SANTA ANA (CBSLA.com) — The family of a man fatally shot by Long Beach police in 2010 was awarded $6.5 million Thursday by a jury in federal court.
Police shot and killed then 35-year old Douglas Zerby on Dec. 12, 2010 believing — mistakenly — that he was holding a gun. Zerby was actually holding a nozzle to a water hose.
The man’s family had been seeking as much as $21.5 million.
Jurors began deliberating Wednesday and announced about 11 a.m. they had reached a verdict, according to the plaintiffs’ attorney Bryan Claypool.
The jury awarded $2 million to Zerby’s father, Mark Zerby, $1 million to his mother, Pam Amici, and $3.5 million to his 10-year-old son, River Sentell.
After the verdicts were read, attorneys for both sides worked out an agreement that would make Officers Victor Ortiz and Jeffrey Shurtleff personally liable for $5,000 apiece in punitive damages. Lawyers for the plaintiffs said negotiations were ongoing and the family may let that award drop.
Ortiz, Shurtleff and attorney Monte Machit, who represents the city, declined comment.
Zerby was intoxicated at the time of the shooting, and negligent, but jurors didn’t believe his drinking contributed to his death.
The jurors did find that the officers violated the deceased man’s 4th Amenment rights, and were guilty of battery, negligence, that their actions were a substantial cause of his death and they acted with malice or reckless disregard for life.
Zerby’s father, Mark, said he “had faith all along” that the jury would find in his favor. During the trial, he has become friends with Ron Thomas, father of Kelly Thomas, who also is represented by one of the plaintiffs’ attorneys, Garo Mardirossian.
Kelly Thomas is the homeless man who was beaten to death in July 2011 by police in Fullerton.
Before the verdicts were announced, Ron Thomas put his hand on Mark Zerby’s shoulder.
“I was praying for justice for my son,” Mark Zerby said. “My job as his father was to see if we could get this case here and my job was done.”
Central to the argument of attorneys for the Zerby family was the lack of a verbal warning to Zerby before officers opened fire.
“Even if (Zerby) was intoxicated and even if he had a gun, he was not committing a crime,” attorney Dale Galipo, who represented Zerby’s mother and son, said in closing arguments. “The evidence is overwhelming that he didn’t even know the officers were there.”
Zerby, Galipo argued, was “waiting for a friend” in the 5300 block of East Ocean Boulevard about 4:30 p.m. when police received a call of a man with a gun. Police “didn’t give (Zerby) any commands. They didn’t give him any warnings,” Galipo said.
Police claimed initially that Zerby was pointing the pistol-like water nozzle at Ortiz, prompting Shurtleff to open fire. Los Angeles County prosecutors concluded in November 2011 that the shooting was justified.
Galipo argued that experts for the plaintiffs and defendants agreed it was unlikely Zerby was standing up with his hands outstretched, pointing the water nozzle at police, because he had no wounds on his hands.
“He picked (the water nozzle) up and played with it,” Galipo said. “He didn’t hurt anyone. He didn’t threaten anyone… He didn’t even know anyone was watching him.”
Zerby — who was shot eight times by a handgun and shotgun — appeared to some witnesses to be passing out, Galipo noted.
Mardirossian said the officers who responded to the call of a man with a gun failed to follow their own policies for confronting a suspect and failed to properly communicate with each other.
Machit denied in his closing argument that police were guilty of a “rush to judgment,” and were properly establishing a perimeter before engaging with the suspect.
“They were just moments from making that announcement” when Zerby snapped to attention and pointed the water nozzle at Ortiz, Machit said.
That gave Shurtleff “no option” but to open fire, Machit said. “There’s no question this is a tragic series of events.”
Machit conceded Zerby was likely not committing a crime, “but the police didn’t know that. They didn’t know if he was wanted or had dead bodies upstairs.”
Zerby’s sister Eden Marie Biele told KCAL9’s Juan Fernandez, “I miss my brother every single day. And no amount of money will make that better. But it’s still a great day for our family.”
Zerby’s family wants to know why the officers are still on the force and collecting pay checks. Biele said, “Why are they still on the force? Why are taxpayers paying their salaries?”
And Zerby’s son concurred. “They should lose their jobs.”
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