After appearing to be headed toward settlement earlier this year, a wrongful death suit brought against the Capitol Police may now be headed to a jury trial, possibly before the end of the year, a lawyer for the deceased’s family said Monday.

And while the case — centering on a Maryland man who died while in police custody — was originally filed against the United States, U.S. District Judge James Robertson granted a motion early this month allowing the prosecution to refile the case so that the three arresting officers could be held personally liable for civil damages.

Robertson’s decision that enough evidence existed to allow the family of Brandywine, Md., resident Gary Thompson to proceed with a case against Capitol Police officers James Davis and Peter Schulze and Detective Teddy Thomas came after almost six months of discovery.

The suit, which was first filed in November 2004, seeks $50 million in compensatory damages, as well as legal fees. Thompson died Feb. 9, 2004, after he was arrested following a traffic accident outside Union Station near Columbus Circle and E Street Northeast.

Davis, Schulze and Thomas were issued summonses by the court late this month and will be required to have representation at the next status hearing, scheduled for Oct. 5 in the U.S. District Court for the District of Columbia. The three officers could apply for representation through the U.S. Attorney’s Office, which will continue to represent the federal government in the case, but a spokesman for the U.S. attorney said Monday that he could not comment on whether the officers had taken that step.

The government is scheduled to submit its response to the refiled suit Oct. 6.

“From the information we had we knew that we had no choice but to sue the officers in their individual capacity,” said Thompson family attorney Jimmy Bell. He said the officers’ sworn statements along with statements from emergency medical personnel who were called to the scene prove that Thompson’s civil rights were violated by Davis, Schulze and Thomas.

But gaining a guilty verdict against the officers in their individual capacity will not be easy. The officers would have official immunity — the personal immunity accorded to a public official in the event anyone is injured by actions that are the consequence of exercising official authority — as long as their actions did not break a clearly established constitutional right at the time of the incident. In the history of D.C., no adverse judgement has been entered against a federal law enforcement officer in a personal capacity for actions performed in the course of his or her duties.

“The family wants justice and I don’t care if the government pays or [the individual officers] pay,” Bell said. “But we do know this: If this case goes to a jury we’re confident a jury will institute damages against the individual officers.”

According to the suit, the three officers responded to an accident in which a van driven by Thompson collided with a taxicab and found Thompson still in his vehicle hunched over the steering wheel. The family contends that Thompson, a diabetic, suffered from a diabetic seizure shortly before the accident occurred.

The officers attempted to remove Thompson from his vehicle and when he refused, because he was “in medical crisis,” they began to hit him to force him to release the steering wheel, the suit states.

After removing Thompson from the vehicle, officers placed him on the ground on his stomach and handcuffed him. Bell asserts that officers continued to force Thompson to the ground as he attempted to raise his head to breathe.

Thompson then fell unconscious; when paramedics arrived, they were unable to locate a pulse. He was pronounced dead about an hour later at Washington Hospital Center.

The following month, the D.C. Office of the Chief Medical Examiner labeled the cause of death “positional asphyxia,” meaning Thompson’s chest and rib cage were not able to expand so that he could draw breath.

The complaint and expert opinion submitted by the prosecution contend that the Capitol Police violated “proper arrest procedures,” resulting in Thompson’s death.

“In a civilized society that has outlawed slavery, abuse by the police of the powers invested in them by the government is one of the most heinous incidents that can happen and we can’t wait for a jury to hear this evidence,” Bell said.