Guest post by Robin Donald:
These are my thoughts regarding the Jury verdict in the Federal Civil wrongful death lawsuit brought by the McClain family against the City of Eureka for the actions of the Eureka Police Department (EPD) which resulted in the Police shooting death of their son, 22 year old Tommy McClain on the night of September 16/17, 2014. I attended about 95% of the eight hour, five day’s long trial, getting to the courthouse half-an-hour late on the second day. At times there were 14 members from the community who attended the trial to observe justice in action, and to support the McClain family.
The setting for this case is that the Eureka Police Department (EPD) had assigned a team of Officers to a stake out a duplex apartment on the 1600 block of Allard Avenue hoping to catch a neighbor, who was on their “Most Wanted” list. The other apartment in the duplex was the home of Tommy McClain, his cousin Josh, Josh’s wife Nichole Mottern, and the Motterns’ two young daughters. The EPD Officers had a photo of the neighbor, and at least one of the Officers had previously arrested him. Tommy McClain was not the person they were seeking, and all the Officers knew this. The person they were looking for didn’t show up while the EPD was working its stakeout.
Instead, a car with two women in the front and two men in the back pulled up, and the men and one woman got out and made their way into the apartment while the driver drove away. Though the Police didn’t know it, the passengers were Josh and Nichole Mottern, and Tommy McClain. They had been celebrating Josh’s birthday. While the Police claim that one of the men, Josh, was showing signs of being drunk, nobody makes this claim for Tommy McClain.
After some time, so the Police story goes, another vehicle parked across the street from the duplex, and Tommy McClain came out of his apartment and talked with the driver. According to the Police, Tommy McClain appeared confrontational, and after the driver had walked away and gone down the street, he ran his hands around his waistband, giving the Police reason to think that he might have a weapon tucked into his pants. At this point the EPD doesn’t claim to have seen a weapon. Two of the Officers doing the stakeout, Officers McElroy and Harkness, standing across the street, up a short slope, and behind a line of trees and an approximately six foot fence, then claim, from a distance of over 100 feet and through a closed door, to have heard the sound of a weapon being racked coming from Tommy McClain’s apartment, and then saw him step onto his porch.
The EPD then called for a Police vehicle, driven by Officer Linfoot, to drive past the house in an effort to get Tommy McClain to go back into his apartment. These Officers then claim that Tommy McClain first waved his hand at Officer Linfoot as he drove by, then took a gun out of his waistband and racked or loaded it before walking across the lawn, up the stairs to the porch of his apartment.
At this point Sgt. Stephens, the Senior EPD Officer in charge of this stakeout, drives up and parks his patrol vehicle. He turns on his vehicle’s spotlight and points it at Tommy McClain standing on his porch. Then he exits his vehicle and stands in front of it on the sidewalk. He also pulls his gun from its holster and points it at Tommy McClain, while giving Tommy McClain commands to put his hands up and come down from the porch and onto the lawn towards where the Sergeant is standing.
In the meantime, Officer Linfoot has driven his patrol vehicle into the alley behind the duplex to continue his stakeout for the suspect EPD was looking for. From where he is parked he can see past the side of the apartment into the front yard, and he sees that Sgt. Stephens has drawn his weapon. Officer Linfoot immediately speeds his car back around to the front of the duplex on Allard Avenue. He parks his vehicle, exits it, takes his weapon out of its holster, then chooses to move in front of both his vehicle and a telephone pole and walks down the sidewalk toward the lawn where Tommy McClain is being given commands by Sgt. Stephens.
Within moments of Officer Linfoot drawing his weapon and advancing toward Tommy McClain who is standing on the level if uneven lawn about 10 feet from the sidewalk with his arms straight up above his head (as shown by Officer Linfoot when he was giving his testimony), the audio from Officer Linfoot’s own patrol vehicle records the tragedy as it takes place. As reported in the Eureka Times-Standard of November 15, 2016:
“A series of shouted commands are then given by multiple officers over the next seven or so seconds, some more difficult to make out than others. The first clear command on the recording was “Get down here right now.” Then “Get your hands up” is yelled four times by [Sgt.] Stephens, Office Ryan McElroy and finally Linfoot, (according to his testimony)…. The next command of “get down,” which was followed about a second later by “stop,” then seven gunshots and a woman’s scream.”
The assessment–“about a second later”—is the assessment of the Times-Standard journalist, Will Houston. In the opinion of Officer Linfoot, who fired the shots, he started shooting about “a split second” after he shouted “Get down here,” and the reason the “here” is not heard is that it is covered over by the sounds of the shots. (Time travel may not be available for you and I, but noise of Officer Linfoot’s gunshots can go backwards in time to cover up his command shouted before he pulls the trigger. I don’t believe it, but the Jury did.)
