By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
Dec. 12, 2010, was a reasonably nice day in Long Beach, hitting a high of 64 degrees. On that late-Sunday afternoon, the streets of Belmont Shore were full of people returning from the beach, shopping or just enjoying the day. One of them, Doug Zerby, 35, was sitting on the porch of a friend's home in the 5300 block of East Ocean Boulevard just after 4:30 p.m. He had been drinking and was idly playing with a metal object.
A neighbor, Gordon Moore, was inside his home with his father-in-law when he saw Zerby in the back yard. Moore thought Zerby had a gun. He asked his father-in-law what it looked like to him. He also thought Zerby had a gun. Moore said later he was concerned for the safety of his wife and mother-in-law, who soon would return from shopping. Moore called 911 around 4:40 p.m., reporting a man with a small "six-shooter" in his back yard.
The first officer to arrive, Victor Ortiz, got to the scene just three minutes later. After talking to Moore about the "man with a gun," Ortiz got his shotgun and set up in Moore's living room, about 40 feet from Zerby. The next officer, Jeffrey Shurtleff, arrived around 4:45 p.m. and positioned himself in the kitchen, less than 25 feet from Zerby.
The officers later told the Long Beach Police Department (LBPD) and Los Angeles County investigators they watched Zerby manipulating what they thought was a handgun and pointing it toward an apartment building. Another officer arrived around 4:50 with an assault rifle with telescopic sights. He set up in front of the house, less than 60 feet away.
At this point, the LBPD and LA County reports claimed, Zerby grew more alert as he heard police sirens. "Mr. Zerby raised both arms and extended them out in front of himself while pointing the object believed to be a handgun toward Officer Ortiz." Officer Shurtleff opened fire on the man with his Glock 40-caliber handgun.
Ortiz claimed Zerby was looking directly at him in the living room when he raised the gun-shaped object. Ortiz released the safety on his shotgun. According to the LA district attorney's report, when he heard gunshots, "believing that Zerby was shooting at him, Ortiz fired his shotgun at Zerby. . . . The combination of Zerby pointing the object directly at him coupled with the sound of Shurtleff's gunshots led Ortiz to conclude that he was under attack. Ortiz fired to end this threat."
In fact, they ended Zerby's life. After he was shot, a police spokeswoman said the suspect was handcuffed. An autopsy would later conclude he was hit by 12 shots in the chest, arms and lower legs fired by officers Shurtleff and Ortiz. It would also find Zerby had a BAC level (blood-alcohol content) of 0.42. In a macabre coda to the shooting, according to Zerby's father, Mark, the DA's report stated that first responders removing his son's body from the stoop bounced his head against the stairs seven times.
* * *
The "six-shooter" that Zerby was holding, the one that put the neighbor and well-armed police in fear of their life? It turned out to be a black pistol-grip water nozzle with a metal tip. More disturbingly, Zerby had never been ordered to drop the "weapon" or given any other command. He probably never even knew the police were nearby.
The shooting underwent an internal review by LBPD. It was also investigated by the LA County Coroner's Department and the LA County district attorney's office. The LA DA cleared Shurtleff and Ortiz of criminal liability in a November 2011 report. "The evidence examined in this investigation leads to the conclusion that this was a tragic mistake of fact," the report states. "The evidence also demonstrates that the police actually and reasonably believed that Zerby was armed with a firearm at the time of this incident."
In fact, Ortiz initially reported seeing muzzle flashes from Zerby's "weapon." Later, testifying at the federal civil trial, he acknowledged that a water nozzle could not produce such flashes.
Erwin Chemerinsky, dean of UC Irvine Law School and a noted legal scholar, says police action against civilians rarely results in criminal prosecution, except in what he describes as "egregious incidents, of which Rodney King is the most famous. It depends on the nature of the harm inflicted, the extent of the evidence. Often, this means terrible injuries and extreme force used relative to the need. If there hadn't been the videotape of the beating of Rodney King, there would never have been a prosecution."
Police action against civilians results in civil litigation far more often. "The standard of proof is easier," explains Chemerinsky. "Also, the victim can initiate the civil suit, while only the DA can initiate criminal prosecution. It's a much higher priority to the victim or their family than to the DA."
Long Beach Police Chief Jim McDonnell refused to comment for this article. But shortly after prosecutors refused to charge any officers in the shooting, he called the incident a "tragedy" in an interview with the Long Beach Press-Telegram. "Hopefully, this conclusion provides some closure for the family, the community and the officers involved," he said.
