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SAN FRANCISCO  — A federal judge said Tuesday he is unlikely to permit evidence that a man shot and killed by an officer in Eureka two years ago was drunk and had hearing problems when the case goes to trial this November.

According to his parents' May 2015 lawsuit, 22-year-old Thomas McClain was complying with orders and had his hands up when Eureka Police officer Steven Linfoot opened fire on Sept. 17, 2014. Linfoot fired seven bullets, three of which hit Thomas McClain as he stood in his front yard on Allard Street.

The city claims McClain was reaching for something in his waistband — it turned out to be a BB gun — and that Linfoot acted appropriately to neutralize what he considered a potentially deadly threat.

Last month, U.S. District Judge William Orrick III denied the city's motion for summary judgment on excessive force and wrongful death claims, finding that one eyewitness contradicted Linfoot and the other officers' version of events, and that officer commands were unclear in a dash cam audio recording.

During a pre-trial hearing Tuesday, the McClain family's attorney, Dale Galipo, argued that allowing evidence that McClain was drunk at the time of the shooting would encourage speculation and prejudice the jury.

Nancy Delaney, a private attorney representing the city of Eureka, replied that evidence of McClain's drunkenness is necessary to explain the young man's irrational behavior and mindset.

"We have a young man, who reached for — if the officers are telling the truth — what we know was a replica gun," Delaney said. "That makes sense if the imprudent actions are of one under the influence of alcohol."

In a reply brief opposing the motion to exclude evidence of intoxication, the city cited testimony from one witness who said McClain was "very intoxicated" and consumed at least four or five drinks that night.

During the hearing, Delaney also cited a toxicology report, which found McClain had a blood-alcohol content of 0.13 percent, well above the legal limit for driving impairment of 0.08 percent.

"One of the things that makes sense here is you have someone that because of alcohol does the stupid thing of deciding, 'I'm going to end this and just show them it's not a real gun,'" Delaney said. "That can only be understood with the undisputed evidence that this young man had consumed a lot of alcohol."

Galipo responded by accusing the city of stretching the bounds of logic in an attempt to introduce prejudicial evidence at trial. He further contended that the city has offered no expert testimony to back up its theory that a drunken person would behave in such a manner.

"They have not retained a designated expert to talk about the effects of alcohol on a person," Galipo said. "There's a bit of a leap of logic that someone who has three to four to five drinks is going to reach for a replica gun."

Delaney argued to exclude evidence of McClain's hearing impairment as well, which she said could confuse the jury. Deciding whether the use of force is reasonable must be based on the officer's perspective at the time, Delaney said, and Linfoot did not know McClain had hearing problems during the incident.

Orrick seemed inclined to exclude evidence of both intoxication and hearing loss.

"I think the issue is what the officers knew at the time," he said. "They didn't know anything about the drinking or the hearing issue. I think there's some concern about prejudice with respect to the drinking."

Orrick reasoned that if he allows the jury to hear information that was not known to officers at the time of the shooting, such as McClain's intoxication, he would have to permit the inclusion of evidence on the hearing loss as well.

Delaney still pushed for the inclusion of the alcohol-related evidence. "If it's hearing impairment and alcohol, or no alcohol or hearing impairment, we'll take the former," she said.

The trial is expected to start on Nov. 14 at the Federal Courthouse in. Orrick said he expects the trial to wrap up within five or six days with the goal of giving the jury enough time to reach a verdict before Thanksgiving.

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