The city of Tacoma has agreed to pay $8 million to settle a civil rights lawsuit filed by a man who was paralyzed during a police shooting in 2011, according to his attorneys.
The long-delayed trial over the shooting of Than Orn was seven days into testimony in U.S. District Court in an unprecedented remote jury trial, conducted via Zoom. The city and its attorneys claimed a remote trial would violate its constitutional rights — an argument rejected by U.S. District Judge Marsha Pechman.
“The family is exhausted after fighting for 10 years,” said attorney Darrell Cochran, who was sharply critical of repeated delays, including an appeal by the city to the 9th Circuit Court of Appeals. “It has been a bruising battle from the beginning,” Cochran said. “There was a calculated effort to drag this case out, I think hoping that Mr. Orn would die.”
Orn has been plagued with serious health problems related to the shooting, according to court pleadings.
Orn filed his lawsuit in 2013 and named the city and Officer Kristopher Clark as defendants. It claimed that Clark had no justifiable reason to fire 10 bullets into the side and back of Orn’s slow-moving SUV as it tried to swerve around his patrol car, which was blocking the exit of an apartment parking lot, after what was described as a “low-speed chase.”
According to court pleadings — which included statements from other officers on the scene — Clark disregarded orders broadcast by a supervisor and left his vehicle. Clark said Orn accelerated and tried to run him down before he fired. He kept firing as Orn’s SUV passed, he said, because he feared for the life of his partner, who evidence showed had stayed in his car and was not in danger.
Clark was cleared of wrongdoing by the Tacoma Police Department, but was told to undergo training. The department revised its chase policies after a review of the incident, according to court documents.
In a written statement, the city of Tacoma said the “incident has been difficult for everyone” and reiterated that Orn, who was not armed, “took many actions to avoid arrest.”
The city reiterated the officer’s claim that he fired to avoid “being struck or pinned” by Orn’s car as it tried to maneuver around Clark’s patrol car. Testimony during the trial by former Tacoma police Chief Don Ramsdell highlighted that Clark repeatedly violated department policies, including the order to stay in his vehicle.
“This complicated case has been pending for a long time for a variety of reasons. It is common for parties to view a case very differently, as is the situation here,” the city’s statement said. “However, the parties agree it is time to settle their differences and move forward.”
City spokeswoman Maria Lee said the settlement is contingent on approval by the City Council. The city is self-insured for the first $3 million, minus legal costs. The remainder will be paid by the city’s insurance company.
Orn was struck several times in the back, shoulders and neck. One round severed his spinal cord, immediately paralyzing him from the chest down, according to the lawsuit.
After the shooting, Orn was charged with assault on a police officer and felony eluding. However, a jury acquitted him of those felony charges at trial. He was convicted of misdemeanor failing to obey a law enforcement officer and fined $250.
The claim states that Orn’s injuries have made it impossible for him, now a 41-year-old father of three, to work, and have resulted in “mental and emotional injuries including the collapse of his marriage.”
Both of Orn’s legs were amputated in March as a result of repeated infections, according to his lawyers.
In sending the case to trial earlier this year, a three-judge panel on the 9th Circuit Court found that a jury should hear evidence that Clark placed himself in a potentially dangerous situation by disobeying orders and making poor tactical decisions, and then unnecessarily used deadly force to get out of it. Moreover, the judges said Clark should have known that when he fired he was violating Orn’s Fourth Amendment right to be free from unreasonable seizures.
“In the end, this is not a case in which the legality of the officer’s conduct falls within the ‘hazy border between excessive and acceptable force,’ ” wrote Judge Paul Watford for the 9th Circuit Panel, quoting from court precedent.
The city and the attorneys it hired to defend the case objected to the trial being held via Zoom. They had urged further delays until the trial could be held in person, arguing that the constitutionality of remote trials had yet to be determined and that the proceedings so far had raised questions of fairness.
“Since this all-remote trial began with jury selection, it was clear that the constitutional protections of the Seventh Amendment … and the sanctity only an in-person proceeding can maintain, had all been lost,” wrote attorney Anne Bremner, hired by the city to conduct the trial, in a motion for a mistrial filed Wednesday.
The case settled before the judge addressed those concerns.
Orn had been on his way home about 8:30 p.m. Oct. 12, 2011, driving his wife’s Mercury Montero SUV, when a Tacoma police sergeant in an unmarked vehicle going the other direction noted Orn’s headlights weren’t on. The sergeant turned around, turned on the emergency lights mounted behind his windshield and attempted to pull Orn over, according to court documents.
What ensued was a bizarre 15-minute “low-speed chase” in which Orn did not exceed the speed limit and stopped at signals and stop signs but did not pull over. At one point, he drove around a set of spike strips officers were trying to use to disable his car. Based on car-registration information, officers determined that he was heading toward his apartment in a complex near South 65th Street and Tacoma Mall Boulevard. Several officers, including Clark, headed there.
At this point, according to court documents, at least a dozen police cars were trailing Orn as he pulled into the lot at about 5 mph, slowly drove through it and then drove over a curb to try to get around Clark’s patrol SUV, which Clark was using to block the exit.
Orn, according to court documents, said he had just smoked crack cocaine and was worried he would be arrested and wanted to get home, although police at the time were unaware drugs were involved. Court documents state that Orn was not wanted on any warrants, did not have a weapon and that his only crime to that point was failure to obey a police officer.