Lakewood Standoff 3

Case 3:15-cv-05346-BJR Document 283 Filed 08/15/17 Page 1 of 26
1 The Honorable Barbara J. Rothstein

2
6
UNITED STATES DISTRICT COURT
7 WESTERN DISTRICT OF WASHINGTON
AT TACOMA
8
9 FREDERICK and ANNALESA THOMAS;

and JO-HANNA READ, as Guardian ad No. 3:15-cv-05346-BJR
10 Litem of E.T., a minor,
DEFENDANTS MOTION FOR A NEW
11 Plaintiffs, TRIAL
12 v. NOTE ON MOTION CALENDAR:

September 1, 2017
13 JASON CANNON; BRIAN MARKERT;
RYAN MICENKO; MICHAEL WILEY; ORAL ARGUMENT REQUESTED
14 MICHAEL ZARO; CITY OF FIFE; CITY
OF LAKEWOOD; and PIERCE COUNTY
15 METRO SWAT TEAM,
16 Defendants.
17
I. INTRODUCTION
18
Pursuant to Federal Rule of Civil Procedure 59, Defendants respectfully move for a
19
20 new trial.
21 II. PROCEDURAL HISTORY
22 This case was filed on May 22, 2015. Plaintiffs consisted of Frederick and Annalesa
23 Thomas, and E.T. (collectively, the Individual Plaintiffs). In May 2016, the Estate of
24
Leonard Thomas (the Estate) filed its own lawsuit. The two lawsuits were consolidated.
25
Dkt. 22.
26
The parties filed cross-motions for summary judgment. Dkts. 39-41 & 56-89. The
27
DEFS MOT. FOR A NEW TRIAL - 1 KEATING, BUCKLIN & MCCORMACK, INC., P.S.
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motions were mostly denied. Dkts. 128 & 130.

1
The parties filed motions in limine. Dkts. 103 & 105. The Courts orders in limine
2
3 will be discussed in greater detail below.
4 Beginning on June 21, 2017, the parties tried the case before a jury of eight.
5 After Plaintiffs rested, Defendants moved for judgment as a matter of law pursuant
6
to Fed. R. Civ. P. 50. Plaintiffs filed a response. Wherever Plaintiffs opposed Defendants
7
motion, the Court denied Defendants motion as to that claim. Dkt. 219. In other words, so
8
long as Plaintiffs mustered some opposition to the Defendants motion on a given claim, the
9
10 motion was denied. Defendants put on their case, rested, and renewed their motion for
11 judgment as a matter of law as to the remaining claims. That motion was denied.
12 The parties made closing arguments on July 10, 2017. The jury deliberated, asked
13 numerous questions, and returned the following verdict against Defendants (Dkt. 237):
14
Chief Michael Zaro:
15
o Unreasonable seizure of E.T. from his father;
16
o Excessive force against Leonard Thomas;
17
18 o Unreasonable deprivation of E.T., Fred, and Annalesa Thomas rights to
19 their familial relationship with Leonard; and

20 o Unreasonable seizure of the Thomas home.
21
Sergeant Brian Markert:
22
o Unreasonable seizure of E.T. from his father; and
23
o Excessive force against Leonard Thomas.
24
25 Officer Michael Wiley:
26 o Unreasonable seizure of E.T. from his father;
27 o Excessive force against Leonard Thomas;
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o Unreasonable seizure of the Thomas home; and

1
o Unreasonable seizure of the family dog.
2
3 Officer Jason Cannon:
4 o Arrest of Fred Thomas without probable cause.

5 City of Lakewood:
6
o Unreasonable seizure of E.T. from his father;
7
o Excessive force against Leonard Thomas;
8
o Unreasonable deprivation of E.T., Fred, and Annalesa Thomas rights to
9
10 their familial relationship with Leonard;
11 o Unreasonable seizure of the Thomas home;
12 o False arrest of Fred Thomas;

13
o Outrage against Annalesa and E.T.; and
14
o Negligent investigation of child abuse/neglect.
15
City of Fife:
16
17 o Negligent investigation of child abuse/neglect.
18 The jury awarded compensatory damages as follows:
19 Unreasonable seizure of E.T.: $1,250,000;

20
Excessive force against Leonard: $1,000,000;
21
Unreasonable deprivation of the familial relationship with Leonard: $4,250,000;
22
Unreasonable seizure of home: $875,000;
23
24 Unreasonable seizure of the family dog: $10,000;
25 False arrest of Fred Thomas: $500,000;

26 Outrage: $250,000; and
27
Negligent investigation of child abuse/neglect: $500,000.
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Total compensatory damages: $8,635,000.

1
2 The jury also awarded punitive damages as follows:
3 Chief Michael Zaro: $3,000,000;
4 Officer Michael Wiley: $1,500,000; and

5
Sergeant Brian Markert: $2,000,000.
6
Total punitive damages: $6,500,000.
7
The jury awarded total damages in the amount of $15,135,000.
8
9 Defendants timely filed four post-trial motions: (a) This Motion for a New Trial
10 [Fed. R. Civ. P. 59(a)]; (b) a motion for entry of qualified immunity [Fed. R. Civ. P. 50(b)];
11 (c) a motion for judgment as a matter of law [Fed. R. Civ. P. 50 (b)]; and (d) a motion for
12
remittitur [Fed. R. Civ. P. 59(a)].
13
It is important for the Court to understand the interplay between these various
14
motions. First, even if the Court grants Defendants renewed motion for judgment as a
15
matter of law, it must also conditionally rule on this Motion for a New Trial. See Fed. R.
16
17 Civ. P. 50(c). Second, if the Court grants Defendants motion for remittitur, it may deny this
18 Motion for a New Trial on the condition that Plaintiffs accept the remittitur. See Fenner v.
19 Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir.1983).
20
III. LEGAL STANDARD
21
Under Federal Rule of Civil Procedure 59(a)(1)(A), the court may, on motion,
22
grant a new trial ... after a jury trial, for any reason for which a new trial has heretofore
23
24 been granted in an action at law in federal court.... Rule 59 does not specify the grounds
25 on which a motion for new trial may be granted. Molski v. M.J. Cable, Inc., 481 F.3d 724,
26 729 (9th Cir.2007). Rather, the Court is bound by those grounds that have been historically
27 recognized. Id. Historically recognized grounds include, but are not limited to, claims
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that the verdict is against the weight of the evidence, that the damages are excessive, or
1
that, for other reasons, the trial was not fair to the party moving. Id. (citation omitted).
2
3 The impact of trial errors must be considered cumulatively. Jerden v. Amstutz, 430 F.3d
4 1231, 1240 (9th Cir.2005).

