Hawaii Diver Pleads Guilty In Controversial Scuba Attack On Conservationist

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There is an interesting criminal case out of Hawaii where Jay Lowell, a diver who pulled off the breathing apparatus (regulator) of a conservationist, pleaded guilty to a misdemeanor. The case itself is different in a response to the filming by a coral reef conservation group For the Fishes, but also the specific charge: Terroristic threatening.

The incident occurred on May 8, 2014 when Lowell encountered Rene Umberger, director of the coral reef conservation group. She and colleagues were were videotaping Lovell and another diver as they collected fish for the aquarium trade. While such captures are legal, they are strongly criticized by conservationists for depopulating and harming the coral reef. The video below shows Lowell swimming quickly at Umberger and ripping out her regulator. Umberger quickly reinserted the regulator but called the police after the incident. She insisted that it was her long experience as a diver that saved her.

Screen Shot 2015-02-20 at 3.36.34 PMScreen Shot 2015-02-20 at 3.36.39 PMThe criminal charge is not surprising. He should have been charged with simple assault. However, Hawaii County deputy prosecuting attorney Jeff Burleson instead used the terroristic charge. The expansion of terrorism charges have concerned civil libertarians for years. This is a case of straightforward assault, but prosecutors are now using such provisions to ramp up charges. The Hawaii statute says:

§707-716 Terroristic threatening in the first degree. (1) A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening:

(a) By threatening another person on more than one occasion for the same or a similar purpose;

(b) By threats made in a common scheme against different persons;

(c) Against a public servant arising out of the performance of the public servant’s official duties. For the purposes of this paragraph, “public servant” includes but is not limited to an educational worker. “Educational worker” has the same meaning as defined in section 707-711;

(d) Against any emergency medical services provider who is engaged in the performance of duty. For purposes of this paragraph, “emergency medical services provider” means emergency medical services personnel, as defined in section 321-222, and physicians, physician’s assistants, nurses, nurse practitioners, certified registered nurse anesthetists, respiratory therapists, laboratory technicians, radiology technicians, and social workers, providing services in the emergency room of a hospital;

(e) With the use of a dangerous instrument or a simulated firearm. For purposes of this section, “simulated firearm” means any object that:

(i) Substantially resembles a firearm;

(ii) Can reasonably be perceived to be a firearm; or

(iii) Is used or brandished as a firearm; or

(f) By threatening a person who:

(i) The defendant has been restrained from, by order of any court, including an ex parte order, contacting, threatening, or physically abusing pursuant to chapter 586; or

(ii) Is being protected by a police officer ordering the defendant to leave the premises of that protected person pursuant to section 709-906(4), during the effective period of that order.

(2) Terroristic threatening in the first degree is a class C felony. [L 1979, c 184, pt of §1(2); am L 1989, c 131, §1; gen ch 1992; am L 2006, c 230, §31; am L 2007, c 79, §2; am L 2010, c 146, §2; am L 2011, c 63, §4; am L 2013, c 255, §1]

The second degree misdemeanor is simply defined as:

(1) A person commits the offense of terroristic threatening in the second degree if the person commits terroristic threatening other than as provided in section 707-716.
(2) Terroristic threatening in the second degree is a misdemeanor. [L 1979, c 184, pt of §1(2); gen ch 1993]
– See more at: http://codes.lp.findlaw.com/histatutes/5/37/707/III/707-717#sthash.1cFhqKec.dpuf

This places Lovell under probation with a threat of six months in jail for any violations.

Umberger insisted that she could have been killed because she was at a depth of about 50 feet (15 meters) and might have suffered an embolism if she had panicked and surfaced too quickly. Burleson insisted that, because Umberger felt threatening, he was free to call the incident a form of terroristic threatening. Ironically, Lowell also claimed that he felt threatened and responded in self-defense — a pretty implausible claim.

While I believe that Lowell was rightfully prosecuted, the expanding use of terrorism charges as a tactical move by prosecutors is highly disturbing. It is an example of how law experience unintended expansion through opportunistic moves by prosecutors. By ramping up such charges, prosecutors force people to plead guilty rather than face longer sentences. What Lowell did was despicable, but this looks much like pushing someone down stairs rather than a true terroristic threat.

What do you think?

