Las Vegas Sun

September 26, 2023

Judge to rule if sheriff, county will remain defendants in Costco shooting lawsuit

Summerlin Costco Shooting

Sam Morris / Las Vegas Sun

Metro crime scene investigators, officers and detectives mill about the entrance of the Costco store in Summerlin after the shooting July 10, 2010.

Wrongful Death Lawsuit

KSNV coverage of wrongful death lawsuit in fatal Metro shooting at Summerlin Costco, June 1, 2011.

A federal judge said he’ll issue a written order in “a few days” that will determine the course of a wrongful-death lawsuit filed by the family of Costco shooting victim Erik Scott against Metro Police and Clark County.

It’s a virtual certainty the lawsuit will proceed into the discovery phase before leading to trial. The issues in today’s hearing before U.S. District Judge Edward Reed Jr. at the George Federal Courthouse were whether the county and Sheriff Doug Gillespie should remain as defendants and whether the scope of claims for damages sought by Scott’s family should be narrowed.

After the hearing, Scott’s father, William Scott said: “I’m smart enough to know there’s no certainty in a courtroom. I’m hopeful it will proceed forward.”

Scott, a 38-year-old medical-device salesman, was shot and killed by police outside the Costco store in Summerlin on a busy Saturday in July after they reportedly responded to a 911 call of a man with a gun destroying merchandise inside the store. A coroner’s inquest, siding with police testimony that Scott posed an imminent threat as he left the store, found that the shooting was justified.

Scott’s parents, William and Linda Scott, and brother Kevin Scott sued in October, alleging that the shooting wasn’t justified. The family alleged that Officers William Mosher, Joshua Stark and Thomas Mendiola, who are also defendants in the lawsuit, “engaged in an unreasonable seizure, using excessive and lethal force” against Scott that deprived him of his liberty and life in violation of the U.S. Constitution.

The family argues Scott wasn’t engaged in disorderly conduct and didn’t pose a threat to anyone.

The lawsuit also accused Gillespie and the county of failing to adequately train, supervise or discipline its police officers “concerning unreasonable seizures and the use of excessive force.”

Metro conceded in a November motion and at today’s hearing through Las Vegas attorney Joshua Benson that the family has legal standing to proceed with its lawsuit based on allegations of excessive force under federal law and wrongful death under state law.

But Metro argued Kevin Scott has no standing to sue because he isn’t his brother’s heir or the administrator of his estate. Metro urged dismissal of all claims against Gillespie, and dismissal of allegations tied to what it said was the family’s attempt to collect not only wrongful death damages but damages for “survival claims.”

Benson argued survival claims shouldn’t be reserved for someone who dies as the result of alleged wrongdoing. But family attorney Ross Goodman said the lawsuit is seeking only wrongful death damages and that accusations of negligent training and supervision of officers, as well as allegations of assault, battery and emotional distress inflicted on Scott, are necessary to help prove theories of Scott’s wrongful death.

The county, through Chief Deputy District Attorney Stephanie Barker, argued to be dismissed from the case because Metro is an independent legal entity that adopts its own policies, procedures and rules. Barker told the judge that under state law the county isn’t liable for Metro’s conduct.

Costco and one of its security officers, Shai Lierly, were originally named as defendants in the lawsuit but the family later dropped them from the case. Goodman of Las Vegas has said his clients still hold the right to sue Costco in state court within a two-year statute of limitations.

Goodman told Reed the family also voluntarily agreed to drop Kevin Scott as a plaintiff. But Goodman argued the county and Gillespie should remain as defendants.

Goodman said the county has a connection to Metro by sitting on a fiscal affairs committee that helps determine the police budget and by having one of its appointed department heads, the coroner, conduct inquests into police-involved shootings.

But Barker said state law clearly says the county has no say over Metro policy. She also questioned Goodman’s logic that the county is liable because it sits on the fiscal affairs committee. She reminded the judge Las Vegas also sits on that committee, and the shooting occurred within city limits, but the city wasn’t named as a defendant.

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