Judge Advances Claims in BART Officer’s Death

SAN FRANCISCO (CN) - The widow of a Bay Area Rapid Transit officer can pursue due process and inadequate training claims against the agency after her husband was shot and killed by a colleague during a building search.

Det. Sgt. Tommy Smith was leading a team on a probation search in a Dublin apartment on Jan. 21, 2014, when he was shot in the chest by Det. Michael Maes.

Maes allegedly mistook Smith for a threat, but Smith's widow Kellie Smith claims the shooting was intentional and that the officers made a number of tactical errors before the search, including failing to study the building's floor plan.

Smith's attorney Eustace De Saint Phalle did not respond to an email request for comment.

"Regardless of whether the shooting was accidental in the sense that Maes never intended to kill his colleague, the first amended complaint alleges that Maes intentionally fired his weapon at the shadowing figure," U.S. District Judge Thelton Henderson wrote. "The shadowy figure's constitutional rights are not diminished because he turned out to be a police officer."

He added, "This conclusion, however, does not also save plaintiffs' fourth and fifth causes of action under the Bane Act. These two causes of action seem to be premised on BART's inadequate training program, rather than Maes' alleged use of excessive force. And unlike the excessive force claim, there is no threat 'inherent' in the creation and promulgation of threat for these causes of action."

California's Bane Act creates civil liability for someone who denies or attempts to deny the civil rights of another.

Henderson did say BART should have to answer to Smith's 14th Amendment claim alleging the agency's longtime failure to train its officers "for the express purpose of saving money," and the disparaging remarks with which Deputy Police Chief Ben Fairow responded to Smith's and others' repeated training requests - including that they were "all bullshit" and that they were "pussies."

"The question remains whether plaintiffs have sufficiently pleaded that defendants' conduct in failing to train 'shocks the conscience.' And it is certainly plausible that it did, given

decedent's repeated requests for training and the disparaging comments made in response," Henderson wrote.

The judge declined to decide at this stage whether Kellie Smith and her young daughter are also entitled to seek punitive damages, but also refused BART's request to strike the request.

"Plaintiffs have alleged that the need for tactical training was explicitly made known to defendants through repeated requests, but that defendants met such requests with insulting and disparaging remarks including that the officers were 'pussies,' " Henderson wrote. "At this stage, it would be premature to hold that these allegations do meet the standard for punitive damages as a matter of law.Smith has until Dec. 14 to file an amended complaint or the entire case will be dismissed with prejudice.

BART attorney Helen Lee Greenberg did not return a call seeking comment.

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