Courts

Thursday, January 19, 2017

Elder Abuse Case Against Timber Ridge Yields $5 Million Verdict

Posted By and on Thu, Jan 19, 2017 at 3:18 PM

FROM TIMBER RIDGE'S WEBSITE
  • From Timber Ridge's website
Timber Ridge McKinleyville will pay the family of a woman who died under its care $5 million after a jury found the facility liable for wrongful death and elder abuse on Jan. 17. The amount includes $2.5 million in punitive damages.

The suit, brought by Valerie Monschke, a daughter of the resident, stems from an incident in September 2013 in which 90-year old woman, Marjorie Fitzpatrick, made her way into a courtyard and fell, breaking her wrist and nose and suffering a sub-arachnoid hemorrhage and intravicular hematoma (brain injuries). Fitzpatrick, a dementia patient, lay on the ground between 30 and 45 minutes before she was noticed and hospitalized. She died less than a month later.

The attorney for the plaintiffs, Timothy Needham of Janssen Malloy LLP, charged that the facility was guilty of elder abuse because caregivers had failed to give Fitzpatrick her anti-anxiety medication the day of her fall, meaning she was manic and agitated. A manifest of the facility’s monitoring system show that Fitzpatrick was restless and tried to leave the facility several times that day, opening several doors to the outside. Despite this, staff did not notice that she had exited a door into the courtyard before falling, despite her exit triggering an alarm.

The jury backed up the plaintiff’s assertion that the facility should not have admitted Fitzpatrick in the first place as it did not have the proper staff or training to care for a patient with her level of dementia. The plaintiff also alleged that the facility did not properly assess Fitzpatrick before admitting her, and failed to properly monitor her to prevent falls, despite her having suffered one in July 2013.

In his closing arguments, Needham stated that the facility had broken its promises. The family paid $1200 for an assessment that wasn’t done, and paid around $5000 a month in rent, and Fitzpatrick’s care did not meet the standards of care promised by the facility.

“They said they were in need of more clients and therefore more money, by not doing the assessment they would be able to take on more clients,” Needham said.

The plaintiffs also alleged that Timber Ridge staff destroyed evidence in the case: shredding incident reports and statements, destroying a “pass down binder” or log, and taping over video that showed Fitzpatrick falling and lying injured on the ground.

He closed his statements by telling the jury that their verdict would be a referendum on “how the elderly will be treated in Humboldt County.”

The attorney for Timber Ridge, Rudy Nolen, said in his closing arguments that Needham’s assessment was “just wrong,” and that the facility was not responsible for providing nursing or medical care, although they have a nurse consultant available by phone. The caregivers, he said, had provided excellent care for the majority of Fitzpatrick’s stay in the dementia unit.

“For 455 days she was there, and 453 of those were uneventful,” he said.

He added that the case was complicated as there were two different burdens of proof using the same set of evidence, and the cost of damages as assessed by the plaintiff’s attorney were excessive.

“I don’t think there is any evidence of elder abuse in this case,” Nolen said repeatedly.

Reached today by phone, Needham said the verdict was sadly unusual in elder abuse cases.

“These cases are by definition extremely difficult to win,” he said. “You have to prove the case by clear and convincing evidence, and your best witness is deceased or has dementia. In this instance, you have an occasion where the defendants have made a concerted effort to destroy anything that would prove your case.”

Needham added that in many elder care facilities staff are very minimally trained.

“There’s less oversight in these facilities than there is to open a barbershop,” he said. “Only 1 in 10 cases of elder abuse are ever reported and less than 1 in 100 go to trial. It’s a damned shame.”

Erin Wohlfiel, director of marketing and creative development at Timber Ridge, sent the Journal the following statement:

"The death of any resident, for any reason, saddens us deeply. In this case, we acknowledge that mistakes were made, however inadvertently, and we will always regret that. We have learned from these mistakes and taken steps to prevent their recurrence."

