Friday, November 18, 2016

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

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

click to enlarge 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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Kimberly Wear

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Kimberly Wear is the assistant editor of the North Coast Journal.

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