Posted on: Saturday, December 4, 2004

Hate crimes law unfair, lawyer says

Advertiser staff

KEALAKEKUA, Hawai'i — The attorney representing a Big Island man charged under the state's hate crimes law for allegedly assaulting campers at Makalawena Beach filed a motion yesterday arguing the 2001 law is vague and unconstitutional.

Kona attorney Robert Kim said the hate crimes law is not specific enough "to provide fair warning of the conduct it prohibits."

His client, Henry "Puka" Bell, was indicted on 13 counts for a July 10 incident at the North Kona beach. Campers had called police to report that vehicles had raced through the campsite and that some campers had been assaulted. Three campers suffered minor injuries, one vehicle was damaged, and some items were stolen.

The assailants reportedly made comments such as "Any ... haoles want to die?"

Bell and three other men, Jonathan Anaole Taetuna Fautanu, Shiloh K. Chenoweth and Rafael Kalua Rodrigues were charged under the hate crimes law that allows for enhanced penalties. If convicted, they could face double the prison time ordinarily imposed for the underlying crimes.

It is the first time Big Island prosecutors invoked the hate crimes law.

A hearing on Kim's motion is set for Jan. 10 in Kona Circuit Court. Hawai'i County Prosecutor Jay Kimura and his staff were attending a seminar yesterday and could not be reached to comment.

Kim said in his motion that the indictment against Bell stated the victims were chosen "because of hostility toward the

actual or perceived race, religion, disability, ethnicity, national origin, gender identity or expression, or sexual orientation. ..."

He said the law "is so vague and overbroad as to cover any type of conduct without parameters." As an example, Kim said that if two heterosexual men get in a fight and one calls the other "gay," the name-caller could be subject to the hate crimes law. Or, if an Asian campaign worker removes a non-Asian's campaign sign without permission, the worker could be penalized for racial discrimination.

In asking for the hate crime charges to be dismissed, Kim also pointed out that none of the grand jury witnesses testified that Bell made any comments about "haoles."