She added:

"We have never had any other incident of this severity in our 17-year-history, and most Humboldt County residents know of our stellar reputation for compassionate and highly competent care. "

Wohlfiel could not comment on the accusations that employees had destroyed evidence in the case. She said the terms of the payment and whether the case will be appealed will be determined by the facility's insurance company.

In her obituary, Fitzpatrick is described as a very active member of her community, an Arcata resident since 1951 who volunteered with the United Way, served on the board of the Humboldt Area Foundation, the Redwoods United Foundation and on the advisory board of the California Criminal Justice Association. She also chaired the committee that created the cookbook A Taste of Humboldt, the proceeds of which went towards setting up a scholarship for member of the Youth Education Services fund at Humboldt State University. According to Needham, at least part of the settlement will be donated to the Humboldt Area Foundation to continue her legacy, the Marjorie Fitzpatrick Cookbook Scholarship Fund.

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Friday, December 30, 2016

McClain Family Settles Wrongful Death Suit

Posted By on Fri, Dec 30, 2016 at 11:21 AM

Thomas McClain - FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • Thomas McClain
SAN FRANCISCO (CN) – The family of a man shot dead by a Northern California police officer settled a wrongful death suit Thursday after a jury found the officer and victim equally negligent in the fatal shooting last month.

Eureka police officer Stephen Linfoot shot and killed Thomas “Tommy” McClain, 22, during a late-night confrontation in the young man’s front yard on Sept. 17, 2014.

Following a week-long trial in McKinleyville last month, jurors found Linfoot not guilty of excessive or unreasonable force but did find him and the city at fault for negligence.

Dale Galipo, the civil rights attorney representing McClain’s parents, said both sides decided to settle the case after the jury verdict to “get this behind them” and avoid post-trial motions and appeals.

“After the verdict was reached, the city agreed to pay the amount of the verdict plus our costs,” Galipo said. “The family wanted some closure so we decided based on the jury award plus costs, the case should be dismissed.”

The city’s insurance company paid McClain’s parents $157,000 to settle the case, according to a joint stipulation for dismissal filed on Thursday.

The jury had awarded McClain’s parents $300,000 in damages, but reduced the award by half after finding McClain 50 percent responsible for the fatal encounter.

U.S. District Judge William H. Orrick III, who presided over the trial last month, signed an order dismissing the case with prejudice on Thursday.

Galipo said even though his clients feel the award should have been higher and that Linfoot should have been found guilty of violating McClain’s constitutional rights, they still consider the outcome a victory.

“We still feel it’s a victory,” Galipo said. “We just wish we could have had a bigger victory.”

Galipo described the jury as “somewhat conservative” and said he felt the verdict was ultimately a compromise between some jurors who sided with police and others who felt McClain’s family deserved more money for their son’s untimely death.

McClain’s parents, Lance McClain and Jeanne Barragan, filed the federal wrongful death suit in May 2015. The parents claimed their son had his hands in the air and was complying with orders when Linfoot fired seven bullets, three of which struck and killed their son as he stood in his front yard.

The city claimed McClain was reaching for what turned out to be a BB gun in his waistband and that Linfoot acted appropriately to neutralize a potentially deadly threat.

At a time when police shootings have sparked a national conversation about the use of deadly force, Galipo said civil litigation serves an important role in holding officers accountable and helping to bring about change in law enforcement policies.

“Most of these families feel like I feel – that if what we’re doing can potentially save people’s lives down the line, then it’s worth it, because most families do not want to see this happen to someone else’s family,” Galipo said. “That’s one of the main reasons they bring these cases. They don’t want to have to see someone else bury their son or daughter.”

Eureka Police Chief Andrew Mills did not immediately return a phone call seeking comment Thursday, but he told the North Coast Journal last month that McClain made “some bad choices” that led to the fatal encounter, and that he felt for the parents and officers who had to endure a difficult trial over the tragic case.

The Eureka City Attorney’s Office did not immediately return a phone call request for comment Thursday afternoon.

This story was reprinted with with the permission of Courthouse News Service.

