USE OF FORCE, PLAINTIFF’S ATTORNEYS, AND THE BIG PICTURE
Last week, the City of Kent settled a federal civil suit with Nicomedes Tubar for $400,000. The plaintiff’s attorney and a reporter with the Seattle Times have given regular and unilateral coverage to the case. Now that the case is completed, I would like to move from the required “no comment” to a more comprehensive discussion of the larger issue of police use of deadly force, and public trust in institutions such as the police, the courts, and the media.
Here’s the background: In 2003 our officer found an unoccupied parked car in a parking lot. He discovered that the car had been reported stolen. Sometime later, the driver, Heather Morehouse, got into the car, along with her passenger, Nicomedes Tubar. Morehouse started the car and when confronted by the officer she accelerated toward him. The incident took just a few seconds. Our officer was forced to use his firearm to protect his life. At trial, the main issue centered on the fact that three shots were fired – with the third shot striking and injuring Tubar. It was undisputed that the entire incident took just a few seconds.
Mr. Tubar sued the City of Kent for unlawful use of force. The City and our attorneys recognize that he was a relatively uninvolved person in this incident. If you accept his testimony that he was simply an innocent person who unknowingly got into a stolen car with a woman he just met, then it is reasonable to say that his injury due to the criminal actions of the driver of the stolen car is truly unfortunate. With that in mind, an early offer of a settlement in this case included mitigation of his medical expenses. That offer was rejected and Tubar chose to go to a civil jury trial.
Two years and several hundred thousand dollars later – along with hundreds of hours of testimony including expert witnesses on both sides – the jury rendered its decision. The jury was unanimous, finding 12-0 that the actions of the officer were justified.
A great deal of attention was given to the third shot – the one that injured Tubar. The court and the attorneys had the luxury of time and hindsight to mull over the decision-making process and consider what other options might have been available. An incident that occurred over a few seconds was examined in incredible detail.
Here is where the process gets difficult and where the issue of public trust becomes relevant. The incident itself was not the only issue raised at the trial. The plaintiff’s attorney worked very hard to cast the officer in the worst possible light. He was made into an unpredictable, dangerous, and out-of-control officer. This tactic was carried out not only through court testimony regarding the officer’s personal and professional life, but every employee evaluation or disciplinary memo was put under a microscope. The officer’s name and every negative fact about his career and life were duly recounted in the newspaper. These details, based on limited information, help lead readers to conclude that the officer must be “out of control”. Yet, the jury, presented with all the information, returned a 12-0 verdict in favor of the officer.
I understand and acknowledge that the plaintiff’s attorney must zealously advocate for his client. I will not assume negative intent or question his motives in a contingency case in which the attorney typically receives a large amount of any judgment. I will not spend time countering every unfounded or unsupported allegation made in the trial or after the verdict, which included: jury tampering, intimidation of the jury, a plea by the driver of the stolen car that wasn’t really a guilty plea, and more. However, the cumulative effect of these allegations is to diminish the public’s respect and trust in the court and the system. Making pejorative comments in the paper, questioning the motives and decisions of the jury, attacking the Judge’s comments, automatically assuming the police are always right or always wrong – all of these things serve to cumulatively bring down the public trust in the courts, the police, and the media. It doesn’t help and it doesn’t serve the truth.
Kent P.D., as a professional and internationally accredited agency, has a proven “early warning” system to monitor our officers. Complaints, incidents, emotional issues, and uses of force are closely tracked and evaluated. Police work brings with it unique pressures and stresses. When we find an officer needs to be pulled from duty and psychologically evaluated, we do it.
I do not pretend that all police officers are perfect. Far from it – we are human beings just like the people we protect and the people we arrest. Like you, we do the best we can every day. There are officers with emotional issues and some do commit bad faith acts for which they should absolutely be held accountable. Every one of us in law enforcement needs to be mindful of that fact, and continue to pay close attention to our unique duty to serve the public.
I like the following summary, written by a federal appellate judge in Jones v. Parmley, 2006:
“The touchstone of the inquiry is reasonableness, and in measuring it, we consider the facts and circumstances of each particular case, including the crime committed, its severity, the threat of danger to the officer and society, and whether the suspect is resisting or attempting to evade arrest. We are mindful that the reasonableness inquiry does not allow us to substitute our own viewpoint; we must judge the officer’s actions from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Indeed, the Supreme Court has cautioned that in analyzing excessive force claims, courts must make allowance for the fact that police officers are often forced to make slit-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force necessary.”
Who wrote this court opinion? Soon-to-be Supreme Court Justice Sonia Sotomayor. She summarizes what matters most: we in law enforcement owe it to the public to pay attention to our officers. We need to create and maintain a standard and hold ourselves accountable to the public. And the public owes it to our officers to be mindful of those “split-second judgments”. We at the Kent Police Department take our mandate to protect the Constitution very seriously. We appreciate the opportunity to answer these issues now that the trial has concluded.
It is truly our honor to serve the public and our community.
businesses that metal theft from local businesses is growing.In particular, copper seems to be the most frequently targeted metal, even going so far as removing it from air conditioners and pipes. Her suggestions:
