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Plaintiffs fight 90-day stay in Sheldon Haleck civil suit

Federal District Court Building in Honolulu, Hawaii
Sheldon’s grieving family wants to put an end to their suffering and move on

Honolulu, HAWAII — Attorneys representing the parents and wife of an American Samoan man who died three years ago after he was arrested by police in downtown Honolulu have accused the police officers’ defense team of being “abusive” and “unprofessional” during depositions, according to the latest round of court documents, which show that the case could be heading soon to the United States Supreme Court.

The American Samoan man is Sheldon Paul Haleck, the son of former American Samoa DPS Commissioner, William Haleck, who along with Sheldon’s wife and siblings filed a civil action suit in November 2015 at the federal court in Honolulu.

The plaintiffs contend, among other things, that the deceased was wrongfully seized, denied his liberty, and fatally assaulted by Honolulu police officers Christopher Chung, Samantha Critchlow, and Stephen Kardash.

Last year, US District Court Judge Helen W. Gillmor denied the defendants' motion for “summary judgment based on qualified immunity” under federal law over Sheldon’s death. And the defendants appealed the decision to the Ninth Circuit Court of Appeals, which issued a ruling on July 10 that “affirmed” the lower court’s ruling in “denying qualified immunity” for three police officers.

The ruling, which also referred the case back to the lower court for a further hearing, was signed by three appeals judges. (See Samoa News online July 27 for details.)

Late last month, the defendants petitioned the Ninth Circuit for a “re-hearing or rehearing en banc” — in which all judges of the appeals court sit on the panel.

In its 34-page petition, the defense notes that it was “four months ago that the Supreme Court reversed a Ninth Circuit decision on qualified immunity, specifically rebuking this Court for defining clearly established law at too high a level of generality” — in the Kisela v. Hughes case.

“The Ninth Circuit panel here [in the Haleck case] repeats the same error by defining the clearly established law too generally, and neither cites to nor applies any of the legal standards in Kisela [case],” the defense argued.

“En banc review is needed because the panel's opinion both contravenes Kisela [case] and conflicts with Ninth Circuit precedent. Rehearing is also warranted because of undisputed facts the panel either overlooked or misapprehended,” the defense further argued.

Other arguments by the defense include that the judges “erroneously stated” in their ruling that Chung and Critchlow “pepper sprayed Haleck multiple times without warnings."

“In fact,” said the defense, “Haleck was warned twice by Chung and several times by Critchlow that he would be pepper sprayed if he did not get onto the sidewalk.”

And “it took six officers to place Haleck in handcuffs and carry him off the street,” according to the defense, noting that the deceased was approximately six feet tall and two hundred pounds, “much larger than both Officers Chung and Critchlow.”

The Circuit Judges who presided over this case are Wallace A. Tashima, William A. Fletcher and Andrew D. Hurwitz.

On Aug. 20, a one-page decision was released by the court stating that the three-member panel voted to deny the petition for rehearing or hearing en banc. It states that “Fletcher and Hurwitz voted to deny the petition for rehearing en banc, and Tashima so recommends.”

“The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc,” it says.

Two days later the defendants filed a 22-page motion requesting a 90-day stay of the July 10 mandate ruling, “during the pendency of Appellants (defendants) petition for a writ of certiorari in the [U.S] Supreme Court.”

The Appellants point out that “qualified immunity may yet be resolved at a higher level” and that is a good cause for staying the mandate, to prevent the resumption of trial court proceedings until the Supreme Court has had the opportunity to pass on any petition for a writ of certiorari.

Additionally, lower courts routinely stay all proceedings pending an interlocutory appeal of the denial of qualified immunity.

“Appellees (the plaintiffs) seek only money damages, and there is no suggestion that evidence or resources might be dissipated pending Supreme Court review,” according to defendants, who are represented by City and County of Honolulu attorneys.

On Monday this week, plaintiffs filed an opposition to the 90-day stay, arguing that Sheldon’s death was determined by the Honolulu medical examiner “to be a homicide at the hands of the police officer Defendants in this case.”

“Since Sheldon’s death, the defendants and their counsel have done everything possible to delay this litigation and frustrate the desires of Sheldon’s grieving family members to put an end to their suffering and move on with their lives,” according to the plaintiffs.

Furthermore, the defendants have never offered a penny to settle any of the plaintiffs’ claims and have refused to participate in good faith in any settlement or alternative dispute proceedings.

“In the depositions of Sheldon’s parents and wife, defense counsel were abusive, accusatory, and unprofessional,” plaintiffs alleged in court filings, noting that the appeal to the Ninth Circuit “was a long shot, at best” by the defense.

“After losing their appeal and motion for rehearing – in which not a single Judge voted to grant their motion – the defendants are now seeking to further delay this case and prolong the agony of Sheldon’s family so they can bring what most certainly is a wasteful petition for certiorari to the Supreme Court,” plaintiffs argued.

“We do not think that a further stay is warranted,” plaintiffs argued, and noted that an application for certiorari in this case “would be frivolous [and] is made merely for delay.”

“If a petition for certiorari were filed, and in the unlikely event the Supreme Court agrees to hear this appeal, we will stipulate to a stay at that juncture, but in the meantime we request that this Court’s mandate be issued forthwith” so that the lower court can reset the case for trial “without having to delay the matter unnecessarily for another four to six months,” the plaintiffs concluded.