Courts

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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Monday, November 14, 2016

EPD Wrongful Death Trial Begins

Posted By on Mon, Nov 14, 2016 at 8:52 PM

Thomas McClain - FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • Thomas McClain
Eureka Police Officer Stephen Linfoot testified today that he was one of three officers shouting commands with guns drawn in the seconds before he opened fire on Thomas McClain, continuing to shoot as the 22-year-old began falling over and after he hit the ground.

“He was reaching for the gun and that’s when I shot, but I can’t clearly say whether he got his hand on the gun,” Linfoot said under questioning from attorney Dale K. Galipo, who is representing McClain’s parents in their federal wrongful death lawsuit.

McClain died after being hit by three of the seven rounds that Linfoot fired during the late-night confrontation on Sept. 17, 2014, on the front lawn of the Allard Avenue townhouse where McClain lived with his cousin.

The weapon spotted by officers in McClain’s waistband turned out to be an unloaded BB gun that was a realistic replica of a handgun. Linfoot was the only officer to shoot.

Humboldt County District Attorney Paul Gallegos announced in November of 2014 that no criminal charges would be filed in the case after he reviewed a multi-agency Critical Incident Response Team investigation into the shooting.

Galipo asked Linfoot a battery of questions about his training and the use of deadly force before focusing on the commands that officers gave to McClain.

Linfoot testified the area was well lit and that McClain appeared to be compliant with the original instructions to put his hands up and walk down the slight grassy slope toward officers on the sidewalk in front of his Allard Avenue home.

McClain lowered his hands twice and each time he was told to put his arms back up in the air, which he did until the third time when both hands went toward his waistband, Linfoot said.

“I recall hearing a command of, ‘Get your hands up,’ and heard someone say something to the effect of, ‘He has a gun,’” the officer testified, noting the handle of the BB gun became exposed when McClain lifted his arms, drawing his shirt up from his waist.

A police photograph of the replica handgun reportedly found on McClain. - FILE
  • File
  • A police photograph of the replica handgun reportedly found on McClain.
Dressed in a charcoal gray suit with a blue dress shirt and tie, Linfoot testified he has heard the police dash cam audio recordings from just before the shooting in which someone appears to yell, “Get down,” immediately followed by gun fire.

“It sounds to me like an interrupted command,” the officer said. Linfoot also testified the voice “sounds like me.”

Linfoot took the stand following opening statements during which attorneys layed out differing versions of the tense moments before shots were fired that September night.

Both attorneys also walked jurors through the unrelated surveillance effort on a neighboring residence that initially caused officers to cross paths with McClain.

U.S. District Judge William Orrick III also briefly addressed jurors about the case, saying they would be deciding whether Linfoot used excessive, unreasonable force against McClain and whether he was negligent.

The city of Eureka, Orrick said, has also chosen to put on what’s known as an “affirmative defense,” and will attempt to show McClain’s own negligence contributed to his death and that Linfoot was acting in self-defense and in the defense of others.

In his opening statement, Galipo said the case comes down to two main issues: whether the use of deadly force was excessive and whether the way the police officers handled the situation was negligent.

Describing McClain as compassionate and the type of person who would go out of his way to help others, Galipo told jurors “the family, you will hear, has been devastated by the loss of a 22-year-old son.”

The city’s attorney, Nancy Delaney, told jurors that Linfoot fired in self-defense when it appeared his life and those of the other officers were in danger. His actions, she said, were appropriate.

“We’re not here, in any way, to belittle Mr. McClain or the relationship he had with his parents,” Delaney said.

Witness statements and the audio tape, Galipo said, will show McClain was trying  to comply with confusing and conflicting commands in the moments before he was shot. Galipo also told jurors that expert testimony will demonstrate that Linfoot “overreacted” when he fired seven times and other options were available.

McClain, who had a slight hearing impairment, had been out celebrating his cousin’s birthday, but there was no indication that officers noticed he had been drinking, Galipo said.

In contrast, Delaney said the evidence will show that McClain took a confrontational stance when he was first approached by an officer, sending up “a red flag” by telling then-Sgt. Brian Stephens that he didn’t have a right to search him.

“Mr. McClain never communicated in any way, ‘I’m hard of hearing.” ‘I’m not understanding you because I’m drunk.’ ‘I’m confused as to what you want me to do,” Delaney said in her opening statements.

The officers, who were in the area looking for a subject on Eureka’s Most Wanted list, had observed McClain confront another man on the street and then saw him “fiddling” with his waistband, putting police on warning that he could have a gun, Delaney said.