5 Importantly, and in contrast to Defendants renewed motion for judgment as a
6
matter of law, courts apply a lower standard of proof to motions for new trial than they do
7
to motions for judgment as a matter of law. Thus, even if the Court declines to grant
8
judgment as a matter of law, it may order a new trial under Rule 59. A verdict may be
9
10 supported by substantial evidence, yet still be against the clear weight of evidence. Landes
11 Const. Co. v. Royal Bank of Can., 833 F.2d 1365, 1371 (9th Cir.1987). Unlike with a
12 motion for judgment as a matter of law, in addressing a motion for a new trial, [t]he judge
13 can weigh the evidence and assess the credibility of witnesses, and need not view the
14
evidence from the perspective most favorable to the prevailing party. Id. Instead, if,
15
having given full respect to the jury's findings, the judge on the entire evidence is left with
16
the definite and firm conviction that a mistake has been committed, then the motion should
17
18 be granted. Id. at 137172.
19 A trial court enjoys broad discretion with regard to a new trial motion. United
20 States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (citing Allied Chem. Corp. v.
21
Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (The authority to
22
grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the
23
trial court.)). The Court should exercise that discretion to order a new trial on the basis of
24
cumulative error.
25
26 IV. ARGUMENT
27 The following seven errors cumulatively impacted Defendants such that Defendants
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were deprived of their right to a fair trial: (1) exclusion of weapons found on and under the
1
bed where Leonard and E.T. were seen on multiple occasions during the standoff; (2)
2
3 allowing the Estate and the Individual Plaintiffs to deliver duplicative case presentations to
4 the jury; (3) allowing Plaintiffs to pursue race-based arguments in an already racially
5 charged occurrence; (4) excluding the Josh Powell incident; (5) exclusion of a 3D
6
animation created by Defendants despite permitting Plaintiffs to show their own 3D
7
animation; (6) allowing Plaintiffs to argue adverse inferences from Brian Markerts
8
decision to retain a lawyer post-shooting; and (7) answering a jury question regarding
9
10 Defendant Jason Cannons employment status.
11 Each of these errors could independently form the basis for a new trial, but taken
12 together, the prejudice faced by Defendants was insurmountable and reflected in the jurys
13 verdict. Each error will be addressed in turn.
14
A. A multitude of errors cumulatively impacted Defendants right to a fair trial.
15
Error No. 1: Excluding the weapons.
16
The jurys verdict obviously reflects its belief that Leonard Thomas was unarmed
17
18 throughout the standoff. That Leonard Thomas was an unarmed African-American man was
19 Plaintiffs central trial theme:
20 It's a police shooting case. It involves the shooting and use of deadly force of an
21
unarmed African-American man. Trial Tr. vol. 1, 175:23-24, June 21, 2017, Dkt. 261.
22
It is true that at the moment Sergeant Markert shot Leonard, Leonard did not have
23
any weapons on his person. But the jury was precluded from hearing the full truth of what
24
25 happened that night. Leonard was armed through much of the standoff with two weapons,
26 a fixed-blade knife and a pistol crossbow. See Exhibits 1069 & 1076.
27 Had the Court allowed it, SWAT Officer Micah Wilson would have testified that he
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found the knife on the bed immediately after the shooting, during his protective sweep of
1
the Thomas residence. Trial Tr. vol. 2, 249:7-250:11, June 22, 2017, Dkt. 262.1 Officer
2
3 Wilson connected the weapon to Leonard and E.T. because law enforcement frequently
4 saw Leonard and E.T. in that upstairs bedroom (together) during the standoff. Id.2
5 The weapons issue was first discussed in the pretrial conference, during which the
6
Court made admissibility rulings without the aid of any live witness testimony. Plaintiffs
7
argued that the weapons should be excluded because the officers did not know they were in
8
the house during the standoff. Pretrial Conference Tr., 62:9-10, June 1, 2017 (The police
9
10 had no idea it was there.); 64:10-12 (You know, police officers cant justify shooting
11 somebody because they later find they had a gun in their house. The officers actions are
12 measured by the information that they had at the time.). The Court sided with Plaintiffs,
13 excluding the photographs of the knife and crossbow under Fed. R. Evid. 403.
14
The Courts ruling paved the way for Plaintiffs to hammer home their unarmed
15
African-American man narrative without any fear that the jury would learn Leonard was
16
armed during the standoff, not with a butter knife or a screwdriver as alluded to by
17
18 Plaintiffs3, but with a knife capable of and designed for inflicting harm to a human being.
19 Plaintiffs took full advantage of the Courts exclusion, repeatedly selling the jury on
20 the image of Leonard as a man that would never have a weapon anywhere near E.T.
21
Theres a little bit of a standoff, but the Fife police find that hes unarmed, theres no
22
weapons Trial Tr. vol. 1, 177:17-18, June 21, 2017, Dkt. 261.
23
No gun was ever found, and you will hear every officer admit that Leonard was never seen
24
1
25 Defendants made numerous, extensive offers of proof on the weapons at trial, to no avail.
See, e.g., Dkts. 170 & 178.
26
2
Lakewood forensics investigator Brian Johnson found the crossbow under the same bed.
27
3
Trial Tr. vol. 2, 239:18-19, June 22, 2017, Dkt. 262.
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with a weapon. Trial Tr. vol. 1, 191:15-17, June 21, 2017, Dkt. 261.
1
During the times when he was on the phone with you, did he say that he had a weapon?
2
3 Trial Tr. vol. 2, 188:12-13, June 22, 2017, Dkt. 262.
4 Leonard neveryou knew that Leonard had said he didnt have any weapons; is that
5 right? Trial Tr. vol. 4, 31:7-8, June 26, 2017, Dkt. 264.
6
Did you ever hear Mr. Thomas refer to any sort of weapon or pistol that he had? Trial
7
Tr. vol. 6, 79:10-11, June 28, 2017, Dkt. 266.
8
Most egregiously, upon friendly questioning by her attorney, Annalesa Thomas told
9
10 the jury an account of a conversation she had with Leonard and apparently relayed to law
11 enforcement on the night in question:
12 The week before was the funeral of his friend, and we were driving to
the funeral. I was giving him a drive -- I picked him up, and we were
13
driving to the funeral. And a radio report came on. Recently, within
14 our community, there had been -- I believe it was -- an officer was in a
van and his children were in the van, and one of his children got ahold
15 of a gun and shot his sibling. And that came on the radio while we
were driving, and Leonard said, Mom, I cannot imagine anybody
16 keeping a weapon anywhere near a young child. He says, I can see
[E.T.], if I had any kind of weapon, building boxes, climbing up to the
17
closet and moving the blankets and getting that. And he would be -- he
18 would be fascinated by the gun. He said, That's just not a good thing
to ever have a gun around, you know, a young child. And I relayed that
19 to the officer that asked me. Trial Tr. vol. 7, 181:6-20, June 28, 2017,
Dkt. 267.
20
The jury heard from Leonardvia his motherthat he was not the type of person to
21
22 let E.T. anywhere near a weapon.4 Despite (or perhaps because of) this close call to
23 opening the door to the weapons, Plaintiffs continued to pursue their unarmed African-
24 American theme without any fear that the jury would learn about the knife and crossbow
25
26 4
Defendants moved for reconsideration of the Courts earlier exclusion of the weapons, but
that motion was denied. Trial Tr. vol. 7, 244:12-245:4, June 28, 2017, Dkt. 267. The Court
27 later made it clear that the topic should not have been broached by Plaintiffs. Trial Tr. vol.
8, 11:20-21, June 30, 2017, Dkt. 268.
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found in Leonards bedroom. They double-downed on the theme in closing argument

