Slain man's family, jury say ex-soldier turned cop overreacted
By MOLLY SULLIVAN | The Sacramento Bee | Published: September 16, 2018
LOS BANOS, Calif. (Tribune News Service) -- Los Banos police Officer Jairo Acosta knew he had post-traumatic stress disorder from his time in the Army.
On a medical questionnaire, he reported severe hearing loss and blurry vision, severe anxiousness and recurring tense feelings. He wrote that he struggled with forgetfulness and had difficulty concentrating, according to evidence admitted in court.
He also reported having a very low frustration tolerance and that his symptoms were affecting his social life, marriage and work.
He never told his superiors about those problems, and continued to patrol the streets of this rural farming town in Merced County.
In 2013, Acosta shot and killed a schizophrenic man during a domestic disturbance call. In a narrow bedroom hallway, Acosta said Sonny Lam, 43, attacked him with scissors, leaving him no choice but to use deadly force.
Last month, a federal jury in Sacramento gave a resounding vote of no confidence to Acosta's version of events and said his conduct was "malicious, oppressive or in reckless disregard" of Lam's constitutional rights. They awarded Lam's family $2.75 million. Only about a half-dozen cases involving police use of force have yielded sums that large in shootings in the Sacramento region during the past 15 years.
The case provides an unusual look into the mental health and disciplinary history of a California police officer. In California, the privacy of law enforcement personnel is closely guarded by the Police Officers' Bill of Rights _ a protection that was hotly debated in the state Legislature this year after the high-profile shooting of Stephon Clark in Sacramento. The Legislature recently passed Senate Bill 1421, which would force law enforcement agencies to release the details of use-of-force investigations, as well as personnel records of cops who commit crimes while on duty. The bill is on Gov. Jerry Brown's desk.
In a rare occurrence, Melissa Nold, the civil rights attorney representing the Lam family, was able to win access to Acosta's medical records. She said more routine access to this type of information could prevent incidents like the Lam shooting and provide better policies and practices for law enforcement.
"Transparency allows for different observations from different people who have different skill sets," Nold said. "When things become public, that puts us in a position to demand policy changes. The only ways those changes are made is with public pressure. The only way you get public pressure is when the public knows."
Acosta could not be reached for comment. Dale Allen, Acosta's attorney, said the litigation was ongoing and Acosta could not comment on it until it came to a close.
"We respectfully disagree with the jury," Allen said.
On Sept. 2, 2013, Acosta responded to a non-urgent assault call. Acosta saw then-80-year-old Tan Lam, Sonny's father, standing outside. Tan, a Vietnamese immigrant, told the officer in the little English he knew that his son was inside and he'd "lost his mind."
They had argued over car keys. Sonny pushed his father, tried to slap him and told him to stay out of his room, Tan said.
Sonny had been off his medications for months, and his father called the police hoping they would take his son to a "special hospital" where he would get treatment, according to court testimony. The younger Lam had been diagnosed with schizophrenia while working as an engineer in San Jose, his sister Mimi Lam said. He had demanded his parents take him to the hospital because he said the government had put a chip in his leg and he had to get it out, she said. "That's when we found out he had schizophrenia."
Slowly, the disease began to eat away at the life he had worked to build since immigrating to the United States as a teenager. He would hear voices, see things and talk back to those voices, Mimi said. When he could no longer keep up with his engineering work, Sonny went to work at a family member's restaurant in Paso Robles and eventually moved to Los Banos with his parents, where he _ with the help of medications _ became their full-time caretaker.
He took his parents to doctor's appointments, did the cooking and grocery shopping and paid the bills, Tan said.
But then it all stopped. "He stopped taking the medication and his mind was not clear and his health was weak," Tan said in court with the help of an interpreter.
Tan and Mimi said they sought help from a mental health rehabilitation facility, looking for a way to get Sonny back on his medications, but they said they could not because he was over 18. They advised Tan to wait until Sonny's condition worsened and then call the police.
On the day he died, Sonny Lam retreated to his room after arguing with his dad.
Tan drove to a friend's house and asked her to call 911 because she spoke more English than he did.
Acosta arrived to what he thought was an "assault" call at the Lam home, according to court documents. Tan was standing outside and Acosta observed that Tan had blood on his lip, court documents say.
Acosta entered and found Sonny in his room, sitting in a swivel chair wearing only jersey shorts, according to court testimony. Sonny was extremely protective of his room, Tan said in court documents. He would become agitated and upset when people tried to enter.
Acosta entered, put his hand on Sonny's shoulder, and tried to get him to leave the room. Sonny did not budge and swatted his hand away, court records said.
Then, according to Tan, Acosta "challenged" Sonny, saying "beat me, beat me," but Sonny didn't hit the officer.
Acosta testified in court he never made that challenge, and Sonny hit him without provocation.
The two men struggled. Acosta had ordered Tan to wait in the hallway, Tan said in court.
Acosta said in court Sonny came at him "with what I thought at the time was a knife," and stabbed him in the forearm, above the wrist. That attack tore a hole that appeared to be smaller that the buttonhole on the shirt cuff but broke the skin, according to photos shown in court.
A knife was never found, but investigators took red-handled scissors into evidence
Acosta pulled his .45-caliber pistol and said he fired his first shot after Sonny grabbed the barrel, trying to take it away. The bullet went through Sonny's right lower leg and lodged in the bedroom floor, court records show. Acosta then backed into the hallway because his gun jammed. As he tried to fix it, he said, Sonny advanced with the scissors again, making a stabbing motion. Acosta fired a second fatal shot, court documents say.
