAWAII; COUNTY OF HAWAII POLICE DEPARTMENT, HPD; OFFICER JEROME MANUEL, INDIVIDUAL AND OFFICIAL CAPACITY, DETECTIVE IAN LEELOY, INDIVIDUAL AND OFFICIAL CAPACITY, OFFICER JOSIAH COE, INDIVIDUAL AND OFFICIAL CAPACITY, OFFICER STANLEY KAINA, INDIVIDUAL AND OFFICIAL CAPACITY, SERGEANT GEORGE MAKUA, INDIVIDUAL AND OFFICIAL CAPACITY, OFFICER CARRIE AKINA, INDIVIDUAL AND OFFICIAL CAPACITY, AND OTHER PERSONS INVOLVED IN THE INCIDENT OF OCTOBER 25, 2012; HAWAII POLICE COMMISSION; DOES 1-10, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Susan Oki Mollway United States District Judge

I. INTRODUCTION.

Pro se Plaintiff Kittrena Morgan’s civil rights complaint asserts federal and state court claims relating to her removal from land on the Big Island that she claimed a right to live on. Defendants move for summary judgment on all claims. That motion is granted in part and denied in part.

II. BACKGROUND.

The court has discerned certain relevant facts from the large record. However, the court has no obligation to scour, and has not taken on the task of scouring, the numerous exhibits for facts that were not identified in the parties’ concise statements of facts. See Local Rule 56.1(f). The court summarizes here what it understands to be the background of the case.

In 2009, Morgan began camping at Kawa Bay, where she met Abel Lui and became his girlfriend and “caretaker.” ECF No. 60-3, PageID #s 1028-31; ECF No. 99, PageID # 1495 (admitting Defendants’ Concise Statement of Facts (“CS”) ¶ 1). At the hearing on the motion before this court, Morgan called herself Lui’s “hanai” wife, using the Hawaiian term to describe her close family-like relationship that was not a marriage under state law. Lui had lived at Kawa Bay for about twelve years, even though it appears he did not have written title naming him as having an interest in the land. He was arrested more than twenty times for simple trespass and criminal trespass. ECF No. 99, PageID # 1495 (admitting CS ¶¶ 4-5). Lui appealed one of those convictions up to the Intermediate Court of Appeals of Hawaii, which affirmed. See ECF No. 60-8.

The County of Hawaii purchased one of the lots at Kawa Bay in 2008, then purchased the remainder of the Kawa Bay land in 2011. ECF No. 99, PageID # 1495 (admitting CS ¶¶ 6-7).

The County filed a Complaint for Ejectment in state court. Plaintiff was joined as a party at her own request. ECF No. 60-1, PageID # 938; ECF No. 99-60, PageID # 1947. On September 7, 2012, the state court entered judgment in favor of the County and issued a writ of possession. ECF No. 60-15, PageID # 1153. Despite the court’s ruling, Morgan, Lui, and others continued to camp at Kawa Bay, claiming to be exercising traditional Hawaiian rights and practices. See ECF No. 99-1, PageID # 1502-03.

On October 25, 2012, officers from the Hawaii County Police Department and the State of Hawaii’s Sheriff’s Division served the writ of possession on Morgan, Lui, and others, telling them they had two hours to pack up their belongings and leave the beach. ECF No. 99-1, PageID # 1503. Morgan recalled, “Initially they said--initially they said, ‘You have two hours to pack and leave. If you don’t leave in two hours then you’ll be arrested and your cars would be towed.’ That’s exactly what was told to us.” ECF No. 99-48, PageID # 1709.

The officers at the scene told the Kawa Bay occupants that anything they were not able to take with them would be removed and stored for thirty days. Morgan took a video of a part of her interaction with police that day. See ECF No. 60-19.

The video shows the officers talking to Morgan firmly but calmly, while Morgan can be heard becoming increasingly emotional and agitated. The record includes an uncertified transcript of Morgan’s video, which this court, having compared the transcript against the video, cites here:

