City Cleared in|Fatal Police Shooting

TACOMA, Wash. (CN) - Vancouver, Wash., cannot be sued for its police officers shooting to death an Iraq war veteran with post-traumatic stress disorder, a federal judge ruled.

Vancouver police shot Nikkolas Lookabill to death on Sept. 7, 2010 after he refused to drop a handgun. The 22-year old veteran of Operation Iraqi Freedom was acting incoherently when police responded to a 3:30 a.m. call from people who were disturbed by his behavior, U.S. District Judge Robert Bryan wrote in his Aug. 3 dismissal on summary judgment.

After receiving the call saying that Lookabill was "not really coherent," officers said they found him as he was "screaming obscenities, was very agitated, and not compliant."

Lookabill told the officers to take the gun from him after ordered him to lie on the ground, Bryan wrote in his summary.

"I'm going to countdown from 30 and then if you don't come take the gun from me, I'm going to start smashing my head into the sidewalk," Lookabill told police, according to witness testimony.

The officers and witnesses said Lookabill repeatedly reached toward his waistband, and the officers shot him 13 times. He died at the scene.

Lookabill's stepfather Frank Wescom Jr. and half-brother Gage Wescom sued the city and the police officers, and filed an amended complaint in August 2013.

The city and police claimed the Wescoms did not have standing to sue because, among other things, there is no authorized personal representative to pursue their claims. They claimed that a former step-parent and half-sibling do not have due process liberty interest in their relationship with an adult child or half-sibling.

Bryan dismissed most of the claims in October 2013, but preserved a claim against Vancouver under the Americans with Disabilities Act.

This year Bryan dismissed the claims against the individual officers, finding they did not violate the constitutional rights of Lookabill or his relatives. The city moved to dismiss the remaining claims.

To prove that the city had violated the Americans with Disabilities Act, Lookabill's family had to prove that he was a qualified disabled person, and that he was discriminated against because of his disability. The judge was not convinced.

"The only evidence in the record regarding a disability was Officer Gutierrez's recollection that Mr. Lookabill's girlfriend reported Mr. Lookabill was suffering from PTSD and was talking about suicide months prior to this episode," Bryan wrote.

That evidence was hearsay, Bryan found, and he was not a "qualified individual with a disability" under the law.

Lookabill's family claimed officers should have accommodated his disabilities in certain ways, such as not ordering him to get on the ground, or not positioning themselves closely to him.

"Aside from bare assertions, plaintiffs fail to show that these actions would have mitigated the risk posed by Mr. Lookabill when the officers encountered him or afterward," Bryan wrote.

In conclusion, the judge wrote: "The toxicology report indicates that Mr. Lookabill was extremely intoxicated, his blood reflected an alcohol content of .23 g/100 ml and a .12 mg/liter of the antidepressant citolopram. Plaintiffs have failed to show that Mr. Lookabill's behavior (that caused the officers' actions) were the effects of his disability rather than the result of his intoxication. Plaintiffs ADA claim should be dismissed." (Citation omitted; parentheses in ruling.)

Bryan granted summary judgment, dismissed the claims against the city, and closed the case.

Vancouver, Wash. is across the Columbia River from Portland, Ore.

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