BART police Sgt. Tom Smith, frustrated that his department had rejected his requests for more training or the use of its SWAT team during high-risk searches of homes, told his wife that if anything happened to him, she should “sue the s—” out of the agency, her attorneys said Monday.
Specifically, Smith told his wife — fellow BART Officer Kellie Smith — that she should file a lawsuit naming Deputy Police Chief Ben Fairow, whom he said had routinely denied his requests for more training and for tactical teams. Last year, the sergeant was shot and killed — accidentally, authorities said, by a fellow officer who suddenly encountered him as they searched a small Dublin apartment.
The lawsuit Kellie Smith filed on Friday came a day after she wrote a letter to the BART board of directors and Police Department managers, saying the litigation came only after her attempts to “confidentially address my concerns” failed. A veteran of the force for nearly 20 years, she said she wrote the letter “with deep regret and a heavy heart,” noting that she has “deep loyalty to BART PD and its officers.”
The suit, filed in U.S. District Court in San Francisco, says 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.”
“As a result of these repeated denials, my husband said to me, ‘If anything happens to me, I want you to sue the s— out of BART and Fairow.’ ” Kellie Smith wrote in her letter. “My husband’s words will stay with me forever. I cannot let this situation and his concern for his fellow officers go unanswered.”
On Jan. 21, 2014, BART police Officer Michael Maes 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.
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, has not responded to a request for comment. 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.