1
despite the Courts final warning (Once more counsel, if you tread that line and cross over
2
3 it, Im going to reverse the ruling, because I have said it enough. Trial Tr. vol. 9, 296:22-
4 23, July 5, 2017, Dkt. 269.). Plaintiffs once again told the jury what was not found during
5 closing: After this occurred, went in and looked for a gun or something in the house,
6
turned that house upside down looking for a gun. There was no gun in that house.
7
Trial Tr. vol. 12, 40:19-21, July 10, 2017, Dkt. 272.5
8
The jury was left with the indelible but false impression that Leonard was unarmed
9
10 throughout the standoff and that law enforcement, despite an exhaustive search, never
11 found any weapons. Plaintiffs will surely respond that the comment was restricted to the
12 absence of guns (or something), but Defendants respectfully urge the Court to consider
13
whether it would have ruled as it did pretrial if it would have known Plaintiffs would take
14
such obvious advantage of the Courts ruling.
15
The Courts exclusion of the knife and crossbow pistol was erroneous and
16
spectacularly prejudicial. The evidence was relevant to show Leonard was armed during the
17
18 standoffor at least was not unarmed as Plaintiffs claimed. See generally, Smith v. City of
19 Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (He had no guns or other weapons in his
20 possession and there were none in the houseand he was clad in his pajamas.). The
21
exclusion allowed the jury to hear a fictional tale and prevented Defendants from defending
22
the case the way they wanted to: by showing the jury thatat least that nightLeonard
23
was not a gentle giant who would never harm his son or place him in danger.
24
25
5
The Estate also speculated that Leonards statement that he had a pistol he actually said
26 brindle, despite knowing a pistol crossbow was found underneath the bed. Trial Tr. vol.
12, 50:24-25, July 10, 2017, Dkt. 272 (the trial transcript says window instead of
27 brindle).
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Even if the Court believed the original relevance of the weapons was marginal, it
1
was put directly at issue by Plaintiffs constant efforts to use the post-incident sweep as a
2
3 sword and the Courts ruling as a shield. See United States v. Segall, 833 F.2d 144, 148 (9th
4 Cir. 1987) (Segall's attorney opened the door to the testimony by introducing on cross-
5 examination evidence which created the false impression that Segall retained the entire
6
$173,000 in her bank accounts until June 9, 1986.). The Courts refusal to reconsider its
7
ruling effectively precluded Defendants from countering the false narrative that Leonard
8
was unarmed and that no weapons were found during the protective sweep. Proof of that
9
10 prejudice is demonstrated in the massive verdict.
11 Failing to admit photograph Exhibits 1069 (knife) and 1076 (crossbow) was in
12 error. See Fed. R. Evid. 401-403.

13 Error No. 2: Allowing duplicative case presentations.
14
Plaintiffs have consistently asserted legal conflicts between the Estate and the
15
Individual Plaintiffs. Dkt. 43 (Plaintiffs claimed they had opposing interests because
16
Annalesa Thomas was the crime victim for the Individual Plaintiffs and the crime
17
18 perpetrator for the Estates case). Those legal conflicts have yet to materialize in any way
19 (and were undeniably absent at trial). These so-called conflicts were manufactured by
20 Plaintiffs counsel in an effort to double-team Defendants on every aspect of this trial,

21
contravening Defendants Due Process rights and precluding their right to a fair trial under
22
the Seventh Amendment. Plaintiffs recognized they could exploit the Courts concern over
23
a pretend conflict of interest to permit duplicative (and overwhelming) case presentations to
24
the jury.
25
26 Defendants forecast this possibility in motions in limine practice, asking the Court
27 to preclude duplicative closing arguments and experts. Dkt. 102, M.I.L. Nos. 1 & 2. The
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Court denied both of those motions, choosing instead to give both sides (i.e., all of the
1
Plaintiffs and all of the Defendants) equal time to give closing argument and admonishing
2
3 Plaintiffs that experts would not be allowed to testify about the same subject-matter.
4 It came as a shock to Defendants that both sets of lawyers (the two for the Estate
5 and the three for the Individual Plaintiffs) would be allowed question each witness,
6
regardless of which side called the witness to testify.
7
Witness Individual Plaintiffs Lawyer Estates Lawyer
8
Thomas Thompson And you were surprised And it was a surprise because
9
10 because youd just been there a you had just gotten up there and
11 short time; is that right? Trial you didnt know why they were
12 Tr. vol. 2, 28:20-21, June 22, suddenly blowing up the back

