SPOKANE — A federal lawsuit against the city of East Wenatchee and one of its police officers over the 2009 shooting of a suicidal man is close to an out-of-court settlement.
Michael D. Kirby, now 53, survived the gunshot from East Wenatchee Police Officer James Marshall’s rifle. His lawsuit claimed that Marshall was negligent and used excessive force when he shot Kirby in the face from about 80 yards away; and the city of East Wenatchee violated his constitutional rights by failing to properly train and supervise Marshall.
Kirby brought the suit in April 2012. Marshall was released as a defendant July 18, and Jerry Moberg, attorney for the city of East Wenatchee, filed a notice of settlement in U.S. District Court in Spokane the following day.
Lawyers are “still working out the terms of the written agreement,” Moberg said last week. Kirby’s lawyer, Anna Price of Tacoma, said this week details are still not set and declined to comment.
Kirby is a former U.S. Postal Service worker who suffers from Parkinson’s disease, which forced his retirement and led to the onset of depression. On April 5, 2009, Kirby expressed thoughts of suicide to his ex-wife, and even held a revolver to his temple.
His former wife summoned Wenatchee police, who soon arrived at the house in the 700 block of Lynn Street. Marshall also responded to the scene in support. Kirby stepped out onto his front porch holding a shotgun, and was being talked to by a Wenatchee officer when Marshall’s shot shattered his jaw from the left side.
Kirby’s lawsuit claimed the shotgun was held pointed up; that Marshall’s view of the scene was obstructed by a camper and other vehicles; and that Marshall could only see Kirby from the shoulders up.
Wenatchee police were talking calmly with Kirby when Marshall fired, the lawsuit said, and “the Wenatchee officers closest to Mike were blindsided by Defendant Marshall’s sniper shot.”
In his own statement to investigators, Marshall said when he shouldered his rifle, “I could clearly see that the suspect was pointing his rifle at me and that we were now facing barrel to barrel.”
Then-Chelan County Prosecutor Gary Riesen declined to file charges against Marshall, saying that “under the law, it was a justified use of force.”
Kirby was arrested and accused of pointing the shotgun at Wenatchee Officer Tracy Martin, one of the first to arrive at the scene, who was in her car at the time and said she saw Kirby exit the front door of a house and raise the gun in her direction. In June 2010 Kirby entered an Alford plea to third-degree assault, maintaining his innocence but acknowledging he would likely be convicted at trial. He did not serve any jail time.
“I was distraught and confused,” Kirby wrote in his plea statement. “I put the gun down but the officers were concerned for their safety. One of them shot me. I did not intend to harm anyone.”
The gunshot led to “well over 40 different surgical procedures to repair his face, jaw, mouth, and neck,” according to the suit. Kirby can no longer eat solid food and speaks with a severe impediment.
Marshall has been an East Wenatchee police officer since 2008. He gave a public presentation about the shooting at a 2010 National Patrol Rifle Conference and Competition in Detroit, where late former Navy SEAL sniper Chris Kyle was keynote speaker. The flyer for the event describes Marshall’s shooting of Kirby as “a successful 75-yard standing position patrol rifle head shot.”
The settlement must be approved by the East Wenatchee City Council once its terms are finalized.
Marshall and the city face another federal suit, filed last August by state prison inmate David A. Dodd, who accused Marshall of unlawfully and forcibly arresting Dodd in his front yard in 2010 after the two exchanged words from their cars while in traffic. Marshall’s response brief claims Dodd hurled obscenities after pulling his car alongside Marshall in the wrong lane, then sped away at unsafe speeds, refusing to pull over when Marshall followed with lights and siren on.
Moberg has moved to dismiss that case, scheduled for a hearing in September.