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. Having dived about 45 years, I’d say this is attempted murder. If the attacked diver didn’t have an octopus, she could possibly have embolised, drowned or gotten the bends because of the free ascent. Absolutely inexcusable behavior on the attacking diver’s part.

    1. Gene wrote: “Having dived about 45 years, I’d say this is attempted murder. … she could possibly have embolised, drowned or gotten the bends because of the free ascent.”

      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. I don’t know why you would bring the bends into this discussion.

      Also, he did not cut her regulator hose. He just pulled it out of her mouth. Removing the regulator is done in even the most basic SCUBA training. In one of my SCUBA courses, I had to dive in without a mask, swim to the bottom, find the mask, regulator, etc., and put on all the SCUBA gear from scratch.

  2. It’s not terrorism although he was certainly attempting to terrify her by what is clearly attempted murder. He could have lodged a complaint against her – on land. There is no justification for what he did and I hope he gets years.

  3. Paul:

    Harassing is not the same as potentially damaging breathing equipment 50 feet under water. What if real damage occurred to the equipment, and what if the diver panicked? Sounds like you’re justifying all this, as if the regulator-puller didn’t swim a decent distance to cause said damage. Not exactly aquatic self-defense.

    And not many use an anecdotal snorkel when diving that deep. Apples/oranges.

  4. “Could be more aligned with attempted murder.” -Dave

    Put the question to a number of people last night and most responded with “attempted murder.”

  5. Imagine filming person X on a public street. Person X then turns, rushes over, and chokes you on the sidewalk.

    Now do the same thing, only add 50 feet of ocean above your head, making recovery from the initial “choke” much more extreme.

    Terrorism seems off, but is this assault? Could be more aligned with attempted murder.

    1. Dave – imagine walking down the street with a snorkle in your mouth. Citizen X, who you have been harassing, comes over and takes the snorkle out of your mouth. You find the snorkle and pop it back in your mouth and go yelling to mommy? See the problem?

  6. Instead of terrorism, it should have been an attempted murder charge. If you take out someone’s regulator underwater, they’ll drown if they can’t keep calm and reinsert it.

    1. Karen S – my understanding is that when you learn to scuba dive that part of the certification is learning to deal with losing your regulator.

    2. Karen S wrote: “If you take out someone’s regulator underwater, they’ll drown if they can’t keep calm and reinsert it.”

      That is simply not true. She could abandon her SCUBA gear at 50 feet, and easily ascended to the surface without it. As you ascend, your lungs expand with air. It is like taking a breath. The key to a successful ascent is exhaling during your ascent. If you try to hold your breath or you ascend too fast, you could suffer an embolism. As I said previously, I have ascended from twice that depth.

      The suggestion was that she could have panicked from the attack and thereby rushed to the surface, forgetting all her training, and died that way. While technically true, it also is technically true that pushing someone and causing them to fall to the ground could kill them. They might hit their head on a rock or curb or something unexpected. While technically true, it is not likely. The truth is that as a conservationist, she is probably a skilled diver and that would not have happened. She would have been in more danger if a shark charged her or an octopus clung to her head. These are risks that divers take and accept whenever they enter the water.

      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. She would have clearly disturbed the fish that they were trying to collect. Although she is against their collection of fish, it was legal what they were doing.

      Having said all that, it does not justify the use of violence against her. It is like a Peta activist getting close to someone about to capture a cat, filming what he is doing so as to use it against him. Then that pet lover shoves the activist to make her go away. Once he does that, he has crossed the line. That is battery.

  7. Lloyd Bridges should have been on the case. Every episode of Sea Hunt someone got “the bends” and needed to get to a decompression chamber or die.

