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City sued over 2007 shooting by police

Lawsuit calls it unjustified; $4.25 million is sought

Published: October 18, 2010, 12:00am

The family of a 23-year-old man shot and killed in 2007 by Vancouver police during an execution of a search warrant has filed a $4.25 million lawsuit against the city, alleging the death was unnecessary and unjustified.

Sean Makarowsky was killed June 16, 2007, when members of a Vancouver police team served a search warrant at Makarowsky’s home at 3010 N.E. 162nd Ave.

Vancouver police officers knocked loudly twice and shouted warnings as they served a search warrant at the home just after midnight, Police Chief Cliff Cook said shortly after the shooting. At that point, Makarowsky came to a window next to the front door, moved aside the miniblinds and was holding a handgun, Cook said.

Vancouver Cpl. Steve Lobdell was positioned near the window and spotted Makarowsky, the chief said. Lobdell yelled “gun!” before firing two shots through the window. One bullet hit Makarowsky in the heart, the other in his shoulder, the lawsuit says. Officers also shot, once, a six-month-old pit bull inside the home.

The suit, filed by Vancouver attorney Beau Harlan, alleges “gross police misconduct and use of excessive force” caused the “untimely and unnecessary death” of Makarowsky.

The lawsuit claims that witnesses contradict Cook’s official statement. Makarowsky’s girlfriend, who was on the phone with him at the time of the shooting, did not hear any warning call identifying the nine officers at his front door, Harlan said. Another witness, Richard Ives, who lived in a trailer behind the house, also said he was awake and did not hear the officers knock or announce their presence. The team was dressed in civilian clothes under tactical vests labeled police.

Makarowsky had no idea what was going on, and by coming to the window with a gun, he “was responding in a reasonable manner to a threat of unknown severity and source. Lobdell’s use of deadly force was without provocation, legal justification, and was objectively unreasonable,” according to the lawsuit.

“If you believe (witness) testimony and you believe what they say, then a police officer shot and killed Makarowsky without any warning when he was inside his own house, holding a gun,” Harlan said.

It seeks $3 million for loss of life, and for Makarowsky’s pain and suffering before he was pronounced dead at 12:45 a.m.; $1 million for “reckless disregard and callous indifference” to Makarowsky’s right to life and due process; and $250,000 for his lost earning capacity.

The lawsuit was filed in June in U.S. District Court in Tacoma on behalf of Makarowsky’s mother, Louise Gast of Eugene, Ore., and his young daughter, Emilee, of Camas. It names the city of Vancouver, Lobdell, former officer Bryan Acee and Vancouver Sgt. Duane McNicholas, who was the supervisor of the unit that served the search warrant.

Lobdell has since left the department and works for the Port of Seattle, and Acee is now employed by the FBI, Assistant City Attorney Dan Lloyd said. A trial is set for Oct. 24, 2011.

Lloyd said that officers were following all proper procedures the night that Makarowsky was shot.

The police unit’s tactical vests clearly labeled them as law enforcement officers. They also clearly announced their presence in loud voices, he said. An investigation by the Clark County Prosecuting Attorney’s office and an internal Vancouver Police Department investigation both cleared Lobdell of any wrongdoing in the shooting.

Makarowsky’s weapon, a .40-caliber handgun, was loaded and the safety was off, Lloyd said.

“If Cpl. Lobdell had hesitated, we could easily have lost one or more officers,” he said. “That’s why the law authorizes police officers to use deadly force if they believe either he or she, or another person, is about to be seriously injured or killed.”

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Harlan countered that since Makarowsky had no idea who was at his front door, he was within his rights to come to the window with a weapon.

“If I’m in my own home at midnight, and I hear a commotion outside the front of the house and I grab a gun and go to investigate that disturbance, does that give law enforcement license to shoot and kill me when I’m in my own home?” he questioned.

Police were not looking for Makarowsky, who had no criminal record, when they came to his door, both sides acknowledge. They were serving a “high-risk” warrant to find a man named Erik Paulsen, then 38, after Vancouver police were contacted by members of the Portland police gang task force. They had information that Paulsen was being targeted for a home invasion robbery. Members of the Career Criminal Apprehension Team, the Neighborhood Response Team and the SWAT team waited for word that the potential burglars were under arrest before arriving at the home.

Portland police believed Paulsen was being targeted because he had drugs, guns and cash in his home. Paulsen was living in a camper on the property, not in the home, which officers did not know at the time, Lloyd said.

Harlan questioned the use of the career criminal team to go after Paulsen, a man with five misdemeanor warrants. That team, he said, was primarily used to go after felons.

But Paulsen was also arrested that night, and evidence of a “substantial” marijuana grow operation was found in the home occupied by Makarowsky, Lloyd said.

“We expect the court to fully vindicate Cpl. Lobdell, his fellow officers and the city,” he said.

Andrea Damewood: 360-735-4542 or andrea.damewood@columbian.com.