The Jury of six women and men (one of whom works for the Ukiah Sheriff’s Department) ruled that Eureka Police Department (EPD) Officer Linfoot did not use excessive or unnecessary force when he fired seven shots at Tommy McClain hitting him with three, but he was 50% negligent for causing Tommy’s death. They also decided that Tommy McClain was 50% negligent for his own death for reportedly lowering his hands from above his head and moving them toward his waist, toward the gun that was reportedly tucked into his pants.
In order to decide that Officer Linfoot did not use excessive or unnecessary force the Jury had to agree with Officer Linfoot’s assertion that Tommy McClain reached for a gun at his waist, and that Officer Linfoot felt that there was immediate danger to himself of loss of life or injury. One problem with Officer Linfoot’s assessment is that then-EPD Sgt. Stephens (now Corporal having been promoted shortly after this incident), the senior and commanding officer on the scene who had been interacting with Tommy McClain from the beginning and who was better positioned than Officer Linfoot to see Tommy’s hands, did not fire his gun. Sgt. Stephens never fired a shot despite having drawn his gun and kept it pointed at Tommy from the beginning of his contact with him.
Sgt. Stephens characterized his initial interaction with Tommy McClain as a “consensual encounter.” How an interaction between a uniformed on duty Policeman who is pointing a .40 caliber gun at the empty handed Tommy McClain while at the same time shouting commands at him and while a spotlight is shining on him can be called “consensual” is beyond my reasoning. It does, however, let us into the authoritarian mindset and philosophy of law enforcement.
Another problem I have is with the number of shots Officer Linfoot fired. Did he really need to fire more bullets after the one which first hit Tommy causing him to start falling to the ground? In fact, couldn’t he have fired a warning shot, or shot him in the leg and then evaluated the situation? Tommy McClain had not threatened any of the Police verbally or physically. He was not wanted for any crime nor did he have a record of being a violent person. Most importantly, Tommy McClain had not tried to run away. He had complied with Sgt. Stephens’ commands to come down from the porch and put his hands up.
The Jury also had to ignore the testimony from all three expert witnesses: for the Plaintiffs, Roger Clark, an expert in police practices, tactics and use of force; for the Defense, Don Cameron, an expert in the use of force, and Alexander Jason, who specializes in reenactments of shooting scenarios and testifying on behalf of police who’ve shot someone. All three experts stated or admitted while on the witness stand that the California POST (Police Officer Standards and Training) training required to qualify to be a Police Officer in California teaches officers that it is inappropriate to shoot someone who does not have a gun in their hands, that doing so would amount to using excessive force. None of the Eureka Police on the scene said Tommy McClain ever touched the gun in his waist before Officer Linfoot killed him.
What might be the basis for the Jury’s determining that Officer Linfoot was 50% negligent? I think it comes from Officer Linfoot’s failure to seek cover (“breaking cover”) immediately after exiting his Police vehicle. He could have sought cover by positioning himself behind his car or the nearby telephone pole. This would have provided him a degree of safety. Instead he incautiously walked closer toward Tommy McClain, a person who he thought had a loaded gun in his waist. By breaking cover Officer Linfoot placed himself in an exposed and vulnerable position. Doing so increased his level of stress. Moving closer to Tommy MClain, whom he testified that he thought was armed with a lethal weapon, reduced the time he had to assess the situation without feeling that his life was in heightened or immediate danger requiring him to immediately fire his gun to protect himself.
It should be noted that Sgt. Stephens, the senior and commanding EPD Officer on scene, set a bad example for Officer Linfoot. Sgt. Stephens also broke cover and placed himself in a more vulnerable and dangerous position by walking onto the sidewalk and confronting Tommy McClain. If the Jury decided Officer Linfoot was 50% negligent, why did they not assign some negligence to Sgt. Stephens?
In addition to both Officers’ dangerous decision to break cover, when Officer Linfoot sped up in his car, exited it and got onto the sidewalk, he created confusion by shouting commands to Tommy McClain which conflicted with commands given by Sgt. Stephens. Sgt. Stephens, the senior officer in charge who had initiated contact with Tommy McClain, had drawn his gun and pointed it at Tommy McClain while commanding him to keep his hands up and to walk towards the sidewalk.
It is at this point, when Tommy McClain is being engaged by the Sergeant and complying with his commands, that Officer Linfoot hurriedly arrives and gets out of his police car. Then, instead of seeking cover he walks toward the lawn where Tommy McClain is standing with his hands up, and immediately shouts “Get Down!”
Despite his and other Officer’s claims that he really said “Get Down Here!” which they say meant get down to the sidewalk, after listening to the audio from Officer Linfoot’s police vehicle being replayed three times in the courtroom I can say that I never heard the final word “Here.” All I heard was “Get Down.”