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Thursday, December 22, 2016

Is This Criminal Assault?

Posted By on Thu, Dec 22, 2016 at 4:40 PM


It’s been almost four years since the Eureka Police Department and the Humboldt County District Attorney’s Office held a rare joint press conference on April 17, 2013 to announce they’d arrest an EPD sergeant on suspicion of assaulting a 14-year-old during an arrest.

Four months earlier, shortly before midnight on Dec. 6, 2012, EPD received a report of a gang fight near Twenty-Thirty Park on Summer Street. The first officer on scene reported no fight but saw a male and a female walking, and noted the male — later identified as a 5-foot-6-inch, 130-pound 14-year-old — was carrying a golf club.

The boy — who later told police he had been drunk at the time, having drank two Four Lokos (a caffeinated malt liquor beverage) — fled when he saw the officer and a foot pursuit ensued. At some point, former EPD Sgt. Adam Laird joined the fray as backup as the kid fled through a backyard and ultimately wound up on California Street. There, the juvenile abruptly stopped running — later telling investigators he didn’t want police to shoot him — and gave up. He was then pushed to the ground by officers.


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Sunday, December 4, 2016

Yurok Tribe Blames Feds for Salmon Die-Off

Posted By on Sun, Dec 4, 2016 at 9:11 AM

Favorable ocean conditions and heavy rains have brought the Chinook Salmon back, but to a river choking of toxic algae. - FILE
  • FILE
  • Favorable ocean conditions and heavy rains have brought the Chinook Salmon back, but to a river choking of toxic algae.
SAN FRANCISCO — The federal government was hit with a second lawsuit this week claiming its bungled management of waterways allowed a deadly parasite to infect 91 percent of endangered juvenile coho salmon on the California-Oregon border.

The lawsuit from the 5,000-member Yurok Tribe comes four months after the 2,700-member Hoopa Valley Tribe in Humboldt County blamed the feds for causing lethal infections in threatened Chinook salmon.

“Defendants’ illegal operations of the Klamath Project threaten the health and viability of these species and, in turn, threaten the continued ability of the Yurok Tribe and its members to harvest fish for subsistence and commercial purposes, and conduct ceremonies for the fish and well-being of the Yurok people, and threaten the very identity of the Yurok Tribe and its people,” the Yurok say in their 45-page complaint.

The infections are blamed on low-flow conditions in the Klamath River and its streams. The water levels are controlled by the U.S. Bureau of Reclamation, which oversees the Klamath Irrigation Project in Southern Oregon and Northern California.

The deadly parasite Ceratanova shasta, or C. shasta, flourishes in low-flow conditions that produce warm, slack water where host worms thrive and juvenile salmon tend to congregate. Signs of infected salmon include cell decay in intestinal tissue, severe inflammation and death.

After reviewing Klamath Project plans, the defendant National Marine Fisheries Service issued a biological opinion in 2013 estimating that infection rates would not exceed 49 percent. But surveys found infection rates climbed to 81 percent in 2014 and 91 percent in 2015.

The tribe says those high infection rates should have triggered the requirement for the Bureau to review the project’s impact on an endangered species, but the government has refused to take that step.

After the Yurok, Karuk and Hoopa Valley Tribes, along with a coalition of fishermen and conservation groups, threatened to sue, the co-defendant Bureau of Reclamation formed a technical advisory team in July to recommend steps for reducing C. shasta infection rates.

On Nov. 9, the team created a guidance document urging the Bureau to provide regular flush flows at certain times of the year to flush out worms that host the parasites. The document also recommends reserving 50,000 acre-feet of water for emergency spring dilution and disruption flows each spring when certain conditions, such as high water temperatures and disease rates, require urgent action.

On Nov. 28, the technical staff and federal agencies commented on the guidance document, “largely agreeing with the need for additional flows to flush out polychaetes [host worms] and an emergency dilution flow regime,” according to the complaint.

