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The Honolulu Advertiser
Posted on: Thursday, April 20, 2006

Experts debate inmate shooting

By Kevin Dayton
Advertiser Big Island Bureau

HILO, Hawai'i The state corrections officer who fatally shot an escaping prison inmate in downtown Hilo last week appears to have followed state law and prison policies that authorize lethal force to prevent escapes.

However, the legality of the shooting remains "questionable" under a key U.S. Supreme Court ruling on deadly force, according to a University of Hawai'i law professor.

Thane K. Leialoha, 28, was being taken from Hilo District Court back to Hawai'i Community Correctional Center on April 11 when he somehow emerged from the jail van in downtown Hilo and scuffled with a corrections officer, according to witness accounts.

Witnesses report Leialoha pushed or struck the officer, knocking him to the ground, and then fled down Haili Street. The officer fired a handgun at the fleeing inmate, striking him in the head. Leialoha was pronounced dead at Hilo Medical Center about four hours later.

The state Department of Public Safety dispatched two investigators from the department's internal affairs division to Hilo to investigate the case, according to Frank Lopez, interim director of the department. Big Island police also are investigating the shooting.

Members of Leialoha's family questioned the need to shoot and kill the inmate, and have said they intend to hire a lawyer to hold Public Safety officials accountable.

Leialoha had been convicted of second-degree robbery, theft and second-degree assault in 1998, and third-degree promotion of a dangerous drug in 2002. Public Safety officials were returning him to prison for a parole violation at the time of the escape and shooting.

"I just feel it was uncalled for," said Leayla White, Leialoha's former girlfriend and mother of his three children. "He wasn't a murderer. He wasn't a serial killer. He wasn't a rapist."

Virginia E. Hench, a professor at UH's Richardson School of Law, said the final ruling on the Leialoha shooting will depend on the specifics of the case, but in general, "shooting an unarmed, fleeing person in the back is legally questionable."

Hench said the most relevant case is Tennessee v. Garner, a 1985 U.S. Supreme Court decision in which the court ruled it was unconstitutional for a Memphis police officer to shoot and kill an apparently unarmed youth who was fleeing the scene of a burglary.

The police officer in the 1974 Garner shooting was following police department policy that allowed officers to use all means necessary to arrest a fleeing suspect, but the Supreme Court ruled that policy was unconstitutional, Hench said.

The Hilo shooting "could be construed as excessive force," she said, although the issue is more complicated than the Tennessee case because Leialoha was a convicted felon fleeing from prison custody.

State law allows corrections officers to use deadly force to prevent escape from a jail or prison, and a 1993 Department of Public Safety policy authorized corrections officers to use lethal force to prevent escape of an offender from prison or from "custody of corrections personnel."

Sharon Pomroy, who was assistant firearms instructor for Kaua'i Community Correctional Center until 1997, said news accounts of the Leialoha shooting suggest the corrections officer who fired the shot did exactly what he was trained to do.

"You don't shoot warning shots because a warning shot can kill an innocent bystander," Pomroy said. "He (Leialoha) is not a criminal trying to escape capture. He's a convict trying to escape being held in prison. He's already convicted of the crime, he's now going to serve his time, and he really has no business escaping, period."

However, Hench said, news accounts suggest Leialoha had already escaped because he was running away from officers on a downtown Hilo street when he was shot.

"They can use force up to and including deadly force to prevent an escape, but as far as re-capturing somebody, they have to weigh not only the danger to themselves but the danger to whoever else might be around," she said.

Witnesses reported the corrections officer and Leialoha had struggled, but Hench pointed to media accounts saying the struggle apparently had ended, and Leialoha was running away.

"If the struggle were going on, or even if it looked reasonably to the officer as if the inmate was attacking somebody else ... then (the officer) might have been defending another person, but it's always going to be legally questionable when you shoot somebody in the back who's unarmed and is fleeing, and is not directly threatening anybody at that point," she said.

Pomroy considers the reported struggle between the inmate and corrections officer to be significant, making the incident "shootable."

"I cannot see the (corrections officer) not being cleared and maybe given an 'Attaboy, good job, you did what you're trained to do,' " Pomroy said. "It's the inmate who is really to blame for the entire circumstance. He got himself in there in the first place."

Reach Kevin Dayton at kdayton@honoluluadvertiser.com.