Jury Awards $6.3M to Family of Man Killed by Long Beach Police

A federal court jury in Santa Ana awarded $6.5 million today to the family of a 35-year-old man shot to death in 2010 by Long Beach police officers who said they thought he was holding a gun, which turned out to be a water hose handle.

Relatives of Douglas Zerby had been asking for as much as $21.5 million in their lawsuit against the Long Beach Police Department. Zerby was shot to death on Dec. 12, 2010.

Jurors began deliberating Wednesday and announced about 11 a.m. they had reached a verdict, plaintiffs' attorney Bryan Claypool said.

The panel 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.

Attorneys for both sides worked out an agreement after the verdicts that would make Officers Victor Ortiz and Jeffrey Shurtleff personally liable for $5,000 apiece in punitive damages, but 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.

Jurors found the officers violated Zerby's 4th Amendment rights, battered him, were negligent, that their actions were a substantial cause of his death and acted with malice or reckless disregard for his life. They also found that Zerby, who was highly intoxicated at the time, was negligent, but that his actions did not contribute to his death.

Attorneys for Zerby's family will petition for their fees, which could be more than $1 million, attorney Dale Galipo said.

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, the father of Kelly Thomas, who also is represented by one of the plaintiffs' attorneys, Garo Mardirossian.

Before the verdicts were announced, Ron Thomas put his hand on Mark Zerby's shoulder to comfort him.

"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."

Ron Thomas "has been a big support to me," Mark Zerby said of the father of transient schizophrenic Kelly Thomas, who was beaten to death in a struggle with Fullerton police in 2011.

Ron Thomas is "a man of great pride and he gave me a little bit of that," Mark Zerby said.

Mark Zerby added he hopes the verdict will "send a message to my city officials."

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. the day of his death 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.

The officers had "concealment and cover" before shots rang out, Galipo said.

Shurtleff, for example, was behind a brick fireplace before he opened fire, 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 appeared to some witnesses to be passing out, Galipo noted.

Mardirossian held up the screen Shurtleff shot through to jurors and noted one of the bullet holes wasn't grouped with the others. Mardirossian and Galipo argued Shurtleff triggered the gunfire with an "inadvertent" shot.

"This is a classic case of contagious fire," Galipo said.

Galipo also said the officers "dragged" the bullet-riddled Zerby, who was shot eight times by a handgun and shotgun, down the stairs in handcuffs.

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.

Once the perimeter was correctly established, the officers intended to alert the suspect they were there and issue commands, Machit said.

"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 said. "It comes down to did they act reasonably under the circumstances? It was a rapidly evolving situation with a lot of moving pieces."

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."

Everyone on the scene of the shooting thought Zerby was holding a gun, Machit said.

Machit argued the officers who opened fire did not have "complete cover" from Zerby.

"If (Ortiz) can see Mr. Zerby then Mr. Zerby can see him," Machit said.

The officers only had a duty to warn Zerby "if it was feasible," he said.