HAYWARD -- The death of Raymond Zack off an Alameda beach on Memorial Day 2011 as police and firefighters remained on shore was a "tragic, unfortunate situation," an attorney representing the city of Alameda told a judge Thursday.

But Gregory Fox also said first responders did not have any legal duty to help the 52-year-old Zack, who succumbed to hypothermia about 30 minutes after he walked fully clothed into San Francisco Bay and waded at least 100 yards from shore.

"They acted appropriately, reasonably and with immunity," Fox said about police and firefighters as he challenged the complaint that Zack's family filed against the city.

Judge George Hernandez said he will rule by Monday on Fox's request for a "demurrer" -- a challenge to the legal sufficiency of the family's claim -- in the case. If Hernandez grants the challenge, it would effectively stop the family's lawsuit.

Along with police and firefighters, dozens of onlookers were on the beach. Police said they stayed on shore because Zack was suicidal and possibly violent, while firefighters said they were not certified in land-water rescue and did not have a boat that could maneuver in the shallow water.

Officers and firefighters, however, did attempt to secure a rescue boat from the U.S. Coast Guard. David Yen, an attorney for Zack's family, said police put Zack's life in danger by not allowing onlookers to help and thus failed in their duty.


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"They worsened Mr. Zack's situation," Yen said during the hearing at the Hayward Hall of Justice. "They prevented him from being rescued.

"That cannot be in the public's interest."

A passer-by eventually pulled Zack back onto shore after he began floating face-down; he was pronounced dead a short time later at Alameda Hospital.

Bernice Jolliff, Zack's sister, and Robert Zack, his brother, are seeking unspecified damages against the city and county of Alameda.

"I am still puzzled as to why and how this tragedy occurred," Robert Zack said Thursday. "Police and firefighters clearly did not perform their duty."

Dolores Berry, who described herself as Zack's foster mother, asked a passer-by on Robert Crown Memorial State Beach to call 911 after Zack began wading into the water, saying he did not know how to swim and was possibly suicidal, the court heard. Zack reportedly suffered from mental illness.

Fox noted that the complaint filed by the family does not allege that Zack appeared in distress or that he called out for help. But Yen said that this just underscores that police officers should have allowed onlookers to help because they would not be in danger.

Zack's death sparked widespread criticism of Alameda police and firefighters and prompted an independent investigation by former state Fire Marshal Ruben Grijalva on how the departments respond to water-based emergencies. Among the steps that have been taken since Zack's death are outfitting each police car with a life-ring flotation device and a 100-foot rope and the purchase of two rescue boats by the fire department. A number of firefighters have also been trained as lifeguards.

Reach Peter Hegarty at 510-748-1654 or follow him at Twitter.com/Peter_Hegarty.