Monday, December 10, 2007

Day 608

Arraignment in Moore death postponed to February
The Times-Standard

EUREKA -- The arraignment of former Police Chief David Douglas and Lt. Tony Zanotti on involuntary manslaughter charges was postponed today, one week after a source told the Times-Standard that a criminal grand jury convened in the death of Cheri Lyn Moore was handing up indictments against them.

Defense attorneys representing Zanotti and Douglas requested a continuance of the arraignment, and there were no objections from the prosecution nor the defendants. Judge John Feeney set a Feb. 21 court date. He said the indictments and transcripts from the grand jury proceedings would remain sealed until that time.

The second floor hallway of the Humboldt County Courthouse was awash in black as a crowd of uniformed officers, city officials and other Eureka Police Department personnel attended the proceedings in support of Douglas and Zanotti.

Both defendants attended the brief court hearing, after being escorted into the court room through a back entrance by a bailiff. They left quickly once the hearing was over.

Moore, who had a history of mental illness, was shot and killed April 14, 2006, by Eureka police officers in her second story apartment at Fifth and G streets. During the preceding two hour standoff, Moore brandished a flare gun, threw things from her second-story window and threatened to burn down the building.

Police have said they believed Moore had put down the flare gun when the decision was made to storm her apartment. Upon entering, officers said they came face to face with Moore, who was pointing the flare gun at them. Officers shot Moore several times.

Hank had the Press Release:
December 10, 2007

Retired Chief of Police David Douglas and Eureka Police Lieutenant Anthony Zanotti appeared for arraignment today in Department 8 of Humboldt Superior Court on a felony indictment charging them with involuntary manslaughter in connection with the shooting death of Cheri Lyn Moore. Judge John T. Feeney ordered the matter continued for further arraignment until February 21, 2008. Both remain free on their own recognizance. If convicted, each man faces up to four years in state prison.

In April 2006 Cheri Lyn Moore was shot and killed in her second-story apartment at Fifth and G Streets after a standoff with Eureka police officers. Douglas and Zanotti were the police commanders in charge at the scene of that incident. Testimony regarding the shooting was taken before the grand jury from several witnesses, including police officers, over several days. The Grand Jury returned an indictment naming both men. That indictment remained sealed until today.

Immediate aftermath:
ER Music, shots, then silence 4/15/2006
ER Investigation launched into police involved shooting 4/15/2006
ER Police respond to fatal shooting of Eureka woman 4/16/2006
TS Eureka shooting tragedy runs deep 04/16/2006
ER In aftermath of shooting, many questions remain 4/17/2006
TS Questions swirl around standoff shooting 04/18/2006
TS Haunted by the past 04/19/2006
ER Group gathers to remember Cheri Moore 4/19/2006
TS Police remain tight-lipped on shooting 04/20/2006
TS Lethal Weapon - Was it “just a flare gun”? 04/21/2006
ER Dispatch logs of fatal shooting made public 4/21/2006
ER Reserve judgment on shooting; question about timing lingers 4/23/2006
TS 'Force options' 04/24/2006
TS Shooting damage 'profound' 04/25/2006
TS City won't hand over 911 tapes 04/26/2006
TS 'Parallel' options 04/28/2006
ER Preliminary results indicate officers followed protocol4/28/2006
TS Shooting: ”Legal and lawful” 04/28/2006
ER Meeting about police review coalition turns to discussions of April 14 shooting 4/28/2006
ER Cheri Moore's son speaks out 4/28/2006
ER Idea of Police Review Coalition discussed with City Council subcommittee 4/29/2006
ER Moore shooting headed for Grand Jury? 5/25/2006
ER Civil rights suit filed in standoff death 6/14/2007

