Hawaii County looks to dismiss case of teen killed after being hit by officer’s car

A Hawaii County attorney argued Tuesday in court that a Hawaii Police Department officer who hit and killed a pedestrian with a police car nearly three years ago is immune from liability, but an attorney for the family of the victim, a 16-year-old boy, argued the officer was negligent and liable.

Hilo Circuit Judge Peter Kubota asked pointed questions of Deputy Corporation Counsel Justin Lee, representing the county and Officer Nicole Kanaka‘ole, and attorney Saphira Goode, representing Stan Mwarey, Achunsion Mwarey and Wilfred Prens, respectively the older brother, mother and father of the victim, Samuel “Sammy” Mwarey.

Mwarey, a Hilo High School junior, was struck at about 10:24 p.m. Jan. 5, 2024, on Kapiolani Street in Hilo between the YMCA and Hawaii Care Choices by Kanaka‘ole-Ioane, who was driving a 2008 Ford Crown Victoria while on her way to pick up an arrested individual. Mwarey died three days later at Hilo Benioff Medical Center.

An internal investigation by police found Kanaka‘ole-Ioane had no alcohol or drugs in her system. In addition, a traffic collision reconstruction done by an independent contractor found the officer wasn’t speeding or negligent in not seeing the Hilo High School junior in time to keep from striking him with the vehicle, former HPD Chief Ben Moszkowicz told the Hawaii Tribune-Herald in 2024.

Kanaka‘ole-Ioane, then an 18-year department veteran, is still an officer on regular duty.

According to Moszkowicz, Mwarey, who was skateboarding, had a blood- alcohol content of 0.19%, almost 2-1/2 times the legal threshold for intoxication, plus cannabinoids in his system, an indication he had ingested marijuana or a cannabis concentrate sometime prior to the collision.

Police say the roadway was poorly lit, and Mwarey was not in a pedestrian crosswalk and wearing dark clothing on a rainy night when he was struck. The plaintiffs’ attorneys said in their complaint that Mwarey was in the bicycle lane when hit and that conditions allowed Kanaka‘ole-Ioane to see him in time to avoid a collision.

The county is self-insured and responsible for payment of any monetary judgment in the case. A trial is set for March 29, 2027, and there have been settlement discussions in the case. Tuesday’s hearing was about a county motion for summary judgment seeking a dismissal of the case.

Arguments were framed in light of Hawaii Revised Statutes Section 291C-26, which gives an officer in the pursuit of a suspect conditional privilege in traffic accidents — an exemption from certain traffic laws subject to conditions — as well as the 2017 Supreme Court decision Pogoso vs. Sarae, which upheld the dismissal of a lawsuit by Cyril Pogoso, who had been injured in a traffic accident caused by Honolulu Police Department Officer Jeff Sarae.

The high court agreed with a Honolulu Circuit Court that Sarae, who violated traffic laws and caused the collision while pursuing a vehicle to issue a traffic citation, didn’t act with malice and therefore had conditional privilege and immunity from a negligence lawsuit.

“Mr. Lee is arguing that if you don’t take advantage of … the privileges in this statute, then there’s generally a blanket immunity, except for malicious actions,” Kubota said. “And I don’t see that as being a fair application of the law under the ordinary circumstance of what police officers do in a nonemergency situation … as in this case of Officer (Kanaka‘ole- Ioane) responding to pick up and transport an arrested defendant.”

Lee told Kubota he understands the judge’s concern.

“I think Pogoso answers that question directly, head on,” Lee argued. “If the statute did not apply, then this officer wouldn’t be entitled to qualified immunity. In Pogoso, the statute did apply, right? He was exercising the privilege; he was breaking the law. He wasn’t following it. So, the question with Pogoso is what is the dynamic between the statute and qualified immunity?”

Lee further argued that civil servants are entitled to conditional immunity against liability as a default unless their actions are motivated by malice.

“The reason why the county is, frankly, adamant in its position is because, in this case, there is no disputed fact that Officer Kanaka‘ole-Ioane was exercising that privilege (and) she (wasn’t) disregarding any traffic law,” he said. “So, there’s no allegation that she was putting the public at greater risk, so default applies, which is qualified immunity, absence of malice.”

Goode said her position is that if officers are “on a nonemergency call, you know, like no sirens, then they should be held to an ordinary standard of care” in regard to negligence. She argued that standard applied to Kanaka‘ole-Ioane.

“In a deposition, she said she was looking straight at the road. It’s negligence … she should have seen him,” Goode said. “So, just based on Pogoso … it says that when they’re on an emergency call, they’re still not relieved of the duty to drive safely. And so, it just implies that even more so when you’re not on an emergency call, that you should be released from the duty to keep a safe lookout?”

Kubota said he was bothered by the county’s argument that officers are “basically, free to drive with almost impunity because the standard is malice.” He read paragraph D of HRS 291C-26 in rebuttal.

“‘The foregoing provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall those provisions protect the driver from the consequences of the driver’s reckless disregard for the safety of others,’” the judge cited. “Pogoso vs. Sarae says that whole conditional privilege doctrine is supplanted and replaced by this statute. And I read paragraph D of the statute to say that there are existing duties of people driving, even in emergency situations.

“And whatever duty they had before still applies.”

The judge scheduled a hearing for Oct. 20 and said he’d rule on the county’s motion then or earlier.