The officers’ behavior fell outside the scope of their employment, the City and County of Honolulu said in a motion to dismiss a civil lawsuit.
The City and County of Honolulu has moved to dismiss lawsuits filed against it on behalf of victims injured in a crash that followed a pursuit by Honolulu police officers, claiming it is not liable for the officers’ actions.
The motion to dismiss claims the city is not responsible for the officers’ conduct, in part because their actions were “so outrageous” that they fell outside the scope of their employment as police officers. It also says the officers were not acting with the purpose of serving the city, and the city derived no benefit from their actions.
But lawyer Eric Seitz, who filed a lawsuit on behalf of Dayten Gouveia, one of the passengers who was severely injured in the crash, called the city’s claims “absurd.”
“In 55 years of practicing law, I have never seen a motion like this,” he said. “It is the most morally, ethically, professionally bankrupt motion that I have ever seen.”
Officers Joshua Nahulu, Erik Smith, Jake Bartolome and Robert Lewis face criminal charges in connection with the pursuit and crash that seriously injured six young people in Makaha on Sept. 12, 2021. They are also accused of leaving the scene and conspiring to make up a false story about what happened. They have all pleaded not guilty and are currently assigned to non-patrol duties with pay.
Motion To Dismiss
Attorneys representing the six occupants of the white Honda Civic that crashed in Makaha following a high-speed police chase, filed various lawsuits against the city after the incident.
Seitz filed a lawsuit on behalf of Gouveia and his family in state court on Sept. 21, 2021, and another in federal court in September 2023. Both are still pending.
Seitz said it was “utterly outrageous and incredible” that the city is now claiming it has no obligation to pay his client after it paid millions to other victims of the same incident earlier this year.
City and County of Honolulu spokesman Ian Scheuring said that since the February settlement of the lawsuit filed on behalf of the four victims, “further investigation” was conducted by the Honolulu Prosecutor’s Office and the Honolulu Police Department, resulting in criminal charges against the four officers.
“As a result of those investigations, both the Honolulu Police Department and the Department of the Prosecuting Attorney have taken steps to hold the officers accountable, which is the basis for the City’s Motion to Dismiss,” Scheuring said in a statement.
The motion is scheduled for a hearing on Dec. 21, records show.
The city filed the same motion to dismiss in another pending state lawsuit filed on behalf of the driver, Jonaven Perkins-Sinapati, who was in a coma for months after the crash. The attorney in that case, Michael Green, did not respond to a request for comment.
The motion, filed Friday in First Circuit Court, cites an internal investigation by the Honolulu Police Department that resulted in a recommendation to terminate the officers.
The officers, who are accused of not activating their blue lights or sirens during the chase and ‘intentionally ramming” the Honda Civic twice, violated police policy and were not acting in the “purpose of serving the city.” They made no attempt to pull the driver over or arrest him and pursued at speeds in excess of 100 miles per hour before conspiring and falsifying police reports, the motion says.
Even if the court found that the officers were acting in an attempt to do their official police work, their “actions would still be outside the scope of their employment with HPD because they were ‘done in so outrageous or whimsical a manner that it is not within the scope of employment,'” the motion says.
It cited a 2009 case, Ho-Ching vs. City and County of Honolulu, that discusses when an employee’s actions should be considered within the scope of their job.
Seitz also filed a federal lawsuit against the City and County of Honolulu in September accusing city officials of stalling. The city filed a motion to dismiss in that federal case as well, saying that there is no evidence to support the claims.
“The City also is moving to dismiss the case filed in the United States District Court against several individual City employees, which essentially alleges these employees improperly interfered with the resolution of State Court case,” Sheuring said in the statement. “Prior settlement of the related cases does not impact this federal court matter.”
“By dragging out this criminal case, they prevent us from getting any relief,” Seitz said.
‘He’s Still Fighting’
Gouveia’s mother, Ualani Gouveia, said the delays in the case are hindering her son’s progress. Gouveia, who was 14 at the time of the crash, turned 17 in October and has permanent disabilities.
He still requires intensive physical and occupational therapy and around-the-clock care. Because he is on Medicaid, his family has to get his care reauthorized every six to eight weeks. The reauthorization process can take around a month, during which he doesn’t get treatment and his progress lapses, his mother said.
Seitz said Gouveia’s medical bills are around $2 million so far, and he’ll need care for the rest of his life.
Ualani Gouveia, who works as a medical assistant at Waianae Coast Comprehensive Health Center but is out on disability leave, said family members have chipped in to pay out-of-pocket for acupuncture treatments for her son, but they can’t afford other treatments, such as sending him to an intensive rehab facility in Arizona.
She called her son a “fighter” but said the years since the crash have been extremely difficult. At first, doctors told the family he’d likely be a quadriplegic, and although he’s regained some mobility, he still feels numb from the chest down and has to walk with the help of ski sticks.
He used to be a “big strong” kid who loved boxing and football, but now it makes him sad to be around other athletes, she said.
But she’s in awe of his spirit. He’s on track to graduate from Waianae High School after spending many hours making up work he missed while hospitalized. Fishing is his new favorite hobby.
“If he wasn’t a fighter like he is, he wouldn’t be doing as much as he does. He is strong. He’s still fighting, and he will continue to fight,” she said.
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