The Inquest:
ER Police chief said he stands by his officers' actions in shooting 7/21/2006
ER Coroner's inquest into police-involved shooting rescheduled 7/24/2006
ER Inquest should include still photos 8/30/2006
ER Coroner's inquest into death of Cheri Moore will start today 9/12/2006
TS Inquest testimony begins today - 11 jurors sworn in for rare court proceeding 09/12/2006
TS Neighbors, friends and SWAT commander testify during inquest's second half 09/12/2006
TS The last inquest - Moore shooting circumstances far more complicated 09/12/2006
TS Witnesses begin testifying in Moore case 09/12/2006
TS Witnesses from the First Day of the Moore Inquest 09/12/2006
TS 'I was scared' - Officers who fired fatal shots testify 09/13/2006
TS Incident commander testifies at coroner's inquest 09/13/2006
TS Witnesses from the Third Day of the Moore Inquest 09/14/2006
TS Officer, chief take stand in Moore inquest 09/14/2006
ER Final nine testify at coroner's inquest 9/15/2006
TS Jury makes three recommendations after inquest 09/15/2006

And then the tortuous delay fraught with threats - Rumors, Leaks, and the path leading to a Grand Jury Indictment:
ER A grim anniversary passes without resolution 4/13/2007
ER Closure necessary in Cheri Moore shooting 4/13/2007
ER Civil rights suit filed in standoff death 6/14/2007
TS Gallegos: Retrial will 'likely' delay Moore decision 07/13/2007
TS Countdown to a decision 07/23/2007
ER Moore case headed to grand jury? 9/11/2007
ER DA considers grand jury investigation of Cheri Moore's death 10/12/2007

The indictments:
TS Police Chief hopes grand jury proceedings are made public 11/08/2007
TS Grand Jury will indict two police commanders, says source (with archived video) 12/05/2007
TS Untested waters: Case against police commanders likely to hinge on 'criminal negligence,' expert says 12/06/2007
TS What is a criminal grand jury?12/06/2007
TS Who owns the 'facts'? 12/11/2007
TS EPD, other law enforcement turn out to support Zanotti, Douglas 12/11/2007
TS Arraignment in Moore case postponed (with video) Dozens show up to support former chief, lieutenant 12/11/2007
TS Moore Case Facts 12/11/2007
TS Gallegos to handle police prosecution 12/13/2007
TS Dikeman vs. Gallegos, Round 3? 12/16/2007
TS City could face hefty bill for Douglas' defense 12/18/2007
ER City to assist with costs of former police chief's defense 12/18/2007
TS Ex-chief garners $75K for his defense 12/21/2007
TS State police chiefs association president responds to indictments 12/24/07

ER Ltr Everyone needs to be treated with compassion, respect 4/19/2006
ER Ltr Don't rush to judgment in police shooting 4/19/2006
ER Ltr Humboldt County's dedicated officers deserve better 4/20/2006
ER Ltr Joseph Humble should not have passed judgment 4/20/2006
ER Ltr Writer ashamed of police action in Friday shooting 4/21/2006
ER Ltr Patience, kindness would have worked in police shooting 4/21/2006
ER Ltr Was there quick justice in shooting of Eureka resident? 4/26/2006
ER Ltr Accounting of Cheri Moore killing necessary 5/13/2006
ER Ltr Why we're blessed to have Paul Gallegos
ER Ltr Where's the outrage over this death? 5/31/2006

TS Anti-establishment publicity stunt 12/18/2007
TS 12/22/2007
ER Ltr Police officers put their lives on the line for public's safety 12/20/2007
TS Blue lights can show support 12/21/2007
ER Ltr What does the DA expect to gain from police indictments? 12/27/2007
ER Ltr “Dear Chief Garr Nielsen and the EPD,

Note: The Times Standard's Letters to the Editor were not available online until recently. Those letters as well as other coverage in The Arcata Eye and
The McKinleyville Press, and The Independent could be accessed through traditional channels in the Library.

The Eureka Reporter's new website meant a major transfer of all articles to new urls. I'm trying to update all links. If you find one that isn't working please email


  1. Well, it ain't the DA who's delaying this now. Where is the outcry about Feeney? Is he incompetent? Is this an evil plot?