Source: Daily Mail

42 thoughts on “Hawaii Diver Pleads Guilty In Controversial Scuba Attack On Conservationist”

  1. I was diving in 20 meters of water off the Big island when a terrifying specimen of Gymnothorax undulatus exploded out of a coral head crevasse, and began snapping at my nikonos, scared the hell out of me…not the first time I have had run-ins with denizens of the deep, with teeth and a nasty disposition…wouldn’t have it any other way…dove with Rod Fox off S.A. Kangaroo island, in cages scoping out the “white pointer”…aka the man i the “gray suit”… to this day, the ultimate rush

  2. What everybody is not seeing here is if she is not competent diver and couldn’t retrieve her reg and didn’t have an octo, or didn’t feel confident doing an emergency decent,why was she diving alone. She certainly must not be a certified solo diver if she thinks she’s in danger of losing her reg from her mouth.the most basic skill you are taught from day one. To me it seems more political motivated than any thing. For those saying attempted murder do you even dive, maybe if he cut her hose,yeah. Typical activist get in your face but soon as you respond out comes the drama queens

  3. It’s also kinda hard to catch a hose under water that has air coming out of it. Especially when the end attached to the tank is between your shoulder blades.

  4. Paul

    Is a frog’s ass water tight?


    Your entire argument is based on your interpretation of how you would deal with the situation, with 39 years of experience. This is like saying that it’s ok to push someone into the path of an oncoming semi because any reasonable person with average motor movement ability would be able to simply jump right back out of the way. The setting was 50 under water. The perp intentionally put the person in a situation where they could have died. Regardless of how easy it is to get to the surface or reinstall the breathing device, in those circumstances the person could have drowned. Experienced divers drown all the time from panic. People experienced in lots of disciplines such as this, die all the time from panic.

    The facts are that the conditions demanded total focus. The perp attacked his victim within these conditions. He needs to go to jail for something just below attempted murder, but only just below. If she had died, he would be guilty of murder. I know David, it is impossible for someone to die when they have their breathing apparatus pulled away.

    The terrorism slant is totally unnecessary and diminishes the real terrorism situations that need to be addressed.

    1. issac – I have no problem with pushing someone in front of an oncoming semi if it is two blocks away. That is how I see this problem.

  5. davidm2575 said “I’m wondering if you need a refresher course. I’ve been a SCUBA diver for 39 years. You should know that at 50 feet, this likely was a non-decompression dive.” Unlikely yes, but not impossible. If she was on her second dive of the day, she might have enough residual nitrogen to suggest a hang at 10 or 20 feet to lower the possibility of getting mild bends symptoms or accumulating silent bubbles. Yes, we all know about things we had to do in the pool, but this is 50 feet deep in the ocean; no play pen.

  6. “If she was within 30 feet of the diver collecting fish legally, she was too close to him. She might say that she was just filming, but filming that close is harassment.”
    Well, then you’d have to agree that it’s harassment for anti-abortion terrorists – excuse me – protesters to get within inches of women seeking abortions, and that the S. Ct. was wrong to strike down the eight foot rule.

    1. RTC, I have always stood against the anti-abortion terrorists. Nevertheless, the Supreme Court’s unanimous decision against 35 foot buffer laws was the correct one. The State cannot close down traditional public forums in their zeal to protect those who would murder their unborn babies.

  7. I am guilty of bringing the bends into the discussion. But, I just did it in jest, hoping to always make a Sea Hunt/Lloyd Bridges reference. I know nothing about diving. Always wanted to get qualified w/ my son since we went to Cozumel several times. But, the boy watched too many shark shows on TV.

  8. davidm-

    Suppose that the person filming was a L(aw) E(nforcement) O(fficer) instead of an environmentalist. Still just a simple assault?

    1. Don de Drain wrote: “Suppose that the person filming was a L(aw) E(nforcement) O(fficer) instead of an environmentalist. Still just a simple assault?”

      Interesting. I checked to see if Hawaiian law has different law for assault against an LEO. It does.

      The thing is, in looking at the actual State law about assault, I discovered that Hawaii changed their assault laws to define assault not just as a threat or intent to cause bodily harm, but that it defines assault as causing bodily harm. Ah-ha! This must be why the lawyer used the anti-terrorism law instead of the assault law.

      According to the law, he caused no bodily injury to this girl, so he did not commit assault.

      “Bodily injury” means physical pain, illness, or any impairment of physical condition.

      §707-712 Assault in the third degree. (1) A person commits the offense of assault in the third degree if the person:

      (a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or

      (b) Negligently causes bodily injury to another person with a dangerous instrument.

      (2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]


  9. Terrorism, no. Attempted murder? I’m inclined to say yes. What would have been the criminal charges had she panicked and drowned? Manslaughter? Murder? Certainly not just assault. Prof Turley’s analogy of pushing someone down the stairs is apt. People can break their necks failing down the stairs, or hit their heads and die. Just because the person who gets pushed down the stairs happens to have been a Cirque du Soleil acrobat who could gracefully fall down the stairs without being injured does not change the nature of what the defendant attempted to do. In this case, the defendant could not know whether the victim would panic or would react professionally like she did.

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