The appeal stems from a civil-rights verdict in the 2013 SWAT team shooting death of Leonard Thomas. Potential legal costs in the case are approaching $4 million; documents show it could have been settled years ago for a fraction of the cost.
The city of Lakewood and its police chief will appeal a $15.1 million federal jury verdict awarded this summer for the 2013 shooting death of a 30-year-old unarmed black man killed on his front porch in front of his son by a SWAT team sniper.
The notice of appeal to the 9th U.S. Circuit Court of Appeals in San Francisco was filed just days after U.S. District Judge Barbara Rothstein swept aside motions for a new trial and other relief in a blistering, 69-page opinion that found ample evidence for a jury to conclude that Lakewood Police Chief Mike Zaro and two officers under his command — Sgt. Brian Markert and Officer Michael Wiley — acted outrageously, unreasonably and with malice and callous indifference to the life of Leonard Thomas.
The appeal means the case — and its potentially mounting costs for the city of Lakewood and its officers — will continue for several more months, if not years.
The verdict is believed to be the largest ever in the Western District of Washington in a police wrongful-death lawsuit and unless it is overturned, the amount will continue to draw interest during the appeal.
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Moreover, newly filed court documents and information obtained through a public-disclosure request reveal that the lawyers for Thomas, his family and estate have asked the court to award them an additional $344,000 in fees and costs to defend the post-verdict motions.
Rothstein’s ruling on attorney’s fees and costs is the only pending action in the trial court before the case moves into the appeals court.
Meantime, the Washington Cities Insurance Authority (WCIA) — the statewide insurance pool paying for the defense of the case — on Wednesday released information showing that the city’s lawyers at the firm of Keating, Bucklin & McCormack have billed more than $1.7 million in their losing defense of the case.
WCIA has hired the Seattle appellate firm Smith Goodfriend to handle the appeal. That firm, according to documents obtained from WCIA, bills between $100 and $450 an hour.
According to court pleadings and other documents, the city likely could have settled the case several times before trial.
The initial tort claim filed in 2015 by the family against the city of Lakewood, the Pierce Court Metro SWAT team and the city of Fife sought a total of $3.5 million, but was rejected. Later, in a mediation offer made in May 2017, just before trial, the family suggested negotiations starting around $8 million, but that offer was also refused, according to WCIA documents.
A third unsuccessful mediation was undertaken after the verdict.
A seven-member jury heard nearly three weeks of evidence — including testimony by Zaro and Markert — and deliberated for four days before returning a verdict that imposed more than $8.6 million in damages on the cities of Lakewood and Fife, and an additional $6.5 million in punitive damages against Zaro ($3 million), Markert ($2 million) and Wiley ($1.5 million) for their actions that night.
Pleadings indicate WCIA will not cover punitive damages, and the officers’ attorneys have said the verdicts amount to a “financial death sentence.”
The city has declined to comment.
The defense argued the verdict was misguided and inflated and suggested the jury’s fear of racial backlash in the community if it exonerated the officers for killing an unarmed black man played a role in the decision.
Rothstein was scornful of the argument and berated the lawyers for making it.
“The suggestion that this jury flouted its charge and colluded to hold government officials liable merely to advance the jurors’ individual reputations is not simply frivolous; it is insulting to our constitutional order,” she wrote.
The incident began as a squabble between Thomas and his mother, Annalesa Thomas, on May 23, 2013, over where his 4-year-old son would spend the night. Thomas had called his mother because he had been drinking and was despondent over the death of a friend, but then got in an argument with her and slapped a cellphone out of her hand once she arrived.
Annalesa Thomas called police for help, prompting a SWAT call-out over what officers had concluded was a misdemeanor domestic-violence assault. Over the next four hours, surrounded by 29 armed officers and two armored vehicles, Thomas refused to come out and repeatedly told police to leave him alone, that he was not armed and that his son was safe.
Testimony showed Thomas eventually agreed with a hostage negotiator to let the boy go home with his mother. He was on the porch with the child, the boy’s backpack and a car seat when Zaro gave orders not to let Thomas back into the house with the child, and gave Wiley and a SWAT assault team the go-ahead to use explosives to breach a back door and enter the home.
The team shot the family dog on the way into the house. The blast and gunfire startled Thomas, who reached for his son and was shot in the stomach by Markert, a SWAT sniper, who was concealed across the street. Thomas bled to death while officers pummeled him and pulled his son from his arms. His last words were “Don’t hurt the boy.”
At trial, a former Los Angeles Police Department SWAT team supervisor and trainer said that the shooting was unnecessary and that there was no evidence the child — or anyone else — was in danger.