‘Recklessness,’ ‘negligence’

  • Contributed photo

    Former Kauai Police Department Chief Darryl Perry

  • Contributed photo

    Irvin Magayanes

  • Contributed graphic

    This data from a GPS unit in Kauai Police Department Officer Irvin Magayanes’ patrol car shows his speed as he responded to the scene of a minor accident. This image was submitted as evidence in the Kocher family’s civil claim against the KPD and the county.

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.”

•••

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

20 Comments
  1. Knowitall December 30, 2018 3:18 am Reply

    I sincerely doubt things would have gone this if this was a Haole Officer. Perry and Asher looking out for a local brudda regardless of him being in the wrong.


  2. Reverend Malama Robinson December 30, 2018 5:43 am Reply

    The illustrious county of Kauai has failed HUMANITY again.


  3. Imua44 December 30, 2018 6:34 am Reply

    Sad day. Responders should always be given the benefit of doubt. The life saved by speedy response may be yours.


  4. james December 30, 2018 6:59 am Reply

    Having had years of experience in these sorts of cases, I personally know a county doesn’t pay a million dollar settlement unless they also know they will lose in court. It is extremely tough to win cases against government entities in court, especially police. Folks know the money is taxpayer money and know police have tough jobs. To win, like in this case, clearly there was unjustified reckless behavior on behalf of the officer. Now, the question becomes should any action be taken against the “top brass” for ignoring their own internal investigative findings?


  5. SameTraining December 30, 2018 7:53 am Reply

    If you had several officers equally trained as Magayanes, would they have done the same?

    The training officers Miller and Overmeyer are right and this is why KPD will never gain the trust of the community.

    KPD has covered up many deaths.

    What about Lauren kagawa’s death (murder)? Beaten beyond recognition (crime of passion).

    What about Mason Siao’s death (murder) who set him up and covered it up?

    What about Aurero Moore’s murder? Who else set him up and covered it up?

    Perry and Contrades are great at covering things up and KPD has a long history of doing so.

    Yeah they also have bounties in people and if you all would like to know the truth about that one then maybe you all should start investigating KPD.

    No Justice! Remember the Victims and Unsolved Murders.Never Forget and Keep fighting for the Greater Good.


  6. ToldYouSo December 30, 2018 8:09 am Reply

    I tried to tell you all that KPD is the definition of corruption.

    Did the members of the Jury receive this information?

    I will BET all the money in the world that KPD and the corrupt judicial system on kauai covered it up and the PA hid the internal investigation results.

    The SAD part of the death is that KPD has good officers that did the right thing and told the truth but now they will have to face the consequences.

    The good cops don’t and won’t get promoted and the bad cops in kpd rise through the ranks like a 5 tool Blue Chip prospect.

    TGI should be ashamed of how they keep on hiding the corruption in kauai by posting the news on the weekend paper, knowing that most people do not buy the weekend paper.

    I tried to tell you all but I guess the sheep herders got you all on track.

    Those who uncovered this better be careful because KPD’s not so good cops will come after you.

    Thank you officers Miller and Overmeyer for being truthful in your investigation.

    I know that there’s a lot of dirty cops in KPD and now I know some good ones.

    Told you so


  7. Bluedream December 30, 2018 8:13 am Reply

    Hmmm, maybe that’s why Perry resigned. After his response to an officer going 75mph through a well lit traffic incident, I’m glad he didn’t come close to being elected mayor. Hopefully it’s back to Oahu for Perry.


  8. harry oyama December 30, 2018 8:39 am Reply

    As in the HPD Police Chief Kealoha’s case, KPD Darryl Perry should also be investigated. For a chief to dismissed not one but two independent investigation against one of his officers is alarming and criminal. Killing another human being and not getting a single day in prison is like going over to your neighbor’s house and running over their daughter without any consequences.

    Now I can understand Perry’s motto of “To Serve and Protect”, yeah to serve himself and protect the crooked cops under his watch.


  9. LMat December 30, 2018 10:00 am Reply

    Thanks TGI for the exposé piece on the absolutely disgusting pos’s we have running the KPD. Does it come as a surprise? Not at all. Does it get us fired up that those leaders that are supposed to serve and protect us are only serving and protecting themselves? Absolutely.
    It is MIND BOGGLING how this RECKLESS KILLER is facing no charges. Peer testimony, witness testimony, cold hard FACTS, all dismissed. Dismissed by those at the very top. Kauai, does this sit well with you?!! How many other internal investigations have been swept under the rug and dismissed by “top brass”?!!! Perry’s victim blaming is vile and truly hard to stomach. What a cowardly POS. I can tell you one thing, this has completely decimated any shred of trust or faith I had left in the KPD.
    To the Kocher family, no amount of hush money will bring your son back, or erase the horrific and unjust memory of the circumstances surrounding his death, but I’m glad you are receiving some form of recompense for what you have suffered. However, the knowledge that his killer, and those that let him get away with it, gets to escape the acceptance of any shred of responsibility is a slap in the face, for you and for the rest of us.