13
2017, Dkt. 262. door, correct? Trial Tr. vol. 2,
14
92:11-13, June 22, 2017, Dkt.
15
262.
16
Mike Malave He never grabbed him around And Leonard doesntwe
17
18 the throat; is that right? Trial mentioned that he doesnt have
19 Tr. vol. 2, 211:7, June 22, 2017, his hands around his throat,
20 Dkt. 262. correct? Trial Tr. vol. 2, 218:7-
21
9, June 22, 2017, Dkt. 262.
22
Micah Wilson Q: What did you hear? Okay. After you heard Leonard
23
A: He said something like, Thomas saying, Dont hurt my
24
25 Dont hurt my boy. Trial Tr. boy, you didnt hear Leonard say
26 vol. 3, 93:16-17, June 23, 2017, anything else, did you? Trial Tr.
27 Dkt. 263. vol. 3, 104:10-11, June 23, 2017,
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Dkt. 263.
1
2 Michael Zaro And he was correct that you Q: Okay. And as far as this order
3 intended your order to include about deadly force, no not let
4 authorization for deadly force him go back to the house with the
5 by whatever means necessary; kid
6
is that what you told the A: Right.
7
interviewers on the night of the Q: -- that was an order that you
8
24th; isnt that right? Trial Tr. knew included the use of deadly
9
10 vol. 4, 19:6-9, June 26, 2017, force, correct? Trial Tr. vol. 4,
11 Dkt. 264. 49:9-14, June 26, 2017, Dkt. 264.
12 Matt Watson At least at some point when he And as far as you never saw
13
was on the porch, you saw his Leonard with a weapon, correct?
14
hands and not a weapon? Trial Trial Tr. vol. 7, 132:10-11, June
15
Tr. vol. 7, 120:5-6, June 29, 29, 2017, Dkt. 267.
16
2017, Dkt. 267.
17
18 Mark Eakes Sergeant Eakes, none of your And then as far as any of those
19 conversations with Leonard ones where you claim he was

20 Thomas were recorded except supposedly agitated and yelling
21
the portion that was recorded all the time and so forth, we dont
22
when he went through 911 have the recordings of those,
23
trying to get ahold of Pierce correct? Trial Tr. vol. 9, 137:21-
24
25 County or the Washington State 23, July 5, 2017, Dkt. 269.
26 Patrol for assistance, was it?
27 Trial Tr. vol. 9, 107:3-6, July 5,
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2017, Dkt. 269.

1
2 Brian Markert Q: And you said when he Before you shot him, you did see
3 came out to pick up [E.T.], you that his hands were empty,
4 saw his arms; is that right? correct? Trial Tr. vol. 10,
5 A: I did, yes. 153:14-15, July 6, 2017, Dkt.
6
Q: No gun? Trial Tr. vol. 10, 270.
7
127:14-20, July 6, 2017, Dkt.
8
270.
9
10
It became clear to Defendants early on that the Court separated asked and
11
answered6 objections into two categories. The first category was whether the same lawyer
12
had already asked the same question during his or her examination; those objections were
13
14 largely sustained. The second and more problematic category involved the same questions
15 asked by two different Plaintiffs attorneys (i.e., the Estates lawyers and the Individual
16 Plaintiffs lawyers); those objections were largely overruled. Objecting to the second
17
category of asked and answered objections was futile (at best) and signaled to the jurors
18
Defendants were hiding something (at worst).
19
As the above examples should make clear, Defendants were faced with duplicative
20
21 questioning by the two sets of Plaintiffs lawyers for virtually every witness. The
22 cumulative impact of this questioning is undeniable. See Gapinski v. Gujrati, 77 N.E.3d
23 1148, 1163 (Ill. App. Ct. 2017) (However, meaningful participation does not mean that
24
6
25 The legal authority for the objection can be found in two evidentiary rules: Fed. R. Evid.
611(a)(2), which grants the trial judge discretion to control the examination of witnesses so
26 as to avoid wasting time; and Fed. R. Evid. 403, which provides that the trial judge may
exclude relevant evidence when there exists a danger of wasting time, or needlessly
27 presenting cumulative evidence.
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parties with a common interest have a right to overlap their questions and arguments.)
1
(Carter, J. specially concurring).
2
3 To allow this to occur was in error because the asked and answered objection
4 applies to questions asked by counsel for a co-party similarly situated. See U.S. v. Coven,
5 662 F.2d 162, 170 (2d Cir.1981), cert. denied, 456 U.S. 916, 102 S. Ct. 1771, 72 L. Ed. 2d
6
176 (1982) (O'Connor's lawyer was prevented only from asking the same questions that
7
Coven's lawyer had asked. The trial court's ruling here was reasonable and did not preclude
8
O'Connor from effectively cross-examining witnesses.); U.S. v. Caudle, 606 F.2d 451, 456
9
10 (4th Cir.1979) (Where there is more than one defendant or defense attorney, it may also be
11 proper to prevent one defense attorney from repeating a question already asked by another
12 defense attorney.); 3:19.When is a question objectionable as asked-and-answered,

