On Sept. 5, 2014, Honolulu Police Officer Vincent Morre punched, slapped and kicked two men inside Doc’s Game Room on Hopaka Street while searching for fugitives. The incident was captured on surveillance video and has become a much-viewed television news clip.

Two other officers, Nelson Tamayori and Joseph Becera, were in the game room, too, and witnessed the assault.

All three officers have since been discharged and pleaded guilty to criminal charges. They were also named in a lawsuit that was filed by the assault victims.

Any officer who is sued for wrongdoing on the job can ask the Honolulu Police Commission to pay for their attorneys fees in a civil case and can sometimes have their legal defense paid if charged with a crime.

Both Becera and Tamayori asked the police commission to pay for their civil cases.

Becera was granted a publicly paid attorney but Tamayori was not.

Now, Tamayori is challenging the city’s decision not to pay his legal defense in the lawsuit that claims he should have tried harder to stop the attack.

The case illustrates the uneven procedures followed by the Honolulu Police Commission in deciding when the city provides legal representation to officers and when it doesn’t. It’s a situation that has been criticized by Commissioner Steven Levinson as unfair and possibly illegal.

Screen shot from KITV

“I’m incredulous on every which way on this one,” said attorney Roy Epstein, who is now representing Tamayori. “The complaint is exactly the same. Both names are in the same paragraphs with the same allegations against both of them. You can’t treat two people differently.”

Epstein said Tamayori was informed in July 2016 that the commission did not approve his request for taxpayer-funded legal counsel in the lawsuit. But in March of this year, Becera was told that the commission would pay for his attorneys.

While Morre was charged with two counts of felony civil rights violations — which eventually netted him a 30-month prison sentence — Becera and Tamayori were charged with “misprision of a felony” for not immediately disclosing the crime to authorities.

But Becera faced an additional count that Tamayori did not. Becera was also charged with making a false statement to FBI investigators.

Both men pleaded guilty in federal court and were sentenced to probation.

Tamayori’s criminal defense attorney, Thomas Otake, told the media at the time of sentencing that his client eventually came clean to HPD’s internal affairs division, and made clear that he did so before the surveillance video showing the assault became public.

Tamayori made the right decision, Otake said. He just did it too late.

“Reporting it immediately would have led to possible retaliation against Officer Tamayori by some of his fellow officers and he would have been alienated from many of his fellow officers for the rest of his career,” Otake said at the time. “So he was really in a rock and a hard place, and unfortunately he made the wrong decision initially.”

Two Honolulu police commissioners, Loretta Sheehan and Levinson, agree with Epstein that Tamayori was treated unfairly when it came to providing legal counsel, although neither was involved in the initial decisions.

Cory Lum/Civil Beat

The police commission was asked by Epstein to reconsider Tamayori’s case earlier this month, but by that time the deadline to appeal the previous decision had passed.

Sheehan said that appears to leaves Tamayori with one option — file a lawsuit against the city.

“These are two completely inconsistent outcomes,” Sheehan said. “His remedy apparently is to sue us for his attorney fees, and it seems like he has a pretty good claim.”

Sheehan, who is a lawyer, recused herself from the decision on whether to reconsider Tamayori’s request for legal counsel because she works at the same law firm as Otake.

But she she said that while the commission’s initial decision to deny legal counsel doesn’t make much sense on its face, the fact that Tamayori missed his deadline to appeal that ruling to the Hawaii Circuit Court doesn’t bode well for him.

“He’s in a bit of a pickle now,” Sheehan said. “He sat on his rights. He did not appeal, and he should have appealed.”

Levinson, a retired associate justice of the Hawaii Supreme Court, had a similar view of Tamayori’s case. He said the initial decision was unfortunate, but the finality of the matter doesn’t leave him with much recourse outside of the possibility of filing a lawsuit.

“The complaint is exactly the same. Both names are in the same paragraphs with the same allegations against both of them. You can’t treat two people differently.” — Roy Epstein, attorney for Nelson Tamayori

But Levinson also noted that Tamayori might not be alone in wanting to challenge the commission’s decision to not grant legal counsel to officers accused of crimes or named in lawsuits.

Levinson has said that he believes the commission’s rules don’t adhere to state law.

According to the Hawaii Revised Statutes, whenever a police officer is prosecuted for a crime or sued for any act done in the performance of their duties, the officer should be granted taxpayer-funded legal representation.

Levinson said the commission hasn’t been following this standard. Instead, the commission has only been providing legal counsel if an officer was found to be acting within the “course and scope of employment,” a much narrower legal test.

“Whether acts were done in the performance of an officer’s duties is not the same question as whether the acts were done in the course and scope of employment,” Levinson said. “So if a request is decided against an officer using the course-and-scope-of-employment analysis, it is in my view very likely defective.”

Ultimately, that means any officer who was denied legal representation using that test could have grounds to challenge the decision.

Levinson has proposed changing the commission’s rules to be in line with state law.

Anthony Quintano/Civil Beat

The proposed rule change would also fix another aspect of the commission’s rules regarding its decision to grant legal counsel. As it stands today, the seven-member commission must approve a request for an attorney with four votes.

If only five commissioners are a part of that decision, for example, and the vote is 3-2 in favor of granting legal counsel, that means the officer is out of luck.

This played out in December when HPD Sgt. Robert Jaeger petitioned the commission for an attorney.

Jaeger had been named in a lawsuit in which a former Hawaii Pacific University professor accused his colleagues of falsely reporting to HPD that he was planning a school shooting.

According to court records, Jaeger said that while working in the records division he told school officials, one of them a former HPD detective, that the former professor did in fact own a handgun.

After a contested case hearing before five commissioners, three voted to grant Jaeger an attorney. But because he didn’t get a fourth vote he was denied.

Levinson said Jaeger’s case is still under review by the commissioners. In the meantime, he said one of his priorities will be to get the commission’s rules changed so that similar issues don’t keep coming up.

“The sooner we do it the better,” Levinson said. “Because then we won’t have to go around in circles with every request for legal representation.”

As for Tamayori, Epstein is still determining the best option for an appeal in light of the missed deadline. He described the case as a “slam dunk,” and is confident a judge will side with his client.

He also noted that should he win the case, he’ll likely be granted attorney’s fees, which will be on top of the cost to the city for funding Tamayori’s defense in the lawsuit.

“It seems foolish and not cost effective,” Epstein said. “They’re just wasting money.”

According to Honolulu Police Commission records, HPD officers have submitted 212 requests for legal counsel since 2010. Of those, 12 have been denied and eight were withdrawn by the officers themselves.