A bitter dispute over claims that a record $15.1 million jury verdict, against the Lakewood Police Department, its chief and two officers for the fatal shooting of an unarmed African-American man, was the result of prejudicial “racially charged trial themes” has led a federal judge to refer the case to mediation.
Lakewood’s attorneys contend the verdict was “excessive” and that punitive damages levied against Chief Mike Zaro ($3 million), Sgt. Brian Markert ($2 million) and Officer Mike Wiley ($1.5 million) are not covered by insurance and beyond what they could ever pay.
“In the case of Chief Zaro, $3 million in punitive damages … is not mere punishment, it is the financial equivalent of a death sentence,” wrote attorney Brian Augenthaler.
He asked U.S. District Judge Barbara Rothstein to reduce the total verdict — which included $8.6 million in compensatory damages — by more than 80 percent, or grant a new trial.
Rothstein responded by sending the case to a mediator in hopes the two sides could negotiate an agreement before ruling.
Augenthaler said the city would be willing to pay the family and estate of Leonard Thomas a total of $2.4 million — including $720,046 in punitive damages divided among the three officers.
A unanimous seven-member jury in U.S. District Court handed down the $15.1 million verdict — likely the largest civil-rights verdict ever in the Western District of Washington — in July after a three-week trial over the death of Thomas, who was shot in 2013 after a misdemeanor domestic-violence assault escalated into a four-hour SWAT standoff at his Fife home, where he had retreated with his 4-year-old son.
Two armored vehicles and 29 heavily armed officers from the multi-jurisdiction Pierce County Metro SWAT team responded to the incident. Zaro was incident commander, Wiley led an assault team and Markert was a sniper armed with a high-powered rifle.
According to testimony, Thomas — who was drunk and off medications for bipolar disorder — had agreed to let the child go home with the child’s grandmother. Zaro had ordered that Thomas be stopped from taking the child back into the house, jurors were told.
Thomas was on the porch with the child’s backpack and car seat when Zaro ordered a SWAT assault team to use explosives to breach a back door. An assault team shot and killed the family dog and then flooded the home from the rear.
When Thomas, 30, reacted to the blast, Markert shot him in the belly. He bled to death struggling to hold on to this child, pleading “Don’t hurt my boy” as police pulled the child from his arms. The boy was yelling, “Daddy! Daddy!” according to testimony.
Thomas had repeatedly told negotiators — as did family members — that he was not armed, and no firearms were found in house.
Market said he fired because Thomas was moving to hurt the child — a claim Thomas’ attorneys suggested was invented after the fact with the help of Wiley and Zaro to justify the use of deadly force.
However, the jury in federal court flatly rejected that defense and found for the Thomas family and estate on every count: unreasonable seizure, excessive force, deprivation of family relationship, using explosives to breach the home, unreasonably killing the family dog, false arrest, negligent investigation and causing severe emotional distress.
The jury awarded compensatory damages in the amount of $4 million to Thomas’ now 9-year-old son, $1.885 million to his estate, and $1.375 million each to his mother and father.
Zaro, Markert and Wiley were singled out by the jurors for punitive damages for their roles in the death, with the jury finding each personally liable for multiple violations of Thomas’ civil rights.
The city has vehemently rejected the jury’s findings, and Augenthaler argues in court documents that the panel was influenced by “obvious sentiment in the community about police excessive force against African-Americans.”
“Defendants were saddled with the impossible burden of defending not only this case, but also the ubiquitous but unsubstantiated narratives that police are allegedly targeting African-Americans for excessive force,” he wrote. “It is apparent that the jury was inflamed as a result of the unchecked, factually devoid theory that Leonard was yet another ‘unarmed’ African-American man shot by police.”
While Lakewood has issued a statement saying it stands by Chief Zaro and the department, in court pleadings the city’s attorneys argue that the officers would be ruined if they have to pay the punitive damages, which are not covered by city’s insurance.
The City Council could vote to indemnify the officers and thus pay their punitive damages. However, so far it has not done so.
The city has declined to discuss its legal position, and Lakewood spokeswoman Brynn Grimley last week would say only that the council has “met in executive session to discuss pending litigation.”
The lawyers for Thomas’ family declined to comment on Judge Rothstein’s order sending the verdict to mediation.
In their response to Lakewood’s motion, they accused Lakewood’s attorneys of being disingenuous by not acknowledging whether the city will cover the punitive damages.
“The jury’s verdicts make it clear that it believed the plaintiff’s testimony and evidence and did not believe the defendants’ testimony and arguments, on nearly every point,” wrote Tim Ford for the Thomas family in opposing any reduction of the jury’s findings.
“There is no good or legal reason to upset its judgment,” Ford said.