The city of Fullerton reached a $4.9 million settlement today of a wrongful-death lawsuit filed against the city, two former police chiefs and five officers involved in the deadly struggle with transient Kelly Thomas four years ago.
The Fullerton City Council approved the deal -- which will be covered by the city's insurance companies -- during a closed-door meeting called just as opening statements were set to begin in the trial of the lawsuit, which was filed by Ron Thomas on the one-year anniversary of his son's 2011 death.
The lawsuit alleged assault and battery, negligence, wrongful death and civil rights violations. An 11-woman, five-man jury was seated Wednesday. Opening statements were set for Monday, but in light of the settlement talks, the jury was told to stay home and return to court tomorrow. The panel is still expected to come to the courthouse, but Orange County Superior Court Judge Kirk Nakamura will simply thank them for their service and dismiss them.
The agreement calls for the city's two insurance companies to pick up attorneys' fees for the defendants, which will be in addition to the $4.9 million settlement figure, said attorney Dana Fox, who was representing the city and Officer Jim Blatney and Sgt. Kevin Craig, who are still working for the police department.
Officer Kenton Hampton, who is also still with the department, won a summary judgment claim and was dismissed from the lawsuit earlier, Fox said. Former Police Chiefs Patrick McKinley and Michael Sellers were also named in the lawsuit and settled. In the agreement, the city does not admit any liability or wrongdoing.
Fox told Nakamura in a hearing today that the city and its insurers agreed with the settlement to "avoid a protracted trial."
After the hearing, Fox told reporters the agreement was reached after "lengthy negotiations," and because "when you have a jury trial there's always the vagaries, the unknowns. ... There's risk to both sides."
Thomas' attorney, Garo Mardirossian, said retired Los Angeles Superior Court Judge Joe Hilberman, who acted as a court-appointed referee, was "very instrumental" in helping to nudge both sides to settle.
"He was with us at 5 a.m. this weekend hammering this out," Mardirossian said. Former Fullerton police Cpl. Jay Cicinelli declined to comment after the hearing because he is still fighting to win his job back. Cicinelli and former Officers Manuel Ramos and Joe Wolfe were fired after the deadly beating for violating city policy.
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The settlement does not affect the legal efforts of the officers to win their jobs back, Fox said. Fox said the settlement "buys everyone peace ... and everyone can move on."
Mardirossian said earlier that evidence in the trial would show the officers violated their training and department's rules and suffocated the 37- year-old transient July 5, 2011, at the Fullerton Transportation Center. The attorneys representing the defendants said Thomas had a heart attack due to a preexisting condition and the officers acted properly and were not at fault in the man's death.
But Mardirossian cited Orange County coroner reports concluding Kelly Thomas died of "positional asphyxiation and blunt force trauma to the head."
A former Ventura County medical examiner came to the same conclusion and had been expected to testify, Mardirossian added. Kelly Thomas was diagnosed with schizophrenia when he was 21 years old and decided "he was better off living outdoors," Mardirossian said.
The transient could always stay with his mother or father and a grandparent, but more often than not during his adulthood he chose to be "semi- homeless," Mardirossian said. The 33-minute video of the encounter between Thomas and Fullerton police was expected to be featured prominently in the civil trial, just as it was in the criminal trial, which led to the acquittals of Ramos and Cicinelli. Prosecutors later dropped charges against former Officer Joe Wolfe.
A total of six officers were involved in the deadly struggle, and they had an average weight "well over 200 pounds each," Mardirossian said. As Thomas pleaded that he couldn't breathe and cried out for help from his father, the officers used a Taser on him and beat on him as they tried to hobble him with handcuffs, Mardirossian said.
Thomas was declared brain dead the night of the struggle and was taken off life-support machines July 10, 2011.
"We don't believe they should have used any force in this case at all," Mardirossian said. Fox told prospective jurors, "This is a tragic case, no doubt about it, but there are many sides to this story."
Fox said Ramos had encountered Thomas several times before, but that the trouble began when Thomas refused to identify himself. Ramos remembered Thomas, but did not recall his name, Fox said. Wolfe searched Thomas' backpack and found mail addressed to an attorney, so they suspected a possible theft of mail, Fox said.
The struggle started when Thomas refused to follow the officers' orders and then stood up to "confront" the officers, Fox said. Craig showed up 19 minutes into the conflict, Fox said. The 19-year veteran sergeant's job was to ensure the officers are safe, and "he's helping coach the officers to get the man cuffed," Fox added.
Craig also tried to make certain Thomas was restrained in a way that did not inhibit his breathing, Fox said. When Thomas was put into an ambulance he was still breathing, the attorney said. Thomas' ex-wife, Cathy Thomas, settled her claim against the city before the criminal trial for $1 million. The U.S. Department of Justice still has a pending civil rights investigation into Thomas' death, said spokesman Thom Mrozek.