The autopsy report found Sonny Lam had no markings or gunshot residue to indicate that he had touched the gun or was close enough to it for them to show up.
There were no stippling abrasions, soot or muzzle burns on Sonny's body, said Merced County medical examiner Dr. Mark Super in court.
Tan only heard the shots, but he came around the corner to see his son on the floor, bleeding and crying out in pain, he said. He watched Sonny wheeled out on a stretcher by police officers. He found out his son was dead later that night after giving his statement at the police station.
Acosta was not criminally charged for Sonny's death, nor was he disciplined for not disclosing his diagnosis. But the jury didn't agree with Acosta's version of events, saying in the verdict that they didn't believe Sonny grabbed Acosta's gun prior to the first shot or that he approached Acosta with scissors before the second shot.
Chief Gary Brizzee of the Los Banos Police Department said an internal investigation after the shooting cleared Acosta of breaking department policies or procedures. He said he was unsure if Acosta's PTSD diagnosis was known to the department of if it factored into the investigation.
"I'm sad and disappointed in the verdict in this case, and the city is appealing the verdict," Brizzee said.
He said if the diagnosis were true, the department "would follow up on that," but at this point no further investigation was planned.
Acosta's PTSD came to light when attorneys for the Lam family reviewed Acosta's disciplinary record and noticed a trend.
"When I reviewed his disciplinary history, a couple of the incidents to me showed hyper-vigilance, things that startled him that would not usually spark a startle response," said Nold, the Lam family attorney. "Those things sparked what to me I knew to be PTSD, so that started the inquiry."
"If nothing else this guy needs to be evaluated, and he hasn't been," she said.
Before joining the Police Department, Acosta was assigned to an artillery unit in the Army and was deployed to Iraq in 2005, where he served as an infantryman, Allen said.
Sitting expressionless in court in August, Acosta still has a military bearing with a shaved head and square posture, his hands often clasped in front of him.
Acosta said in court he started experiencing symptoms in 2010, feeling anxious and on edge.
While in Iraq, Acosta was exposed to improvised explosive devices, known as IEDs, which doctors say gave him a mild traumatic brain injury, according to a court deposition.
Traumatic brain injuries are essentially concussions, according to the National Center for PTSD, and often affect soldiers and veterans who encountered explosions, commonly from IEDs. Many people who suffer traumatic brain injuries develop PTSD, according to the center.
That year, he was reprimanded at work for kicking in a door after he thought someone inside a house had thrown a rock at his patrol car, disciplinary records admitted as evidence in court showed. No one was in the house, and the police department admonished him for damaging the door.
He said he kicked the door because "he was pissed off," according to court documents.
His symptoms were exacerbated by a demanding work schedule on the graveyard shift and the stress associated with raising two young children, Acosta said in court. After a year of wrestling with the ups and downs, his wife asked him to get help, and in February 2011 he tried to, he said.
While waiting for his appointment at the VA Medical Center in Fresno, Acosta was asked to rate the severity of his symptoms on a survey, and for the first time, he reported the extent of his mounting problems, a court deposition showed. An attorney for the Lam family read his responses in court; Acosta circled 3's and 4's indicating his symptoms were severe and very severe.
After an 80-minute conversation, a VA clinical psychologist diagnosed Acosta with chronic PTSD, and scheduled a follow-up appointment. But he never showed. Nor did he seek out any further professional treatment _ and he never told his police department, court testimony showed.
Acosta later filed for disability with the VA, but his claim was denied because of his lack of follow-up, according to court testimony. His problems at work continued, however.
A year after his diagnosis, in 2011, Acosta unholstered his gun and told a community service officer to "go to the (expletive) police department." The community service officer later filed a complaint and the department reprimanded him for "discourteousness," according to court records.
Allen, Acosta's lawyer, said he will file a motion this week with the intent of eventually appealing the verdict in the Lam case.
"We do believe that the only evidence in this case supports that Officer Acosta was under a lethal threat," Allen said. " ... We believe that evidence will support and did support that he was under an immediate threat. The jury disagreed with us. It was a highly emotionally charged case and I think that emotion may have carried the verdict."
Tan now lives alone in the same Los Banos home. Faint bloodstains from his son are still visible in the hallway carpet. His wife, who was hospitalized at the time of the shooting, died a year after Sonny.
Sonny's room is mostly empty and the door is usually kept closed. His clothes still hang in the closet, new socks are still in a plastic bag from the store. Sonny has been gone for five years, but the odor of his cigarettes still lingers in his room.
"I come in here every now and then to visit my son," Tan said, his daughter Mimi translating for him.
Acosta is still on active duty and now works as a detective in Los Banos. He still has not reported his diagnosis to the Los Banos Police Department, according to Allen.
Ed Obayashi, a deputy sheriff in Plumas County and use-of-force expert, said officers are obligated to report conditions to their department that may affect their work.
"If you can't do your job, you're supposed to report it to your supervisor," he said. "That's just dereliction of duty, period."
"It's not a crime to not report it, but If you fail to disclose that, as a peace officer you could be subject to discipline up to and including termination," Obayashi said.
The Lams were not aware that Acosta remained at the department, and said it causes them further pain to know he is still on the force without having received treatment for his PTSD.
"Wow, that would break my dad's heart," Mimi said. "I mean, you know, we went through all this. It's just about justice for my brother but also that, I mean, there should be consequences, you know, for (Acosta's) wrongdoing. ... I thought after all the evidence came out, there should be some changes."
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