Judge John Coughenor considers throwing out verdict that favors Kent officer

A federal jury's dismissal Wednesday of a civil-rights claim filed by a man who was shot by a Kent police officer isn't sitting well with U.S. District Judge John Coughenour, who is considering the rare option of going against the jury and imposing liability against the officer himself.

Coughenour, who has presided over the case since 2005, said he had "very serious reservations" about the verdict that exonerated Officer Jason Clift, and told lawyers from both sides that he wanted them to file legal briefs on whether the court can find Clift liable despite the verdict.

Coughenour said that, given the evidence in the preceding two-week trial in federal court, he did not believe a jury could conclude that the shooting "was not an unreasonable seizure" and a violation of plaintiff Nicomedes Tubar's civil rights.

Clift opened fire on a stolen car in a dark Kent parking lot the night of June 25, 2003, claiming he feared the car was trying to run him down.

Two rounds struck the front of the car, but the third bullet passed through the driver's-side window and hit the passenger, Tubar, in the left side.

The bullet went through his body and lodged in his right shoulder, where it remains today.

Tubar, who had no criminal history, was accompanying a neighbor on a late-night cigarette run. He did not know the car was stolen.

That third shot has been at the crux of the case. Another officer arriving as the shots were fired reported hearing a brief pause between the second and third shots. Evidence at the scene showed the car was alongside Clift — and no longer a threat to him — when the last round was fired, Tubar's attorney argued.

Tubar claimed that the shooting violated his Fourth Amendment protection against unreasonable search and seizure. In essence, that the officer fired on the car to stop and arrest the occupants.

Clift's attorneys argued during the trial that the officer could not have stopped shooting any sooner. They also disputed Tubar's claim that Clift ran in front of the car — endangering himself — and then shot his way out of trouble.

The jury, after deliberating since Tuesday afternoon, returned with its verdict Wednesday just before noon, finding Clift did not violate Tubar's civil rights.

Coughenour let stand verdicts in favor of the city of Kent and its Police Department. Tubar had alleged they were complicit by not adequately supervising Clift, who was involved in the shooting just eight days after he returned to work following a forced leave for emotional problems.

During the trial, Tubar's attorney introduced evidence of two other, unrelated shootings Clift had been involved in in 2000 and 2002. In one, Clift killed a woman who brandished a pellet gun after a high-speed chase.

Tubar — who is now 31 with a degree in political science and a job with the Social Service Administration — was seeking $1 million in compensatory damages. He could have also sought punitive damages against Clift — and still might, depending on what the judge decides.

Clift declined to comment on the verdict or the judge's order or comments.

Tubar would say only that he was "extremely surprised" by the verdict.

Tubar's attorney, Tim Ford, called Coughenour's order "unusual."

"This happens, but not very often," he said.

Clift, who remains a Kent officer, spent hours on the witness stand dissecting an incident that even Tubar's lawyers say lasted about two seconds. Clift's attorney, Steven Thorsrud, said in closing arguments that the three shots were fired in one second and that Clift could not have stopped firing any quicker than he did.

Much of the trial was spent analyzing, second by second, the sequence of events as the driver of the car, Heather Morehouse, tried to drive out of the parking lot as Clift approached the car from behind. Clift had been watching the car from nearby trees and had set a device to flatten a tire before Morehouse and Tubar got inside and attempted to drive away.

The rim on the flattened tire left marks in the parking lot that Tubar's lawyers says were consistent with the vehicle driving toward the exit and away from the officer. Clift said the car accelerated straight toward him.

Neither Tubar nor the driver recognized Clift as a police officer, according to their testimony. He approached the car from the rear as they were backing out of a parking space and shined a flashlight in the rear window.

He said he yelled "Stop, police!" However, neither of them heard the command, according to their testimony.

Morehouse was cut by shattering glass but otherwise was unhurt in the shooting.

This is the second time in six months that a member of the federal judiciary in Seattle has questioned a jury's verdict in a police civil-rights case.

In December, U.S. District Judge Thomas Zilly publicly chastised a King County sheriff's deputy, Brian Bonnar, after he was acquitted of criminal civil-rights charges alleging he used excessive force during an arrest.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com