Pupukea police
shooting termed
excessive by jury

Jurors found the city,
not the officer, liable
for the victim's death

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By Debra Barayuga
dbarayuga@starbulletin.com

A U.S. District Court jury found police officer Mark Boyce used excessive force when he shot Fortunato Barques III twice during a traffic stop in Pupukea more than three years ago.

But jurors found the city, not Boyce, liable for Barques' death and awarded Barques' two minor children $50,000 for their loss.

Barques' parents, estate and children had filed a lawsuit against Boyce and the city claiming the officer used excessive force. They also contended that the shooting that resulted in Barques' death two months later was unjustified.

Attorneys for the city and the plaintiffs said they were still sorting through the verdict yesterday and are expected to file motions to clarify the findings, seek attorneys' costs and determine who will pay for more than $700,000 in medical bills incurred by Barques, who was 37.

City attorneys said the verdict is "inconsistent" and questioned whether it is legally effective. The answers jurors gave to the nine questions seemed contradictory, said James Kawashima, attorney for the city. In one instance, while jurors found Boyce used excessive force, they did not find he was negligent or that he committed battery against Barques. Kawashima also said the jury's finding that the city's training of police officers was inadequate was not supported by the evidence.

But plaintiff attorneys called the verdict a victory in that the city was found liable for Barques' death and for failure to adequately train police officers in responding properly to unusual and recurring situations.

"Mark Boyce was not properly trained, and there's no type of system to deal with what's considered routine traffic stops," said attorney Myles Breiner, who represented Barques' two minor children.

Shooting Barques in the back twice shows Boyce was inadequately trained and supervised, Breiner added.

Attorneys for the city and Boyce maintained he had been trained properly and that he acted appropriately in firing those shots because he believed Barques, who had his back to Boyce, was reaching for his gun.

The city prosecutor's office declined to prosecute Boyce in January 1999 for the shooting, saying the evidence was insufficient to support criminal charges.

Boyce had stopped Barques' truck after he spotted it parked on the wrong side of the road leading to the Puu o Mahuka Heiau in Pupukea on May 5, 1998. The truck was parked overlooking the heiau where numerous break-ins had been reported. According to the city, Boyce feared for his safety and drew his firearm, ordering the two occupants out of the truck. Barques and his girlfriend complied, but then Barques got up, jumped over a nearby fence and refused to heed the officer's repeated orders to stop, the city argued.

Barques was carrying an unloaded gun, but family attorneys had argued he was reaching for his cellular phone.

Barques' family left the courthouse without comment.

They were distressed and unhappy that no punitive damages were awarded, Breiner said.

Boyce, 40, has been with the department now for nine years and was promoted to detective in February 2000. He could not be reached for comment.