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Sunday, May 1, 1994 - Page updated at 12:00 AM

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6 Years After Police Kill A Son, Family Awaits Its Day In Court -- City Denies It's Dragging Its Feet In Case Of Unarmed Man Shot In Apartment

It's been six years since Flora and Frank Bascomb lost their son to a police bullet during a midnight raid.

Erdman Bascomb - seventh of their 13 children - was 41 when he died in 1988, moments after Seattle police kicked in the door of a relative's apartment in the Genesee neighborhood of South Seattle and shot him in the chest.

Alone in the apartment, Bascomb had been laying on a couch, clutching a television remote-control clicker - a device the officer who shot him said he thought was a gun pointed in his direction.

Bascomb's dying words, according to officers: "What's going on? Why did you do it?"

It's been more than three years since the Bascombs filed a wrongful-death suit in federal court here against the officer who shot him, Robert Lisoski, former Police Chief Patrick Fitzsimons, and the city of Seattle.

Since the filing, say frustrated family members, the city has been playing a game of "legal footsie" to avoid trial.

The city denies it has been deliberately moving slow.

But Bascomb's relatives wonder how much longer they must wait before a jury gets to decide if anyone is liable for his death.

The family points to the relatively speedy resolutions of other civil cases stemming from alleged police misconduct: The 1992 shooting death of Robin Pratt in Snohomish County was resolved this past week, for example, with an out-of-court settlement with the family for $3.4 million. And on April 20, Rodney King was awarded more than $3.8 million in compensatory damages from the city of Los Angeles for the beating he suffered by police in 1991.

The Bascomb case "could have easily been resolved years ago, and the pain of the family could have been, to some degree, eased," contends Bascomb family lawyer Todd Maybrown. "The process of delay is an outrage and a waste of the city's resources."

"It should have been all over by now," says Flora Bascomb, the family's 81-year-old matriarch, whom Bascomb visited regularly at the Des Moines nursing home where she lives.

"It grieves you," says Frank Bascomb, 85, Bascomb's father. "It works on your nerves. Why don't they sum it up?"

Fearful the parents may be dead or otherwise unable to testify if and when the case goes to trial, family lawyers plan to videotape a deposition to preserve their testimony.

To date, city taxpayers have paid about $200,000 to the Seattle law firm of Stafford Frey Cooper, which is defending the city under an agreement with the Seattle Police Guild.

The city's lawyers deny they're foot-dragging. They claim they're only looking after their clients' best interests. It's not their fault, they say, if they are forced to appeal bad rulings.

NO TRIAL DATE IN SIGHT

Seattle federal-court statistics show the median time between filing a suit and trial is about 20 months. So far, the Bascomb case has been lingering for 40 months - and still no trial date is in sight.

The case is currently on its second trip to the U.S. Supreme Court, where the city is arguing the officer who fired the fatal bullet should be dismissed from the suit.

When they burst into the apartment, members of the Police Department's South Precinct anti-crime team (ACT) were acting on a tip from an informant who claimed to have purchased a small amount of cocaine a day earlier from a "black male in his mid-20s" believed to be living at that address.

Officers had seized a small amount of cocaine during a raid of the same apartment two months earlier. The night Bascomb was fatally shot, though, no arrests were made and no drugs were found.

The crucial question in the federal complaint is whether police waited a reasonable amount of time under the so-called "knock-and-wait" rule before barging in with a battering ram, guns drawn.

Two months after the shooting, a coroner's inquest jury examined the circumstances surrounding the incident. It unanimously found that police knocked on the apartment door before entering; that he pointed a remote-control device at or in the direction of the officer, and that the officer believed the device was a gun.

But the six-member jury differed on how long police waited after knocking on the apartment door and crashing through it.

Two jurors said they could not determine the time; others gave estimates ranging from two seconds to five seconds. During testimony at the six-day inquest, some officers said they had waited at the door as long as 10 seconds.

JURORS HAMPERED?

Bascomb's lawyers, with the Seattle firm of Allen Hansen & Maybrown, contend the jury instructions at the inquest hampered the jurors' ability to get to the truth.

Indeed, one juror said two days after the verdict that he thought the limited, "yes-no" format of questions had the effect of railroading the jurors to incomplete answers.

While jurors were asked if they believed police knocked on the door, for example, they were not asked if they believed police waited a reasonable amount of time after knocking and before entering, the juror said.

If jurors had been asked that question, the answer would have said "no," the juror said.

