Family Seeks Millions in Long Beach Police Shooting

Attorneys representing the family of a 35-year-old man shot and killed by Long Beach police more than two years ago because they thought he had a gun, but was actually holding a water hose handle, argued Tuesday that jurors should award the family millions of dollars because the officers violated his constitutional rights and were negligent.

An attorney representing Long Beach police argued that the two officers who killed Douglas Zerby Dec. 12, 2010, were acting reasonably under the circumstances.

Jurors, who are scheduled to begin deliberations Wednesday, must consider whether the officers, Victor Ortiz and Jeffrey Shurtleff, violated Zerby's 4th Amendment rights, battered him and were negligent. They will also consider whether Zerby, who was highly intoxicated at the time of the shooting, was negligent.

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," said attorney Dale Galipo, who represents Zerby's mother and son. "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. 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, the attorney added.

Police claimed initially that Zerby was holding the pistol-like water nozzle at Ortiz, prompting Shurtleff to open fire to protect Ortiz. 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.

Attorney Garo 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.

Ortiz said in his deposition that he saw "muzzle fire" from the water nozzle, according to Galipo.

"When you're judging his credibility think about this,'' 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.

Galipo said Long Beach should be ordered to pay Zerby's son $10 million and his mother $5 million in damages.

Mardirossian argued for $6.5 million in damages to Zerby's father.

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.

Attorney Monte Machit, who represents Long Beach, denied that police were guilty of a "rush to judgement," 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 argued.

"They were just moments from making that announcement" when Zerby snapped to attention and pointed the water nozzle at Ortiz, Machit argued.

That gave Shurtleff "no option" but to open fire, Machit argued.

"There's no question this is a tragic series of events," Machit argued. "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 argued.

"It is absolutely reasonable for the officers to suspect he had a gun," Machit said.

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

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

The issue of not warning Zerby is a "red herring," Machit said. The officers had a duty to warn Zerby "if it was feasible," Machit said.