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Widow Blames BART for Husband’s Death

SAN FRANCISCO (CN) - Lawyers sparred on Monday over whether a Bay Area Rapid Transit officer's widow can pursue civil rights claims against the agency for her husband's death at the hands of a fellow officer during an apartment search that went tragically wrong.

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.

According to the federal complaint filed by Smith's widow, Kellie Smith, the officers made a number of tactical errors before the search, including failing to study the building's floor plan.

Smith attributed this to the officers' inadequate training, despite her husband's repeated training requests to his supervisors, Chief of Police Kenton Rainey and Deputy Police Chief Ben Fairow.

In addition to damages for wrongful death and civil rights violations, Kellie Smith seeks an injunction to stop BART from forcing employees to perform dangerous tactical operations without proper training.

At Monday's hearing on a motion to dismiss, Smith's attorney Eustace De Saint Phalle argued that her husband's death was not an accident, and that BART's characterization of it as such is "an effort to try to put a spin on the facts."

"This is an intentional shooting," the attorney said.

Forensic evidence shows that Smith was shot through the side of his body, De Saint Phalle said, indicating that Smith had not been pointing his gun at Maes when they ran into each other in a back room. He said that Maes never identified himself, and shot at Smith without justification.

U.S. District Judge Thelton Henderson was skeptical.

"I don't see how your client's death shocks the conscience," Henderson said. "Police argue all the time, 'I was in fear for my life and that's why I shot.'"

De Saint Phalle said that whether Maes deliberately shot Smith should be up to a jury, but that Maes was just as aware as Smith that they lacked the training required to perform building sweeps.

"Any death that is the result of the failure to train someone related to use of force shocks the conscience when the supervisors are told, 'We are not properly trained and something bad is going to happen,'" De Saint Phalle said.

"An officer does not give up his right to be shot by someone who is not trained."

De Saint Phalle said that BART had a history of using SWAT teams to perform building searches, but gave up the practice three years before Smith's death for budgetary reasons. "Because of a desire to save money there was an effort to de-emphasize SWAT and shift those potentially risky tactical activities and place them on detectives and not even allow them to have SWAT involvement or advisement," he said.

"It is recognized throughout the country that you cannot just send officers into these types of tactical situations where deadly force may be used."

Henderson asked Nicole Jones, an attorney for the transit agency, whether it was possible that Maes intended to use force when he fired his gun.

"Yes," she answered, "but he did not intend to use it against a fellow officer."

Henderson pushed Jones further, likening Smith's requests for training to those of an inexperienced paratrooper about to jump out of a plane.

Jones said: "There's training all the time for BART officers. A lot of these things are addressed over time. There's no indication they had no training on how to sweep a building. They're not complete rookies on their first day out on the job."

As to whether BART's new cost-saving procedures eliminating the use of SWAT teams deliberately and negligently put its officers at risk, she said, "Finding a way to make the department more efficient is not the same as making it intentionally unsafe for officers."

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