The Honolulu Police Commission has decided that state law requires that taxpayers pick up the legal expenses in a lawsuit against two officers accused of causing and leaving the scene of a car crash in Makaha that seriously injured six people.

In its Findings of Fact and Conclusions of Law released at its Sept. 21 public hearing, the commission found that HPD officers Jake Bartolome and Erik Smith were acting within the scope of their employment when engaged in a high-speed pursuit that ended in the Makaha crash on Sept. 12, 2021.

“The Commission finds that Bartolome’s alleged actions of negligence and assault and battery upon plaintiffs as a result of a high-speed pursuit as alleged in the Complaint were, even if unlawful and regardless of motive or intent, incident to his performance of his duty as a police officer,” according to the document.

The commission also approved paying Smith’s legal expenses following a separate contested case hearing.

The commission, which has been discussing the issue since April, found that state law “requires that the City provide counsel to a police officer who is prosecuted or sued for acts done in the performance of the officer’s duty as a police officer,” according to the findings.

The commission rendered no conclusions regarding the legality, motive or intent of the police officers’ actions but granted their requests for legal counsel.

makaha crash
The Honolulu Police Commission decided that taxpayers will pay for legal representation for two police officers sued following a car crash in Makaha last year. Hawaii News Now

The Finding of Fact and the transcript of the contested case hearing were released as part of Jahan Bryne’s public testimony during the commissions Sept. 21 regular hearing.

Bryne, the co-coordinator of a governmental accountability organization called Secrecy Hurts Our Police Ohana, said in his written testimony that the “city has paid more than $15 million in the past decade as a result of these police misconduct and brutality lawsuits, $4 million of which was paid in just the first six months of this year.”

Bryne said holding open contested case hearings on requests for legal counsel provide “a minimum level of transparency and accountability.”

A contested case hearing is a quasi-judicial proceeding held by the police commission in which the burden of proof is on the police officer to provide evidence to support the request for legal counsel.

The lawsuit in question was filed in September 2021 by attorney Eric Seitz on behalf of Dayten Gouveia, a teenager paralyzed from the waist down following the crash, and his parents.

The criminal investigation into the incident is being handled by the Honolulu Prosecutor’s Office, which declined to comment because the investigation is ongoing.

The chase reportedly began after the three officers broke up a party at Maili Beach Park, then followed a Honda Civic leaving the area.

All three officers involved in the incident, Smith, Bartolome and Joshua Nahulu, remain on desk duty with their police authority restricted, according to HPD spokesperson Michelle Yu.

SHOPO president Robert Cavaco declined to comment on the commission’s decision.

Bartolome and Smith have been named as defendants in two additional lawsuits filed by attorneys representing the occupants of the vehicle that crashed at the intersection of Orange Street and Farrington Highway. All three lawsuits allege that the officers caused the crash then left the scene and failed to provide aid.

The officers have requested that the city provide legal representation in the other two cases. Those requests are pending before the commission.

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