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Originally published Sunday, May 12, 2013 at 8:01 PM

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Judge says civil-rights suit against officers can go to trial

A judge has ruled that a jury should hear a civil-rights lawsuit filed by Nathaniel Caylor, who was shot in the face four years ago by a Seattle police officer.

Seattle Times staff reporter

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A federal judge has ruled that a jury should hear a civil-rights lawsuit filed by a Greenwood man who was unarmed and suicidal when he was shot in the face by a Seattle police officer during a standoff four years ago.

Nathaniel Caylor, who was despondent over the recent death of his girlfriend, told several relatives he was thinking of killing himself. When he locked himself in his apartment with their 20-month-old son on May 22, 2009, one relative called police.

After a tense standoff involving several officers, Officer Eugene Schubeck spoke to Caylor from a landing overlooking the patio of the apartment. Caylor, who ranted at the officer for pointing a gun at him, turned to go back inside and Schubeck — without warning — fired a single round, striking him in the face and shattering his teeth and jaw, according to court records and depositions.

The officer said he was convinced Caylor was going to harm the child. Caylor, in his lawsuit, said he was going inside because the toddler had climbed out of a high chair.

U.S. District Judge Richard Jones, in a 31-page order issued April 30, rejected the city’s efforts to dismiss the lawsuit, allowing Caylor to move toward trial on claims alleging Schubeck and another officer, Don Leslie, used excessive force and violated Caylor’s Fourth Amendment guarantee against illegal seizure. Use of deadly force is considered a seizure under federal law.

Jones also said Caylor could pursue claims of outrage and interfering with a family relationship against the city for an allegedly negligent investigation into the shooting by an SPD homicide detective that resulted in Caylor’s son being taken from him for months.

Jones concluded that, while Schubeck’s concern about the child’s safety was sincere, “a jury could find that no reasonable officer would have concluded that Mr. Caylor’s son or the officer faced a threat of imminent harm sufficient to justify the use of deadly force.”

Kimberly Mills, a spokeswoman for the Seattle City Attorney’s Office, said, “We are always hopeful we can resolve a case before trial.”

Trial is set for June 3.

Caylor has admitted he was high, profane and had threatened to fight police when at least eight officers responded to his apartment. Caylor told them he had a shotgun in the house, according to court records.

At one point, he warned police about breaking down his locked door, telling them the child might be in front of it and be injured.

Several officers said they heard a mechanical sound through the door they thought might be the action of a firearm being cycled.

Schubeck, one of the responding officers, was a designated Taser officer, but said he had determined a fence around the patio would have interfered with its use.

At one point, Caylor appeared on the patio with the child, who seemed unharmed and was playing with an electric screwdriver, according to statements and court records. Schubeck acknowledged the child seemed fine, according to the court records. Caylor and the boy eventually went back inside.

Depositions in case

The depositions in the case show that none of the other officers ever heard Caylor threaten to harm the child.

Schubeck, however, said in a deposition he was convinced Caylor was going to harm the child and maybe kill himself as well. According to the pleadings, he told Leslie, the officer standing next to him, that if Caylor came back out of the apartment, he would shoot him if he tried to go back inside. Leslie reportedly responded, “Don’t miss.”

Leslie said in a deposition he was “surprised” when Schubeck fired.

Caylor was never seen with a weapon and the shotgun was later found, unloaded, behind clothes in a bedroom closet, according to records.

After the shooting, Caylor was arrested and entered an Alford plea to felony harassment in King County Superior Court for threatening to injure a police officer in the course of his duties.

Caylor insisted he was not guilty of any crime, but agreed prosecutors likely had the evidence to convict him of harassment. Under an Alford plea, a defendant doesn’t admit to the crime but acknowledges a jury likely would convict him given the information in the case.

The SPD’s Firearms Review Board found the shooting was justified and fell within department policy, according to the records.

Caylor has undergone several surgeries and will require more, said David Whedbee, one of his attorneys.

Jones, in his order, said Schubeck’s own assessment of the child’s well-being undermines his claim that he thought the boy was in danger.

The judge also said that Schubeck’s failure to warn Caylor before he fired weighs against whether the officer acted reasonably.

Meanwhile, the child was taken by Child Protective Services and Caylor’s parental rights were suspended based on the statements of a homicide detective, Jeffrey Mudd, who told the agency that Caylor had used his son as a human shield and had threatened to kill the boy.

He did not regain custody of the child until January 2011, after a judge determined there was no evidence Caylor ever intended to harm the child.

Moreover, Jones said, case law makes it clear that the mere possession of a firearm, even by a dangerous suspect, is not in itself justification to use deadly force.

“Mr. Caylor ... was not armed, he was merely near an apartment in which officers reasonably believed a shotgun was located,” the judge said. “He was not threatening officers or his son.”

The judge concluded that, if Caylor’s version of events is accurate, “no reasonable officer could have believed the law justified a shooting.”

Mike Carter: mcarter@seattletimes.com or 206-464-3706

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