Robert and Deborah Mann, brother and sister of Joseph Mann, who was shot to death by Sacramento police, say the family has filed a second lawsuit against the city seeking information about the officers who fired the fatal shots. Anita Chabria The Sacramento Bee
Robert and Deborah Mann, brother and sister of Joseph Mann, who was shot to death by Sacramento police, say the family has filed a second lawsuit against the city seeking information about the officers who fired the fatal shots. Anita Chabria The Sacramento Bee

Local

Who can sue when police shoot to kill? This federal court ruling says siblings can

By Anita Chabria

achabria@sacbee.com

September 22, 2017 05:00 AM

The sisters and brothers of a man killed by Sacramento police won a pivotal federal court ruling this week that potentially expands who can legally sue in the aftermath of police shootings and opens a window on more information about the controversial incident.

Joseph Mann was shot 14 times in July of last year by two Sacramento police officers, John Tennis and Randy Lozoya.

Mann’s father previously sued the city and settled for $719,000.

But Mann’s five siblings were unhappy with the outcome of their father’s suit because they wanted it to include public tracking of police reforms in Sacramento and information on whether the two officers who fired shots had been disciplined by the department.

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In June, they filed an unusual lawsuit using the First Amendment of the United States Constitution. Most commonly known for protecting free speech, the First Amendment also protects the right of association – usually invoked for social or political groups.

Lawsuits involving police shootings are usually filed in federal court using the due process clause of 14th Amendment. But the Supreme Court has limited who can file those suits to parents and children of the deceased.

In the Mann case, Sacramento lawyer Mark Merin argued that the killing deprived Joseph Mann’s sisters and brothers of the right to associate with him.

A judge said that legal angle raised “perplexing” questions, but was valid.

United States District Judge William B. Shubb ruled that nothing in the language of the Constitution or case law around the two amendments clearly excludes siblings from suing under the First Amendment, making it legal for the Mann siblings to make their claim.

Highlighting the ambiguity and gaps in current case law that lead to his decision, Shubb wrote, “It is sometimes said that tough cases make bad law. Here it might be more appropriately said that bad law makes tough cases.”

Merin called the ruling “potentially hugely significant.”

“It really says that the claims that can be brought are not limited to the parents and the children of the persons who are killed but extend at least to the nuclear family because its recognized that the intimate relationships, the family relationships, are severed, and that damages the people in those categories,” Merin said.

Aaron Tang, an acting professor of law at UC Davis and a First Amendment expert, called the suit “a novel argument” and said he hadn’t “heard of these kinds of arguments working before.”

The unconventional approach led defense lawyers to ask the judge to dismiss the suit, prompting this week’s ruling. Attorney John Whitesides, whose firm Angelo, Kilday & Kilduff is representing Tennis and Lozoya, said he disagreed with Shubb’s ruling, but agreed with the judge that the case law around the issue was “murky.”

He said the defense team, including lawyers for the City of Sacramento, which is named as a defendant along with the police department, hadn’t had time to decide if they would challenge it.

Merin said he will push forward to the discovery phase of the lawsuit, where the opposing sides must exchange information. He hopes to find out how the department handled the investigation of the shooting – which department spokesman Bryce Heinlein said is ongoing – and whether the department considered the actions of Tennis and Lozoya to fall within department policy and procedures.

“Basically we will get everything that will now allow us to make an independent determination not only of what happened but the legality of what happened,” said Merin. “We will start fighting tooth and nail to start getting the information we deserve.”

Under California law, police disciplinary records are confidential and the department has given few details about its internal investigation.

The department previously said that Lozoya had retired last April, and confirmed Wednesday that Tennis remains on paid administrative leave. Former police chief Sam Somers Jr., also named in the lawsuit, retired at the end of 2016.

Robert Mann, Joseph Mann’s younger brother, said the scanty details were not enough for his family.

“I’ve got a picture of my brother on my headboard, and I look at him and talk to him frequently and tell him the work I am doing around his death is not over,” said Mann. “From the very beginning it was never a money issue. It was about transparency and accountability. ... When you have officers that are put in positions of power, there should be nothing that is not on the table. Everything should be transparent enough to see what kind of officers we have in our community.”

The Mann shooting set off contentious months of public and political uproar after The Bee released video of the shooting, prompting the department to release further footage from dash cameras of officers.

While the department initially released limited information, a timeline of events eventually emerged that showed multiple police officers had been following Mann from a distance after 911 calls reported he was acting erratically and had a gun and a knife, though no gun was ever found.

The initial officers on the scene attempted to de-escalate the situation, but it quickly escalated when Tennis and Lozoya arrived on the scene a few minutes later and attempted to hit Mann twice with their police cruiser.

The duo then pursued Mann on foot and fired 18 shots in a frenzied encounter that lasted less than one minute.

Mann, who had a history of mental illness, was found to have methamphetamine in his system and was carrying a pocket knife with a 3.5-inch blade.

A subsequent District Attorney’s investigation found Tennis and Lozoya acted lawfully, but the case led to a series of police reforms including requiring body cameras for all patrol officers, a video release policy for critical encounters and expanded crisis intervention training for police.

Demonstrators assemble in downtown Sacramento, protesting Joseph Mann decision

Robert Mann and more than 100 protestors shut down I-5 on-ramp Wednesday afternoon while marching in protest of district attorney's decision to clear officers in fatal shooting of Joseph Mann.

Paul Kitagaki The Sacramento Bee

Anita Chabria: 916-321-1049, @chabriaa