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BART to pay $3.1M to settle suit with family of slain local officer

Agency makes no admission of fault, changes training policies as part of deal, family's lawyer says

BART directors have agreed to pay $3.1 million to settle a wrongful death lawsuit that was filed by the family of BART police Sgt. Thomas "Tommy" Smith, who was inadvertently shot dead by a colleague in a search of a suspect's home in Dublin in 2014.

The suit in U.S. District Court in San Francisco alleged that BART's Police Department repeatedly denied Smith's requests for additional training or use of its SWAT team during high-risk searches such as the incident that claimed his life at 6450 Dougherty Road in Dublin at about 2 p.m. on Jan. 21, 2014.

The suit also alleged that the transit agency's Police Department, under Chief Kenton Rainey and Deputy Chief Benson Fairow, has a practice of denying the use of trained SWAT officers for potentially high-risk building and probation searches.

Smith, 42, of San Ramon, a 23-year veteran at BART, was fatally shot when he led a team of eight officers in a search of a robbery suspect's apartment.

He was killed by Detective Michael Maes, a law enforcement veteran with 26 years of experience who said he mistook Smith for an armed suspect during the search.

Eustace de Saint Phalle, the lawyer for Smith's family, said the family and BART "reached this mutual settlement to conclude this litigation without a finding of fault or an admission of liability."

But de Saint Phalle said that as part of the settlement, the BART Police Department, working in collaboration with attorneys for Smith's family, has revised existing training policies to provide that any officer can contact their immediate supervisor and request remedial training on any basic law enforcement practice and that their supervisor will provide and document it.

De Saint Phalle said the BART Police Department's training policy now says, "In the event any employee feels they need immediate refresher training in order to perform any basic law enforcement function they are encouraged to seek out their immediate supervisor to assist them with facilitating the remedial training they are seeking out."

The updated policy also says, "Any supervisor contacted by an employee seeking remedial training to perform any basic law enforcement function will provide said training to the employee, or contact another supervisor or an appropriate qualified on-duty trainer and see to it that the remedial training is immediately provided."

In the area of continued professional training, de Saint Phalle said the new policy says, "If any officer feels that they need or want additional training during the field training officer program or advanced officer training program, or while assigned to a specialized assignment, the department will assess that officer's knowledge, skills, and abilities to determine what deficiencies, if any, exist in order to develop a proper in-house remedial training program for the officer."

She said if the department isn't able to provide an in-house training regimen to address any perceived or identified deficiencies, officers will be sent to an outside approved training provider to address them.

Smith's widow, Kellie Smith, a former BART police officer, said in a statement, "I am very hopeful that these policy changes will avoid another tragedy like this from happening in the future. I wish more than anything that none of my fellow officers' families from the BART Police Department will ever have to suffer through what our family has over the past three years."

Joseph R. Lucia, another attorney for Smith's family, said, "Kellie and her daughter will never get Tommy back. They will continue to struggle every day and this settlement will only help close one long, tough chapter in their lives."

Lucia added, "This settlement will help to protect Tommy and Kellie's daughter as she grows up without a father."

Rainey said, "Our deepest sympathies go out to Kellie, her daughter, and the other members of the Smith family. The BART Police Department continues to mourn the loss of Tommy."

Rainey said, "He will not be forgotten as we strive to ensure that the BART Police Department is a 21st century police department."

– Jeff Shuttleworth, Bay City News Service

— Bay City News Service

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