After the interaction, Delaney said, McClain appeared to be "puffing up as if preparing for a fight."

“The overwhelming evidence in this case will be this event occurred not because of any choice officer Linfoot had but because Mr. McClain appeared to reach for a semi-automatic pistol,” Delaney said.

Linfoot is scheduled to retake the stand Tuesday.

Editor's note: This story was updated from a previous version to correct an error concerning which Humboldt County District Attorney determined no criminal charges would be pursued against the involved officers. The Journal regrets the error.
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Sunday, November 13, 2016

Former Trinidad Resident Robert Durst Pleads Not Guilty to Murder

Posted By on Sun, Nov 13, 2016 at 8:22 AM

Durst, who spent several years of his life in Trinidad, recently pleaded not guilty to a murder charge in Los Angeles. - PHOTO COURTESY OF HBO
  • Photo Courtesy of HBO
  • Durst, who spent several years of his life in Trinidad, recently pleaded not guilty to a murder charge in Los Angeles.
Sometime in the mid-1990s, a quirky man with a mysterious past and proclivity for tall tales arrived in Trinidad, buying a home with sweeping ocean views in the small, secluded fishing village.

From this far-flung location — seemingly as removed as possible from his life as the scion of New York’s real estate elite — Robert Durst is suspected of setting off on a 660-mile road trip to kill his former friend and confidante at her Benedict Canyon bungalow in December of 2000.


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Friday, October 28, 2016

DA Clears Arcata Officer in Shooting

Posted By on Fri, Oct 28, 2016 at 9:33 AM

The scene immediately following the May 17 shooting. - FILE
  • File
  • The scene immediately following the May 17 shooting.

The Humboldt County District Attorney’s Office has determined that an Arcata police officer acted in self-defense when he opened fire and wounded 26-year-old Joshua Hoffman at a gas station in May.

After reviewing witness statements and multiple videos capturing the shooting, District Attorney Maggie Fleming determined that Hoffman was charging officer Don Arminio with a stick raised over his head when Arminio fired in self-defense, shooting Hoffman in the right bicep, upper right leg and lower abdomen. Hoffman received immediate medical treatment and is currently jailed in Washington on unrelated charges.

Fleming’s office has charged Hoffman with resisting an officer by threats or violence with use of a dangerous weapon and will have him extradited to Humboldt County at the conclusion of his Washington case.

For a detailed report on the shooting, see past Journal coverage here and here. And see the full press release from the DA’s Office copied below.


NEWS RELEASE

OCTOBER 28, 2016

The District Attorney has completed her review of the officer-involved shooting on May 17, 2016 adjacent to the Shell gas station at 14th and G streets in Arcata. Available information included video of the incident provided by the gas station, video from police vehicles at the scene and investigative reports from the multi-agency Critical Incident Response Team (who respond to investigate an officer-involved shooting) that included statements from officers and six civilian witnesses.
Officers responded to a call to the gas station where 26-year-old Joshua Hoffman was drinking alcohol and swinging two large sticks (one wooden and one metal). Arcata Police Department officers D. Arminio and M. O’Donovan arrived separately; both parked, exited their cars, and tried to speak with Mr. Hoffman. The officers told him to put the sticks down and he yelled, “No.” The officers continued trying to speak with Mr. Hoffman in an attempt to de-escalate the situation, using their patrol cars as barriers in an attempt to maintain a safe distance. Gas station video shows Mr. Hoffman approaching the officers while swinging the sticks and then backing up, followed by Mr. Hoffman charging toward Officer Arminio with one stick raised over his head. Officer O’Donovan fired his taser at Mr. Hoffman but it had no effect. Although Officer Arminio backed away from Mr. Hoffman, he continued moving towards the officer with the stick in a threatening position and the officer fired his pistol. Mr. Hoffman was shot in the right bicep, upper right leg and lower abdomen. He received immediate medical treatment and was transported to the hospital. Statements from independent witnesses correspond with the video evidence of the encounter between Mr. Hoffman and APD officers.
The District Attorney has concluded Officer Arminio fired his weapon in lawful self-defense. Also, Mr. Hoffman has been charged with resisting an officer by threats or violence with use of a dangerous weapon (Penal Code section 69). Mr. Hoffman’s family has been contacted and advised of these decisions.
Mr. Hoffman is currently being held in Washington State on unrelated charges. When those charges have been addressed he will be extradited to Humboldt County.


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