Experts Give Opposing Testimony in Eureka Wrongful Death Case

Experts Give Opposing Testimony in Eureka Wrongful Death Case

Written on Thursday, December 15th, 2016 by T.C. Kelly
Filed under: Expert Opinions

The surviving relatives of Tommy McClain filed a wrongful death lawsuit against the City of Eureka, California. They alleged that an officer of the Eureka Police Department used unreasonable force against McClain and that the officer’s negligence resulted in McClain’s death.

Both sides relied on expert witnesses. Their conflicting testimony might explain a jury verdict that accepted one of the family’s claims while rejecting another.

McClain’s Confrontation with the Police

McClain’s parents sued Eureka after a police officer shot their 22-year-old son in September 2014. The officer fired seven shots, striking McClain in the forehead, chest, and buttocks. The officer said he shot McClain while McClain was reaching “with both hands” for a gun in his waistband. The weapon turned out to be an unloaded pellet gun.

McClain, his cousin, and two women returned home after celebrating his cousin’s birthday. They had been drinking. Unfortunately for McClain, police were staking out the side of the duplex adjacent to his residence. They believed that a criminal suspect was hiding in that unit.

The police watched as McClain confronted a man who parked nearby. The confrontation may have been related to a series of break-ins that had occurred in the neighborhood. After the man walked away, the officers became concerned that McClain might vandalize the vehicle. Not wanting to reveal their presence and thus jeopardize their surveillance, they asked a police car to cruise by, hoping that would dissuade McClain from behaving rashly.

The officers testified that McClain glared at the police car and “racked the slide” on his gun. Sergeant Brian Stephens then left his surveillance post, drew his gun, and “began yelling commands at McClain.” One of those commands was to lift his hands in the air, which he did.

Confusing Commands

McClain said “I didn’t do anything” and “You can’t search me.” The sergeant then told McClain to “get down” or “get down here.” The officer who had been in the car also began to yell commands.

McClain began to walk toward the sergeant. As he started to lower his hands, the sergeant ordered him to raise his hands again. McClain complied. When he lowered his hands again, the police officer who had been in the car shot him.

The evidence suggested there was considerable confusion about what McClain was being asked to do. On a videotape of the shooting, Stephens can be heard saying “Get down here right now.” Later he can be heard saying “Get down.” If McClain believed he was being told to “get down” — a common command on television shows about law enforcement — lowering his hands to place them on the ground would have been a natural response.

The officers testified that McClain did not appear to be lowering himself to the ground. Stephens testified that if he had wanted McClain on the ground, he would have ordered McClain to get on his knees and then to lie on his stomach. McClain, of course, had no reason to know about Stephens’ customary procedures.

Stephens testified he told McClain, “Don’t touch that gun or you’ll be shot.” Stephens could not explain why that statement does not appear on a video recording of the shooting.

Two officers who were hiding behind a fence did not leave their surveillance post. One of those officers testified that he witnessed the shooting. All three officers who were watching McClain testified that he reached for his gun. None of them claimed that he actually touched the gun. Another witness testified that McClain had his hands in plain sight at all times and never reached for the gun.

Expert Testimony

Roger Clark, a retired lieutenant for the Los Angeles County Sheriff’s Department, testified as an expert witness for the McClain family. Clark said he supervised a special team for five years that made 2,500 arrests and never had to fire a shot.

Clark told the jury that officers placed themselves at risk by failing to take cover before challenging McClain. If they had concealed themselves behind a car, they would have given themselves more time to assess the situation before deciding whether McClain was or was not complying with their commands.

In addition, Clark criticized the police for giving an ambiguous command (“Get down here right now”) and failing to clarify its meaning. Clark suggested that “Stay where you are. Don’t move. Keep your hands up” would have been consistent with standard police practices. According to Clark, police should never expect a suspect to walk with raised hands, but should take control of the situation by telling the suspect not to move at all.

Clark also said that McClain demonstrated his willingness to comply by walking toward the officers. When he lowered, raised, and lowered his hands, the officers should have understood that he was confused by their commands.

Alexander Jason, a crime-reconstruction expert, testified for the defense. He noted that one bullet went through McClain’s arm before it entered his chest, suggesting that McClain’s arm was down, not raised, at the time the shot was fired.

Don Cameron, an expert who trains police officers, also testified for the defense. He told the jury that it would not have been appropriate to wait after McClain began to lower his arms, because it only takes a second to draw a gun “and get a shot off.”

Cameron also testified that it was appropriate to continue shooting McClain while he was on the ground because the officers did not know whether he was dead. Until he was dead, there was still a chance that he might draw the gun.


The jury returned a split verdict. Perhaps swayed by Cameron’s expert testimony, the jury decided that the police did not deliberately use excessive force when they shot McClain. At the same time, returning a verdict that was consistent with Clark’s expert testimony, the jury found that the officer who shot McClain was negligent.

The jury also found that McClain was equally negligent. Under California law, the $300,000 verdict is reduced by half to account for McClain’s contributory negligence.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.