Despite McDonnell's hopes, the Zerby family remains bitter. Mark Zerby, 59, says McDonnell falsely claimed Doug had a two-handed grip on the nozzle, similar to that of a gangster in a movie, and that his only intention was to put together a bulletproof police report and choreograph every detail. "McDonnell needs to resign," he fumes.
"When the DA rubber-stamped the case, we couldn't go after [the police] criminally," adds Eden Marie James. "What happened to my brother, in addition to being tragic, was a horrible crime. I'm going to fight for justice."
Even in civil cases, Chemerinsky believes jurors can send a message about police misconduct. "I believe civil litigation against cities is a key way of deterring this conduct," he says.
Following the death of Doug Zerby, his family filed a $21.5 million federal civil-rights and wrongful-death suit against the city. James claims the city delayed the civil trial and issued a citywide "gag order," forbidding employees from commenting or possibly assisting the Zerbys. LBPD declined to comment for this story; the Long Beach city attorney's office did not respond.
When the civil trial finally took place this spring, almost two and a half years after the killing, the city claimed Zerby was homeless, didn't contribute to society and would have lived only a few more years. This was profoundly upsetting to his family. The Zerbys have lived in Long Beach for more than 50 years and have known many cops. "There's a quietness in the ranks; it's all hush-hush, " Mark Zerby says.
Mark operates Bottoms Only, a boat-cleaning service that frequently employed Doug; he had spent thousands of hours diving with his son and had planned to leave the business to him. Zerby's mother, Pam Amici, is a highly rated math teacher at Long Beach Poly.
Zerby's sister, James, described her brother as a champion high-school swimmer and free spirit who gave a homeless man the jacket off his back. "He traveled all over the U.S. as an expert snowboarder," she says. "Doug's best friend was Jason Lezak the Olympic swimmer. Jason and his family came to Doug's funeral."
But Doug had fallen off the wagon, she concedes. "He wasn't proud of the fact that he struggled," she says. "He was being responsible when he reached out to my father that day for a ride." If he had driven home drunk instead of waiting for a ride, she says, he might be alive today.
After the killing, Mark says, "Police cars would pull up in front of my boat, and the cops would stare at me."
"Cops I knew socially disappeared off my Facebook and never reappeared," adds James. "They were not allowed to talk based on orders from the city attorney."
James remains resentful of the city's attack on her brother's character during the trial. "They went into this knowing they would lose," she says. "But they wanted to pay the lowest amount they could. . . . The city spent a whole week minimizing my brother's value."
After hearing weeks of testimony in the federal civil trial, including what James bitterly calls expert witnesses hired at astronomical fees, the six women and two men of the jury deliberated for a day. They returned to deliver a unanimous verdict that Long Beach police violated Zerby's civil rights. Officers Shurtleff and Ortiz were declared liable, with the jury finding that Zerby's Fourth Amendment rights ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures") were violated and that police were negligent and committed battery on Zerby.
The $6.5 million verdict, while less than one-third of what the family had sought, was a clear victory for the Zerby family. "You can't just murder my innocent, surf-loving brother," says James. "People thought it only happened to gang members, or minorities. But it's happening all over the U.S. People are fed up."
The verdict also joins a depressingly long list of recent payouts by area taxpayers. Among others, these include:
• A $1.55 million payout to Renee Alexander, the widow of Julian Alexander, and his daughter, after Alexander was shot and killed by an Anaheim police officer for holding a stick in 2008.
• Kelly Thomas' mother, Cathy, settled for $1 million against the city of Fullerton for the wrongful death of her son. (This does not include Ron Thomas' upcoming suit against the city.)
• In 2010, Matthew Fleuret was arrested on suspicion of obstructing a deputy after getting into a bar fight on St. Patrick's Day. Never prosecuted, he received a settlement of $750,000 for excessive use of force.
• In 2011, the family of Jason Jesus Gomez, 35, agreed to a $2.1 million excessive-use-of-force settlement after his wrongful death in the Santa Ana jail.
• In April 2013, the Orange County Board of Supervisors approved a tentative settlement to the family of late Marine Sergeant Manuel Loggins. It was approved despite the DA clearing the sheriff's deputy of wrongdoing in an early-morning shooting of Loggins at San Clemente High School. No payment has yet been announced.
Of course, police brutality cases are nothing new in Orange County. As writer William Faulkner famously put it, "The past isn't dead. It isn't even past."
