WAILUKU - A second passenger who was struck by a bullet when police officers fired at a fleeing pickup truck at Honolua Bay two years ago is suing Maui County and four police officers, alleging violation of his civil rights.
The lawsuit brought by Kihei resident Anthony Lum-John alleges that officers acted "contrary to their training" in using deadly force by shooting multiple times at the moving Toyota Tacoma pickup truck, which had eight occupants.
Maui County Deputy Corporation Counsel Moana Lutey disputed the allegations, saying Thursday that the officers used appropriate force to protect themselves and others after the truck hit one officer.
Lum-John, 19, suffered "a traumatic gunshot wound to his buttock where the bullet cannot be dislodged or removed," according to the lawsuit.
The lawsuit was filed by Wailuku attorney Hayden Aluli on Tuesday in 2nd Circuit Court. Along with Maui County and the Maui Police Department, the lawsuit names police officers Jun Hattori, Russell Kapahulehua, Erik Losvar and Harry Matsuura as defendants.
Another lawsuit against the same defendants was filed in court last year by Honolulu attorney Michael Green on behalf of Joshua Nakagawa, who was sitting with Lum-John in the open bed of the pickup. Both men were facing the front of the truck with their backs against the tailgate when the officers fired 15 rounds at the truck in the early-morning hours of July 18, 2010, according to Nakagawa's lawsuit.
The Lahaina patrol officers were responding to a 4:14 a.m. report that gunshots were fired at Punalau Beach, also known as "Windmills," where people had gathered for a party.
About the same time, the Toyota truck had left the beach after Nakagawa was attacked with pipes and bottles, suffering injuries to his head, left forearm and left elbow that left him "bleeding profusely," according to Lum-John's lawsuit. Lum-John and others had helped Nakagawa into the truck to take him to Maui Memorial Medical Center for treatment, the lawsuit says.
Kihei resident Austin Pierman was driving the truck, with three others in the cab and four people in the bed.
The responding officers stopped a vehicle about a half-mile before reaching the beach, along a dark stretch of Honoapiilani Highway, according to Lum-John's lawsuit. The Toyota truck, which also was leaving the beach area, came upon the place where the officers had stopped the other vehicle when officer Losvar unexpectedly stepped onto the road in front of the moving truck, the lawsuit says.
Pierman tried to swerve away from the officer and allegedly grazed him before continuing forward on the highway, according to the lawsuit. "Immediately thereafter," the lawsuit says, the four officers fired numerous times at the pickup.
Pierman, 21, suffered a gunshot wound to his head behind his left ear. He is awaiting trial in 2nd Circuit Court, charged with two counts each of first-degree attempted murder and first-degree terroristic threatening, first-degree assault on a law enforcement officer and attempted first-degree assault on a law enforcement officer. Officers Losvar and Matsuura are identified as the victims in the charges.
According to Nakagawa's lawsuit, he was shot three times in the back, once near his left shoulder and twice near his right shoulder. He suffered injuries including nerve damage, respiratory failure and a severed artery.
Both lawsuits say Nakagawa and Lum-John weren't charged with crimes arising from the encounter and were innocent bystanders.
The lawsuits also allege that Losvar went onto the road to block the moving truck "contrary to his training, and therefore put himself and the occupants of the moving pickup truck in danger of injury or death."
According to the lawsuits, "even if Pierman were considered a 'fleeing felon,' law and training prevents a police officer from using deadly force to seize that suspect."
The multiple shots fired by the officers at the moving pickup truck were "contrary to their training, which mandates a police officer to assess his or her surroundings when utilizing deadly force to avoid unnecessary injury or death to innocent bystanders," according to the lawsuits.
In a response filed in Nakagawa's case, the county denied the allegations that the officers acted against their training.
In a statement Thursday responding to Lum-John's lawsuit, Lutey, representing Maui County and the officers, said the pickup truck had slowed, "then suddenly accelerated, striking an officer."
"The officers had no choice but to use force to protect themselves as well as members of the public," she said. "The use of force by the officers was appropriate."
In addition to Pierman being charged with attempted murder for striking the officer, she said, a firearm was recovered at the scene.
"Plaintiff alleges that they were in the process of seeking medical assistance for Joshua Nakagawa, who was a passenger in the truck," she said. "However, they did not seek assistance from police on the scene. Instead, the truck accelerated upon seeing the police.
"The county aggressively defends meritless lawsuits. We are confident that the county and the officers will prevail in this litigation."
Nakagawa's lawsuit, originally filed in 2nd Circuit Court, is now in U.S. District Court in Honolulu, with a March 27 trial set.
Both lawsuits seek unspecified general and special damages. Lum-John's lawsuit also seeks punitive damages.
* Lila Fujimoto can be reached at lfujimoto@mauinews.com.