13 cumulative, or repetitious?, Larsen, Navigating the Federal Trial 3:19 (2017 ed.) (The
14
objection is also proper when multiple lawyers representing multiple parties ask the same or
15
virtually the same question of the same witness.).
16
Allowing both sets of Plaintiffs lawyers to ask the same witnesses the same
17
18 questions was in error. See Fed. R. Evid. 403 & 611.
19 Error No. 3: Allowing Plaintiffs to play the race card.
20 Defendants moved in limine to exclude the argument that racism played a role in
21
this incident. Dkt. 103, M.I.L. No. 8. That motion was initially granted. Pretrial Conference
22
Tr., 24:2-8, June 1, 2017. However, following a motion for clarification filed by
23
Plaintiffs (making all the same arguments they made in opposition to Defendants motion in
24
limine), the Court permitted Plaintiffs to discuss racial factors allegedly influencing
25
26 Defendants decision-making on the night in question. Dkt. 152. This was a distinction
27 without a difference. The clarification permitted Plaintiffs to capitalize on the public outcry
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against police shootings of African-American men and women throughout the country.
1
Indeed, on the day before jury selection, the shooting of a woman by Seattle Police
2
3 Department officers made national news. In this racially-charged environment, the
4 Defendants Officers already faced a significant disadvantage. The most egregious display
5 of Plaintiffs exploitation of this public sentiment was their thinly-veiled references to the
6
Blacks Live Matter movement:
7
Because you need to know who he was so that you do think and you do understand that
8
Leonards background and his life mattered. Trial Tr. vol. 12, 179:24-180:1, July 10,
9
10 2017, Dkt. 272.
11 These lives do matter, and these SWAT teams and police officers need to know that you
12 dont use deadly force when its not justified. Trial Tr. vol. 12, 183:11-14, July 10, 2017,
13 Dkt. 272.
14
Allowing Plaintiffs to pursue their unsupported, racially-based arguments was in
15
error. See Fed. R. Evid. 401-403.
16
Error No. 4: Excluding reference to the Josh Powell incident.
17
18 Plaintiffs filed a motion in limine seeking the exclusion of an incident that was on
19 the minds of the relevant decision-makers on the night in question. Dkt. 105, M.I.L. A. That
20 motion was erroneously granted. Pretrial Conference Tr., 24:10-11, June 1, 2017.
21
In February 2012, just over a year before the Leonard Thomas standoff, a man
22
named Josh Powell killed himself and his children in his residence just 16 miles from the
23
Thomas home. He was not armed with a gun or knife and did not make any direct threats.
24
The Powell murder-suicide was widely considered by the government to be a wake-up
25
26 call. The government faced sharp criticism and at least one lawsuit for failing to assess the
27 risk posed to the Powell boys by their father.
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If allowed, Chief Zaro and others7 would have testified that the Powell incident was
1
fresh in their minds as they gauged the appropriateness of their response to the Leonard
2
3 Thomas standoff. Like Josh Powell, Leonard Thomas was not making any direct threats to
4 E.T.but that did nothing to ease the officers concerns with respect to E.T.s well-being.
5 That knowledge also undercut one of Plaintiffs key factual contentions: that loving parents
6
like Leonard would never harm their children.
7
Not only was the Powell incident relevant to various officers states of mind, it
8
should have also been admitted for purposes of the jurys assessment of punitive damages,
9
10 which ended up being astronomical. If the jury had heard that one of Chief Zaros
11 motivations that night was to avoid another Josh Powell incident, it stands to reason the jury
12 would not have assessed Chief Zaro with $3,000,000 in punitive damages.
13 Excluding the Josh Powell incident was in error. See Fed. R. Evid. 401-402.
14
Error No. 5: Excluding the 3D animations.
15
Plaintiffs moved in limine to exclude animations prepared by Defendants showing
16
the final moments leading up to Sergeant Markerts shooting of Leonard Thomas. Dkt. 105,
17
18 M.I.L. B. The Court granted that motion pretrial without hearing from either the person
19 who created the animation (CAD animator Brian Brill) or the person who could verify it
20 (Sergeant Markert). At trial, Defendants made an extensive offer of proof, examining

21
Sergeant Markert outside the presence of the jury. Trial Tr. vol. 10, p. 20-22, July 6, 2017,
22
Dkt. 270. Sergeant Markert testified that the animation fairly and accurately depicted what
23
he saw from the moment of the breach to firing his rifle. Trial Tr. vol. 10, 21:14-20, July 6,
24
2017, Dkt. 270. Plaintiffs opposed this offer of proof for, among other things, the fact that
25
26 the animation showed daylight conditions and E.T. was wearing a different colored t-shirt.
27 7
Another officer witness, Nils Luckman, would have testified that he asked at the scene
about the presence of propane tanks, which were used in the Powell murders.
ATTORNEYS AT LAW
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Trial Tr. vol. 10 22:14-20, July 6, 2017, Dkt. 270. The Court reaffirmed its earlier ruling,
1
excluding the animation and a screenshot of the animation, finding that the animation was
2
3 not accurate enough to be admissible. Trial Tr. vol. 10, 30:23-31:9, July 6, 2017, Dkt. 270.
4 The exclusion of the animation was erroneous, especially given the Courts decision
5 to admit Plaintiffs own animation prepared by criminalist Kay Sweeney, which suffered
6
from the same supposed defects complained of by Plaintiffs (e.g., different lighting
7
conditions). Trial Tr. vol. 8, 23:2-13, June 30, 2017, Dkt. 268. Indeed, Plaintiffs animation
8
depicted Leonard Thomas at the moment of the shooting not holding E.T., which would
9
10 surely be a more significant discrepancy than what color shirt E.T. was wearing. See
11 Exhibit 510 (3D Computer Image of Shooting Reconstruction).
12 The Court may have understandably confused the standard for the admission of an
13 animation with the standard for admitting a simulation. Because animations are typically
14
used to illustrate witness testimony, if a computer-generated animation is offered into
15
evidence, usually the only foundation necessary is that required of other forms of
16
demonstrative evidencethe testimony of a knowledgeable witness that the animation
17
18 fairly and accurately depicts what its proponent claims... Bullock v. Daimler Trucks N.
19 Am., LLC, 819 F. Supp. 2d 1172, 1176 (D. Colo. 2011). The standard for a simulation is far
20 more rigorous and implicates the Courts concerns over the purported inaccuracy of
21
Defendants animation. See id. (A simulation normally must be authenticated by
22
showingthe process produced an accurate result.).
23
Another one of the Courts concerns appeared to be that the jury would give too
24
much weight to the animations simply because of the persuasiveness of the medium. At
25
26 least one court has addressed that issue and reached a different conclusion:
27 The mere fact that this was an animated video with moving images does not
mean that the jury would have been likely to give it more weight than it
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would otherwise have deserved. As one commentator has observed, If

1 audio or visual presentation is calculated to assist the jury, the court should
not discourage the use of it.... Jurors, exposed as they are to television, the
2
movies, and picture magazines, are fairly sophisticated. With proper
3 instruction, the danger of their overvaluing such proof is slight. 1 J.
Weinstein & M. Berger, Weinstein's Evidence 403[5] at 40388 (1992 ed.)
4 (footnotes omitted).
5 Datskow v. Teledyne Cont'l Motors Aircraft Products, a Div. of Teledyne Indus., Inc., 826
6
F. Supp. 677, 685 (W.D.N.Y. 1993). It is significant that Datskow was decided in 1993. In
7
the more-than-two-decades since that decision, jurors have become far more accustomed to
8
computer-generated animations like the one offered by Defendants in this case.
9
10 To exclude Defendants 3D animations of the moments preceding the shooting was
11 in error. See Exhibits 1050-51.
12 Error No. 6: Allowing Plaintiffs to criticize Brian

