The federal judge ruled a jury should decide whether the police departments for Lakewood and Fife acted within their policies when a SWAT team shot and killed a drunken and despondent man as he held his 4-year-old son during a standoff.
A federal judge has refused to dismiss a civil-rights lawsuit against two Pierce County police departments and a multidepartment SWAT team after finding evidence that police violated the Constitution and their own internal policies when they used armored vehicles, explosives and a sniper to kill an unarmed man wanted for misdemeanor assault.
U.S. District Judge Barbara Rothstein said the family of Leonard Thomas has presented enough evidence to let a jury decide whether his May 2013 death was warranted, or the result of an overzealous, militarized police response that escalated tensions during a four-hour standoff that began with a family argument and ended with officers prying Thomas’ 4-year-old son from his arms as he bled to death at his Fife home.
According to witnesses, Thomas’ last words were, “Don’t hurt my boy.”
Rothstein said evidence weighed against the contention of the cities of Fife and Lakewood that the shooting was justified to prevent Thomas from hurting his son, whom he had refused to let leave the house. Thomas had custody of the child, according to court documents.
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The argument that sparked the standoff involved Thomas grabbing a cellphone from his mother’s hand.
Rothstein’s 29-page order, issued last week, offered a tight-lipped rebuke to the contention that Thomas was a threat to anyone or that the situation required a militarized response.
“Such misdemeanors do not generally necessitate a lethal response,” she wrote.
After reviewing hundreds of pages of pleadings, depositions and exhibits, Rothstein found that “It is undisputed that no officer heard Leonard make any threats to harm himself, his child or any officer, and no officer saw Leonard with a weapon.”
Moreover, the judge found evidence to support the family’s claim that the Lakewood Police Department whitewashed its review of the shooting: Police Chief Mike Zaro — the man who ordered Thomas killed — also oversaw the department’s internal investigation into the shooting, which he found was justified.
Before suing, the family brought a $3.5 million claim, which was denied.
Zaro did not return a telephone call for comment.
Named as defendants in the suit are the cities of Lakewood and Fife, Zaro and members of the Pierce County Metro SWAT team.
Richard Jolley, one of the attorneys representing the officers and cities, said they look forward to trying the case.
“We are confident that the facts will demonstrate that Leonard Thomas was a drunk, angry and irrational man that was using his child as chess piece to prevent police from arresting him for committing assault,” he wrote in an email to The Seattle Times.
On the night of May 23, 2013, Thomas, 30, was drunk and upset over the recent death of a longtime friend and wanted his mother to come and get the boy from his home. When she arrived they argued and as his mother phoned 911 Thomas “grabbed her wrist and took the phone,” according to the claim.
Police arrived, followed by SWAT, touching off a four-hour standoff as Thomas refused to leave the home or send the child out.
A police negotiator eventually persuaded Thomas to let the child go home with his grandmother. Once the child was safe, the negotiator and a SWAT commander figured officers would just let Thomas sleep off a bad night and come back later to deal with a misdemeanor domestic-violence allegation stemming from a tussle over his mother’s cellphone, according to police reports.
However, as Thomas led the boy onto the front porch to send him down the sidewalk to the child’s grandmother, members of a SWAT assault team used explosives to blow open a back door, forcing their way in and killing the family dog with a burst of gunfire. Thomas reportedly lunged for his son, and he was fatally shot by a police sniper as he held the boy.
In her ruling, Rothstein singled out three officers: Chief Zaro; the sniper who killed Thomas, Lakewood police Officer Brian Markert; and Officer Michael Wiley, who led the team that blew the door to Thomas’ home and killed the dog, as key players in the tragedy.
Zaro had agreed to the negotiated deal, according to court documents, but went ahead and told the SWAT team not to allow Thomas to take the boy back into the house. It was a confusing order and did not follow the team’s specific five-point protocol for issuing a “delta order” — permission to use deadly force — but that’s how it was taken, according to the pleadings.
Zaro also gave the order to Wiley’s team to breach the back door with explosives. Zaro said he believed Thomas’ “emotional state was devolving,” according to his deposition and court documents.
Rothstein found “there is direct or circumstantial evidence to support a jury’s finding that (the child) was not in imminent danger of serious injury” when the SWAT team blew the door and shot the family dog four times with a shotgun.
The family contends that the blast startled Thomas and caused him to reach protectively for his son. When he did that, Markert shot him in the side with a .308- caliber round fired from a hidden position across the street.
Markert, in a deposition, said Thomas had grabbed the boy around the neck. Another officer on the scene, Mike Malave, one of the hostage negotiators, disputes that. The child was not hurt.
Among the judge’s conclusions:
• “A reasonable jury could find that the use of an explosive charge was inherently dangerous and predictably spurred Leonard to grab his son and retreat into the cover of his home.”
• Officers “had several hours to develop a nonlethal strategy for addressing Leonard’s dog.”
• “A rational jury could find that Markert’s decision to shoot was not constitutionally justified” and that the city of Lakewood ratified that action by allowing Zaro to determine if it was within the department’s policy.
Tim Ford, one of the family’s lawyers, said so much went wrong and was done wrong that “It’s hard to know where to begin.”
“Leonard died without knowing his son was safe,” Ford said. “On amateur video of the incident, between the shots you can hear the child crying, ‘Daddy, Daddy’ as he is taken away.”