Officer: All right and your vehicle will be towed from the property. Ok and it’s just going to get more and more complicated for you after that. All right? Did you understand what I just said? Ma’am did you understand what I just said.
Morgan: So you're asking us to just forfeit all of Abel's belongings here?
Officer: No, I am not asking you to forfeit; I’m asking you to leave on your own accord.
Morgan: And then what about everything that’s here?
Officer: Well we just explained . . .
Morgan: what about the dying plants . . . in the garden . . .
Officer: . . . What what we just explained . . .
Morgan: . . . that the Hawaiian mans not allowed to take care of for 30 days? No!
Officer: . . . was that all of those property all of the property personal property that you don’t take with you ok will be collected by UPW Morgan: No!
Officer: and then will be . . . . stored . . .
Morgan: No!
Officer: Ma’am Morgan: You don’t touch his stuff!
Officer: It it will be collected by UPW . . .
Morgan: Yeah Officer: and it will be stored.
Morgan: Yeah and then he’s supposed to pay . . .
Officer: Kay and then . . .
Morgan: . . . the storage to get it back and he’s got no more money Officer: . . . and then it will be available for him to collect within 30 days. Ok that’s what’s going to happen.
Morgan: It can’t happen . . .
Officer: It’s gonna happen.
Morgan: . . . there’s not a big enough truck he’s got a house full of his children’s pictures up here.
Officer: It’s gonna happen.
Morgan: . . . It can’t happen.
Officer: Ok, so I’m not gonna argue with you so you . . .
Morgan: It can’t happen.
Officer: . . . the clocks ticking the clocks ticking and if you’re not. . .
Morgan: . . . It can’t happen; there’s no way. All of Abel’s . . .
Officer: . . . if you don’t show if you don’t show any sign of compliance . . .
Morgan: . . . belongings are in the house.
Officer: . . . Ok that you’re going to comply with the order all right there’s uh that’s going to uh trigger the next actions. Ok and I haven’t seen you complying with any of our directions yet, ok, and these are lawful directions coming from the court. [phone ringing] You understand what I'm saying?
Morgan: I understand what you're doing is illegal.
Morgan: [Speaking on telephone] Aloha.
Yeah they’re giving no ultimatum here they they’ve already kicked other people out of the beach, I believe, the surfers, and we’re supposed to just leave everything and leave if we don’t leave within which is like an hour and a half now the vehicles will be towed and he said anything left any personal belongings are going to be put into storage for thirty days. How the hell are they gonna to pack up this camp? How are they going to pack out Abel’s house?
Officer: You’re wasting time. You should . . .
Morgan: He says oh I’m wasting time I’ve got to get moving packing. This is like the most emotional distress any one can inflict upon a human being . . .
Officer: You should be trying to show some compliance here . . .
Morgan: [talking on the phone] Is there anyone to call to come down here?
Officer: Can you show some compliance please?
Morgan: They’re just God . . . (wailing)
Officer: It’s a lawful lawful order from the courts we need your lawful comp we need your compliance ma’am ok?
Morgan: Geez I don’t know they took him he was showing him the watermelon in the garden it’s his . . .
Officer: We need your compliance ma’am.
Morgan: First thought. You know all of the plants are going to die; the three hundred ipu he had oh God.
Officer: Ma’am we need your compliance please.
Morgan: Yeah I so worried he went to talk to one of them. I don’t know. He had the two kids from Arkansas who were staying at the beach that’s the only campers . . .
Officer: All right.
Morgan: I don’t know there was fisherman and surfers I guess they’re all kicked out. They’re locking down the entire Kawa which cannot be legal and they can’t make Abel leave like this. Tell him in less than two hours and it’s been a half an hour now. No! This is inhumane. Ooh!
Officer: We need you to . . .
Morgan: God! And he’s standing like a foot from me and he keeps walking closer like . . .
Officer: I’m about I’m about eight feet now . . .
Morgan: Why this is sickening. What are you going to do now? The pain compliance of neck jabbing next?
Officer: Neck jabbing? That’s not a technique we practice.
Morgan: Oh that’s a lie ask the Corporation Counsel and their submissions. I’d better get off here; I gotta find Abel. Please call somebody.
Officer: . . . ma’am hang on hang on ma’am we need you to start complying.
Morgan: They’re the’re saying I gotta yeah great . . .
Officer: We need you start complying ma’am.
Morgan: I’m complying I’m not touching you. Liko they’re walking like a foot from me with their big freaking guns and threats I’m not complying cause I’m going to go find Abel. I’m in Abel’s house here now and you didn’t knock and enter.
Officer: This is not a search warrant.
Morgan: Liko please call somebody.
Officer: This is not a search warrant, ma’am.
Morgan: So Abel’s gardening; that’s what he does; he’s going to be gardening. [sobbing] That’s what he does when he’s stressed; he gardens.
Officer: We need we need you to grab your personal effects and leave the area.
Morgan: All of this is my personal effects.
Officer: We need you to start grabbing your personal effects that you need . . .
Morgan: Liko what can I do here?
Officer: . . . immediately and leave the area . . .
Morgan: Liko what can I do?
Officer: You can grab your things and leave the area.
Morgan: Call somebody.
Officer: Ok, you need to grab your personal effects and leave the area.
Morgan: Get away from! Get away!
Officer: We need you to leave the area Ma’am, grab your things.
Morgan: [Attempts to blow a conch shell]
Female Officer: Ma’am we gave you the opportunity to take all of your stuff . . .
Morgan: We can’t. There is no humanly way to take all of our stuff!
Female Officer: We are here to help you. We can help you break this ...

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