A lawyer for the family of a 20-year-old Burien high-school student who was shot and killed by a King County sheriff’s deputy in 2017 suggested during a court hearing on Thursday that investigators planted a ballpoint pen found at the scene and which officials have said was used to threaten deputies before he was shot.

The death of Tommy Le the night of June 14, 2017, led his family to file a civil-rights lawsuit in U.S. District Court in Seattle, which is set to go to trial in June. The family is claiming the sheriff’s office misled them into thinking Le had attacked deputies with a knife before he was fatally shot by Deputy Cesar Molina, who said in statements that Le was charging him when he fired.

An autopsy showed Le was shot twice in the back and the family claims detectives investigating the shooting attempted to cover up contrary evidence and statements by witnesses and other deputies.

U.S. District Judge Thomas Zilly on Thursday heard nearly three hours of arguments on issues that will likely determine what claims will go forward, including the primary issue of whether Molina should be immune from civil liability. That protection would kick in if Molina can show he reasonably believed his life or the lives of citizens in the area were in imminent danger even if he was mistaken about Le being armed. The law gives tremendous latitude to law-enforcement officers in such instances, considering that they often have mere seconds to assess such situations and decide whether to use deadly force.

Moreover, a recently decided U.S. Supreme Court case involving the shooting death of an Arizona woman armed with a knife appears to have raised the bar even further, stating that “immunity protects all but the plainly incompetent [police officer] or those who knowingly violate the law.”

Attorney Timothy Gosselin, representing King County, argued that Molina deserves immunity because the evidence shows Le was acting erratically, and that he advanced on the officer before veering off — which Gosselin said explains why Le was shot from behind.

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Molina and several other deputies had responded to 911 calls of a man with a knife or some other sharp object in his hand. The sheriff’s office initially told the family and public that Le had a knife, but several days later said he actually had a ballpoint pen when he was shot.

Le was barefoot, dressed in gym shorts and a T-shirt, and was wandering down Third Avenue South near South 136th Street when deputies arrived. According to reports, Molina first attempted to use a Taser to subdue him, and when that failed he drew his service weapon and fired several shots. Two struck Le, killing him.

Four other deputies were on the scene. None of them fired and at least one of them, Deputy Tanner Owen, was standing next to Molina and said in a sworn statement that he did not feel threatened and did not see a weapon.

However, one of the Le family’s attorneys, Jeffery Campiche, pointed out during Thursday’s hearing that the department’s official Use of Force Review Board report misstates those facts: That document says Owen “believed his life was in danger” and “that the man had a knife in his clenched fist.” That review wasn’t finished until a year after the shooting, and Le’s attorneys said during the hearing and in court filings that it excludes other key evidence — including the fact that Le was shot in the back.

Those inconsistencies and others, Campiche argued, are evidence of a cover-up and he asked the court to consider that the black ballpoint pen police say Le was wielding “is the sort found on every desk in every office in King County.” The family was not only asking Zilly to deny granting Molina immunity, but also to allow a tort claim of “outrage” over the circumstances of the killing to go forward to trial.

In a ruling issued over the weekend, Zilly denied the outrage claim but stated the other issues can go to a jury. He will likely decide the issue of immunity after the case has been tried.

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“I ask you who was more likely to have one that night?” Campiche asked. “Tommy Le, or a sheriff’s deputy?”

Zilly ruled Thursday that he will allow the family to seek damages for “pain and suffering, anxiety, emotional distress, or humiliation,” based on what Le’s family said were lies told to them about what happened and what their lawyers called a “sham” investigation that cleared Molina of wrongdoing. In doing so, the family alleges, the sheriff’s office endorsed the shooting and the alleged cover-up.

The county could not say Thursday whether former Sheriff John Urquhart, who led the department when Le was shot, or current Sheriff Mitzi Johanknecht, ever reviewed or signed off on the internal investigation into the shooting as required by policy, even though it’s been nearly two years. The policy says that if the sheriff agrees with the use-of-force finding, they are supposed to forward it for records retention. If the sheriff disagrees, they are required to order an additional investigation.

On Friday, the county acknowledged in a court filing that a sergeant had forwarded the report for retention. No additional investigation was ordered.