Standard of proof differs in criminal, civil inquiries of officer-involved shootings

One man brandished a 6-foot martial arts fighting stick and poked it into the radiator of a police car.

Another fired shots at the ceiling of his own house and charged at officers on his driveway.

Still another person wrestled with deputies inside a minivan after his parents reported he'd suffered a violent mental break.

All were killed by law enforcement officers in shootings that were later deemed justified. Yet in each case, relatives of the subjects filed wrongful death lawsuits in civil court and walked away with hefty settlements.

The disparity underscores a key difference between criminal and civil law — the standard of proof. Criminal guilt is harder to establish because a jury must agree unanimously that it is proven beyond a reasonable doubt. In civil court, however, a split jury can award damages if a majority of evidence suggests someone is at fault.

"In my 39 years here I'm not aware of any cop being prosecuted for a shooting," said Santa Rosa civil attorney Pat Emery, who won $1.75 million for the parents of a 16-year-old Sebastopol boy killed by deputies in 2007. "It's a reflection of the very different burden faced by prosecutors."

That distinction could play a role in the outcome of a federal civil rights lawsuit filed this week by the family of 13-year-old Andy Lopez, who was shot and killed Oct. 22 by a sheriff's deputy while the teen was walking through a southwest Santa Rosa neighborhood carrying an airsoft BB gun.

They alleged Deputy Erick Gelhaus used excessive force when he shot Lopez seven times after mistaking the teen's airsoft gun for an AK-47 assault rifle. The killing was the result of a custom of violence within the Sheriff's Office, the lawsuit alleged.

A lawyer for the family said damages could exceed a recent Los Angeles jury award of $24 million in a similar case, but maintained a goal of the federal lawsuit is to ensure an unbiased examination of the shooting. The attorney, Arnoldo Casillas, accused the investigating agency, the Santa Rosa Police Department, of conducting a "whitewash."

"Certainly from my point of view, this is a case where the plaintiffs can and should win," said Oakland civil rights attorney John Burris, who represented the family of Oscar Grant, slain by a BART police officer in 2009. "It's a good seven-figure case, minimum."

A review of public records shows Lopez was the 34th person to die at the hands of Sonoma County law enforcement officers in 46 shootings or other incidents involving the use of deadly force dating back to 1995.

In each case, investigators concluded officers were correct to use lethal force in a wide range of circumstances involving crime suspects, people threatening violence and mentally unstable people who simply wanted to commit "suicide by cop."

Each instance was reviewed by another police agency under the countywide protocol for handling "critical incidents" and turned over to the District Attorney's Office to consider any criminal negligence.

In each case, prosecutors declined to file criminal charges against the officers.

Despite the lack of wrongdoing, the victims and their families sued in 16 of the cases, winning more than $5 million in five settlements and one jury verdict.

The largest payout so far was the $1.75 million provided to the family of Jeremiah Chass, the Sebastopol teenager who got into a physical struggle with two deputies after his parents called for help with the psychotic youth. An investigation found Chass had been armed with a knife.

Other settlements include $1 million to the widow of a 33-year-old Rohnert Park man, Kuan Chung Kao, who was shot and killed in 1997 after neighbors reported him screaming on a neighborhood street and swinging a martial arts pole.

More recently, the city of Santa Rosa entered a $1 million settlement with the family of 30-year-old Richard DeSantis, who was shot and killed in his driveway in 2007 after he fired a gun in his house.

In the only jury award, Kenneth Oberfelder, a convicted drug dealer who was shot and wounded in 1996 while fleeing sheriff's deputies, got $100,000 in damages plus $1.3 million in attorney fees.

Two other lawsuits settled for lesser amounts. One lawsuit was won by the defendants. Nine cases are either ongoing or have been dismissed.

"Not all officer-involved shootings are fertile ground for wrongful death action," Emery said. "I've rejected a number of those cases. A lot of shootings are justified by any standard."

Sonoma County Counsel Bruce Goldstein agreed. He said in an email this week some victims might not file a lawsuit because of the "clarity that the officer was acting reasonably." He said the county decides how to proceed in each case based on issues such as the potential exposure to damages.