Fortuna Settles Wrongful Death Suit for $900K

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The city of Fortuna has agreed to pay $900,000 to settle a federal wrongful death lawsuit brought by the family of a man shot dead by police in 2012 after an appellate ruling brought the credibility of the officers involved into serious question.

Jacob Newmaker, 26, was shot and killed by then Fortuna Police officer Maxwell Soeth shortly after 6 a.m. on March 16, 2012, during an altercation. Newmaker’s parents filed the federal civil rights  lawsuit about six months later, alleging officers violated their son’s civil rights and used excessive force.

Neither the city nor Soeth admitted liability or fault in the settlement. The vast majority of the settlement will be paid by the Redwood Empire Municipal Insurance Fund (REMIF), the joint powers authority risk pool that essentially acts as the city’s insurer, though the city will have to pay a relatively small deductible, according to City Manager Mark Wheetley.

Attorneys on both sides of the case said the settlement — which was reached just weeks before the case was scheduled for trial — was a matter of pragmatics.

“From our perspective,” said Dale Galipo, who represented the family, “it was a difficult decision because we believed strongly in the case and thought we would prevail at trial. But one never knows for sure … and we could have won and the jury could have awarded $300,000. When the offer is minimal, the decision is easier. But can you imagine passing up $900,000, going to trial and losing? That would not feel very good.”

Dale Allen, of the San Francisco firm Allen, Glaessner, Hazelwood and Werth, who defended the city in the case, along with Eureka attorney Nancy Delaney, said the settlement became a "business decision" for the city and REMIF. After nearly six years of litigation, Allen said there was the risk that any verdict in the plaintiff’s favor could have resulted in $2 million to $3 million in attorney’s fees alone.

The settlement also represents an unlikely end for a case that was dismissed by a district court judge in 2013. Galipo appealed that ruling, and a panel of judges overruled the district court’s decision, raising questions about the credibility of the officers involved and the multi-agency Critical Incident Response Team’s investigation of the shooting.
“The panel determined that the version of events offered by Officer Soeth and Sgt. (Charles) Ellebrecht to the district court was materially contradicted by evidence in the record,” read the opinion authored by Judge William Fletcher, which goes on to detail how the officers’ statements changed during the investigation and how even their final version isn’t supported by video of the incident and an autopsy report.

The shooting occurred after Soeth and Ellebrecht were dispatched to a report of an unknown male suspect in the Angel Heights area who had been banging on a residence’s door and windows at around 6 a.m. Soeth located Newmaker, who allegedly had a potentially toxic level of methamphetamine in his system, riding a bicycle a couple of miles away and reported that, upon spotting him, Newmaker dropped two steak knives and began peddling away.

Soeth turned on the lights on his patrol car and attempted to get Newmaker to stop, but Newmaker allegedly attempted to flee, sparking a pursuit. Newmaker then got off his bike, prompting Soeth to park his patrol car and follow him on foot. Soeth then ordered Newmaker to the ground but he didn’t comply and instead leaned over a parked car. Unable to see Newmaker’s hands, Soeth then grabbed Newmaker and forced him to the ground, at which point Newmaker allegedly began resisting, refusing to show his hands or comply with orders.

When Soeth tried to stun Newmaker with his Taser, Newmaker allegedly tried to grab the Taser and took hold of Soeth’s leg. The officer then reportedly stepped back and fired the Taser at Newmaker, hitting him in the chest and knocking him to the ground, where Newmaker reportedly then bit through the Taser’s electrical leads.

Around this time, Ellebrecht arrived at the scene. As Newmaker tried to get up from the ground, Soeth hit him with a collapsible baton and the two officers tried to get the 26 year old handcuffed. But Newmaker allegedly continued resisting and, according to Soeth, was able to grab his baton and wrestle it away, prompting Ellebrecht to pepper spray him before the altercation turned deadly.
The day after the shooting, Soeth and Ellebrecht were interviewed by then Humboldt County District Attorney Chief Investigator Mike Hislop as a part of the county’s multi-agency investigation into the shooting. Prior to the interview, both officers were allowed to watch footage of the shooting captured by a dash-mounted camera in Ellebrecht’s patrol car. According to the appellate ruling, Soeth first offered this explanation of what happened:

“He jerks the batons (sic) out of my hand. I yell, ‘He’s got my baton.’ I create some distance between me and him, draw my weapon, my firearm. He is — he has the baton in both hands and he’s — he’s just swinging it back and forth towards Charles. He takes a step or two towards Charles. I’m ordering him to drop it. … Giving him orders to comply. I shoot him twice. Subject drops.”

Soeth added that Newmaker was “aggressively swinging" the baton at Ellebrecht at about “head height” when he shot him. Later in the interview, Hislop circles back and seems to suggest a different chain of events.

“OK,” he starts, according to a transcript excerpt in the appellate ruling. “So you shot two shots and — let’s go back to that real quick. You shot two shots. … He’s doing this big overt swing towards Sgt. Ellebrecht. You shoot him. And then he falls down and he’s getting back up again. And then you shoot him again?”

“After seeing the video, I — I believe that is what happened,” Soeth answers.

“OK. Good,” Hislop says before bringing the interview to a close.

Hislop’s interview with Ellebrecht followed a similar course. The sergeant first said he remembers Newmaker swinging the baton at him at head height and, as he was backing away from the suspect, he saw Soeth fire two shots, after which Newmaker fell to his knees.

Hislop then asks about the timing of the second shot.

“Like, it was pretty much back to back as much as I can remember,” Ellebrecht says, according to the transcript.

“OK. Now if — if you referred back to the video if you can, so when he does the big lunge and then he gets shot and it looks like he way over extended and he fell,” Hislop says.

