Nearly seven years after transient Kelly Thomas was killed in an encounter with police, two former officers involved in the incident are waging an ongoing legal battle to get their jobs back with the Fullerton Police Department in addition to retroactive pay.
An Orange County Superior Court judge will decide whether the Fullerton City Council was unconstitutionally biased when it voted to fire Officers Jay Cicinelli and Joseph Wolfe, who were both terminated in 2012 for their confrontation with Thomas at the Fullerton Transportation Center on July 5, 2011.
In a case that drew national headlines and prompted scrutiny of police use of force against the mentally ill, Thomas was placed in custody while police looked into whether he was stealing small items. A struggled ensued, and he suffered a compressed trachea and broken bones in his face and died five days later. Surveillance video caught much of the incident.
A jury in 2014 acquitted Cicinelli and a second officer, who was also fired, of wrongdoing, with charges later dropped against Wolfe. The city’s then-police chief still determined they had violated department policy.
On Friday, Judge David Chaffee heard lawyers’ arguments in Cicinelli’s case and took the matter under submission. The judge indicated that it could take a few months for the ruling. Chaffee heard arguments in Wolfe’s case earlier this month and has not yet ruled.
In regard to Cicinelli’s case, his lawyer, Zack Lopes, said the officer had an exemplary record during his 13 years with the department and deserves to get his job back. Lopes said he was encouraged by Friday’s proceedings.
“It was pretty clear that neither the city nor the City Council could put forth any compelling argument persuading the court that the City Council was not unconstitutionally biased against my client,” he said.
Cicinelli’s lawyer has argued that council members Bruce Whitaker and Greg Sebourn, in particular, were outspoken against officers involved in the Thomas case and therefore biased when they voted to uphold the police chief’s decision to fire him, even though an independent arbitrator said he should be reinstated.
In court documents, the lawyer notes that Whitaker has described what he saw in a video of the incident as “brutal” and “inhumane.”
The city, however, maintains that council members were well within their rights to speak out. A lawyer representing the city said that council members have never expressed opinions on Cicinelli’s employment status.
“It is acceptable and expected that the community leaders will comment or express opinions on controversial and sensitive community issues, such as the Kelly Thomas incident, and such expressions do not equate to bias,” lawyers for the city said in court documents.
If the judge rules that the council was biased, Cicinelli could begin the process of getting his job back, Lopes said. If the judge rules in favor of the city, the case will move to a second phase where the judge will consider whether the council had the authority to make the final decision in Cicinelli’s termination.
Before Fullerton, Cicinelli served with the Los Angeles Police Department. Two weeks into his LAPD employment, he was ambushed and shot six times on duty and lost his left eye.
In 2015, the city of Fullerton agreed to pay $4.9 million to Thomas’ father to settle a wrongful-death lawsuit. Three years prior, the city paid $1 million to Thomas’ mom.