Judges hear appeal in
fatal police shooting

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By Leila Fujimori
lfujimori@starbulletin.com

An attorney for the widow and girlfriend of a 34-year-old man shot and killed by a Big Island police officer has told federal appellate judges that the officer ignored proper procedure and violated the man's constitutional rights by entering his home when responding to a dropped 911 call.

"In this particular case, the police went there and created the situation," attorney Eric Seitz said Thursday after the hearing in Honolulu before a three-judge panel from the 9th U.S. Circuit Court of Appeals.

Seitz, attorney for Jon Webster Pavao's widow, Harolyn Pavao, and his girlfriend, Linda Sadino, is appealing the verdict of a federal jury in a wrongful-death trial in April 2000, which found police officer John Pagay was justified in the June 1998 shooting.

Pagay was never charged criminally in the shooting and had been absolved of wrongdoing by a Hawaii County Police Department internal affairs investigation.

Seitz told a reporter that to enter a home, police must either have a warrant, probable cause, consent or that there be urgent circumstances warranting entry. He added that no such circumstances existed and no consent was given.

Hawaii County Deputy Corporation Counsel Joseph Kamelamela, also after the hearing, explained the officer responded to a dropped 911 call by going to the home and knocking on the door.

Kamelamela said Pagay heard a female voice say, "Open the door; it's the police."

Sadino's 14-year-old daughter came to the door and opened it halfway, Kamelamela said. The officer then asked who made the call, to which she failed to respond, he said.

After about a minute, she swung open the door.

"That act was consent," Kamelamela said. "I argued that he (Pagay) didn't barge in. He was friendly and calm."

Pagay had testified Pavao had put a revolver into his waistband and refused his commands to drop the gun. He said Pavao told him: "What, you like shoot me? Shoot me, I like die." Pavao then pointed the revolver at his own head and said, "Better I shoot myself."

The officer repeatedly demanded he drop the gun or be shot.

During trial, witnesses said Pavao had put his hand down and pointed the gun at the floor. Kamelamela said the gun was cocked the entire time and that Pagay shot after Pavao raised his gun.