The reason given by the Officers for the absence of the final word “here” on the audio recording, is that it is blocked out by the sound of the seven shots fired by Officer Linfoot’s .40 caliber gun. Officer Linfoot admitted that he fired his gun at Tommy McClain a “split second” after shouting. At this moment, Tommy had at least two Officers he could see within 15 feet pointing guns at him and telling him to do contradictory actions: “Put your hands up” and “Get down.”
The Plaintiff’s expert witness, Roger Clark–who was a Police Officer for many years and testified that one of the teams he trained had 2, 500 arrests in his last 5 years with them without firing a single shot (85% of the arrests were with multiple homicide suspects, many of them armed)–talked about the hypothetical situation of seeing a gun in someone’s waistband and how important clear commands are in this situation. Mr. Clark emphasized that having clear commands like “Put your hands up” and “Don’t move,” commands with no to little room for confusion—on the part of both the Police and the person being engaged by them, in this case Tommy McClain–would have been a good scenario.
Mr. Clark went on to testify that with an Officer’s sudden approach there is a moment of anxiety. That anxiety needs decompression which means the officer should deescalate what’s going on, have clarity of commands, no movement, and definitely not be the engine of moving things forward. Instead of defusing the incident, Mr. Clark says that the EPD’s behavior continually escalated it. When being held at gunpoint, as Tommy McClain was, Mr. Clark testified that it is “catastrophic to be given multiple commands.” Up until the moment shots were fired there were multiple officers yelling conflicting and confusing commands at Tommy McClain. Mr. Clark testified that he believes Officer Linfoot overreacted and “none of the shots were justified” in his opinion.
The use of force expert that the EPD Defense had testify, Don Cameron, also testified for the EPD and Humboldt Sheriff’s in the wrongful death trial after the Eureka police beat Martin “Freddie” Cotton II to death in 2007. The Jury in that case found Cameron’s testimony unbelievable, and awarded the Cotton Family an approximately $4.5 million award for their son’s death. It came as no surprise then when Don Cameron testified that Officer Linsfoot and the other EPD Officers had done no wrong. But even he had to admit under cross examination that the training given to Officers emphasizes that shooting at someone in a situation like this one is inappropriate and amounts to the use of excessive force. The Defense’s other expert, Alexander Jason also admitted under cross examination that it was clearly excessive force and bad police practice.
In order for the Jury to decide that Officer Linfoot was only 50% negligent, they had to believe the Officer’s testimony that when Tommy McClain heard the command “Get Down!” he lowered his hands and reached for the gun in his waist. They must also accept the rationale of Nancy Delaney, the defense (EPD’s) lawyer, and I paraphrase, “that a drunk 22 year old will do irrational things, like reach for an unloaded pellet gun while having two Police Officers pointing their .40 caliber guns at them.” While Tommy McClain had been at his cousin’s birthday earlier that night, none of the Police testified that they thought he was drunk at the time of his death.
Equally important, the Defense offered no evidence that Tommy McClain was suicidal. In fact Tommy McClain was enjoying his life in Eureka: he had a job as a trainee-roofer and was able to pay his rent. As part of his living arrangement with Josh and Nichole Mottern he provided child care for their two young girls. He was the exact opposite of suicidal—he was working, financially responsible, loved by his family, and happy.
The problem I have with the jury’s decision is this: if they agree that Officer Linfoot’s negligence–his violation of tactic and command protocols–caused the chaotic and dangerous situation which resulted in him killing Tommy McClain, then any force he used should, ipso facto, be considered excessive and unnecessary. Even if you accept that Tommy McClain reached for a gun tucked in his waist (a version of events which was contradicted by the only non-Officer witness to the shooting, Nichole Mottern, who was standing on the porch when Tommy was shot and said that his hands were lowered to the side as he began to lower himself to the ground), if Officer Linfoot and Sgt. Stephens had followed their POST training and remained in cover (positioning themselves behind their cars, or in Officer Linfoot’s case he could have also used a telephone pole) they would have had more time to talk with Tommy McClain and from a greater distance, and with less anxiety and fear.
Mr. Clark also testified that, as indicated by standard police training, “distance and cover equals time.” If the Officers had remained in cover they would have had time to ask Tommy McClain about the gun they thought he had in his waistband. Tommy McClain would have had the time to tell them it was a replica pellet gun and that it wasn’t loaded. This would have, or should have, deescalated the situation and it would have been resolved peacefully and Tommy McClain would not have been killed. Also, again as per standard police training, if only one Officer had done the talking with Tommy McClain, then ambiguous, contradictory and confusing commands would have been less likely to have contributed to the fatal outcome.