Markerts decision to retain a lawyer.
13
14 Defendants moved in limine to prevent Plaintiffs from referencing Sergeant
15 Markerts decision to retain an attorney while he was under threat of criminal prosecution
16 for the shooting death of Leonard Thomas. Dkt. 103, M.I.L. No. 4; Trial Tr. vol. 10, 66:13-
17 14, July 6, 2017, Dkt. 270 (Because I was the suspect in a criminal investigation, a death
18
investigation.) The Court denied that motion. The Court ruled Plaintiffs could inquire into
19
the fact of representation (e.g., date of retention, who was retained, etc.). But it was made
20
clear to Plaintiffs that they were not to go beyond those foundational-type questions and
21
22 seek to imply a nefarious motive behind retaining a lawyer. Pretrial Conference Tr., 26:18-
23 27:2, June 1, 2017. As with the limitations the Court attempted to place on the weapons
24 found in the Thomas residence, that admonition was ignored by Plaintiffs counsel:
25
Did the lawyers negotiate with the City over the question of whether you would be
26
compelled to make a statement and when you would make a statement? Trial Tr. vol. 10,
27
84:4-6, July 6, 2017, Dkt. 270.
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And you spent whole days with your lawyer working up that statement, did you not? Trial
1
Tr. vol. 10, 88:8-9, July 6, 2017, Dkt. 270.
2
3 And you showed it to your attorneys? Trial Tr. vol. 10 82:4, July 6, 2017, Dkt. 270.
4 Commenting on a criminal suspects decision to retain counsel is prohibited. United

5 States v. Kallin, 50 F.3d 689, 693 (9th Cir.1995). The Ninth Circuit held in Kallin that, like
6
the right to silence, [t]he right to counsel is included in the Miranda warnings, and as such
7
is covered by the implicit assurance that invocation of the right will carry no penalty.
8
Kallin, 50 F.3d at 693. The insinuation that the defendant's act of hiring a lawyer is
9
10 constitutionally impermissible because lawyers in criminal cases are necessities not
11 luxuries, and even the most innocent individuals do well to retain counsel. Bruno v.
12 Rushen, 721 F.2d 1193, 1194-95 (9th Cir.1983) (per curiam) (internal citations omitted).
13 Here, Plaintiffs guaranteed Sergeant Markerts decision to retain an attorney would carry a
14
penalty$2,000,000 in punitive damages for which Sergeant Markert will be held
15
personally responsible.8
16
The inappropriate questioning was prejudicial enough, but Plaintiffs continued to
17
18 harp on Sergeant Markerts decision to hire an attorney during closing arguments:
19 It is a parody of an over-lawyered statement where every possible justification is thrown in
20 and repeated page after page. Trial Tr. vol. 12, 87:10-12, July 10, 2017, Dkt. 272.
21
Eleven days after the fact, Sergeant Markert came up with this version of events, after
22
meeting with his attorneys and after preparing a long statement saying he was being
23
choked. Trial Tr. vol. 12, 40:24-41:1, July 10, 2017, Dkt. 272.
24
As was the case in Kallin, Plaintiffs did not merely bring the issue to the jurys
25
26 attention, but actively encouraged the jury to draw an inference of guilt. Kallin, 50 F.3d
27
8
Punitive damages are not covered by Defendants insurance.
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at 694. Sergeant Markert should have been afforded the same protections as any other
1
citizen facing criminal jeopardy, but due to an obvious double-standard, he was not.
2
3 Allowing Plaintiffs to question Sergeant Markert and criticize his decision to retain
4 an attorney while he was facing the threat of a criminal prosecution was in error.
5 Error 7: Answering a jury question regarding Jason Cannons employment status.
6
During deliberations, the jury asked, Is Jason Cannon (@ time of incident) a
7
Lakewood officer? Is there an org chart in evidence of all SWAT officers at the time of
8
incident with the roles they played? Is there a chart that shows all the officers and their
9
10 department affiliation? Dkt. 233, p. 4. Over Defendants objection, the Court answered:
11 Jason Cannon is a Lakewood police officer. For any further information, you must rely on
12 your collective memory, notes, and the exhibits. Id. at p. 5.

13 The jury subsequently found Jason Cannon liable for arresting Fred Thomas without
14
probable cause, found the City of Lakewood liable for false arrest, and awarded Fred
15
Thomas $500,000 as a result. Dkt. 237, p. 7-8 & 12. That is not a coincidence. The jury did
16
not know who Jason Cannon worked for because Plaintiffs did not call him to testify. As a
17
18 result (and possibly due to Plaintiffs naming so many defendants), the jury had apparently
19 forgotten which agency Jason Cannon worked for. Trial Tr. vol. 3, 145:13-15, June 23,
20 2017, Dkt. 263.

21
The jury would not have found Jason Cannon and the City of Lakewood liable for
22
$500,000 in false arrest damages had the Court not provided that substantive answer to its
23
question. Although it is tempting to provide such substantive responses, it is generally a
24
mistake to do so.
25
26 While trial judges have discretion as to the manner in which they respond to
questions from a jury, great caution must be exercised when a jury asks a
27 factual question concerning the evidence in a case. In view of the evidence
presented during the trial of this case, an appropriate response to the
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jury's question would have been an instruction to the jury that it must
1 take its own recollection of the evidence. See, e.g., Aubin, 961 F.2d at 983
(trial judge did not abuse discretion where, in response to factual question,
2
he instructed the jury that as finder of fact it was its responsibility to weigh
3 and interpret evidence); United States v. Hyson, 721 F.2d 856, 865 (1st
Cir.1983) (no abuse of discretion where, in response to factual question,
4 judge declined to reread relevant testimony and instructed jury to make
findings based on its recollection of the evidence).
5
United States v. Rivera-Santiago, 107 F.3d 960, 967 (1st Cir. 1997) (emphasis added).
6
7 Providing that substantive answer to the jurys question was in error.
8 B. All other trial errors preserved.