But the Bureau did not commit to any mitigation measures, the tribe says, which violates the Endangered Species Act. They say failure to reinitiate formal consultation on the project’s impact on coho salmon also violates the Administrative Procedure Act and Magnuson-Stevens Fishery Conservation Act.

Finally, they say, the National Marine Fisheries Service 2013 biological opinion that authorized the project was arbitrary and capricious in violation of the Administrative Procedure Act.

Klamath River at Hopkins Creek, close to Weitchpec. - FILE
  • File
  • Klamath River at Hopkins Creek, close to Weitchpec.
The Yurok seek an injunction compelling the Bureau to relaunch the formal consultation process and stop limiting disease-management flows and other operations “reasonably certain to take juvenile coho salmon.”

It also seeks an order invalidating provisions of the 2013 biological opinion.

Co-plaintiffs include the Pacific Coast Federation of  ishermen’s Associations, the Institute for Fisheries Resources and Klamath Riverkeeper.

They are represented by Kristen Boyles with Earthjustice in Seattle.

National Marine Fishers Service spokesman Jim Midbury declined comment.

Bureau of Reclamation spokesman Shane Hunt did not immediately return phone calls seeking comment Thursday.

This story was reprinted with with the permission of Courthouse News Service.
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Wednesday, November 23, 2016

Father, son plead guilty to fatal Hoopa shooting

Posted By on Wed, Nov 23, 2016 at 1:56 PM

THINKSTOCK
  • Thinkstock
A father and son pleaded guilty in federal court Tuesday to their roles in a fatal Hoopa shooting in March of 2015 that left one man dead and two others wounded in a dispute over a marijuana deal. Hoopa resident Daniel Peter Colegrove, 73, died after being transported to a hospital in Redding.

Under the plea agreement, Rodney Vincent Ortiz, 54, and Vincent Rudy Ortiz, 27, each face a maximum sentence of life in prison after pleading guilty to one count of use of a firearm during a drug transaction and one count of use of a firearm causing murder, according to a release from the U.S. Attorney's Office.

A sentencing hearing is scheduled for May 2.

Read the full press release from the U.S. Attorney's Office below:
SAN FRANCISCO – Rodney Vincent Ortiz and Vincent Rudy Ortiz (collectively, the defendants) pleaded guilty today in federal court today for their respective roles in the March 21, 2015, drug related shooting and murder on the Hoopa Valley Indian Reservation in Humboldt County, Calif., announced United States Attorney Brian J. Stretch and Federal Bureau of Investigation (FBI) Special Agent in Charge John F. Bennett. The guilty pleas were accepted by the Honorable Richard Seeborg, U.S. District Judge.

According to the plea agreement, the defendants committed the shooting and murder following a dispute over a drug transaction that took place a week earlier. Vincent Ortiz, 27, of Willow Creek, Calif., admits he sold what was supposed to be a pound of marijuana to Victim 1, a resident and member of the reservation.

When Victim 1 complained that the amount of marijuana was less than a pound, Vincent eventually traveled with his father, Rodney Ortiz, 54, to Victim 1’s residence to resolve the dispute. Rodney Ortiz admits he brought a loaded firearm to the residence; Vincent Ortiz admits he knew Rodney Ortiz brought the loaded firearm and that it was foreseeable his father would use the weapon to shoot Victim 1.

When the defendants arrived at the residence, they encountered a group of people inside. An argument ensued between Victim 1 and Rodney Ortiz, resulting in Rodney Ortiz shooting Victim 1 and Victim 2 in the head. Rodney Ortiz then shot Victim 3 in the head and shoulder before fleeing the scene with his son, Vincent.

Victim 1 died as a result of the shooting, but Victims 2 and 3 managed to survive. In his plea agreement, Vincent Ortiz admits he aided and abetted Rodney Ortiz’s use, carrying, and discharging of the firearm in furtherance of and in relation to the drug conspiracy and the resulting murder of Victim 1. Vincent Ortiz also acknowledges in his plea agreement that he reasonably could have foreseen the shootings of Victims 2 and 3.

