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Posted on Fri, Jun. 10, 2005
Jury: S.J. owes $1 million

Mercury News

A jury has slapped San Jose with a $1 million judgment -- one of the largest in the city's history -- after finding police officers were partly responsible for the 2001 death of a mentally ill man who died as he resisted arrest for a disturbance at a fast-food restaurant.

City Attorney Rick Doyle said he was shocked by the amount of damages awarded, calling Wednesday's judgment the highest under his tenure. He said the city will ask the court for a new trial or seek a reduction in damages.

``It's a huge number,'' Doyle said. ``It's the largest number I've seen since I've been with the office. We believe the size is very excessive.''

Kim Smith, the widow of William Smith, brought the wrongful death suit after her husband died during a scuffle the night of Sept. 25, 2001, that began with a disturbance at a McDonald's restaurant on Tully Road and eventually involved eight officers.

Police said officers were dispatched to the restaurant after customers complained about a man yelling and making racial comments and threats. When three officers arrived, they found Smith, 45, outside the restaurant at a nearby bus stop where he shouted at people passing by, police said.

They decided to take Smith into custody for observation because of his mental distress.

Police said Smith was handcuffed, but continued to kick. They placed him face down on the curb, at which point officers attempted to restrain him as they tried to place a nylon wrap around his legs. The officers noticed he had stopped breathing and called for paramedics, who were unable to revive him. The coroner determined Smith had died of asphyxiation.

Kim Smith's attorney, Steven Jacobsen of Oakland, contended the officers ignored their training in handling Smith, who police say weighed more than 300 pounds. He said the police should have rolled Smith on his back or side to make sure he could breathe.

``This terrible tragedy raises awareness of the need for better police training in dealing with the mentally ill,'' Jacobsen said. An arrest for mental distress ``should not turn into punishment and certainly should not end up in death,'' he said. ``The victim in this case was a paranoid schizophrenic, and I believe the police believed they could do whatever they wanted to control him.''

Doyle called it an ``unfortunate case,'' but stressed that the city did not believe the eight officers who responded acted inappropriately. All remain with the force and will face no disciplinary action, he said.

``The officers did nothing wrong,'' Doyle said. ``I personally disagree with the verdict. These officers on the street are asked to make split-second decisions. Hindsight is always 20-20.''

Doyle said the city tried unsuccessfully to reach a settlement agreement. He felt the jury was moved by sympathy for the mentally ill man and his grieving widow, and that the decision follows a trend nationally in which jurors are less inclined to give police the benefit of the doubt.

``Juries are holding police to a higher standard,'' Doyle said. ``I think it's a very tragic result when there's a death involved. Jurors are sympathetic to the fact that the individual died and to the mental health problems. Maybe they felt he should have been treated differently.''

Don DeMers, president of the San Jose Police Officers Association, echoed Doyle's assessment of the case and said he was satisfied the city is backing up its officers.

``Unfortunately, when you have a person who's both agitated because of his mental state and in such a physical condition that a struggle like that can kill them, unfortunately, that happens,'' DeMers said. ``We believe the officers did the right thing, did what they were trained to do.''

Jacobsen said the verdict raises the visibility of what she called police abuse in San Jose, citing both this case and the 2003 fatal shooting by a San Jose police officer of a 25-year-old Vietnamese mother of two as she waved a vegetable peeler that was mistaken for a cleaver. A grand jury cleared the San Jose patrolman who shot her of any criminal wrongdoing in the case. A civil suit filed by the woman's family is pending.

Assistant City Attorney Clifford Greenberg, who defended the city during the 11-day trial of the Smith case in front of Santa Clara County Superior Court Judge John Garibaldi, could not be reached for immediate comment.

After two days of deliberations, the jury voted 9-3 to award Kim Smith $1,056,000 in damages for battery and negligence contributing to her husband's death.

The verdict was not a total victory for Kim Smith.

The jury unanimously rejected the claim that the police violated Smith's civil rights. They held that his negligence was 35 percent responsible for his death, while the police were responsible for the rest.


Contact Chuck Carroll at ccarroll@mercurynews.com or (408) 920-5206.