  10. tunataxi December 30, 2018 10:16 am Reply

    Sad for all concerned but the fact is he ran over the man. I fully support the KPD but running over someone proves there was negligence no matter how you try to dissect it.


  11. PerryIsEvil December 30, 2018 1:58 pm Reply

    You people don’t even know nothing and that’s why KPD has never caught the Kauai Serial Killer.

    The same good cops can tell you the same thing with many cases.

    Hold the line good cops because Oahu is not the only Dept being looked at.

    The time when all the police depts, prosecutors office, judges, and other state and county depts are ran by syndicate mafia men are coming to an end.

    The Legend Continues…


  12. PerryIsEvil December 30, 2018 2:01 pm Reply

    Why not go after the Prosecuting Attorney also.

    Why STOP at the dirty cops in KPD.

    What about the corrupt Jusges that reviews the case and evidence then hide them from the jury?

    Kauai people are sheep and the public corrupt officials know it.


  13. NotTheFirstTime December 30, 2018 2:27 pm Reply

    This is not the first time Perry and the Prosecuting Offixe has collided in a cover up.

    There’s been many and one in particular where the Kauai Police Commission and former KPD Chief (retired) found officers guilty and Perry and the PA office covered it up.

    This is significant news and I don’t know but this would have never came up in the news of the parent company didn’t take over TGI.

    There’s been many shady things that KPD and the PA office and the Judges been involved in. The trials aren’t decided in courts they are done, sealed, and delivered in the chambers as well as in other corrupt public officials offices.

    If there was a full investigation on KPD’s activities, the entire Dept would be shut down and don’t forget about the continued criminal activities on the PA office.

    You all shouldn’t forget about a murder that occurred and the malfeasance that went on behind it. There’s a huge back story in that one connected to KPD and the PA.

    Kauai people need to wake up and demand for criminal prosecutions on the federal level against the dirty cops on Kauai and the corrupt public officials.

    You all must have forgotten that a well connected former police commissioner, director of parole/probation service, campaign manager of now Mayor was arrested for crunnung an illegal sports gambling ring.

    You all don’t even know a scratch of the evil in KPD and the rest of the good ol boys and gals club.

    Legendary


  14. Warreen December 30, 2018 3:22 pm Reply

    Perry’s selection was tainted from the start with gonzales and others conspiring to get rid of police chiefs that didn’t serve their criminal interests.

    This is not the biggest crime KPD and Perry has committed.

    Read about Lauren Kagawa’s death and the Kauai Serial Killer.

    All of the cases and police commission complaints during Perry’s tenure should be investigated and people should sue for his malfeasance.

    I tried to tell you all that he was not to be trusted from personal experience.

    He was a smooth talker and a former police commissioner got fired because he gave a “B” grade for Perry’s performance record.

    If nothing is done now then the people of Kauai will suffer and Kauai and it’s vistors will never be safe until a thorough investigation is done and those who were involved are brought to justice.

    Get the Kealia treatment.


  15. Vegreef December 30, 2018 3:26 pm Reply

    I find it odd that the County agreed to pay this much, having watched much of the criminal trial. It is an influential family. That criminal jury was back with an acquittal fast, and the expert witnesses for the defense convincingly explained that the same result would have happened at 30 miles per hour. The defense lawyers in that case won fast and convincingly. From what I saw it was not even close. I would think a civil jury would have found the young man 50% or more at fault.


  16. harry oyama December 30, 2018 6:06 pm Reply

    Now its us taxpayers who will be paying $1 million to the victim’s family because of two separate investigations considering the cop’s behavior as “Reckless and negligence”, driving over 75 mph on a 25 mph speed limit, running over and killing the victim.

    The cop is still on the force and most likely will retire with “good conduct” getting a life time pension, paid by you the taxpayers! He should have his pension and pay garnished to cover this $ one million dollar settlement, not us the innocent taxpayers for his crimes.

    If Chief Perry was so adamant this cop did no wrong, then he should go all the way and put him up for “Officer of the Year” award, complete with a marching band and fireworks, paid for you the taxpayers.


  17. Dt December 30, 2018 7:45 pm Reply

    So the county fund is penalized for this negligence? Who exactly is learning a lesson here? The taxpayer?


  18. MB December 30, 2018 11:44 pm Reply

    A loved one of mine was killed by a responding fire truck back in 1998 on Oahu. The response and outcome was similar. Bottom line is training needs to be ongoing, often and evaluated to those who drive these vehicles. There is a sense of power by the drivers that may or may not be recognized by them. The sense of safety must always be dominant over speed and urgency.
    Mahalo to all future responders who take to Heart the loss of my loved one


  19. Joe Public December 31, 2018 10:09 am Reply

    Seem like the ones that need to be trained are senior staff as it appears Traffic Safety and a Captain had it right. Asher should be put out to pasture already…his hand is in so many lawsuits against KPD cant be coincidental,


  20. WestKauai December 31, 2018 5:46 pm Reply

    If this information was not presented at the criminal trial, the case should be re-opened and re-tried.


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