‘Just do him’
Wrongful-death lawsuit filed against El Dorado County sheriffs
A lawsuit filed October 1 in U.S. District Court takes to task two El Dorado County Sheriff’s Department deputies who used deadly force on May 21, 2002, against Pollock Pines resident Steven Wallen (see “Is This a Lethal Weapon?” SN&R, September 12). An attorney for Wallen’s family said a new witness in the case claims Wallen was backing away from deputies, not attacking, when he was shot.
Attorneys filed the lawsuit on behalf of Wallen’s mother, Connie Bryant, and his father, Steven B. Wallen. It claims the 27-year-old was murdered by deputies James Marshall and Matthew Underhill. El Dorado County Sheriff Hal Barker and El Dorado County itself also are named as defendants in the suit.
Marshall and Underhill responded to Bryant’s residence, where Wallen was living, after roommate Roberta Segura called police because she was concerned Wallen was acting irrationally during a methamphetamine binge.
In accounts the Sheriff’s Department related to the media at the time, deputies alleged Wallen was uncooperative and combative and used an “edged weapon”—an open handcuff that was attached to one wrist after the deputies tried unsuccessfully to arrest him—to threaten Marshall and Underhill. The deputies later told investigators that Wallen was uncooperative but not combative during the incident, but they used pepper spray and a chokehold on him anyway. Attorneys say that within two minutes of encountering Wallen, deputies then killed the man with three hollow-point .40-caliber bullets.
Marshall claims he notified Wallen that the handcuff could be interpreted as a deadly weapon. Under California law, that claim could be used to justify the officers’ use of deadly force. As first reported in SN&R, according to accounts from the two deputies transcribed from audio-taped interviews the night of the incident, Marshall directed Underhill to “just do him,” referring to Wallen. The family’s attorney said the new witness described a coup de grâce shot that was delivered to Wallen’s head at close range after the first two shots to his chest.
Ten days after the incident, an investigative team consisting of officials from the Sheriff’s Department, the Placerville Police Department and the El Dorado County District Attorney’s Office concluded that the officers fired their service weapons in defense of their lives and that “the deputies involved acted without negligence and did not commit any crimes as described in the Penal Code for the State of California.”
Yet critics of how the incident was handled say the use of deadly force was a blatant violation of both department standards and state law.
“I do a lot of these cases, and I’d say this is pretty extraordinary to have a conscious, premeditated use of deadly force even under the officer’s description,” Stewart Katz, Bryant’s attorney, said during a phone interview. “A lot of times, we’ll see that it’s a split-second thing, but you know, here it’s not.”
Parker White, representing Wallen’s father, hired private investigators to search for clues related to the man’s death. Investigators uncovered an unidentified third party who said she witnessed the shooting. White said this witness did not come forward to the police that night and has not come forward since.
“It was someone in the area who was serendipitously there,” White said. “She is scared to death because she thinks she is going to get shot.” White said the woman has gone into hiding, and he believes the El Dorado County Sheriff’s Department is looking for the woman but has been unable to locate her.
“We’ve given her name to the FBI,” White said. “But because she saw what happened that night … she’s concerned it might happen to her.”
White refused to give her identity, saying the woman fears repercussions for coming forward. “Until the FBI does something, we’re going to lie low.”
El Dorado County Sheriff spokesman Lt. Kevin House said he does not know who this person could be. “That doesn’t surprise me. We hear that [people are afraid of the police] all the time,” House said. “People take on different mindsets as they take on things like this. I don’t know what the basis is for that. I’m sorry that she feels that way. If I could talk to her and maybe set her mind at ease, I would.”
In the suit, attorneys also contend the Sheriff’s Department began “an aggressive media campaign of deliberate distortion and misstatements” surrounding the incident’s details to “dampen and deflect any critical attention to the deputies and their agency.”
Katz said, “It certainly seemed that they were mobilizing and standing behind their officers so that later the officers seemed justified in their unjustifiable acts.”
House said he stands by his initial press release, which said Wallen had attacked the officers, based on what House knew when he wrote it. “I get [to the scene] and I try to get information in as timely a manner to make generally known … what happened,” he said. “It’s not at all uncommon that there might be some discrepancies.”
SN&R obtained court and government records from San Diego that reveal this isn’t the first time Underhill has been near the center of a controversy. In January 2001, Underhill was part of a special tactical response team of deputies at the San Diego County Jail. The team was holding a handcuffed, mentally ill man face down on a metal bed when he died of restraint asphyxia—a lack of oxygen caused by a highly agitated state, exacerbated by the imposed restraint. That case is set for trial in March.
Katz believes that a final trial on the Wallen case will not begin for at least two years.
House said both Underhill and Marshall are back to full patrol duty.