Bascomb family lawyers want to present evidence inquest jurors never heard. Among other things, at trial, the lawyers hope to:

-- Demonstrate that concerns had been brought to the attention of the Police Department about the troubling level of force and violence used in making entries and confronting suspects found in raids. The notice includes a memo from former Sgt. Charles Pillon, one-time head of an ACT squad, to his supervisor in 1986.

-- Recount the shooting death of William Tucker by another ACT squad less than two weeks before Erdman Bascomb. Tucker, too, was shot during the execution of a search warrant.

-- Cite a Feb. 4, 1988, letter to the Seattle City Council, from two members of a local community group, specifically mentioning the Tucker shooting and expressing concerns about the activities of the ACT squads.

-- Introduce a Feb. 9, 1988, letter Pillon wrote to Fitzsimons warning him that continued drug raids were sure to cause additional bloodshed.

-- Present a Feb. 7, 1988, story in The Seattle Times detailing two incidents, in addition to the Tucker shooting, in which Seattle police officers appeared to improperly discharge their handguns during the execution of narcotics-related search warrants.

-- Show a KIRO-TV videotape, broadcast less than two weeks before the Bascomb shooting, revealing Seattle police officers breaking down doors to two houses without satisfying the knock-and-wait requirement. In one case, there was no knock or announcement before entry; in the other, officers yelled "Seattle police" at the same moment they broke the door open with a battering ram.

GROWING IRRITATION

Paul Bascomb, one of Erdman's older brothers, is growing increasingly irritated by what he regards as the city's stalling tactics. "If they believed their case had any merit, what are they waiting for?" he says. "They're doing everything they can to obstruct the law."

But Tom Frey, lead defense counsel, vehemently denies he's doing anything other than zealously representing his clients' interests.

Frey says it's not his fault that U.S. District Judge Barbara Rothstein, who was assigned the case more than three years ago, and the slow-moving 9th Circuit Court of Appeals, which has upheld her rulings, have made mistakes he's duty-bound to appeal.

The focus of the current appeal, Frey says, has to do with the doctrine of qualified immunity. According to Frey, an officer is shielded from suit - even if he errs - if he could reasonably believe his actions were lawful. Frey emphasizes the test must be applied in the heat of the moment - not in the clear, cold daylight of hindsight, with the easy freedom to second-guess an officer's life-or-death decision.

Frey contends that officer Lisoski truly believed his life was in danger, and "at that point he fired his weapon."

"My view is simple," says Frey. "If someone reasonably believes they're going to take my life, you have a right to defend yourself."

Frey also noted that a forensic pathologist with the King County medical examiner's office testified at the inquest hearing that the physical evidence was consistent with Lisoski's story that Bascomb was turning toward him at the time he fired.

That point is in dispute, though. The Bascombs contend the physical evidence just as easily fits a scenario in which Erdman Bascomb was turning away from the officer.

Paul Bascomb, a former probation officer at the King County Youth Detention Center and now a real-estate broker, counts himself a supporter of police and law and order.

But, he adds: "These particular cops made a grievous error, and they should pay for it."

As part of the pretrial maneuverings, Paul Bascomb was deposed by Frey, partly in order to help place a value on the worth of his dead brother's life, in case of settlement or trial. He found it a dehumanizing experience in which, he claims, Frey attempted to minimize his brother's life. "It came down to nickels and dimes," he says.

Frey says he's sorry if Paul Bascomb found the experience offensive, but noted that questions geared toward calculating the value of a particular person's life are basic parts of all wrongful-death cases.

At the time of his death, Erdman Bascomb was working as a laborer, cleaning out ship hulls along the Seattle waterfront, according to his family.

The brother says Erdman Bascomb had had minor skirmishes with the law, including misdemeanor convictions for assault and sometimes drank too much. There were also traces of cocaine in his urine at the time of his death, indicating he had used a day or two earlier, a family lawyer says.

Still, tests showed he was not high at the time of his death, and he had no drug convictions.

Says Paul Bascomb: "I don't care if he was a drug seller - which he wasn't. They had no right to shoot him dead on his couch."

One thing that still gnaws at Frank Bascomb, the father, is how he learned of his son's death.

" `What funeral home you want to take him to?' " were the first words he heard, he recalled, in a telephone call from Seattle police. "It just shocked me. I couldn't speak for a while."

To this day, the father says, no one from the city has ever apologized.

Copyright (c) 1994 Seattle Times Company, All Rights Reserved.

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