    Only Rose knows!!!

  2. He is under mind control! Gallegos has a doll in his office. This man is into the occult! He has directed Judge Feeney to delay until Fabuary. Why? He is going to New Zealand for surfing and to gather wombat blood which he hopes will protect him from Rose!

    Rose tell them! Tell them about the wombat blood!

  3. Over at Eric's Konkler said “In this case,what will be questioned first and foremost was the decision to enter knowing that there was a great likelihood that they were going to kill her” Eric has expressed the same.

    Uh wrong Mark, wrong Eric and wrong Gallegos. As a matter of law.

    Gallegos should have studied his law. What, he had about 500 days to do so. There is simply no excuse for getting it so wrong.

    The real problem with the indictments on Zanotti and Douglas is with proximate cause and supercedeing causes.
    The action of calling for entry can not be considered a criminal act, because Ms. Moore's picking up the gun and pointing it at the officers was the reason the officers fired. Her criminal act with the firearm (pointing it at the officers) is a superceding act that breaks the chain of causation. It will be legally impossible to convict them. More than likely, if it is raised, the matter will be thrown out for lack of probable cause by the reviewing judge.

    Under basic principles of tort law, Zanotti and Douglas may be liable for the harm "proximately" or "legally" caused by their tortious (negligent) conduct . See, e.g., Restatement (Second) of Torts § 431 and 871 cmt. l (1965 & 1979). They would not, however, necessarily be liable for all of the harm caused in the "philosophic" or but-for sense. "Among other things, they would not be liable for harm produced by a "superseding cause." See, e.g., Restatement (Second) of Torts §§ 440-453 (1965). And they certainly would not be liable for harm that was caused by their non-tortious, as opposed to their tortious, "conduct," such as the use of reasonable force to arrest."

    "A simple hypothetical will illustrate the importance of these distinctions in a case such as this. Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is "no." See George v. City of Long Beach, 973 F.2d 706 (9th Cir. 1992), cert. denied, 507 U.S. 915, 122 L. Ed. 2d 664, 113 S. Ct. 1269 (1993). The suspect's conduct would constitute a "superseding" cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer's liability. See id. § 440." (Bodine v. Warwick 72 F.3d 393, 400)

    This is what is so profoundly wrong with this indictment and why it will ultimately fail.

  4. The problem with that is Moore deescalated the situation by supposedly disarming herself in the first place. Obviously she did not. But I do agree that this is a hard sell. The Ruby Ridge case for example would be a much better case to push this kind of indictment.

  5. Well, it ain't the DA who's delaying this now. Where is the outcry about Feeney? Is he incompetent? Is this an evil plot?

    Nice try - and I'm sure you would like to deny these guys their due process. But it is out of Gallegos' hands for now.

    The proceedings are delayed because right now the defense has no information - no discovery, no transcripts of the testimony, no transcripts of the jury instructions...

    They now get to find out what was put on as evidence, who said what, and all the other discovery, including, but not limited to what was NOT presented to the Grand Jury, any exculpatory evidence that the prosecutor/Gallegos omitted (remember Debi August?), any jury instructions and any instructional errors that would negate the charges.

    This Grand Jury process takes the place of a Preliminary Hearing. Now the same motions will take place as would have if there had been a preliminary hearing - there'll no doubt be a motion for dismissal for lack of probable cause (based, no doubt on what anon says above).

    Once they enter a plea, if it gets to that point, the clock begins ticking, there will be a trial within 60 days of entering a plea. That is why the judge gave them time.

    It will be very interesting to see what happens - it will be interesting to see what exculpatory evidence, if any, Gallegos left out. Or included. And what he did and didn't tell the jurors.

  6. by request: Here's the definition for the word "tortious" used in anon 9:20's comment...

    Having the quality of a tort; the wrongdoer.

