Judge: Family of slain veteran can’t sue city of Vancouver

By Jessica Prokop, Columbian Courts Reporter

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A federal judge says the city of Vancouver cannot be sued for a 2010 altercation in which police officers shot and killed an Iraq War veteran whom family members believe suffered from post-traumatic stress disorder.

The family of Nikkolas Lookabill, 22, had filed an $11.5 million lawsuit against the Vancouver Police Department in 2013, claiming Lookabill had tried to cooperate with officers and that by shooting him, police violated his rights under the Americans with Disabilities Act.

Lookabill was acting incoherently when police responded to a call about 3:30 a.m. on Sept. 7, 2010, from people who were concerned about his behavior, U.S. District Judge Robert Bryan wrote in his Aug. 3 dismissal on summary judgment.

Officers had stopped Lookabill on reports that he was barking like a dog and making other noises as he walked down the street. A pedestrian told police Lookabill had flashed a gun at him and two friends, but also said he didn’t pose a danger.

Lookabill previously served in the National Guard and was registered to carry a concealed weapon, the lawsuit said. He suffered from a “treatable form” of post-traumatic stress disorder, a mental illness that officers apparently knew about based on prior interactions with the man, the suit said.

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

Most of the Wescoms’ claims were dismissed in October 2013. In June, Bryan dismissed the claims against the individual officers, Franklin Gomez, John Schultz and Gerardo Gutierrez. He found the officers did not violate Lookabill’s constitutional rights or his family’s. However, he allowed the plaintiffs to argue a claim against the city under the Americans with Disabilities Act.

To prove the city had violated the ADA, Lookabill’s family had to provide evidence that he was a qualified disabled person and was discriminated against because of his disability.

Bryan ruled that Lookabill’s family failed to prove Lookabill actually suffered from PTSD or that the officers perceived him as having a disability.

“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. “Officer Gutierrez remembered that in that incident, Mr. Lookabill was taken to the veteran’s hospital. Officer Gutierrez did not have a chance to tell any of the other officers that he had had prior contact with Mr. Lookabill.”

Bryan also acknowledged that Lookabill’s toxicology report found he was “extremely intoxicated.” He said the family failed to prove Lookabill’s behavior, which caused the officers’ actions, were the effects of his disability and not intoxication.

Vancouver’s Assistant City Attorney Dan Lloyd, who handled this case, said the court’s decision confirmed the findings of reviews done by the Clark County Prosecutor’s Office and Vancouver Police Department’s Professional Standards Unit.

Both investigations concluded that “these officers acted reasonably and appropriately in handling the deadly threat that confronted them,” he said in an email.

“No one wins in these situations, and we are mindful of the impact this has had on the family of Mr. Lookabill,” Lloyd said. “Incidents such as these have a profound effect on the lives of the officers as well, who do not take their duties lightly.”

He added that it’s possible the family could appeal to the U.S. Court of Appeals for the Ninth Circuit.