Wednesday, December 01, 2010


Suit filed against state for violation of demonstrator’s civil rights

by Larry Geller

A state judge has found two demonstrators not guilty of charges filed against them, and in her ruling determined that the prayers that begin each floor session of the Hawaii state Senate are unconstitutional. The state now faces charges brought by the demonstrators for assaulting them and violating their civil rights. The incident was caught on camera in the rotunda of the State Capitol.

Will there be a religious invocation when Neil Abercrombie is sworn in as governor on  December 6? Will the Senate, the House and the county councils give up their religious invocations now that a state judge has ruled that they violate the US Constitution and the Hawaii state constitution?

That could be one fallout from the fallout at the Senate that took place on April 29, 2010. A report on the incident with some photos is on the Hawaii News Now website, Capitol protestor found not guilty (11/25/2010).

From the article:

When Senate President Colleen Hanabusa introduced a reverend to say the invocation, Mitch Kahle stood from his seat in the gallery of the Senate chambers and said, "I object. My name is Mitch Kahle and I object to this prayer on the grounds that it's a violation of the first amendment of the constitution of the United States. I object."

Kahle's protest lasted about seven seconds. Then he stopped talking and sat down. The Senate's Sergeant at Arms was determined to remove Kahle. When Kahle resisted he was forcefully removed and roughed up. The incident was caught by several video cameras including a camera belonging to Hawaii News Now.

Kahle was charged with disorderly conduct, but was found not guilty. The issue of government prayer ceremonies became part of the judge’s ruling.

For more on the incident and the subsequent civil lawsuit filed against the Senate Sergeant-at-Arms and others who were involved in the assault on Kahle, check out two recent articles on Damon Tucker’s blog, Capitol Protester Found Not Guilty… The Video of the Protest (11/29/2010) and State of Hawaii, Senate Staff, Sheriff Deputies Face Civil Suit (11/30/2010).

A snip from the first article that describes the judge’s ruling:

Judge Leslie Hayashi found Kahle “NOT GUILTY” and ruled that: “The Senate’s [Christian] prayers violate the constitutional separation of church and state.”

So now a lawsuit has been filed (copies of the documents are over at Damon Tucker’s blog). From my experience following similar cases, the plaintiffs should win this one, and deserve to.

During the 2011 session or the next, the Senate will appropriate funds to pay the resulting settlement or decision. Yes, we the taxpayers will be held responsible to pay for the wrongful actions of our government.

Normally I would ask you to please click over to the articles to see the video Damon has posted and read his coverage of the issue. But I think the video is important enough that I’ll repeat it here, both to encourage you to read the articles and just in case you don’t.  Click on the thingy at the lower right for full screen.

More after the video.

I’d like to make some closing comments, in no particular order:

1. It’s bugged me for years, as I attend the Legislature’s floor sessions, that they still have these invocations. I hope this will be the beginning of the end of them. Not just for the separation of church and state issue but because some of them are downright offensive to believers of another tradition. Hawaii is a diverse community. There should be no tolerance of disrespect for non-Christian beliefs at a government ceremony.

2. Note the female voice towards the end of the video: “I’m gonna take your camera and I’m gonna put it away.” This is a blatant violation of civil liberties, documented by the video itself. In other words, the video demonstrates why taking a video is essential.

Yet law enforcement in Hawaii seems to think they can stop people from taking pictures in public places. Both Damon and I have written about that previously—he was prevented from photographing a post office, and I was stopped by one of HPD’s finest from photographing a car that hit a tree.

They better figure this out before APEC 2011. If there are demonstrations there will be videographers and reporters covering the action. If police try to confiscate cameras, we the taxpayers will get stuck paying for those settlements also.

3. There needs to be personal liability and penalties in these cases. If a sheriff or Sergeant-at-Arms can rely on immunity as government employees carrying out their job, there is little to deter them from doing the same another day to someone else, and little to deter others. Taking taxpayer money to settle civil rights cases just demonstrates to the wrongdoers that they can get away with it. And sadly (for us), when state workers are involved, in many instances they are not fired, but instead promoted (!).


Not only was the US Constitution violated here but the laws of common sense were broken. Since when is defending the Constitution illegal?

There is nothing in the constitution or the bill of rights that defines and supports the "separation of church and state". It does not exist. I have searched.

The phrase derives from a letter written by Thomas Jefferson that describes a well-established Constitutional principle deriving from the First Amendment and Article VI.

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