A federal grand jury indicted the defendants on December 17, 2015. In the indictment, the defendants are charged with conspiracy to distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846 and 841(a)(1) and (b)(1)(D), use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and 2; and use of a firearm during a drug trafficking crime causing murder, in violation of 18 U.S.C. § 924(j) and 2, obstruction of justice, in violation of 18 U.S.C. § 1512(a)(1)(C) and (k), and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).

Pursuant to today’s plea agreement, the defendants both pleaded guilty to one count of use of a firearm during and in relation to a drug trafficking crime and one count of use of a firearm during a drug trafficking crime causing the murder of Victim 1.

The defendants are next scheduled to appear before Judge Seeborg on May 2, 2017, for a sentencing hearing. The maximum statutory penalties for use of a firearm during and in relation to a drug trafficking crime are life imprisonment, and a mandatory minimum term of 10 years imprisonment, to be imposed consecutive to any other term of imprisonment.

The maximum statutory penalty for use of a firearm causing murder is life imprisonment. Each crime carries a maximum term of 5 years supervised release and a $250,000 fine. However, any sentence following conviction would be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

Assistant U.S. Attorney Kimberly Hopkins is prosecuting the case with the assistance of Lance Libatique and Jessica Meegan. The prosecution is the result of an investigation by the Humboldt County Sheriff’s Office, Humboldt County District Attorney’s Office, Eureka Police Department, and the Federal Bureau of Investigation.

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Friday, November 18, 2016

UPDATED: Jury: Officer, McClain Both Negligent in Police Shooting

Posted By on Fri, Nov 18, 2016 at 6:52 PM

Thomas McClain - FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • Thomas McClain
The last night of Thomas “Tommy” McClain’s life began with a night out on the town to celebrate his cousin’s birthday. It ended with the 22-year-old lying mortally wounded in his front yard after being shot three times by a Eureka police officer.

While members of a federal civil jury found Officer Stephen Linfoot did not use excessive or unreasonable force, they also decided that he and McClain were equally negligent for the fatal encounter that occurred outside an Allard Avenue home in 2014.

The panel of five women and one man came to the unanimous verdict on Friday, hours after being handed the wrongful death suit brought by McClain’s parents, who originally sought $10 million from the city.

The jury awarded them $300,000 in damages, but because McClain was found 50 percent responsible, the amount was reduced by half, with each of his parents receiving $75,000.

Attorney Dale Galipo, who represented McClain’s parents, said they just wanted to see some finding of responsibility for their son’s death on the part of Linfoot and the police department.
“I think the family is pleased with the verdict,” Galipo said. “They view it as a victory.”

The family’s hope, he said, is “this won’t happen to someone else.”

Eureka police Chief Andrew Mills said he was thankful for the decision, but found no glory in the verdict, noting this was a tragic case that left a young man dead.

”It was avoidable,” Mills said. “(McClain) made some bad choices and ended up being in an officer-involved shooting. I feel for the parents. … I feel for the officers. This was the last thing they wanted to go through and endure. It’s just sad all the way around.”

Attorneys on both sides agreed on at least one thing as they gave their closing statements on Friday: None of this needed to happen. Where they diverged was who ultimately bore the responsibility for McClain’s death.

The city’s attorney Nancy Delaney told jurors that McClain made a series of alcohol-fueled choices that brought police to his doorstep, setting in motion the events that led to his fatal shooting.

She compared Linfoot to a driver who is unable to avoid hitting a child who suddenly darted into the street.

“Imagine the devastation you’d feel,” Delaney said. “It’s emotional. You have sympathy for the family. But it’s not fair to tell the driver it’s his fault. It’s not fair.”

Galipo, in turn, said that Linfoot overreacted in those chaotic final moments, firing not once, but seven times even as McClain fell over and after he hit the ground.

“We have to expect better of our police. … (McClain) didn’t deserve the death penalty,” Galipo said. “That’s what he got.”

McClain never presented a threat, the attorney said, but was simply trying to comply with a volley of commands when he was met with a last shout of “get down” from Linfoot, which caused him to start lowering his hands just before being shot.