I think it is obvious that—going by the EPD’s own account of this tragedy–if the EPD had not been in the neighborhood in the middle of the night on the lookout for his neighbor, if Sgt. Stephens had not called Tommy McClain down from his porch into his yard, if Officer Linfoot had not charged in with his whirlwind of chaos, if they had left him alone, Tommy McClain would be alive today. Tommy had never been arrested. He had a job. He was respected and loved. He was trusted to take care of children. Nobody had called the police on him. This whole incident was initiated and escalated by the EPD. The question remains as to why the EPD took this aggressive approach to a non-existent threat? After all, the gun Tommy McClain allegedly had stuck in his waistband was an unloaded replica pellet gun.
I think we can get a glimpse of the answer when we see that, from a larger context this murderous mistake on the part of the EPD and Officer Linfoot was not really a mistake at all. It was the result of the “Broken Windows” philosophy of policing which asserts that when you have a broken window in a building, if you don’t repair it immediately then soon another window will be broken, and then another and eventually the whole neighborhood will be run down.
It is an appeal to proactive policing, of justifying Police vigorously enforcing minor offenses because it is believed this will deter major ones. It is the philosophy behind New York’s “Stop and Frisk” policy which was initiated by then-Mayor of New York, Rudy Giuliani. “Stop and Frisk” was ruled to be unconstitutional by Shira Sheindlin, U.S. District Judge for the Southern District of New York in 2013.
This has not deterred President-elect Donald Trump from promising to expand “Stop and Frisk” nationwide. Declaring himself as “law and order” candidate when he was running for the Republican nomination, President-elect Trump got the backing of the Fraternal Order of Police, the 300,000 member strong police union. He also got the first endorsement ever from the National Immigration and Customs Enforcement (ICE) Council representing the nation’s approximately roughly 5,000 agents and personnel.
But long before the 2016 Election season, beginning back in 2005, the EPD had, under the “Broken Windows” philosophy, already killed a number of people under questionable circumstances. The EPD, much like many police outfits throughout the country, regularly criminalize (especially if those people are poor) and then often exaggerate or flat out lie about the danger they were “threatened with” in order to justify killing or severely harming those civilians.
One remarkable distinction, however, between EPD and many other police departments who’s officers are suspected or known to have used excessive violence or lethal violence, is the patent and utter refusal of EPD or the City of Eureka to fire, reprimand, or demote such officers–even if only for the purpose of instilling confidence in the communities which they ‘police’. Because EPD routinely ignores, downplays and covers up instances of wrongful and unjustified use of force, there is a climate of indulgence in the department, whereby officers – and particularly those with predilections for over-aggressiveness, violence and abuse of authority, feel free to violate peoples’ rights while on duty, because they are confident no disciplinary consequences will arise.
Here is a partial list of people killed by the EPD and/or Humboldt County Sheriff Department or California Highway Patrol since 2005:
– Fall of 2005, 16 year old Christopher Burgess, killed by EPD Officer Terry Liles
– Spring of 2006, another teenager, Zachary Cooke, also killed by EPD Officer Terry Liles
– Spring of 2006, Gabriel Muldenado, who spoke only Spanish, was killed by EPD
– April 14, 2006, Cheri Lyn Moore is shot and killed in a standoff with EPD SWAT in her second-story apartment
– August 9, 2007, Martin “Freddy” Cotton II, 26 years old, was killed by EPD Officers on August 9, 2007 (The Cotton family won an award of approximately $4.5 million in an unlawful death civil lawsuit against the City of Eureka.)
– “Richie” Richard Fredrick Tis’mil Estrada, member of the Hooopa Tribe, had just turned 17 when he was killed by California Highway Patrol on Dec. 18, 2014.
I hope that the tragedy of Tommy McClain’s death is a wake-up call for the EPD to finally begin to see that the irrevocable harm done to the community by implementing policies informed by the “broken windows” philosophy will no longer be tolerated. However, given that the senior officer in command of the operation resulting in Tommy’s death, Sgt. Stephens, was promoted to Captain shortly after this incident, this does not seem likely. It is also past time for the Eureka City Council to step forward and give some humane guidance to its Police Department. Even here, where the then-Eureka Coroner Frank Jaeger massaged the Coroner’s Inquist into the Chery Lyn Moore killing by the EPD SWAT such that none of the Officers suffered any adverse consequences, I am far from convinced that any progress will be forthcoming.
Until this nation’s law authorities radically reform their philosophy and policies which result in Police brutality on a regular basis, it is up to “we the people” to be an alert civic community and keep an eye on those who are sworn to protect us but who instead harm us. It is up to us to follow the example and lead of Redwood Curtain Copwatch (redwoodcurtaincopwatch.net) located in Eureka, Humboldt County: we must observe the Police on a daily basis and be prepared to photograph them, both when an incident is taking place, and in order to prevent future incidents from happening. And after an incident of Police Brutality occurs, we must be prepared to work within the judicial system to seek justice for the victim/s and their families. There are Copwatch groups all over the nation, which, with Donald “law and order” Trump the President-elect promising to implement the “Stop and Frisk” policy nationwide, is a good thing.