‘Recklessness,’ ‘negligence’

LIHUE — The Kauai Police Department’s top brass dismissed the findings of two separate internal investigations asserting that Officer Irvin Magayanes acted negligently and violated police protocol when he hit and killed an injured pedestrian several years ago, according to court documents and police records recently obtained by The Garden Island.

Background

On the night of his death in January 2015, Michael S. Kocher Jr. had been struck by a car and was lying on a road in Hanapepe, suffering non-life threatening injuries. Magayanes — the first officer to respond to the scene — approached driving about 75 mph, hitting Kocher’s head with his front bumper, as the young man struggled to sit up.

A jury acquitted Magayanes of criminal charges in 2017, but Kocher’s parents filed a civil claim against KPD and the county, which they recently settled for $1 million and assurances that the KPD would change its driver training curriculum.

Internal investigations

An investigation by the KPD’s Traffic Safety Section found Magayanes drove his police cruiser with “a lack of due care and recklessness,” and stated that Kocher’s death was the result of “simple negligence” on the part of Magayanes.

The investigation’s summary of findings stated that “based on the heavy traffic on both sides of the roadway (some vehicles still in the process of pulling to the side) and limited visibility, a reasonable and prudent person would have slowed down upon approach.”

A second internal police investigation, issued a year later, contained testimony from two officers who had trained Magayanes on emergency driving when he was a new recruit and were involved in the department’s initial investigation into Kocher’s death.

In a September 2016 report issued by the KPD’s Office of Professional Standards, Detective James Miller and Sergeant Jason Overmyer both concluded that Magayanes “should have been aware” of his surroundings as he approached the scene as well as conditions on the road that “would dictate a slower entry speed into that area.”

During a pretrial deposition in the Kochers’ civil lawsuit earlier this year, Miller told the prosecuting attorney he emphasized the importance of safe driving practices and attention to speed throughout Magayanes’ training.

“We try to tell them, look, you can go this fast, and you’re not going to make that big of a difference, between these two speeds. So let’s err on the safer side, the slower side,” Miller said.

Data from a GPS unit in Magayanes’ patrol car show he approached the scene at about 75 mph and reached speeds in excess of 100 mph while en route.

“The long and the short, he was going too fast,” Miller said.

Later in the deposition, he added, “There’s only a handful of — not even a handful, maybe one or two reasons — I might go anywhere near 100, and that was not one of them.”

Eyewitness accounts

The second investigation also contains statements from over a dozen eyewitnesses describing Magayanes’ excessive speed as he approached the scene, where cars with their lights on lined both sides of the road. Multiple accounts said that some of the onlookers honked their horns, yelled and waved their arms to warn Magayanes, as it became increasingly apparent that he would not be able to slow down in time.

Josie Hillis watched the scene unfold from the side of the road.

”I saw the cops coming and I could see that he wasn’t stopping. And so I just started screaming, ‘Please stop! Please stop!’” she later told police.

Her sister, Lori Hillis, said when she first saw Magayanes’ patrol car coming down the road she thought, “‘Thank God, they’re here, they’re here.’ And it didn’t slow down. And it kept going and it wasn’t slowing down,” she said. “He was going very fast.”

“Every car that came from Waimea side was flashing and honking our horns,” said Mikko Kinkki, who also stopped to help Kocher after the first car hit him.

“I was waving my hands trying to get the car to slow down,” said Macarthur Delacruz. “But it seemed like the police car wasn’t slowing down. In fact, it sounded like the police car was speeding up. I remember that the first car was way in front and it was like the second police car couldn’t catch up.”

Findings overturned

KPD leadership remained unconvinced Magayanes had done anything wrong.

In July 2017, an administrative review board composed of the KPD’s highest-ranking officers found insufficient evidence to prove Magayanes violated police standards of conduct and “consequently recommended that these charges be not sustained.”

Then-Chief Darryl Perry concurred.

“After considering all the relevant facts and circumstances, no disciplinary action is warranted,” he wrote in a July 2017 letter, notifying Magayanes that he had been cleared on all allegations. During his trial Magayanes was taken off patrol and given an administrative assignment but has since been reinstated in his former position.

Perry, who has since resigned, stood by his decision in an interview Friday and said he made his determination “mainly based on intent.” He repeatedly asserted that Magayanes did not mean to hit Kocher with his car, although there appears to be no indication that investigators ever made allegations to that effect.

Perry expressed his sincerest condolences to the Kocher family but insisted that the young man’s behavior was a significant factor contributing to his death, repeatedly intimating that Kocher was partially to blame for the incident because “he should not have been there in the first place.”

An autopsy determined that Kocher was severely intoxicated on the night of his death, and witnesses saw him stumbling down the dark road before he was injured by the first car.

Perry declined to speculate about whether his opinion of Magayanes’ conduct would have been different if Kocher had been sober.

When asked whether it was appropriate for Magayanes to reach speeds exceeding 100 mph while responding to a minor traffic collision and approach a scene with cars and civilians lining both sides of the road, Perry responded, “Personally, I wouldn’t have driven that fast.”

Conflict in the KPD

How the KPD’s administrative review board reached its conclusion remains unclear — transcriptions of those deliberations have not been made public. But a deposition of Assistant Chief Roy Asher during civil proceedings sheds some light on the process.

According to Asher’s statements during an Aug. 14 interview with the Kochers’ attorney, one officer on the three-person review board dissented in the opinion, making the vote 2-1 in favor of dismissing the allegations. The officer, referred to only as Captain Rosa — presumably Richard Rosa — recommended Magayanes be given a four-day suspension.

In a report Asher prepared of the review board’s proceedings, he put an asterisk next to Rosa’s recommendation and made a note in red.

“It appears a training may be in order,” Asher wrote, explaining that Rosa was “unclear” on what constitutes a conduct violation.

In response to further questions about conflicting opinions within the department regarding violations of police protocol, Asher said he believed that Miller and other officers who felt Magayanes acted negligently might also be in need of additional training.

The Kochers’ attorney asked Asher, “How about the officers in the Traffic Safety Division that concluded that Officer Magayanes did not exercise due regard, do they need to be retrained?”

He responded, “Possibly, too, yeah.”

Official KPD response

Acting Police Chief Michael Contrades issued the following statement Thursday in response to a request for comment:

“This was a very unfortunate incident, and it has been a difficult time for our department, our community, and most especially the families of all involved parties. On behalf of the entire Kauai Police Department, I extend our sincerest condolences to the family of Michael Kocher. Our hearts and prayers continue to be with you all.”

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Caleb Loehrer, staff writer, can be reached at 245-0441 or cloehrer@thegardenisland.com.