“I would suggest that the command is the reason why we are here,” Galipo told jurors. “One has to wonder. … Tommy McClain knows he doesn’t have a real gun. Who is going to pull a replica gun on police when they don’t have a record and they’re all pointing their guns at you? It doesn’t make sense.”

While the toxicology report found McClain’s blood alcohol level was 0.13 at the time of his death, Galipo noted several witnesses - including officers - testified during the week-long trial that he didn’t appear intoxicated.

Coincidence played a major role in the events that unfolded in the early morning hours of Sept. 17, 2014, when an unrelated surveillance sting on a neighboring residence brought McClain into police sights.

Officers were looking for a man on the department’s Most Wanted list. Their attention turned to McClain after he confronted a man on the street soon after returning home from the birthday celebration and fiddled with what appeared to be a gun in his waistband.

Linfoot was sent to drive by in his patrol car under a plan to scare McClain back inside his house. After he passed, officers testified, they saw McClain pull the slide of what turned out to be a BB gun that realistically resembled a handgun before placing the weapon back in his waistband.

Displaying a fake weapon is illegal for a reason, Delaney told jurors, saying this case is just another catastrophic example of what can happen.

“It was Mr. McClain pulling out a replica handgun in violation of the law and racking the slide. Who does that in response to a police vehicle driving by?” she asked. “Who does that? Not someone with a mindset to cooperate with law enforcement.”

During the brief encounter, police say McClain was shot while reaching for the replica gun in his waistband after defying a series of commands to keep his hands up.

McClain’s family and one witness maintain his arms were raised and he was attempting to obey conflicting commands from three officers when he was hit by gunfire.

Galipo pointed to the testimony of Nichole Mottern, the wife of McClain’s cousin, who was outside during the shooting. She said she was “100 percent sure” McClain had his hands at chest level when Linfoot fired.

Delaney questioned Mottern’s credibility, saying much of her testimony was “physically impossible.”

Both sides presented testimony from law enforcement experts who gave conflicting views on a number of key factors in the case, including the officers’ actions that night and whether the shooting was justified.

Delaney pointed to a police tactics specialist who said the officers acted appropriately and a shooting scene analysist who testified that video showing Linfoot move backwards just before firing indicated he was responding to a perceived sudden and immediate threat.

“Officers were trying to conclude what should have been a very easy encounter,” Delaney told jurors. “Mr. McClain could have said to them, ‘It’s not real,’ kept his hands up and walked the sidewalk. They would determine what it was, everyone goes home and officer Linfoot doesn’t have to live with it.”

Galipo said expert testimony showed the officers made a number of tactical errors that night, from giving conflicting commands to failing to take cover to allow for more time to assess the situation.

“You really have to ask yourself,” Galipo said, “did they really need to kill him to take him into custody?”

The case, Galipo told jurors, was about more than what happened to McClain that night, saying “everyone has a right to be free from excessive force.”

“It’s sad to think that if Officer Linfoot had not fired we wouldn’t be here today,” Galipo told jurors, referencing testimony that the first four bullets he fired might have missed McClain. “If he had only fired one shot, we wouldn’t be here today.”

PREVIOUSLY:
Jurors reached a verdict today in a federal wrongful death suit, finding a Eureka police officer and the young man he shot were equally negligent for the fatal encounter that occurred outside an Allard Avenue home in 2014.

Hours after being handed the case brought by the parents of Thomas “Tommy” McClain, jurors found Officer Stephen Linfoot did not use excessive or unreasonable force.

However, they did find Linfoot and McClain were equally negligent in the fatal shooting, awarding $300,000 in damages to McClain's family. Because McClain was found 50 percent responsible, the amount is reduced by half, with each of his parents receiving $75,000.

Attorney Dale Galipo, who represented McClain’s parents, said they just wanted to see some finding of responsibility on the part of Linfoot and the department.

“I think the family is pleased with the verdict,” Galipo said. “They view it as a victory.”

