By Henry Lee 5/29/15
A top BART police official denied Sgt. Tom Smith’s requests that the department provide additional training, or use its SWAT team during high-risk searches of homes, before Smith was inadvertently shot dead by a colleague during the search of a Dublin apartment, the officer’s widow said in a federal lawsuit filed Friday.
Deputy Police Chief Ben Fairow “denied training and denigrated officers when training and/or involvement of tactical teams were discussed,” saying that it was all “bull—” and that officers were “pussies” because they had “training like this in the police academy,” said the suit filed in U.S. District Court in San Francisco.
The suit said Smith, a 42-year-old San Ramon resident, “never received any of the specialized building search training he requested.”
The civil action is the latest fallout from the shooting on Jan. 21, 2014, in which Smith was killed by Detective Michael Maes, who mistook his supervisor for an armed suspect during the search of the small Dublin apartment, authorities said. The officers had failed to study the circular floor plan before the search, and suddenly encountered each other in a back room.
After Smith’s killing, BART sent some of its officers to a county facility for training on building searches.
“However, BART continues its practice of not requiring all officers to be tactically trained, and not automatically approving tactical training on officers’ requests,” said the lawsuit, which was filed on behalf of Smith’s widow, Kellie Smith, herself a BART police officer.
“When it comes to a situation where an officer is requesting the very training that ultimately led to this tragic incident, there’s a problem with it, and that needs to be rectified,” said her attorney, Joseph Lucia.
The suit seeks unspecified damages and an injunction barring BART from “forcing employees to perform tactical operations without having the requisite training” when there is a safety risk. It names the transit agency, Chief Kenton Rainey, Fairow and Maes as defendants. Maes has declined to discuss the case.
In a statement, Dana Fox, an attorney for the transit agency, said, “The BART family continues to mourn the loss of Sgt. Tommy Smith. BART’s top priority is the safety of their officers and the public. The shooting was a tragedy that occurred despite the training the officers had received, which far exceeded (the state Commission on Peace Officer Standards and Training) standards.”
Fairow, a veteran of the Oakland Police Department who joined BART in 2011, did not respond to a request for comment Friday. But in an interview weeks after the tragedy, he said he was “not rejecting” assertions that he routinely declined to deploy the SWAT team. “There very well may have been instances where I said no,” he said.
Smith and Maes were among a group of BART officers who went to the ground-floor, 723-square-foot apartment at the Park Sierra complex on Dougherty Road to conduct a probation search in hopes of recovering stolen property. The apartment belonged to 20-year-old John Henry Lee, a robbery suspect who was already in custody, having been arrested five days earlier after police said he led San Leandro officers on a chase to Oakland in a car stolen from a BART parking lot.