* * *
On a hot spring day in 1997, Merritt Sharp Sr. had cars to fix, insurance adjusters to call back and a pair of SeaDoos to paint. He was alone in his Garden Grove body shop, working on a vise, when 20 armed men burst through the doors and driveway entrances. They grabbed the former Marine, threw him down on the concrete floor and handcuffed him.
One beefy raider sneered at Sharp, "You're going down!"
While one held a shotgun to Sharp's head, the others ransacked the shop, going through his desk, toolboxes, closets and paint cabinets. Three drug-sniffing dogs were sent through the storage room. After 45 minutes, the men uncuffed him without arresting him and left. "I was really disappointed because I didn't expect that from the police department," he says. "I told them, 'Fuck you and fuck everyone else in your family!'"
Though the incident was more than 15 years ago, Sharp continues to suffer from pain and nightmares. The warrantless search, which was for Sharp's son, an alleged parole violator, resulted in a $250,000 civil settlement against Garden Grove. "We're supporting our officers," the city's police captain, Dave Abrecht, said at the time. "We don't think that they did anything wrong."
In 1989, Los Angeles County Sheriffs broke up a bridal party in Cerritos. Some 36 members of the party, mostly Samoan-Americans, were beaten by a gauntlet of sheriffs and arrested. Officers claimed the scene was a near-riot, with rocks and bottles thrown. Yet the home had a manicured lawn free of debris, and there were no dents, broken windows or scratches to the 52 patrol cars at the scene. "The police lied about the riot," says attorney Garo Mardirossian, who represented the family in their subsequent lawsuit.
During the beating, members of the family were addressed as "coconut head" and "big Samoan cow." David Dole, now 52, a local high school football star who played for San Jose State, was beaten dozens of times with police batons and heavy flashlights. His sister Emily Dole, now 55, a former U.S. Track and Field Team shot-putter and pro wrestler, was beaten on the head and across the back of her legs.
"You represent a bunch of animals," they were allegedly told by deputies. Mardirossian got the charges against the Doles and their friends and relatives thrown out. Nine and a half years later, the extended family received $24 million, the largest settlement against the LA Sheriff's department; it did not include their continuing medical care.
Although she's cheerful and friendly, former Gorgeous Ladies of Wrestling star "Mt. Fiji" Emily lives in a Santa Ana convalescent home. She is confined to bed or a wheelchair due to her leg injuries and a dropped foot.
David still has hand and head injuries from the beating. At 40, the right side of his body was paralyzed by a stroke, which Mardirossian believes stemmed from the nearly 100 blows to his head delivered by LA deputies. "We can forgive, but we can never forget," David says.
"I don't hate the police," adds Emily, as she crochets a pink baby blanket. "There are good apples and bad apples. Without law enforcement, our country would be chaotic."
Indeed, one of the careers young Alex Dole, David's son, is considering after college is police officer. "I want to do something right," Alex says. "I like helping people."
"I love cops," David adds softly. "I hate what happened."
Even in the most egregious cases of civilian misbehavior, law enforcement overreaction can be prevented. Take the case of Norris Phuoc Nguyen, who had reportedly threatened to harm children at a Garden Grove school and recently terrified Orange County by walking away from the Royale Mental Health Center. Police learned of his obsessions in 2011 when he walked into the Westminster Police Department holding an assault rifle, saying he wanted to "die by cop," according to Garden Grove Police Chief Kevin Raney. Instead of getting his death wish fulfilled, Nguyen won a trip to Royale.
Attorney Jerry Steering, who won the civil judgment in Sharp's case, more recently won a $2.13 million settlement in the OC Jail death of Jason Gomez. "He was going bonkers in his jail cell," Steering relates. "The jail didn't give him his bipolar meds, so he was yelling and screaming and broke a nurse's arm. Then he put soapy water on the floor of his cell, and they couldn't Tase him because he put out a mattress. So they beat him, killed him."
Steering, who has been handling such cases since 1987, is profoundly cynical about the system. Most of the people who call him, he says, will not be able to receive justice or compensation. "It doesn't matter what happens," he says. "It matters how good liars the police are. It becomes a reality that never happened."
Judges tend to not want to exclude evidence, no matter how it was obtained, and prosecutors don't want to get egg on their face and lose, he continues. "They understand cops have a tough job, so they have a natural tendency to side with them. The young, ambitious DAs want to get in with the cops so they can become a judge one day."
Steering's dismal view extends to juries, as well. "White people are pretty stupid," he says. "They live in a fantasy world. They don't know there's a substantial minority of cops who get off on beating people. 'Resisting arrest' or 'delaying an officer'—people go for this stupid crap."
