Tuesday, November 20, 2001

Family of man
killed by cop states
its case in court

By Debra Barayuga

The bullet that killed Fortunato Barques III entered his body at a 45-degree angle and not front to back, suggesting he was reaching for a gun on his left side when a police officer shot him twice in the back, according to city lawyers.

"Only one person could have prevented this tragedy from happening, and that was Fortunato Barques," said attorney James Kawashima yesterday during opening statements.

Trial in the lawsuit filed by Barques' children and parents against the city and police officer Mark Boyce continues today in U.S. District Court.

The plaintiffs contend the city was negligent in training Boyce, who had been with the Honolulu Police Department for five years. They also contend that he acted with unreasonable and excessive force when he shot Barques on private property in Pupukea next to the Puu O Mahuka Heiau on May 4, 1998.

The defense says while the shooting resulted in a tragic ending, Boyce believed Barques was reaching for a gun and had no choice but to fire.

Under the circumstances the officer acted appropriately and justifiably and did as he was trained to do under the law, Kawashima said.

Attorney Paul Smith, who represents Barques' parents, did not dispute Barques was wearing a gun that day. But he said Barques was reaching for a cellular phone, not his gun, when he was shot.

Smith said as Barques lay on the ground following the shooting, he asked his girlfriend: "Why did he shoot me? I was trying to make a phone call."

Smith said Barques' gun was registered and did not even have a bullet in the chamber, although there were bullets in the magazine clip. To draw and cock his gun and fire on the officer, who had his own gun aimed at Barques' back, would have been suicide, Smith said.

Barques, who farmed on 80 acres next to the heiau, was inspecting the fence line around his farm that day with his girlfriend, Smith said. The couple were parked on the left shoulder of the isolated public two-lane road, facing the opposite direction and overlooking the heiau as Boyce drove up, he said.

Boyce was on routine patrol and purposefully drove up the public road leading to the heiau that day because of ongoing problems involving visitors' cars getting broken into, Kawashima said.

The position of the truck parked on the opposite side of the road facing the wrong direction and overlooking the heiau immediately made Boyce suspicious, and he maneuvered his patrol car to block the truck's exit, said Kawashima.

Boyce, who is expected to testify in his defense, claimed Barques started up his truck, made a U-turn and accelerated toward the officer's car twice as though attempting to ram it. The second time, Boyce claimed, Barques stopped within inches of the patrol car.

In fear of his life, Boyce got out of his car and drew his firearm, ordering the couple to get out of the truck and get down, Kawashima said. Both complied, but then Barques got up, walked across the road and hopped over a barbed-wire fence onto his property, refusing to stop and cussing at Boyce, Kawashima said. Boyce followed Barques onto the property while trying to reason with him and at some point, Kawashima said, re-holstered his firearm and took out a canister of pepper spray just in case.

Kawashima suggested the reason why Barques refused to stop and talk to Boyce was because he had illegal drugs in his vehicle and was carrying a firearm on his person, which is illegal in a public place or public roadway.

Boyce drew his firearm again when he spotted a gun holstered under Barques' left shoulder and shouted, "I see your gun."

Boyce had no way of knowing the gun was not loaded, Kawashima said.

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