  8. For anyone who missed the additional information:

    http://www.lawblogs.net/2015/02/20/hawaii-diver-pleads-guilty-in-controversial-scuba-attack-on-conservationist

    REEF VISIT TURNS VIOLENT ON KONA COAST KONA, HAWAII— Violence erupted when an aquarium collector rushed another diver for filming him as he captured coral reef species. The aquarium trade is under pressure in Hawaii, taking 98% of its stock from the wild, including iconic endemic species that leave Hawaii reefs by the millions each year. He ripped away her breathing device, fifty feet down. Wildlife officers said aquarium collector Jay Lovell will be charged with reckless endangerment, along with Lovell’s complaint for harassment. Rene Umberger, a PADI certified dive instructor with 10,000 scuba dives in Hawaii, is an aquarium-ban activist. She said, “I was careful to stay clear of his working area, about 30 feet away. He saw me and snapped, darting full speed. The video shows his face as he attacked me. He hit my nose and ripped my regulator from my mouth, leaving me 50 feet down with no air. With any less training or experience I would have drowned.” Alleged assailant Jay Lovell claimed that Umberger had affected the behavior of yellow tangs and other exotic reef fishes he was scooping into his container. He and another aquarium collector were using “tickle” sticks about 8 feet long to scare colorful fish from their hiding places. Wildlife officers said they had to file a “harassing a fisherman” complaint against Umberger, but the video documentation makes that charge questionable. Umberger pointed out that Hawaii wildlife management leveled the same charge against Brooke Everett in 2012, who encountered Jim Lovell (the alleged assailant’s brother) near Kohala with chains, nets and anchors in the coral. Everett posted photos of that incident on Facebook, until DLNR warned her to remove those photos. Captain Mike Nakachi said, “We went holo holo with family and friends to document conditions on our Kona reefs. We are all reef people, and our guests included Mike Long, Sea Shepherd Reef Defense Director, and Robert Wintner, who owns Snorkel Bob’s. We had divers and snorkelers in the water, and I believe most of them saw the attack. We were very disappointed to say the least, and we left immediately to avoid further danger.” Robert Wintner said, “I went to take pictures of fish. It’s what I do. The attack was a violent reaction to a reef visitor with a camera. How many places sell or rent cameras to divers and snorkelers? The reef at Keawaiki is designated OPEN. It’s part of Hawaii’s public trust and not a private reserve for aquarium collectors who demand that nobody watch them.” Mike Long said, “We went to document effects of coastal pollution and the aquarium trade on reef species and habitat along the Kona Coast, and we did. Mr. Lovell’s complaint may have been predictable, but the video of this attack reveals a far darker side of the situation.”

  9. I was never a good scuba diver, but to claim she could have drowned merely because the regulator was ripped from her mouth seems terribly overwrought. I did lose my regulator once to a sea lion. And basically we are trained to figure out where the regulator is should we lose it.

    I have no problem with charging him for all sorts of assault. Definitely a jerk who should face criminal fines and should have legal sanctions used to take away his commercial fishing license (or whatever he has).

    I would be okay with some sort of felony charge. This does seem worse to me than a misdemeanor (from my not a legal beagle point of view.)

  10. The conservationist on the video is way overplaying the danger here. Many divers freely hold their breath to this depth. Furthermore, divers usually have an octopus regulator for backup if their first one is damaged. The notion that she might have drowned if she couldn’t find her regulator is a bit over the top. I have made free ascents using SCUBA from twice this depth.

    From my perspective, the action here is about like a citizen running up to an activist and giving him a shove that makes him fall to the ground. It is criminal, but not as life threatening as they make it out to be.

    Having said all that, the diver really breaks the code of divers everywhere.

    As for the terroristic threatening charge, this is a stretch away from the intent of the law. Seems like assault and battery to me. Why not use that charge?

  11. Reminds me of the Seattle coach, thinking too much. The legal profession, courts, judges, lawyers, etc need to be reigned into basic common sense. This was a case of assault minimum. Attempted murder would be the other extreme and given the circumstances, applicable. It’s no different than pushing someone into the path of a semi. If the person panics they are dead. This also diminishes the seriousness of the ‘terrorism’ circumstance. The guy should do a few years.

  12. I am an emotional person about this sort of thing. So, I am not even going to say what my next plan of action would be to “terrorize” the aquarium” business people that sued me 😉

    Anyway, It was not terrorism and that was a mistake that the business owner will probably pay for.

  13. Yeah, the Terroristic Threats charge seems off base. Good essay.

    But I am surprised that simple assault would be all that’s involved here, given the obvious potential (which any diver would understand) for what this guy did to have potentially lethal consequences. Wouldn’t this meet the definition of some sort of felony assault or something?

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