The beating of an Army couple at Waikele Shopping Center probably doesn't fall under state and federal "hate crime" laws, legal experts said yesterday.

The federal civil-rights law has never been used to prosecute a hate crime here.

Big Island prosecutors invoked the 2002 state hate crime law against defendants accused of assaulting campers in 2004 but reached plea agreements that dropped the hate crime prosecution.

The state law has never been used by Honolulu prosecutors.

The beating of Andrew Dussell, 26, who is in the Army, and his wife, Dawn, 23, has led some residents to call for prosecution of the case under hate crime laws. The Dussells were beaten in the parking lot of the Waikele Center after their car pulled into a parking stall and hit the vehicle of a Wai'anae family. A 16-year-old boy arrested in the case allegedly called the soldier a "f------ haole."

The boy's father, Gerald D. Paakaula, 44, has been charged with second-degree assault, and is free on $20,000 bail. The son's case is being handled by Family Court in confidential proceedings.

City Prosecutor Peter Carlisle, who wasn't ruling out a hate crime prosecution earlier this week, said yesterday, "from what I've heard so far, this won't qualify as a hate crime."

"What happens here is you've got somebody who's angry because his car was hit," Carlisle said. "This guy wasn't sitting on the side of the road chasing victims down because they were white."

Federal investigators opened a formal probe into the incident yesterday.

The FBI has assigned two agents who specialize in investigation of civil-rights infractions to the case. Their findings will be forwarded to the U.S. attorney, who will decide if the federal statute can be imposed.

FBI special agent Jason Cherry, who has investigated civil-rights complaints here since November 2004, declined to discuss the Waikele case, citing a pending investigation.

But he said that to prove a violation of the federal hate crime statute, investigators have to gather evidence that discrimination of some kind is a significant cause for the crime committed.

Prior criminal history, comments made before, during and after the altercation, and the types of victims a suspect may have selected in the past are all part of proving the federal statute was violated, Cherry said.

First assistant federal public defender Alexander Silvert said that while the federal law is broad and was meant to encompass a wide range of crimes, it is rare to see it used for hate crimes.

"A charge like this has never been brought in Hawai'i and rarely in the United States. It's a very unusual charge to bring and one that carries with it a lot of political weight and a lot of political issues," Silvert said.

"It's one thing to charge assault but it's another thing to say the assault is tinged with racism. The defense can say they blew up because of the circumstances (the car accident). Charges of racism are going to be very hard to make out in this type of spur-of-the-moment assault."

Jon M. Van Dyke, a professor of law at the University of Hawai'i, said that while the alleged assault was brutal the preliminary evidence suggests the altercation occurred primarily because of the car accident, not the fact that the Dussells are Caucasians.

"The assault followed a collision and the response primarily was out of anger because of the damage to the car," he said. "It was unfortunate no matter the race of the people involved."

In the Big Island case, prosecutors sought the extended sentences under the state's hate crimes law for four men accused of assaulting campers at Makalawena Beach in North Kona in 2004.

Campers at the site called police, reporting that vehicles had raced through the campsite, and that some campers had been assaulted. Campers reported that their assailants made comments such as "Any ... haoles want to die?"

Three of the campers suffered minor injuries, one vehicle was damaged and some items were stolen, police said.

Four men were charged with a hate crime, but pleaded no contest or guilty as part of agreements in which prosecutors dropped the hate crime prosecution.

Reach Peter Boylan at pboylan@honoluluadvertiser.com.