“He,” Ellebrecht starts before Hislop cuts him off.

“He fell and then again didn’t seem like it stopped him. He fell and then he started to get back up again,” Hislop says.

“That, I think is — that might be when Soeth,” Ellebrecht responds.

“Would it be possible that he shot once while he swung at you and then when he fell, he got back up and Soeth shot again?”

“It’s possible,” the sergeant answers.

But that’s apparently not what the video shows, at least according to the appellate judges who reviewed it and described it as “inconsistent” with the officers’ version of events.

The appellate opinion notes that the video shows Soeth hitting Newmaker “about five times” with his baton (the officer reported hitting him twice), but the more troubling inconsistencies come after Ellebrecht and Soeth moved Newmaker from the sidewalk to the street behind a parked car that blocked much of the camera’s view.
“What happens on the ground behind the parked car cannot be seen in the video,” the opinion states, adding that Soeth’s head appears briefly, rising “high enough behind the parked car that it can be seen” and that at one point, Ellebrecht stands and can be seen before “Newmaker comes into view.” “He rises behind the car and almost immediately twists and falls toward the right, onto the street. There is nothing clearly visible in his hands. After he has fallen, only his legs are visible on the video. The rest of his body is off the screen to the right …  just after Newmaker has fallen to the street, Soeth appears to shoot.”

The appellate opinion also notes that that the officers’ initial statements to investigators contradicted one another, with Soeth saying Newmaker “violently” swung the baton at Ellebrecht multiple times and Ellebrecht recalling only a single swing.

A report by Roger Clark, a police procedures consultant hired by Galipo, offers a more chilling account of the video.

“Officer Soeth is recorded as drawing his gun and pointing it at Mr. Newmaker (who at the time was simply laying unarmed and prostrate in the street),” Clark writes. “Mr. Newmaker was clearly unable to present any sort of credible threat. … Also, Mr. Newmaker had no weapon whatsoever in his hand. Yet, he was apparently shot in the back by officer Soeth at that time.”

Ronald O’Halloran, a forensic pathologist hired by Galipo, describes the shooting thusly:

“My repeated viewing of the incident videotape indicates that the first shot was at approximately 06:17:44 on the videotape clock,” he writes. “At that moment, Newmaker had already fallen onto his back on the road and had partially regained footing with his left knee and his right foot on the pavement. He was leaning away from the shooting officer with his torso bent sharply at the hips. His upper torso was out of view of the camera but the posture is such that his back was toward the shooter’s gun. He was bent at the waist enough that his hands or arms could have been contacting the ground. At that moment, Soeth is seen standing at the back, driver-side of the sedan. His gun is raised to the upper chest level and is pointing at Newmaker at an approximate 20-degree downward angle … approximately 6-7 feet from Newmaker’s lower back. Firing of the gun at that second is indicated by a flash of light from the gun muzzle.”

An autopsy performed on Newmaker March 20, 2012, by forensic pathologist Mark Super described injuries that would be inconsistent with someone who was shot while standing upright and swinging a baton at head level. Specifically, Super described the trajectory of one wound as entering Newmaker’s lower left back just above his belt line and travelling upward in his body, perforating his left lung and coming to a stop in his left pectoral area. The other bullet, according to Super’s report, entered Newmaker’s lower right back at the beltline and traveled upward into his heart.

According to O’Halloran, "the only reasonable ways for these bullet wound trajectories to occur … are for Mr. Newmaker to be leaning forward sharply at the time he was shot or for him to be on the ground on his knees in a steeply forward-leaning posture or to be prone on the ground.”

D.S. Cameron, a police use of force expert hired by the city, reviewed an “enhanced” version of the video and came away with a sharply different opinion of the incident. He writes that the video depicts Newmaker swinging the baton at Ellebrecht and consequently finds the shooting reasonable and justified.

In a brief submitted to the appellate court, Delaney argues that it is “undisputable” that Newmaker had the baton in hand at the time of the shooting. She writes that a still photo pulled from the enhanced version of the dash cam video “depicts a shadow of an oblong object” in his hands, notes both officers’ testimony and that of a witness who heard officers shout “put the weapon down” before shots rang out.

Ultimately, Delaney argued, the problem in the case is that neither the original video footage nor the enhanced version “accurately depict the event.”
“First, the video does not include most of the relevant portions of the struggle because Newmaker’s attack with the baton occurs out of the view captured by the camera,” she writes. “Second, the undisputed evidence establishes that the quality of the video is unreliable. Even the first generation of the video is a distorted depiction of the incident. In addition to the fact that the camera did not capture the most significant portion of the incident, the video is compromised by the fact that the incident occurred at night, in low light conditions while it was raining. Further, the format in which the video was stored, i.e. MPEG, eliminated information through compression, such that images were distorted and either contained objects that were not present or removed objects that were present.”

Delaney didn’t respond to a Journal call seeking comment but Allen said it’s important to remember the officers involved faced a dynamic, violent situation.

“The officers were confronted with a decision they had to make in just a matter of seconds,” he said, adding that the settlement was reached to avoid “putting more public money at risk.”

For his part, Galipo said he feels the case represents many of the worst aspects of how officer involved shootings are handled, from Hislop’s “suggestive interviewing” to an incomplete investigation and a “rubber stamping” from the district attorney.

“I think it’s a horrific shooting — I’ve thought that from the beginning and my clients had mixed feelings about settling,” Galipo said. “If a normal person had shot and killed another citizen under similar circumstances, they would be charged with murder and sitting in jail with $1 million bail.”

Soeth is now employed by the Humboldt County Sheriff’s Office, where he’s currently working as a bailiff. Ellebrecht remains a sergeant with the Fortuna Police Department.

The Journal has requested the city's video footage of the shooting.

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