Verdict upheld against police in gun-planting

Bob Egelko, Chronicle Staff Writer

A federal appeals court upheld $3.7 million
in damages Tuesday against the city of Oakland and two police officers
who, according to a jury, planted an assault rifle on a parolee's
property.

Jurors found in November 2007 that the officers had violated the civil
rights of the parolee, Torry Smith, and his then-girlfriend, Patricia
Gray, by fabricating a case against Smith to justify his arrest in
September 2004.

Smith spent 4 1/2 months in jail before being cleared.

The officers, John Parkinson and Marcus Midyett, denied wrongdoing. Alex
Katz, spokesman for City Attorney John Russo, called the verdict a
"travesty" Tuesday and said that "the officers are the victims."

John Burris, a lawyer for Smith and Gray, said Oakland should have fired
both officers.

Smith and Gray said the officers had entered their East Oakland home
while
they were in bed and questioned Smith about a drug dealer in whose car
Smith's bank card had allegedly been found. They arrested Smith and booked
him on a charge of possessing a semiautomatic weapon that they said they
found in his yard.

Prosecutors dropped the gun charge, but authorities kept Smith in jail as
a possible parole violator before clearing him in January 2005.

In the couple's lawsuit for false arrest, the officers testified that
Smith had told them the rifle belonged to Gray's brother. Both Smith and
Gray denied having a rifle, and the jury believed them.

U.S. Magistrate Edward Chen, who presided over the trial, said in a 2008
ruling upholding the verdict that there was much evidence that the
officers were lying, including their failure to mention Smith's alleged
admission in their police report on the arrest.

Chen said jurors were entitled to award substantial damages for the fear
and stress Smith suffered, the loss of his home and his job at a retail
store and the breakup of his relationship with Gray. He also upheld
damages to Gray for emotional distress and $100,000 in punitive damages
against each officer.

The Ninth U.S. Circuit Court of Appeals in San Francisco upheld Chen's
ruling in a 3-0 decision Tuesday. The court said the city's lawyers had
done an about-face and were challenging jury instructions on illegal
police searches that they had accepted during the trial.

Katz said the ruling was based on "a narrow, technical issue" and that
the
city would consider a further appeal.