Eureka police Chief Andrew Mills said he was thankful for the decision but found no glory in the verdict, noting this was a tragic case that left a young man dead.

”It was avoidable,” Mills said. “(McClain) made some bad choices and ended up being in an officer-involved shooting. I feel for the parents. … I feel for the officers. This was the last thing they wanted to go through and endure. It’s just sad all the way around.”

McClain, 22, died after being hit by three of the seven rounds that Linfoot fired during the late-night confrontation on Sept. 17, 2014.

Police say McClain was shot while reaching for what appeared to be a handgun tucked in his waistband but that turned out to be an unloaded BB gun after defying a series of commands to keep his hands up.
McClain’s family and one witness in the four-day trial maintain his hands were raised and he was attempting to comply with conflicting commands from three officers when he was hit by gunfire.
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Thursday, November 17, 2016

Expert Opinions Collide in EPD Shooting Trial

Posted By on Thu, Nov 17, 2016 at 10:17 PM

Thomas McClain - FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • Thomas McClain
Attorneys rested their cases today in a federal wrongful death trial after presenting testimony from law enforcement experts who gave conflicting views on whether a Eureka police officer’s fatal shooting of Thomas “Tommy” McClain was justified.

A trio of police officers had McClain at gunpoint outside of his Allard Avenue home in the early morning hours of Sept. 17, 2014, when one of them — Officer Steven Linfoot — opened fire. McClain died later at the hospital.

Police say McClain was shot while defying a series of commands to keep his hands up by reaching for what looked to be a handgun tucked in his waistband but turned to be an unloaded BB gun. McClain’s family and one witness contend he had his arms raised and was trying to comply with conflicting commands when he was hit by three of Linfoot’s seven rounds.

Called to the stand by McClain’s parents’ attorney Dale Galipo was Roger Clark, a former lieutenant with the Los Angeles Sheriff’s Department whose last assignment was overseeing a multi-agency surveillance unit that targeted the “worst of the worst” didn't fire a shot over a five-year span. He said Eureka officers made several tactical errors.

“None of the shots were justified, in my opinion,” Clark said.

Defense expert Don Cameron, who currently trains police officers in the Bay Area, disagreed. He testified that the officers had “no alternative” to shooting once McClain made a movement to his waistband.

“That would be a shoot situation,” Cameron said.


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Wednesday, November 16, 2016

DA: No Evidence Juveniles Had Means to Pull Off Bomb Plot

Posted By on Wed, Nov 16, 2016 at 4:50 PM

da.png
The Humboldt County District Attorney’s office has decided not to pursue criminal charges against two 15-year-olds accused of plotting the bombing of a Fortuna High School assembly.

“To date, the investigation has yielded no evidence that either juvenile had the means to create an item that could be a hazard — one individual possessed approximately 2 grams ([less than] .1 ounces) of sulfur, a readily available legal product with a variety of uses,” a press release from the office states. “Further, there is insufficient evidence to indicate the two juveniles conspired to commit an attack.”

Both findings are in direct conflict with statements from Fortuna Police Chief Bill Dobberstein on Nov. 11, the day after police thwarted the alleged plot. The chief told the Journal and other media outlets that one of the juveniles was found to be in possession of “several components for making some kind of toxic chemical gas explosion devices” but were missing a “key ingredient” that police believed was stashed somewhere on campus. Dobberstein said it appeared the students were planning on making multiple explosive devices with a substance akin to homemade mustard gas, or sulfur mustard, to detonate them at an all-school assembly that day.

Further, Dobberstein said it appeared the students had been planning a “mass casualty event” for some time and targeting “when there was going to be a large gathering of students and teachers in one place.”

The Fortuna Police Department also issued a press release this afternoon, stating that it has been made aware of the DA’s Office’s decision and will continue to follow up on any new leads in the case.

See past Journal coverage of the incident here, and find the press releases from the DA’s Office and Fortuna PD copied below.

