A jury was seated Wednesday in the wrongful death lawsuit filed against Fullerton and five officers involved in the deadly struggle with a transient Kelly Thomas four years ago.
Opening statements are expected to be made by attorneys Monday morning.
In “mini opening statements” made by attorneys before prospective jurors on Nov. 9, it appears the video and audio of the incident will be the main evidence.
The key dispute will be who was at fault for Thomas’ death, the attorneys said.
One attorney representing Thomas’ father, Ron Thomas, predicted the evidence will show the officers violated their training and department’s rules and suffocated the 37-year-old transient July 5, 2011, at the Fullerton Transportation Center.
The attorneys representing the defendants say Thomas had a heart attack due to a preexisting condition and that the officers acted properly and were not at fault in the man’s death.
Thomas’ attorney, Garo Mardirossian, cited Orange County coroner reports concluding Kelly Thomas died of “positional asphyxiation and blunt force trauma to the head.”
A former Ventura County medical examiner came to the same conclusion and is expected to testify, Mardirossian added.
Kelly Thomas was diagnosed with schizophrenia when he was 21 years old and decided “he was better off living outdoors,” Mardirossian said.
The transient could always stay with his mother or father and a grandparent, but more often than not during his adulthood he chose to be “semi- homeless,” Mardirossian said.
The 33-minute video of the encounter between Thomas and Fullerton police will be featured prominently in the civil trial, just as it was in the criminal trial, which led to the acquittals of former Officer Manuel Ramos and Cpl. Jay Cicinelli. Prosecutors later dropped charges against former Officer Joe Wolfe.
Six officers were involved in the deadly struggle, and they had an average weight “well over 200 pounds each,” Mardirossian said.
As Thomas pleaded that he couldn’t breathe and cried out for help from his father, the officers used a Taser on him and beat on him as they tried to hobble him with handcuffs, Mardirossian said.
Thomas was declared brain dead the night of the struggle and was taken off life-support machines July 10, the attorney said.
“We don’t believe they should have used any force in this case at all,” Mardirossian said.
Attorney Dana Fox, who represents Sgt. Kevin Craig and Officer Jim Blatney, said, “This is a tragic case, no doubt about it, but there are many sides to this story.”
Fox said Ramos had encountered Thomas several times before, but that the trouble began when Thomas refused to identify himself. Ramos remembered Thomas, but did not recall his name, Fox said.
Wolfe searched Thomas’ backpack and found mail addressed to an attorney, so they suspected a possible theft of mail, Fox said. The struggle started when Thomas refused to follow the officers’ orders and then stood up to “confront” the officers, Fox said.
Craig showed up 19 minutes into the conflict, Fox said. The 19-year veteran sergeant’s job was to ensure the officers are safe, and “He’s helping coach the officers to get the man cuffed,” Fox added.
Craig also tried to make certain Thomas was restrained in a way that did not inhibit his breathing, Fox said. When Thomas was put into an ambulance he was still breathing, the attorney said.
“The evidence is going to show he had a bad, preexisting heart” condition, Fox said.
If jurors find the defendants liable then they will consider how much money to award the plaintiff in punitive damages, Fox said.
If they get that far, the attorneys will focus on, “Was there a relationship between Mr. Thomas and Kelly Thomas?” Fox said. “What was the nature and quality of that relationship?”
Ramos’ attorney, David Lawrence, asserted that Thomas “slapped Ramos’ hand and stood up and confronted” the officer, which led to the struggle. Ramos struck Thomas a few times and held down his feet, Lawrence said.
Wolfe’s attorney, Kevin Osterberg, claimed Thomas “punched Officer Wolfe in the forehead, a criminal act.”
Cicinelli’s attorney, Eugene Ramirez, said it was not his client’s normal shift and that he was on a dinner break at the time when he heard to calls for backup.
When he arrived he saw “a ball of people tussling,” Ramirez said.
Cicinelli struck Thomas in the knee to try to get him to stop struggling, and when that didn’t work he fired his Taser gun, Ramirez said.
“You’re going to see Mr. Thomas grabbing twice at Cpl. Cicinelli’s Taser,” Ramirez said.
Cicinelli “jabbed him twice in the face, hoping it would get him to stop struggling,” Ramirez said.
Ron Thomas, the father of Kelly Thomas, filed the lawsuit on the one-year anniversary of his son’s death, alleging assault and battery, negligence, wrongful death and civil rights violations.
— City News Service