Tuesday, September 27, 2011

Eureka's Insurer May Appeal Cotton Verdict

Posted on Tue, Sep 27, 2011 at 12:45 PM

It likely will never be known exactly which blow to the head killed Martin Frederick Cotton II on Aug. 9, 2007, but a federal jury has now ruled that on the night the 26-year-old died, he was subjected to excessive force by officers with the Eureka Police Department.

As the Times-Standard reported Saturday, the jury found the City of Eureka liable for $4.5 million, with $4 million of that going to Cotton's daughter and $500,000 to his father. The jury also awarded $75,000 in punitive damages from the individual officers who were involved in the altercation that preceded Cotton's death.

Jurors unanimously found that two of the three officers, Adam Laird and Justin Winkle, used unreasonable/excessive force and ordered them each to pay $30,000 to the plaintiffs. The jury found that the third officer, Gary Whitmer, did not use excessive force, but they determined that all three men were "deliberately indifferent" to Cotton's serious medical needs. Whitmer was ordered to pay $15,000 in damages to the plaintiffs.

City Manager David Tyson said Monday that he was disappointed with the jury's decision. "We feel that the verdict that was handed down runs counter to any of the findings of the independent inquiries following the incident," Tyson said.

If you need a refresher on the particulars of the case you can find previous Journal stories here, here and here. Briefly, Cotton was involved in a pair of violent altercations on the night of his death, the first with men in the outdoor day-use area of the Eureka Rescue Mission, the second with the three EPD officers who were called to the scene. A witness said he saw an officer strike Cotton in the back of the head, kicked in the ribs, kneed in the kidneys and and batoned on the legs. Cotton was eventually arrested and placed in the county jail. Two hours later, he was dead.

The autopsy -- by former coroner and current Eureka Mayor Frank Jager -- revealed that Cotton had died from a subdural hematoma due to blunt force trauma to the back of his head. It also revealed high levels of LSD in his system. Then-Eureka Police Chief Garr Nielsen theorized that the fatal wound may have been self-inflicted, as Cotton was seen banging his head against the jail cell floor that night. But officials have repeatedly refused to release a video that captured Cotton's entire stay in the jail cell.

District Attorney Paul Gallegos, who concurred with the head-banging theory as the most likely cause of death, determined that there was not enough evidence to charge any of the officers criminally. In March, 2008, Cotton's family filed a wrongful death and civil rights violation claim against the county, the City of Eureka, the EPD and the Humboldt County Sheriffs Office. 

Earlier this month the County agencies reached a settlement out of court for an undisclosed amount.

Tyson said that the City's $4.5 million bill will be covered by its insurer, Redwood Empire Municipal Insurance Fund (REMIF). The insurance company also has the option of appealing the jury's findings. "That's their decision," Tyson said.

Mark Ferguson, the REMIF agent handling the case for the City, said Monday that a decision on whether or not to appeal had not been finalized. "Any time you have a big case like this there are a lot of people involved in decision making," Ferguson said. Specifically he said that there are other insurance providers who REMIF subcontracted to cover the liability in the case.

The damages awarded against the three EPD officers will not be covered by the City's insurer. Their actions fall under individual accountability, Ferguson said.

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