The city of Fullerton agreed Monday to a $4.9 million settlement for the father of Kelly Thomas, a homeless, mentally ill man who died four years ago after a violent encounter with Fullerton police.
Attorneys struck the deal early Monday, hours before a civil trial was set to begin in the wrongful death claim – a trial that would have included video recordings in which the 37-year-old Thomas screams for his father to help him.
The settlement, to be paid by Fullerton’s insurance company, also marks a possible ending to a legal saga that so far has cost Fullerton taxpayers at least $2 million. Federal officials say a criminal civil rights investigation remains open. The five-year window on that case closes in July.
The eleventh-hour deal announced Monday also renewed questions of guilt in a story that drew national attention to the Fullerton police and prompted scrutiny of police use of force during encounters with mentally ill people.
Dana Fox, an attorney for the city of Fullerton, said the $4.9 million settlement is not an admission of legal liability by the city or police.
But Thomas’ father, Ron Thomas, disagreed.
“They know they were guilty of murder,” he said during a news conference that included blown-up photos of his son as a child playing with his family and holding up a fish he caught, and the now-familiar photo of an adult Kelly Thomas in a cowboy hat.
“By offering that amount, they feel they are getting off lucky.”
Civil rights lawyers and advocates for the mentally ill said the amount sends a strong message to all police and the public that the lives of the homeless have value.
“You can’t look at these folks on the streets and deal with them in any less a human manner than you would with a regular working Joe,” said Eric Traut, former president of the Orange County Trial Lawyers Association.
Erwin Chemerinsky, a constitutional scholar and dean of the UC Irvine School of Law, said the amount “sends a message that something really wrong was done here.”
“If the amount was $10,000, that’s a very different message than $4.9 million. Obviously, the city would not have settled for $4.9 million unless they felt there was a substantial risk that they would lose much more before a jury.”
The wrongful death lawsuit named the city, former Fullerton police Officers Manuel Ramos, Jay Cicinelli and Joseph Wolfe, who were all fired from the department. Others included in the suit: Fullerton Officers Kevin Craig and James Blatney, who remain with the department; ex-Chief Michael Sellers; and his predecessor, Patrick McKinley, who sat on the City Council at the time of the incident and was later recalled.
In a criminal trial that ended early last year, Ramos and Cicinelli were found not guilty and charges were dropped against Wolfe.
“These officers are trying to get their jobs back,” said Garo Mardirossian, an attorney for Ron Thomas.
“We wanted to make sure they can’t.”
Kelly Thomas, who was known as a transient in Fullerton and other North County communities, died five days after police tried to take him into custody at the Fullerton Transportation Center for possibly stealing small personal items.
A city security video that surfaced after the incident showed several officers threatening Thomas. Though the video isn’t clear on all that transpired, Thomas was unconscious at the end of the encounter and his injuries included a compressed trachea and broken bones in his face.
That video went viral on the Internet and helped turn Kelly Thomas into a national story. Had the civil trial moved forward, the officers would have taken the stand for the first time, unable to invoke their Fifth Amendment right to decline to testify, an option that was available to them in the criminal trial.
Attorneys for both sides said Monday that settlement negotiations started early last month. But after jury selection began Nov. 9 it looked like there would be a trial; a full jury was ready to start trial at 9 a.m. Monday.
Fox said he spent Wednesday evening and Thursday last week preparing opening statements. Fox was in a deposition at 7 a.m. Friday morning on the 40th floor of his offices in the U.S. Bank Tower in downtown Los Angeles when an email came in from the mediator in the Thomas case.
The offer presented by the mediator was $4.9 million, and both sides had until 11:30 a.m. Friday to accept or reject it.
The course of Fox’s day suddenly changed.
He excused himself from the deposition and began shooting off emails and making calls to his clients and the city’s two insurance carriers, informing them of the offer.
Both Mardirossian and Fox notified the court that a settlement was in the works. The Fullerton City Council met in closed-door emergency session Monday.
“If something fell apart Monday, we would have to get our game faces back on,” Fox said.
But City Attorney Richard Jones issued a statement Monday after the 9 a.m. council meeting: “The contemplated settlement has been negotiated by the City’s insurers and has been reviewed by the City. No City funds are involved in this settlement.”
The city paid a $1 million settlement in 2012 to Cathy Thomas, Kelly Thomas’ mother. And legal fees related to Thomas’ death have added at least another $1 million.
On Monday, as Judge Kirk H. Nakamura read the settlement, all of the defendants stood up in the courtroom and agreed to its terms.
“I think both sides had much to gain and lose by trying this case,” Nakamura said.
While noting that a trial would have given Ron Thomas the opportunity to testify, Nakamura told him, “Regardless of the outcome, you are never going to have your son back.”
Attorney Traut, who has an office in Santa Ana, said selection of the jury and its composition likely prompted the settlement.
“What may have happened is both sides got a better perspective on the makeup of the jury and where this might go.”
A transient with a scruffy red beard and wearing unkempt clothes on the day of his encounter with Fullerton police, Kelly Thomas had been diagnosed with paranoid schizophrenia and suffered from mental illness throughout his adult life. County health officials labeled him “gravely disabled,” and he’d spent months inside psychiatric treatment centers.
Since Thomas’ death, Fullerton enacted police reforms that include better training for officers in dealing with the mentally ill and more “homeless liaison” officers.
And Thomas’ story has been tracked closely by people who advocate for the mentally ill.
Steve Pitman, board president for the Orange County chapter of the National Alliance on Mental Illness, said Monday he was pleasantly surprised by the amount of the settlement but that he wants the Justice Department to pursue a civil rights case against the Fullerton police.
“I don’t see how any thinking person could watch and listen to those videotapes and not conclude that this man was beaten to death,” he said.
“Somehow we are able as a society to dehumanize (the mentally ill) because of their circumstances. Then that serves as a rationale for behavior that would not be acceptable anywhere else.”
Ron Thomas had said he would donate money he might be awarded as result of his son’s death to helping the homeless.
During Monday’s news conference he mentioned no specific plans for his part of the $4.9 million, but said, “I will continue with my advocacy, helping out a lot of charities and organizations, working with them.”
He said he has been focused on getting the most needy of the mentally ill off the street.
“If money can help with that,” Ron Thomas said, “I will use it.”
