OPINION: Modesto to pay $850,000 to settle police lawsuit

July 28--Modesto has agreed to pay $850,000 to settle a federal lawsuit filed against the city that claimed one of its officers used excessive force and was negligent when he shot a distraught, suicidal man armed with a pocketknife in 2010.

The shooting left Brian Reed, 46 -- a former truck driver and dispatcher -- disabled and with cognitive deficits because of the lack of oxygen to his brain after being shot, according to one of his attorneys, Steven Yourke of San Francisco. Reed now lives out of state.

Oakland attorney John Burris -- who also represented Reed -- said officers made a volatile situation worse by yelling and screaming and forcing a confrontation with Reed when it was not needed. "The approach was completely wrong," he said. "They forced this confrontation and used deadly force."

This is the largest settlement the city has made in recent years involving one of its police officers, and City Attorney Adam Lindgren said it was unanimously approved by the City Council. But Lindgren said Modesto is not admitting wrongdoing in settling the case. "It's a risk management decision," he said, "and not an admission that the officer was at fault."

The settlement comes after the case went to trial last year in federal court in Fresno, and the jury reached a verdict that baffled attorneys for the city and Reed, but also made Modesto responsible for Reed's legal costs. Lindgren said those costs were estimated at nearly $1 million at the trial.

Reed claimed police had violated his federal civil rights and had been negligent under state law. Officer Ronny Ziya shot Reed, and the jury ruled in May 2015 that Ziya had used excessive force against Reed, had been negligent and that negligence was a substantial factor in causing Reed harm. But the jury found Ziya was 5 percent responsible for that harm, and Reed was 95 percent responsible.

The jury awarded Reed $100,000 for his past medical expenses and $1 for noneconomic damages and nothing else. Burris said he expected the jury to award substantially more because it had determined Ziya had violated Reed's civil rights by using excessive force.

In court papers, attorneys for the city argued jurors improperly compromised among themselves to reach a verdict and reached an inconsistent one, such as finding Ziya had violated Reed's rights but finding Reed was 95 percent responsible for the harm he suffered.

Lindgren said while the jury found Reed was nearly completely responsible for his injuries, Modesto was responsible for paying his legal bills because the jury also found Ziya had violated Reed's federal civil rights. Lindgren said there were no guarantees Modesto would have prevailed if it appealed the case.

"Although we believe there are many problems with the jury verdict," Lindgren said, "we agreed with this compromise (settlement) recognizing how difficult it is to overturn a jury's verdict on appeal, regardless of the errors involved."

The settlement also prevents Reed's attorneys from appealing the case. The $850,000 settlement replaces the $100,001 the jury awarded Reed and will cover Reed's legal and other costs. Burris said Reed will receive at least $100,001 from the settlement.

The shooting unfolded Dec. 30, 2010, when Ziya and officer Caeli Koehler responded to a Hagstrom Court home to check on Reed after his then-girlfriend called police and said he was threatening to kill himself. Reed was armed with a 7-inch Dale Earnhardt Jr. memorabilia pocketknife pointed at his chest. Court records say the blade was 3 inches long.

The girlfriend left the home to call police and was told not to return. But she did, and officers saw her car in the driveway. Officers heard screaming from the house and inside saw Reed and the girlfriend struggling, according to court records filed by lawyers representing the city. The girlfriend broke free and left the house, according to the records, and Ziya saw Reed was armed with the pocketknife.

"After the officers made multiple commands," the records state, "Mr. Reed made an aggressive move towards the officers, which led to Officer Ziya's decision to fire." Ziya shot Reed, who was 6 to 12 feet from the officer, according to the records. Yourke said Ziya shot Reed three times.

The girlfriend said in a previous story officers did not try to reason with Reed but instead told him repeatedly to "Drop the (expletive) knife." She said Reed responded by saying, "I don't care if I live, just shoot me."

Yourke said testimony from the trial showed the girlfriend was trying to protect Reed. And Yourke said while Reed did not drop his knife, he did not advance on the officers, adding Reed moved away from them but Ziya advanced on Reed.

"They were here to do a safety check on this guy," Yourke said. "The guy was suicidal and upset. The last thing you want to do is crowd him. You want to give him some space and talk to him. This is a question the cops deal with all the time: People who are on the edge. ... They just needed to use a little common sense and step back and talk to him."

Police Chief Galen Carroll said in an email the officers did not force a confrontation. He pointed out that jurors found Reed was 95 percent at fault for his injuries. He said his officers are trained in how to bring calm to volatile situations. "We have talked multiple people armed with knives and other weapons into giving up, regardless of how long it takes," he said.

He said this was a difficult situation because Reed would not drop his knife, and the girlfriend went back into the house after being told not to. He said police officers are asked to make split-second decisions in "quickly evolving, highly volatile situations" and make the right decision every time.

Carroll said Koehler still is with the department but Ziya works for another law enforcement agency.

Besides the $850,000 settlement, the city has paid more than $350,000 for attorneys to defend it in this case. Lindgren estimated the cost at about $350,000 in May 2015 and said Wednesday that the rate of legal spending has declined significantly since the jury verdict. More complete information was not available.

Modesto will use taxpayer money to pay the first $1 million in this case for the settlement and legal costs. It will be reimbursed by insurance for costs in excess of $1 million, Risk Manager Beverly Jensen said.

This settlement also is the biggest one in recent years involving the Police Department, dwarfing other recent payouts.

For instance, the city paid $370,000 in late 2014 to settle a lawsuit filed by retired police Sgt. Carlos Castro, who claimed he faced discrimination, harassment and racial slurs during his career because he is Mexican American. The city also paid about $380,000 in legal costs to defend itself in the lawsuit, according to Modesto Bee archives.

And in 2011, the city paid $495,000 to Randi Fisher and her attorneys to settle her lawsuit that claimed then-Officer Horacio Ruiz broke the teenager's wrist after handcuffing her at Vintage Faire Mall in 2009. Police officials would later say Ruiz had been "separated from employment" without giving details. The city also spent more than $16,500 in defense costs.

Kevin Valine: 209-578-2316

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