Attorneys representing the family of a 16-year-old boy who was shot and killed by Honolulu police following an alleged crime spree and car chase are seeking to disqualify the city Department of the Corporation Counsel from defending both the officers and the city against civil accusations of negligence and wrongful death.
Based on a recent federal magistrate ruling in a separate wrongful death case, Eric Seitz and Kevin A. Yolken, who are representing Iremamber Sykap’s grandmother Akiwine Sykap and mother, Yovita Lucio, maintain that the corporation counsel cannot represent three HPD officers and the city in the Sykap case.
The teen was shot and killed by police April 5, following high-speed pursuit of a car that police said had been reported stolen two days earlier and had been connected to an armed robbery, a purse snatching and a theft.
In the other case, Seitz successfully moved to have Deputy Corporation Counsel Kyle K. Chang disqualified from representing both the city and HPD officers in a wrongful death civil suit brought by the family of 26-year-old Kyle Thomas, who was shot and killed in his car by undercover police officers investigating a Mililani shoplifting case in February 2019.
In the Sykap case, Honolulu Mayor Rick Blangiardi approved Corporation Counsel defending the officers and the city.
Honolulu Corporation Counsel Dana Viola told the Honolulu Star-Advertiser that in the Thomas case the court focused on two documents that it held asserted contradictory legal positions as to whether the officers were acting in the course and scope of their police duties.
In the Sykap case, she said, “COR (Corporation Counsel) has not asserted contradictory legal positions on behalf of the city or the police officers.”
In the Thomas case, U.S. Magistrate Judge Kenneth J. Mansfield granted Seitz’s motion in U.S. District Court on Dec. 21, stating that the corporation counsel assigned to the case “divided his loyalties when he asserted conflicting legal positions on behalf of his clients.”
Mansfield ruled that the city attorney could not “reasonably believe that he can provide competent and diligent representation to the City and the Officer Defendants under the particular circumstances of this case.”
Despite Mansfield’s ruling, Bradley R. Tamm, chief disciplinary counsel for the Hawaii Supreme Court, issued an opinion allowing the corporation counsel’s office to represent both the officers and the city in the Sykap case.
Oahu Circuit Judge Dean E. Ochiai is expected to rule today on Seitz’s motion, submitted Monday, to disqualify corporation counsel.
In their motion to disqualify corporation counsel, Yolken cited Mansfield’s ruling and said Deputy Corporation Counsel Derek T. Mayeshiro was pursuing a legal path similar to what got the city attorney disqualified in the Thomas case. Yolken pointed to the city’s response to the initial complaint, saying they might argue that the officers were acting within the scope of their duties and might argue they were acting outside the scope of their duties.
”Both cases involve the representation of the City and several individual police officers by a single attorney under circumstances where the legal positions of the City and the individual officers are inherently adverse,” wrote Yolken. “For example, it is reasonable to expect that counsel for Defendant City will vigorously pursue all available defenses, including that the Officer Defendants acted outside the scope of their employment. On the other hand, the Officer Defendants can reasonably be expected to assert conflicting defenses by arguing that they acted within the scope of their duties.”
Seitz told the Star-Advertiser the apparent conflicts in the Sykap case are striking. “In Sykap you have one department head (Prosecuting Attorney Steve Alm) saying that the officers committed murder and another (Corporation Counsel) asserting that the officers were not even negligent.”
Alm charged HPD officers Geoffrey H.L. Thom, Zackary K. Ah Nee and Christopher J. Fredeluces by complaint with second-degree murder in connection with Sykap’s death after an Oahu grand jury declined to return a true bill against the officers. On Aug. 18 Judge William M. Domingo dismissed the charges on the sixth day of a preliminary hearing, ruling that there was insufficient evidence to put the trio on trial.
On Thursday, Mayeshiro, in a memo opposing the motion to disqualify, cited Tamm’s and Blangiardi’s approval of his representation of the officers, the officers’ request for legal counsel from the city and the Honolulu Police Commission’s approval of that request.
The memo stated that the city intends to file an amended answer to the complaint declaring the police officers “were at all relevant times acting in the course and scope of their employment.”
Further, it stated that both the mayor and the officers “consented to have the Department of the Corporation Counsel and the City’s attorney provide concurrent legal representation” in this civil case.
