A lawsuit brought by the family of a man shot and killed by Fortuna police officers in 2012 appears to be headed to trial in federal court, after the Ninth Circuit Court of Appeals denied the city’s petition for further review.
Jacob Newmaker, a 26-year-old resident of the city, was shot and killed by Ofc. Maxwell Soeth early in the morning of March 16, 2012, after running from a police stop. Newmaker, who was later determined to be under the influence of methamphetamine, had been in contact with police numerous times during the preceding few hours, and the police had attempted to take him into custody after he was reported to be banging on the doors and windows of an occupied residence.
Soeth and another officer — Sgt. Charles Ellebrecht — caught up to Newmaker, who struggled as they attempted to handcuff him. According to the officers’ testimony, Newmaker got hold of one of the officers’ batons and was preparing to strike Ellebrecht with it when Soeth opened fire, shooting Newmaker twice.
Newmaker’s family brought a federal suit against Soeth, Ellebrecht and city government, alleging that the officers used excessive force against the deceased victim and denied him due process of the law. A trial judge granted summary judgment in favor of the defendants, saying that the officers were immune from suit because they had reasonable fear that Newmaker would attempt to harm them with the baton.
A couple of months ago, though, a three-judge panel of the Ninth Circuit Court of Appeals reversed this decision and ordered a trial against the defendants. This appellate court ruled that the officers’ conflicting testimony, as well as physical and videographic evidence from the scene, raised questions about whether or not the officers could reasonably have feared for their safety, and that the answers to such questions should be determined by a jury.
In the wake of that decision, the city of Fortuna asked the Ninth Circuit for a full, en banc review of the case, hoping to get the appeal overturned. But today the Ninth Circuit declined to hear the matter further, letting the original three-judge panel’s ruling stand.
“We’re very pleased with the Court of Appeals’ decision, and we’re looking forward to take this case to trial,” Dale Galipo, attorney for the plaintiffs, told the Outpost today. “We feel confident that we’ll be able to prevail. We think the jury will find that this was clearly excessive.”
The city’s only other option, if it wishes to continue to avoid trial, is to ask the United States Supreme Court to review the case. But the chances that the Supreme Court would accept the case are small; depending on how you measure it, the Supreme Court only accepts somewhere between 1 and 5 percent of the cases brought to it.
The City of Fortuna’s lawyer — Eureka attorney Nancy Delaney — could not be reached for comment.