From Fortuna PD:
Fortuna High School Threats case update
The Fortuna Police Department has been made aware that the Humboldt County District Attorney’s Office will not be bringing charges at this time against the two 15 year-old boys arrested on November 10, 2016 at Fortuna High School.
The Fortuna Police Department has worked tirelessly over the last 6 days investigating this case with the assistance of the Federal Bureau of investigation. We have followed every lead and conducted multiple searches in regards to this case. The safety of the students and citizens of Fortuna never wavered and was a paramount concern during this investigation.
Although no charges will be filed at this time, the Fortuna Police Department will continue to follow up on any new information related to this case.


From the DA's Office:
DA Perspective on Potential Threat to Public Safety at Fortuna High
Office of the District Attorney - Maggie Fleming, District Attorney
NEW RELEASE
November 16, 2016
This press release provides current information from the Humboldt County District Attorney’s perspective on the potential threat to public safety at Fortuna High School last Thursday.
Based on statements by students, Fortuna High School staff and the Fortuna Police Department responded immediately to a potential threat and took appropriate action. The ensuing investigation resulted in the FBI and Fortuna Police Department serving search warrants on the homes and computer devices of the two juveniles suspected of plotting an attack at an assembly. To date the investigation has yielded no evidence that either juvenile had the means to create an item that could be a health hazard – one individual possessed approximately 2 grams ([less than] 0.1 ounces) of sulfur, a readily available legal product with a variety of uses. Further, there is insufficient evidence to indicate the two juveniles conspired to commit an attack.
The FBI and Fortuna Police Department continue to investigate the case, but at this point the evidence does not support filing of state criminal charges against the two individuals involved.


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McClain Witness: 'There Was No Reason to Shoot'

Posted By on Wed, Nov 16, 2016 at 4:23 PM

Thomas McClain - FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • Thomas McClain
Thomas “Tommy” McClain was walking toward Eureka police officers with his hands raised above waist level while navigating a barrage of conflicting commands when he was fatally shot, according to witness testimony today.

Nichole Mottern, the wife of McClain’s cousin, who was standing in front of the Allard Avenue home the three shared that night, said she watched the events transpire in disbelief.

“I was in shock. I was completely petrified. I thought they were going to kill me next,” Mottern said during her tearful testimony on the third day of a federal trial in the wrongful death lawsuit brought by McClain’s parents. “I didn’t know why this was happening.”

In all the confusion, Mottern said she wasn’t certain who the police were yelling at, but she was “100 percent” sure McClain had his hands up when he was shot.

The 22-year-old died a few hours after being hit by three of the seven bullets fired by officer Steven Linfoot in the early morning hours of Sept. 17, 2014. Police say McClain reached for what turned out to be an unload BB gun tucked in his waistband that realistically resembled a pistol.

The night had unfolded in ways no one involved could possibly have imagined.


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Tuesday, November 15, 2016

'It Needed to be Done,' EPD Officer Testifies in Wrongful Death Trial

Posted By on Tue, Nov 15, 2016 at 9:15 PM

Thomas McClain - FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • Thomas McClain
The Eureka police officer who fatally shot Thomas “Tommy” McClain testified Tuesday that he stood by his actions and believed he had no choice but to shoot when the 22-year-old reached for what he believed was a gun in his waistband.

“I was scared that the gun was going to come out and he was going to be able to shoot either myself or my partners,” Officer Steven Linfoot said after briefly struggling to regain his composure during a second day on the stand at federal trial in the wrongful death lawsuit brought by McClain’s parents.

Other options from a Taser — which he was not certified to use at the time — to a baton to pepper spray were not viable alternatives with a firearm at play and considering his distance from McClain, Linfoot said under questioning from attorney Nancy Delaney, who is representing the city.

Linfoot made similar statements while fielding questions about his actions from McClain’s parents’ attorney, Dale Galipo.

“What I feel, I feel bad for the family. That they have to endure this,” he testified. “This wasn’t anything I wanted to do, but it needed to be done under the circumstances.”


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