9 Defendants urge as error all other points preserved as such during trial. See Floyd v.
10
Laws, 929 F.2d 1390, 1401 (9th Cir. 1991) (A question raised and ruled upon need not be
11
raised again on a motion for a new trial to preserve it for review.). The errors specifically
12
enumerated above are by no means exhaustive and should not be construed as such. When
13
14 taken together, these trial errorsand othersindividually and cumulatively deprived
15 Defendants of a fair and impartial trial requiring a new trial on the issue of liability and
16 damages. Failing to grant a new trial under these circumstances would result in a
17 miscarriage of justice. See Experience Hendrix L.L.C., 762 F.3d at 84546.
18
C. Inconsistent verdicts.
19
The jury rendered two inconsistent verdicts, warranting a new trial on those claims.
20
First, the jury found Michael Wiley but not Nathan Vance violated Plaintiffs rights
21
22 by killing the dog. Importantly, as Question Five was phrased, the operative act was when
23 they killed [the dog], which is an indivisible act. Dkt. 237 (emphasis added). Finding one
24 officer liable for the killing but not the other cannot be harmonized given the evidence
25
presented to the jury. If Nathan Vance, who shot first, acted reasonably in killing the dog,
26
so did Michael Wiley. Plaintiffs theory was that Defendants should have developed a plan
27
to protect the dog from being killed (e.g., by use of a snare pre-breach). That theory of
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liability applies to all officers present, or none of them, not just Michael Wiley.
1
Second, the jury found Jason Cannon but not Ryan Micenko arrested Fred Thomas
2
3 without probable cause. If Ryan Micenko had probable cause, so did Jason Cannon
4 (assuming there was any evidence Jason cannon was involved in the arrest, which there was
5 not). Trial Tr. vol. 8, 206:17-18, June 30, 2017, Dkt. 268.
6
These inconsistent verdicts cannot be reconciled. Therefore, a new trial should be
7
ordered as to Wileys shooting of the dog and Cannons arrest of Fred Thomas.
8
D. The verdict form improperly implied E.T. could have double damages on his
9 Fourth and Fourteenth Amendment claims.
10
As discussed in Defendants motion for a judgment as a matter of law, which is
11
adopted and incorporated herein, the jury was asked to decide damages for Fourth and
12
Fourteenth Amendment claims for E.T. While a child may bring a Fourteenth Amendment
13
14 claim for deprivation of his parental relationship, he is only entitled to a single recovery for
15 that claim (i.e., the deprivation of a parent). As the verdict form and jury instructions
16 proposed by Plaintiffs were presented, the jury was unfortunately allowed to decide an
17 improper questioning, resulting in double recovery on a single claim ($2.75 million in
18
Fourth Amendment damages in addition to the $500,000 already awarded for Question
19
Onefor the same exact harm). Dkt. 237. Therefore, a new trial is warranted to correct that
20
error.
21
22 E. The jurys damages awards are not supported by the evidence.
23 As discussed in much greater detail in Defendants motion for remittitur, which is
24 adopted and incorporated herein, the jurys damages award was not in accordance with the
25
facts presented, nor did the punitive damages reasonably reflect the moral reprehensibility
26
one would associate with those numbers. Even if the Court is not inclined to grant this
27
Motion in its entirety, it shouldat the very leastorder a new trial on the issue of
ATTORNEYS AT LAW
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damages. Experience Hendrix L.L.C., 762 F.3d at 847 (trial court has discretion to grant a
1
new trial on damages only); In re Vioxx Products Liab. Litig., 448 F. Supp. 2d 737, 741
2
3 (E.D. La. 2006), modified, 523 F. Supp. 2d 471 (E.D. La. 2007) (Often, an award of
4 punitive damages is found to be excessive. In such cases, a new trial may be limited to the
5 issue of punitive damages.).
6
The errors discussed above made it impossible for the jury to fairly and impartially
7
evaluate damages. It is apparent the jury was more concerned with broader societal issues
8
rather than the facts of the case, an outcome made possible only by the significant errors
9
10 discussed above. The size of the awards given demonstrates just how inflamed the jury was
11 against Defendants. It is absurd to suggest this breakdown in the deliberative process would
12 not carry over into the jurys liability decisions. Therefore, these amounts show not only a
13 need for a new trial on damages but justify a new trial on liability as well.
14
F. The jurys verdict is against the weight of the evidence.
15
Defendants do not intend to belabor points made in their other motions (i.e., motion
16
for judgment as a matter of law and motion for entry of qualified immunity) and the Courts
17
18 own recollection of the evidence adduced at trial. However, it must be stated that the jurys
19 verdict was contrary to the great weight of the evidence, warranting a new trial. Rattray v.
20 City of Natl City, 51 F.3d 793, 800 (9th Cir. 1994). Even if the Court were to deny
21
Defendants motions for judgment as a matter of law and for the entry of qualified
22
immunity, that would not prevent the Court from ordering a new trial if the verdict is
23
against the clear weight of the evidence. See Landes Constr. Co. v. Royal Bank of Canada,
24
833 F.2d 1365, 1371 (9th Cir. 1987). Unlike in the Rule 50 context, with respect to a new
25
26 trial motion, the Court need not view the evidence in the light most favorable to the non-
27 moving party. Id. Instead, in deciding whether to grant a new trial, the Court may, and
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indeed has a duty to, weigh the evidence and assess the credibility of the witnesses. Id.
1
One evening Leonard Thomas called his wife and mother to his home because he
2
3 became intoxicated and could not take care of his son, E.T. When they arrived, Leonard
4 refused to give up E.T. His mother called 911 for help. Leonard grabbed her wrist and took
5 the cellphone out of her hand. When patrol officers arrived on scene, Leonard refused to
6
release E.T. The SWAT team arrived and a hostage negotiator talked with Leonard on the
7
phone for hours, negotiating for the release of E.T. Leonard eventually agreed to release
8
E.T. if he could see his mother at the point of release. His mother was sent forward but
9
10 Leonard still refused to release E.T., despite her pleas. Sufficient space had developed
11 between E.T. and Leonard in the front of the house such that the back door was breached in
12 an attempt to apprehend Leonard while SWAT team members at the front of the house
13 could secure E.T. Leonard reacted by grabbing E.T. in a quick and nonprotective fashion.
14
The sniper positioned across the street had a split second to evaluate three possible
15
outcomesnone of them good: (1) Leonard could hurt E.T.; (2) E.T. could be hurt during
16
the confrontation between Leonard and the breaching SWAT officers; and (3) the sniper
17
18 could shoot Leonard, eliminating possibilities one and two. He shot.
19 For the jury to conclude Defendants acted unreasonably under those facts is against
20 the clear weight of the evidence. A new trial should be ordered.