    Tortious is an adjective to describe an act which is a civil wrong, or tort.

    of or pertaining to the nature of a tort; "tortious acts"

    Tort is a legal term that means a civil wrong, as opposed to a criminal wrong, that is recognized by law as grounds for a lawsuit. Unlike obligations created through a contract, the duties imposed under tort law are mandatory for all citizens in that jurisdiction. ...

  7. And, by the way 9:20, thanks. It's kinda what I've been saying all along, once she pointed the gun, all bets were off.

  8. 9:20, although I agree that this indictment is nonsense I believe that your analysis is wrong. Causation in a criminl case is different then causation in torts. I believe a superseding cause has to be unforseeable, and I'm not sure Ms. Moore picking up the flare gun would fit. Additionally, the defendant's actions only have to be a substantial factor in causing the resulting harm - and that is a question of fact for the jury. I think this is crap for another set of reasons. I presume the defense is asking to continue the arraignment with an eye toward demurr, which should happen before any plea. The other possibility is a motion to dismiss under PC 995 - that's where the procedural stuff on the GJ would come into play. The prosecutor is obligated to present exculpatory evidence to the GJ, and that (I am guesing) is going to be a problem. This is a case which is goin to turn on expert testimony - the cops here have a duty (as I said on another post) to protect the public - they did not necessarily have the option of just waiting her out, if there was a credible threat that she was in fact going to set the building on fire. So did any fireman testify about the possibilities with the flare gun and the Victorian? Did any cops (or defense whore experts) testify about what was an appropriate course of action for the officers here? My anticipation is that this case will have all the success we have come to expect from PVG's garnd jury cases. BTW, Bragg had the best line: "Given the personalities involved..."

  9. 7:18, I agree with most if not all you posted except for your position that causation in a criminal case is different. This criminal case is based upon criminal negligence. Negligence is a tort, criminal negligence is just gross negligence by which the law imposes criminal culpability. That is why you must look at causation. If a person can not be held civilly liable for negligence because Moore's actions were a superseding act that breaks the chain of causation, that should end it because if you don't have the causation for negligence, you don't have the causation for gross negligence.

    But - I agree that there is no doubt that the thing will also go down on a 995 based upon the failure of PVG to present exculpatory evidence.

    I would prefer it go away as a matter of law and not on something that will be construed as a "technicality."

    Why this community sits by and justs let this man abuse his discretionary power is the most troubling aspect of all of this. The PL suit was thrown out after the third demurrer on the basis that he couldn't make a legal case out of it. Debi August's case was thrown out also on that basis too and on due process grounds that the da mislead the grand jury. Now this, abusing the grand jury and the indictment process to get a patently indefensible case pushed through. This is not justice, it is a travesty of justice.

  10. Anon 9:20 - I'm not sure the proximate cause doctrine applies to criminal law, but even if it does, I think you'd be hard-pressed to argue that her picking up the weapon and pointing it at the officers wasn't foreseeable.

    In your example there is no notice of the suspect's mental illness, which is the key factor in this case.

    What may be "profoundly wrong" with this indictment is that it second-guesses decisions made under stress while trying to protect the public imminent danger. That all depends on the evidence, what the officers knew, whether they veered from established protocols and why, and what a reasonable officer in their position would have determined as the likely outcome of the decision to enter the apartment that that moment.

    I don't know the evidence, but if I was defending the officers I might first try to get a dismissal on the basis of qualified immunity - arguing that in the absence of evidence of malice (or reckless indifference) there can be no prosecution. I'm not quite sure that's how the immunity can be applied here, but that would seem a reasonable first line of defense.

    The defense would lean heavily on the policy question. Would a guilty verdict undermine officers' decisiveness in future operations, or worse, cause them to err in favor of the aggressor and at the expense of his/her officers or the public?

    The prosecution will then have to make the case that this situation was unique for whatever reason (refusal to attempt to negotiate when presented with opportunities; failure to consult mental health professionals; or perhaps even evidence that she had been written off as salvageable from the get-go).

