Cotton verdict sends message

What value a human life?

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Attorney: Cotton verdict sends message; City: $4.5 million award will not impact general fund

Thadeus Greenson/The Times-Standard
Posted: 09/27/2011 02:30:23 AM PDT

An attorney who helped the estate of Martin Frederick Cotton II win a more than $4.5 million jury verdict against the city of Eureka said Monday she hopes the case will have a chilling effect, deterring law enforcement from using excessive force in the future.

”I think that is something that we would hope,” said Vicki Sarmiento in a phone interview Monday, three days after a federal jury decided unanimously that Eureka Police Department officers used excessive force and violated Cotton's civil rights prior to his in-custody death in 2007. “Certainly, officers have a job to do and they should do it, but they also have to exercise restraint. ... The community expectation is high of people who have guns, batons and pepper spray. This says, 'Let's exercise some restraint.'”

Cotton, 26, died Aug. 9, 2007, of a subdural hematoma just hours after being involved in several altercations at the Eureka Rescue Mission, the last of which involved EPD officers. Cotton died after being found breathing shallowly in a holding cell in the Humboldt County jail.

On the heels of a two-week trial and about seven hours of deliberation, the federal jury in Oakland on Friday found that EPD officers Adam Laird and Justin Winkle used excessive force against Cotton, and that they and fellow officer Garry Whitmer were “deliberately indifferent” to Cotton's serious medical needs when they failed to get him medical treatment prior to booking him into jail.

The jury also found that the city failed to adequately train its officers to obtain medical care for arrestees who have had force used against them and that the officers acted “maliciously, oppressively or in reckless disregard” of Cotton's constitutional rights.

The jury verdict awarded Cotton's daughter and father a combined $4.5 million from the city of Eureka and awarded Cotton's father a total of $75,000 in punitive damages from the three officers.

While Sarmiento said she hopes the verdict has a deterrent effect, EPD Interim Police Chief Murl Harpham said Monday that he hopes it does not. Harpham said he was issuing a memo to all department employees telling them: “Don't pay attention to those anonymous blogs written by cop haters and don't let the decision influence the way you do your duties because that can get you hurt or your partner hurt, or killed. ... You can't be out there worrying about being sued.”

Harpham said he was shocked by the verdict and that he stands by what then Police Chief Garr Nielsen said at the time of Cotton's death -- that the officers involved acted appropriately and followed department policy when confronted with a violent, noncompliant suspect who was under the influence of a large amount of LSD.

The officers were involved in a “knock-down, drag out,” Harpham said, adding that their shirts were torn and their name plates were ripped off during the altercation.

”I think they were wronged,” Harpham said of the officers, adding that they are “kind” men, noting that Winkle was named “Officer of the Year” in 2007 and Laird was promoted to sergeant earlier this year. “They're just good people, and they wouldn't do what's been claimed here out of viciousness or anything like that.”

Regardless of whether the officers involved acted appropriately, EPD has instituted a number of policy changes since Cotton's death, including a requirement that all suspects involved in physical altercations -- with officers or others -- receive medical care before being booked into jail. While none of the six to eight officers who arrived at the scene of Cotton's arrest had a Taser, all EPD officers are now outfitted with them and trained in their use. The department also now calls the California Department of Justice to investigate any officer-involved fatalities.

Eureka City Manager David Tyson said Monday that he couldn't say much about the incident because he is still working to get information about the verdict from local attorney Nancy Delaney, who represented the city in the matter, and has not yet briefed the city council on the subject.

Both Tyson and the city's insurance carrier said the city has already spent the entire amount of its coverage deductible on the case, so the city's general fund will not be impacted by the award.

Tyson said he was surprised by Friday's verdict because it “is counter” to the findings of independent inquiries conducted after Cotton's death.

Tyson also said that the council will not have a say in whether to appeal the verdict, as that decision rests in the hands of the city's insurance carriers, including the Redwood Empire Municipal Insurance Fund, or REMIF. REMIF General Manager Mark Ferguson said that because the award in the Cotton case exceeds his fund's level of exposure, a number of excess insurance carriers will ultimately decide whether to appeal.

”The purpose of insurance is spreading the risk, or spreading the liability, around,” Ferguson said, adding that's why REMIF has excess carriers. “At this point, this is past our level of exposure, so we're dealing with the excess people. They're the ones that make decisions at this point.”

The council will decide whether it wants to pay for the punitive damages awarded against its individual officers.

”That's a council decision, and the council will be briefed on it,” Tyson said, adding that he hopes that briefing will occur in the coming days.

Meanwhile, Sarmiento said she's very pleased with the verdict in the case that she and colleague Dale Galipo, both based in Los Angeles County, brought before the Oakland jury. Sarmiento said she's grateful to the jury and also to “two very courageous witnesses from the Eureka area” who testified that they saw officers hit Cotton in the head, with one describing the blows as “hammer fists to the back of the head.”

Harpham said he believes the verdict was part of an Oakland-area backlash to officers facing excessive force allegations on the heels of a number of incidents, including the case of Oscar Grant, who was shot and killed by a Bay Area Rapid Transit officer in 2009.

”Juries are unpredictable,” Harpham said. “All you have to do is look at what's been happening, like the Casey Anthony jury.”

While Harpham maintained that Cotton was “very violent,” Sarmiento said evidence presented at trial showed that Cotton did not physically assault officers but was simply resisting by not giving up his hands to be cuffed. Sarmiento said no evidence was presented to indicate that Cotton was behaving in a wildly violent manner, either before or after officers arrived on scene.

”There was a characterization of Mr. Cotton as a violent person but, in truth, there was no evidence of the type of violent behavior that would have justified this extent of force,” she said. “There's evidence of some sort of fight (prior to the officers' arrival), but to characterize him as violently attacking people is not consistent with the evidence that I've seen or was presented at trial.”

In the wake of Cotton's death, then Humboldt County Coroner Frank Jager and District Attorney Paul Gallegos both said jail surveillance video footage of Cotton thrashing in his holding cell made it impossible to discern whether his fatal injuries were self-inflicted while in custody or sustained during prior altercations, including the one with officers.

Despite numerous requests, Humboldt County has declined to make the video public.

Sarmiento said the video -- which was presented by the city at trial -- does not present any evidence that Cotton's injury was self-inflicted.

”What you see in that video is that he's writhing in pain and holding his head,” Sarmiento said. “You see a man in his last hours of life in excruciating pain.”

Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com.