Reversing course from his tentative ruling in the case, a federal judge has decided he will allow jurors to hear evidence that 22-year-old Thomas McClain had a hearing impairment and had been drinking when he was shot dead by a Eureka police officer in 2014.

A trio of Eureka police officers had McClain at gunpoint in the front yard of his Allard Street home on Sept. 17, 2014, when officer Steven Linfoot opened fire, shooting seven bullets, three of which hit McClain, who died at the scene. Police allege McClain was reaching for a realistic looking BB gun in his waistband, but McClain’s family is alleging in the federal wrongful death suit that McClain was complying with officers’ commands when Linfoot started shooting.

In a previous filing with the court, attorneys representing McClain’s family introduced a transcript of an audio recording of the incident, which indicates officers gave contradictory commands immediately prior to the shooting, with one telling McClain to keep his hands up as another told him to get down on the ground. (Read the transcript here.)

In a ruling filed with the court last week, U.S. District Judge William Orrick III said he will permit the city to introduce evidence that McClain was legally drunk on the night in question and will also permit attorneys for the McClain family to introduce evidence that he had a hearing impairment when the case goes to trial next month.

At a hearing a couple of weeks ago, Orrick had indicated he likely would not allow the evidence at trial, pointing out that determining whether an officer’s use of force was reasonable under the law is solely dependent on what was known to the officer at the time. Because Linfoot wouldn’t have known whether McClain was drunk or sober, hard of hearing or not, Orrick said he would likely consider those facts to be irrelevant.

But the city argued that evidence that McClain was drunk — a toxicology report showed him to have a blood-alcohol level of 0.13 — could help corroborate officers’ claims that he reached for a BB gun while officers had real guns trained on him. The thinking, Orrick explained in his ruling, is that “only someone intoxicated or otherwise impaired would reach for a replica gun despite having been warned that he would be shot if he did so.”

Attorneys for McClain’s family, however, argued the evidence would be prejudicial and largely irrelevant.

Arguments surrounding McClain’s hearing impairment followed similar threads, with the city arguing it was irrelevant because it was unknown to the officers and that it was potentially prejudicial to the city and McClain family attorneys saying it potentially helped explain his conduct immediately prior to being shot.

Orrick ultimately decided to allow both pieces of evidence on a limited basis, explaining that he will tell the jury that the “evidence is not relevant to the reasonableness of the officers’ use of force … and may only be considered as supporting or undermining testimony regarding McClain’s actions immediately prior to the shooting.”

He also granted plaintiff’s motions seeking to exclude evidence of McClain’s tattoos, references to EPD and the Humboldt County district attorney’s findings that the shooting was justified and references to police finding a glass pipe and brass knuckles in McClain’s pockets immediately after the shooting, ruling all were irrelevant to the immediate case and potentially prejudicial.

Orrick granted motions from the city seeking to exclude evidence or testimony about the city’s insurance, offers to settle the case, “arguments and inferences for ‘political effect,’” McClain’s cousin being tazed after the shooting and “testimony that the Eureka Police Department has a custom and practice of unconstitutional use of deadly force.” The judge denied motions from the city seeking to bar testimony that the shooting was unreasonable because McClain’s gun wasn’t real, that the manner of his detention was unreasonable or that referenced “other police shootings and notorious incidents.”

The trial is slated to begin Nov. 14 at the federal courthouse in McKinleyville.