A federal court judge has thrown out a wrongful death lawsuit filed against the city of Fortuna and two police officers involved in a fatal March 2012 shooting.
Jerry Newmaker and Susan Olesen filed the case after their son Jacob Newmaker was fatally shot on March 16, 2012, by Fortuna Police Department Officer Maxwell Soeth, who responded with Sgt. Charles Ellebrecht to reports of a man screaming in the front yard of a Fortuna home.
The officers attempted to subdue Newmaker with verbal commands, pepper spray, baton strikes, control holds and a Taser before Newmaker was fatally shot after grabbing one of their batons, according to the department and court documents. A district attorney's office investigation into the shooting found there was no criminal conduct by the two officers and both returned to duty.
”The basic issue raised by the parties is whether Officer Soeth's use of deadly force was reasonable under the circumstances, which under the facts of this case involves a consideration of whether Newmaker had the baton in his possession, and whether he swung the baton at either of the officers,” U.S. District Judge Phyllis Hamilton wrote in her Dec. 23 order granting the defendants' motion for summary judgment.
”The court finds that defendants' evidence supports a finding that Newmaker both had the baton and attempted to swing it at Sgt. Ellebrecht. By contrast, the evidence and speculative inferences presented by plaintiffs in opposition to defendants' motion do not create any disputed facts,” she wrote.
City Manager Regan Candelario said the ruling was expected.
”It's nice to have it finalized by this particular judge,” he said.
Attorney Dale K. Galipo, who is representing Jacob Newmaker's parents, said he will appeal the decision to a panel of three Ninth Circuit judges and pursue the case in state court. Galipo said he has extensive experience in officer involved shooting cases and is fairly confident the ruling will be reversed, calling the shooting “unjustified.” He said there was evidence that conflicts with the officers' initial statements about whether Newmaker had the baton and whether he was standing or on the ground when he was shot.
”For this judge to throw out this case, I must say we are shocked,” Galipo said.
The original complaint included seven claims for damages, including: unreasonable search and seizure; excessive force and denial of medical care; violation of substantive due process; municipal liability for unconstitutional custom, practice or policy; false arrest or imprisonment; battery; and negligence.
Mayor Pro Tem Mike Losey said the city is glad to have the federal portion of the case over.
”However, it's certainly a bittersweet kind of position,” he said. “We're sorry that this shooting had to happen at all ... and we're sorry for the family's loss.”
Galipo said he will file a state wrongful death lawsuit in the next 30 days while the federal appeal is pending. He said he had been prepared to take the case to a jury trial on March 24.
”I guess we'll have to wait and see what happens,” he said. “I feel very sad for the family.”
Staff writer Lorna Rodriguez contributed to this report.