Law360 (January 6, 2021, 8:14 PM EST) -- A federal judge approved an $8 million deal Tuesday to end an excessive-force suit against the city of Tacoma, Washington, leveled by a man left paralyzed after a police officer shot him multiple times in the back and neck.
U.S. District Judge Marsha Pechman approved the settlement between the city and officer Kristopher Clark, and shooting victim Than Orn, his wife and two children through a guardian, which was inked after a Zoom jury trial was held late last year. The proceeding marked the fourth ever remote federal jury trial.
The city reached the deal with Orn after the trial began in late November, despite objections from the city government over the constitutionality and fairness of the trial. Judge Pechman, who has overseen her district's efforts to pioneer remote jury trials, rejected the efforts to stop Zoom proceedings and further draw out the eight-year legal battle.
"I think their concerns were largely fabricated trying to get some foothold for an appellate issue," Darrell Cochran, counsel to Orn, told Law360. "We got a chance to try the case which might have dragged out for another year if we didn't get the opportunity to do the Zoom trial, and particularly with a client like ours who has daily health concerns because of his paralysis and amputation of his legs."
Orn filed suit in 2013 against Tacoma and Clark, accusing the officer of shooting him 10 times through his vehicle without reason during a low-speed chase. Orn was shot in the neck, back and shoulder and left paralyzed below the waist by a bullet lodged in his spine.
The incident was sparked when an officer began tailing Orn for driving without his lights on at 8:30 p.m. After turning on his lights and refusing to pull over, Orn led police officers on a 16-minute chase at speeds never exceeding 35 miles per hour and at points as slow as 5 miles per hour before pulling into his apartment complex, according to the complaint.
Clark shot into Orn's vehicle 10 times after exiting his vehicle against orders from a superior, according to court filings. The officer was afraid Orn would run him down or pin him between vehicles while maneuvering around a police blockade, according to the city.
An investigation by the Tacoma Deadly Force Review Board cleared Clark of wrongdoing, but ordered him to undergo environmental awareness, tactical positioning and officer safety training, according to the city and court filings. The department promoted Clark to sergeant on the heels of the incident, according to Cochran.
"We continue our efforts to decrease incidents that can escalate and result in injuries to our residents and our police officers," a spokesperson for the city said in a statement. "The city of Tacoma remains committed to comprehensive systems transformation, with our first area of focus being policing."
The trial and settlement marked the end of a protracted legal battle involving a Ninth Circuit appeal, in which a panel of judges declined to grant the officer immunity. The city and its attorneys repeatedly attempted to stymie the remote trial, arguing that the case was not well-suited to be tried remotely and pointing to unresolved questions of constitutionality.
"This significant and nuanced action is simply not the proper 'test case' with respect to the constitutionality of virtual trials," the city asserted in October. "There are attendant and well-founded concerns regarding the sometimes virulent social attitudes towards police officers, particularly in Western Washington right now, and accepting the risk of video technology further dehumanizing the officers, especially Officer Clark, is simply not a risk that is acceptable without placing the fairness of the entire proceeding in jeopardy."
The city continued its push after the trial was underway, citing instances in which jurors lost audio, appeared to be distracted or were using their phones.
Cochran disputed these concerns, noting that the benefits of the Zoom trial far outweighed the few downsides he noticed.
"There were a lot of advantages that come from the jury trial including, from a lawyer's perspective, the ability to have witnesses more readily available with less logistical problems and concerns, [and] having experts simply appear from their own offices where they've been working efficiently, rather than having them travel," Cochran said.
Under the terms of the settlement agreement, Orn will receive $2.7 million, while his wife and two minor children will each receive $330,000. The remaining $4.2 million of the settlement will be set aside for payment of attorney fees, costs, a lien and trust legal fees.
Tacoma is self-insured for the first $3 million of the settlement and the city's insurance company will pay the remainder, according to the spokesperson.
The Orns are represented by Darrell Cochran, Loren Cochran, Thomas Balerud and Thomas Vertetis of Pfau Cochran Vertetis Amala PLLC.
The city of Tacoma and Kristopher Clark are represented by Jean Pollis Homan and Michelle Yotter of the Tacoma City Attorney's Office, and Anne Melamni Bremner and Karen Cobb of Frey Buck PS.
The case is Orn v. City of Tacoma et al., case number 3:13-cv-05974, in the U.S. District Court for the Western District of Washington.
--Editing by Breda Lund.
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