    It should also be remembered that even if there is civil liability, it' doesn't necessarily translate to criminal culpability.

    There's a great deal of information we don't have - stuff that wasn't admissible at the very limited scope inquest. There's really no point in screaming and yelling about this case until the evidence is made public.

  11. Eric, I would not categorize the discussion here as screaming and yelling, but rather an interesting exploration of the points of law involved, and their possible ramifications.

    But you bring up an interesting point, and one which the Times Standard editorializes about this morning - why is the evidence being kept secret?

    This is no ordinary case - not in any of its aspects.

  12. Eric, I would not categorize the discussion here as screaming and yelling, but rather an interesting exploration of the points of law involved, and their possible ramifications.

    I should have clarified. I was reacting more to the initial discussions on my blog and the comments attached to the TS articles. I have no problem with this discussion. In fact, it's one of the best we've had.

  13. Oh, and to answer your question, the discovery is usually handed over on arraignment, although I suspect it was exchanged yesterday anyway. If Bragg wants to make it public, he should be able to do so. I wouldn't rush to do that if I was in his shoes.

  14. I would agree on that, Eric. Much as I would like to know, for the officer's sake, he should probably guard it as closely as possible. But most of the evidence has already been testified to in more public investigations, no? (Coroner's Inquest, etc) What's new? If anything.

    And, yeah, I know what you mean about the comments on the TS site - scary, some of them.

  15. But most of the evidence has already been testified to in more public investigations, no? (Coroner's Inquest, etc) What's new? If anything.

    The problem is that the inquest was limited to one question - the cause of death. Some evidence of propriety or impropriety in procedure did manage to make it into the record, but some of it was excluded. I wasn't there, but was there in depth discussion of the conversations between all personnel leading up to the death? Hank was there the whole time and I don't remember him reporting on too much detail in that area.

    Once a plea is entered, I think it's incumbent on the DA office to hold a press conference, as he should have done with the PL suit (imo).

  16. Eric said: “Anon 9:20 - I'm not sure the proximate cause doctrine applies to criminal law, but even if it does, I think you'd be hard-pressed to argue that her picking up the weapon and pointing it at the officers wasn't foreseeable. “

    Uh - Eric, that is not the test here. Go pack to the above post and read it and read the cases. The courts clearly say that prox cause in this issue is not the “but for” analysis but very different. Frankly, the way you have reduced it, is silly. It is foreseeable in every situation where someone is armed that they will point the gun at the cops. That is the whole purpose of weapons, vests and swat teams. If it weren’t foreseeable that she would use the gun, nobody would have been at the scene. The thing is that even if the call were bad to go in (I believe it was the right call), any liability/culpability that the officers may have had for the call to go in and the entry, then disappeared. The officers can not be held liable for her death from their entry because the entry did not cause her death, the act of pointing the firearm at the cops got her shot.

    Again, feel perfectly free to read all the section 1983 cases on liability. A good one is “Estate of Soward which involved an illegal entry into a paranoid schizophrenic’s apartment without a warrant or probable cause. Soward then raised a gun, and was shot 39 times by the cops. The court said that the officers could not be held liable for the death even given the illegal entry because Sowards act of pointing the gun at them was a superseding cause that broke the chain of causation.

    Your friend Paul is an ass Eric.

  17. Eric, is there anyone else who you would categorize as "courageous" simply for making a decision? Any other DA? Not debating the merits of the decision, just that - is the simple act of making a decision that should be a normal part of your job a courageous act?

  18. I am sure that Eric would include Nifong as another "courageous" DA. You know charging those young men irrespective of the facts and the law. Yeah - Gags and Nifong are two peas in a pod.

  19. On the Times Standard's comments - Noel Adamson is deranged. No joking. The man in completely unhinged.


Comments are open, but moderated, for the time-being. Good luck.