21
V. CONCLUSION
22
For the reasons stated above, Defendants respectfully request the Court order a new
23
trial.
24
25
26
27
ATTORNEYS AT LAW
PHONE: (206) 623-8861
FAX: (206) 223-9423
DATED: August 15, 2017

1
KEATING, BUCKLIN & McCORMACK,
2 INC., P.S.
3
4
By: /s/ Brian C. Augenthaler
5 Brian C. Augenthaler, WSBA #44022
Attorneys for Defendants
6
800 Fifth Avenue, Suite 4141
7 Seattle, WA 98104-3175
8 Phone: (206) 623-8861
Fax: (206) 223-9423
9 Email: baugenthaler@kbmlawyers.com
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
ATTORNEYS AT LAW
PHONE: (206) 623-8861
FAX: (206) 223-9423
1 CERTIFICATE OF SERVICE
2 I hereby certify that on the below date, I electronically filed the foregoing with the
3 Clerk of the Court using the CM/ECF system which will send notification of such filing to
4 the following:
5 Attorneys for Plaintiffs

Timothy K. Ford
6
David J. Whedbee
7 Tiffany M. Cartwright
MacDonald Hoague & Bayless
8 705 2nd Avenue, Suite 1500
Seattle, WA 98104
9 Email: timf@mhb.com
davidw@mhb.com
10
lindamt@mhb.com
11 cristyc@mhb.com
terrif@mhb.com
12 tiffanyc@mhb.com
13 Attorneys for Plaintiffs Frederick Thomas and Annalesa Thomas as Co-
14 Administrators of the Estate Leonard Thomas, and its statutory beneficiaries
John R. Connelly, Jr.
15 Meaghan M. Driscoll
Connelly Law Offices, PLLC
16 2301 N. 30th St.
Tacoma, WA 98403
17 Email: jconnelly@connelly-law.com
18 mdriscoll@connelly-law.com
bmarvin@connelly-law.com
19
DATED: August 15, 2017
20
21
/s/ Brian C. Augenthaler
22 Brian C. Augenthaler, WSBA #44022
Attorneys for Defendants
23 800 Fifth Avenue, Suite 4141
24 Seattle, WA 98104-3175
Phone: (206) 623-8861
25 Fax: (206) 223-9423
Email: baugenthaler@kbmlawyers.com
26
27
ATTORNEYS AT LAW
PHONE: (206) 623-8861
FAX: (206) 223-9423

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Case 3:15-cv-05346-BJR Document 283 Filed 08/15/17 Page 1 of 26

1 The Honorable Barbara J. Rothstein

9 FREDERICK and ANNALESA THOMAS;

12 v. NOTE ON MOTION CALENDAR:

21 II. PROCEDURAL HISTORY

motions were mostly denied. Dkts. 128 & 130.

3 will be discussed in greater detail below.

18 o Unreasonable deprivation of E.T., Fred, and Annalesa Thomas rights to

19 their familial relationship with Leonard; and

25 Officer Michael Wiley:

26 o Unreasonable seizure of E.T. from his father;

27 o Excessive force against Leonard Thomas;

o Unreasonable seizure of the Thomas home; and

3 Officer Jason Cannon:

4 o Arrest of Fred Thomas without probable cause.

10 their familial relationship with Leonard;

11 o Unreasonable seizure of the Thomas home;

12 o False arrest of Fred Thomas;

17 o Negligent investigation of child abuse/neglect.

18 The jury awarded compensatory damages as follows:

19 Unreasonable seizure of E.T.: $1,250,000;

24 Unreasonable seizure of the family dog: $10,000;

25 False arrest of Fred Thomas: $500,000;

Total compensatory damages: $8,635,000.

2 The jury also awarded punitive damages as follows:

3 Chief Michael Zaro: $3,000,000;

4 Officer Michael Wiley: $1,500,000; and

4 1231, 1240 (9th Cir.2005).

18 be granted. Id. at 137172.

10 Defendant Jason Cannons employment status.

19 Plaintiffs central trial theme:

3 Trial Tr. vol. 2, 188:12-13, June 22, 2017, Dkt. 262.

11 enforcement on the night in question:

found in Leonards bedroom. They double-downed on the theme in closing argument

10 prejudice is demonstrated in the massive verdict.

12 error. See Fed. R. Evid. 401-403.

20 Plaintiffs counsel in an effort to double-team Defendants on every aspect of this trial,

12 Tr. vol. 2, 28:20-21, June 22, suddenly blowing up the back

18 the throat; is that right? Trial mentioned that he doesnt have

27 Dkt. 263. vol. 3, 104:10-11, June 23, 2017,

3 intended your order to include about deadly force, no not let

11 Dkt. 264. 49:9-14, June 26, 2017, Dkt. 264.

19 conversations with Leonard ones where you claim he was

25 County or the Washington State 23, July 5, 2017, Dkt. 269.

26 Patrol for assistance, was it?

27 Trial Tr. vol. 9, 107:3-6, July 5,

2017, Dkt. 269.

22 cumulative impact of this questioning is undeniable. See Gapinski v. Gujrati, 77 N.E.3d

12 defense attorney.); 3:19.When is a question objectionable as asked-and-answered,

18 questions was in error. See Fed. R. Evid. 403 & 611.

19 Error No. 3: Allowing Plaintiffs to play the race card.

3 Department officers made national news. In this racially-charged environment, the

10 2017, Dkt. 272.

27 risk posed to the Powell boys by their father.

20 (Sergeant Markert). At trial, Defendants made an extensive offer of proof, examining

11 Exhibit 510 (3D Computer Image of Shooting Reconstruction).

would otherwise have deserved. As one commentator has observed, If

10 To exclude Defendants 3D animations of the moments preceding the shooting was

11 in error. See Exhibits 1050-51.

12 Error No. 6: Allowing Plaintiffs to criticize Brian

14 Defendants moved in limine to prevent Plaintiffs from referencing Sergeant

4 Commenting on a criminal suspects decision to retain counsel is prohibited. United

10 constitutionally impermissible because lawyers in criminal cases are necessities not

18 harp on Sergeant Markerts decision to hire an attorney during closing arguments: