The family of boxer Ernie Magdaleno, killed during a high-speed chase by a Fountain Valley police officer, filed a $25-million claim against the city alleging that the officer failed to turn on the police car's emergency lights and siren.
The claim filed Monday alleges that Officer Trung Nguyen was chasing two burglary suspects at speeds up to 100 mph with only his headlights on. However, three witnesses named in the police accident report and interviewed by The Times on Wednesday said that the cruiser's emergency lights were activated but not the siren.
Magdaleno, 32, of Westminster, died Dec. 31, when a Ford Escort driven by John Kenneth Bandola Jr., 19, of Cypress ran a red light and slammed into Magdaleno's Jeep Cherokee, which was also carrying his wife and two children.
Both Magdaleno and Bandola died at the scene. Magdaleno's wife, Carrie Eloise, 29, and the couple's children, Samantha, 6, and Joshua, 2, were hospitalized and recovered from their injuries. Bandola's passenger, Dawn Marie Kazanecki, 20, survived the crash but suffered extensive injuries.
Nguyen was chasing Bandola and Kazanecki, who were suspects in a foiled attempt to steal camera equipment from a car.
According to a report by Huntington Beach police who investigated the crash, Bandola drove through a red light at the intersection of Edinger Avenue and Newland Street at 85 mph, colliding with Magdaleno's Jeep.
Witnesses said they saw Nguyen's car approach the intersection with flashing lights but no siren.
"I saw the flashing lights but I didn't hear the sirens. I remember thinking that he's got his lights going--why not the siren?" said Carol Whaley, who had just left her apartment and was driving in the opposite direction on Edinger.
Whaley said that after the crash, Nguyen walked over to Bandola, who was bleeding profusely inside the car and said: "That's what you get, asshole."
Orsy B. Calderon, who was working at an Edinger Avenue liquor store, and Jose Martinez, a passenger in a third car that was damaged in the crash, said they did not hear a siren in the moments before the crash. Each man said he saw only the emergency lights on Nguyen's patrol car.
According to the police report, Magdaleno was not wearing a seat belt and was ejected in the crash, striking his head on a traffic island. Nguyen was not injured.
Fountain Valley police officials declined to comment on the claim, and Nguyen could not be reached for comment. Inquiries about the department's pursuit policy were referred to Capt. Bill De Nisi, but he did not respond to repeated requests for comment.
Don Heinbuch, the city of Fountain Valley's risk manager, agreed to comment after he had read the claim, but then did not return phone calls.
Huntington Beach police said that Nguyen began the New Year's Eve chase after Bandola and Kazanecki tried to steal a camera and photography equipment from a car stopped at a gas station.
Carrie Magdaleno said Wednesday that her husband died "for a camera that wasn't even taken.
"You just don't go chasing someone [because of] a camera through the streets on New Year's Eve, when people are out and about and ready for a big night," she said. "It hurt that Ernesto's whole life was gone for that. It felt wrong."
Newport Beach attorney Federico C. Sayre, who is representing Magdaleno's family, also criticized Fountain Valley police for engaging in a high-speed chase on a busy street for what he called "a nonviolent property crime."
"The problem they have here is they're going to have to change the characterization of the crime. They talk about it being a burglary. A burglary is a nonviolent property crime. If it were violent, it would be called a robbery. . . . We don't think you can justify a high-speed chase ending innocent bystanders' lives for a nonviolent property crime," Sayre said.
The claim, the first step before a lawsuit is filed, alleges that Carrie Magdaleno and her children have suffered nightmares and anxiety.
Ernie Magdaleno, a contender for the World Boxing Council light heavyweight title, had a record of 21-1-1. He had won a 10-round decision against an outclassed opponent three days before his death. His only defeat occurred in a 1994 title fight in Germany.