Given all this, Steering questions prospective clients carefully before taking their case. First question: Have you had a psychiatric hospitalization? Steering says, "If you do, [the prosecution will] rip the crap out of you."
Second: Do you have a job? "Juries don't like people who don't have jobs," he says.
Third: What kind of convictions do you have? "If you were convicted of a heinous felony, they'll rip you apart in trial," he says. "If you're a child molester, nobody's going to give you any money."
Finally: Do you have any witnesses? "Sometimes it takes a lot of investigation to find out what happened," he notes.
Even with the deck stacked against his clients, Steering has seen change happen. "Jail beatings are way down in Orange County," he says. "Sheriff [Sandra] Hutchens has really made a difference. One of my clients told me that now they make you stand up for hours and hours in the jail. A deputy told him, 'The sheriff says we can't beat you anymore.'"
* * *
Despite such encouraging developments, achieving real change when it comes to police misconduct can be difficult for many reasons. Police officials tend to see such lawsuits as an assault on their authority, rather than a plea for accountability. Within a department, even if officers feel one of them overstepped his bounds or delivered substandard performance, "snitching" is as unpopular as it is in gang circles. This, combined with a belief that the actions were justified by circumstances and that civilians don't understand the pressures of policing, can lead to an "us against them" mentality.
Another issue is the rarity of criminal prosecutions brought against law-enforcement personnel because of "justified shootings." Steering notes that in 2010, the LAPD shot 15 people who "reached for their waistband." None had a gun. None of the officers was prosecuted. Steering represented the family of Ashley MacDonald, a suicidal 18-year-old girl who was fatally shot by Huntington Beach police in 2006 after she brandished a small knife in a public park. Although the cops put 15 bullets into the teenager, none was charged with a crime. It was found the officers' actions didn't violate department policy.
But when a jury awards a plaintiff or a settlement is reached with a city, where does the money come from? The taxpayers? Like corporations, cities have insurance policies. Smaller cities often join insurance risk pools to spread the risk and get better rates. Depending on the city, policy, association, etc., the deductible for a liability could be between $50,000 and $1 million. The deductible is typically paid out of city coffers; the balance would come from insurance.
One such pool that includes Stanton provides its 31 member cities $50 million in limits on an occurrence basis, with no aggregate. That means each member city is covered up to that amount per incident. As a PERMA insurance company spokesperson noted, "In the unlikely event a judgment was made in excess of the $50 million, then the member would be responsible for the amount over $50 million." Even the largest settlements, such as the $24 million won by the Dole family, have not yet risen to such levels.
"No aggregate" means a city with multiple occurrences throughout the policy year would have a $50 million limit available for each occurrence. So even if a city had multiple brutality judgments against it, about all that would happen is the city's deposit premium, paid to fund the coverage, would increase. The spokesperson noted that his association has never expelled a member for above-average liability losses and that he has never heard of an insurance pool that has.
Ron Thomas has little patience for this. "I get hate email because people think I'm going to bankrupt the city," he says. "The city is not going to go broke. The system is designed so that the city doesn't get penalized. So they get complacent and don't care. We're actually suing the mayor, police chief and two councilmen individually. That might wake them up a bit."
Even though bad cops are rarely prosecuted or fired, many families find civil litigation offers some form of justice and even forgiveness. In his case, Steering "subpoenaed every one of the police officers," Merritt Sharp Sr. says. "They squirmed in court every day for about two weeks. 'Do you know who pointed a gun at Mr. Sharp?' 'No.' 'Do you know who handcuffed Mr. Sharp?' 'No.' The jury didn't believe the cops."
But all too often, what the family really wants—an acknowledgment and an apology—is not forthcoming. "My clients Zerby and Dole never got an apology," Mardirossian says. "After the settlement, the legal responsibility of the police is over. It's all about ego."
To families seeking someone to be held accountable for the death of a loved one, even small judgments against individual cops become very important. In the case of Doug Zerby, in addition to the $6.5 million judgment that will be paid by the city, the two policemen were ordered to pay $5,000 each to the family.
The amount is symbolic, agreed to for practical reasons. "We stipulated to the $5,000, rather than put the family through three more days against each officer," says Mardirossian. But, he continues, "far too often, it's the city or the union that makes the payment for them."
To James, the monetary amount each officer will be required to pay out is irrelevant. "It's a statement made by the jury," she concludes. "Being awarded punitive damages is very, very rare in federal court. The jury of our peers found unanimously that they were guilty."