An experienced plaintiff’s civil trial lawyer’s take on the South Carolina police shooting

In a previous post, I wondered whether Officer Slager might have a defense that he shot the fleeing suspect in the back multiple times because he feared for public safety. Now, Kyle McNew, an experienced plaintiff’s trial lawyer, gives us his thoughts in the context of  a similar case be brought as a civil suit.



It is a fascinating and informative read, and Kyle was kind enough to allow me to reprint it. Here it is:

I just read your post about the police shooting in South Carolina and whether Officer Slager could have a defense of having probable cause to believe that there was a threat of serious harm to others under Tennessee v. Garner.

A couple years back I handled the civil side of a police shooting case where my decedent was in a car with one of those windshield screens up. She was just sitting in her car in a parking lot, and apparently someone called in a report of a suspicious vehicle. A police officer approached her and there was some kind of exchange or argument. She started driving away and he started shooting. He claimed that his arm was caught in the window and that she was dragging him through the parking lot. We, unfortunately, did not have video of the incident, but we did have two eyewitnesses who said no, his arm was not caught in the window when he fired, he was just running alongside the car yelling at her to stop. She eventually pulled away from him and got out onto a street. He ran out onto the street and fired several more shots as she drove away from him. Several shots hit home, with one going through the back glass, through the chair, and killing her.

The Officer’s defense was essentially that the first shots were to protect himself from being dragged down the road with his arm caught in her window, and the second set of shots was to protect the public from this woman driving down the road with a screen blocking her windshield.

He was prosecuted criminally and convicted of manslaughter. We then sued the Officer and others in state court (not a snowball’s chance we were letting some qualified immunity happy federal judge anywhere near the case). The criminal case received a fair amount of publicity in the northern Virginia, DC suburb area, but it did not have any of the racial or class issues that are present in these more recent cases.

There were a ton of issues in our case that are outside the scope of the reason I am replying to your post about Officer Slager’s possible defense. But, as to that specific question, I always felt that the Officer in my case could have had had a solid point about the second set of shots. For reasons that remain unclear, my decedent was driving down a road in the middle of downtown with no ability to see where she was driving. The problem is that the Officer’s credibility was so destroyed by his lies about having his arm caught in the window when he fired the first shots that no one would have believed that he was truly concerned about the public when he fired the fatal shots. Instead, my opinion was always that this was simply a guy who got ticked that someone had the audacity to disobey his commands and started blim blamming away.

We conducted some informal focus groups on the case, and that’s what we consistently got. People weren’t terribly pleased with our decedent for disobeying a police officer, which might have factored into the damages award had the case gone to trial. But, on the liability question, people consistently indicated that they did not believe that this Officer was shooting because he was actually concerned about public safety.

We never got to trial, so I do not have any jury instructions or opinions on the question of whether a Tennessee v. Garner defense is objective or subjective. But my sense was always that it is probably technically objective because it flows from the concept of probable cause, which asks whether a reasonable officer under the circumstances would have believed X to be true. Here, X would be a threat of serious harm to others.

BUT, I think in practice it also has a subjective component. If the jurors believe that the officer’s claim of being in fear for his safety or the safety of others is just post hoc malarky, they will not accept the defense EVEN IF a reasonable officer could, in fact, have harbored such a fear under the circumstances.

So, in the Slager case, I don’t really buy that a reasonable officer could have legitimately feared for public safety because I assume that the object Slager retrieved and then dropped by Scott’s body was the taser, meaning Scott did not have the taser, and there was nothing to suggest Scott was otherwise armed or posed any more threat to the public than anyone else running down the street. But even if a reasonable officer could have feared for public safety under these circumstances, I don’t think a jury would buy it here because Slager’s credibility is so destroyed by the difference between what Slager said happened and what the video shows. No juror will believe that he was actually shooting out of fear for public safety instead of just being one of that small but, unfortunately, influential minority of police officers who cannot accept that sometimes people are jerks and disobey your commands, but that that does not justify shooting them.

In short, I’ve watched the video probably 15 times and I cannot for the life of me come up with a defense for this officer. Or, to put it another way, as a Plaintiff’s lawyer, I’d like my side of the case better than the other guy’s.

Thanks Kyle. By the way, I ignore the dig about qualified immunity and the federal courts only because you are right.


A bittersweet evening

Last night, my chambers, and our significant others, got together for a “going away” dinner with Ryan Cooper. Patti Vannoy, Ryan’s fiancée, accompanied him.



Ryan has worked with us for seven years. He first served as a paid intern when he was in law school, and then as a pro se law clerk and later as a chambers’ law clerk. Because of a silly Washington rule driven by overwrought budget concerns, Ryan’s last day with us will be tomorrow.

I have written and raved about Ryan and how much I think of him before. So, I will simply say Ryan is one of brightest and nicest young lawyers I know. His fiancée, Patti, is also an incredibly accomplished young lawyer. By the way, Patti is one my favorite people, and Ryan is lucky to have her at his side.



I can’t say enough good thinks about Ryan. So, I will simply conclude by saying all of us will mightily miss Ryan. The place won’t be the same without him.*


*One of Ryan’s jobs was to warn me when active shooters entered the building, but if I explained the details I would have to kill you! That said, and unlike Ryan, I am absolutely certain that none of my other staff would take a bullet for me.


Some good advice about representing the competent but crazy

photoKirk Redmond is the First Assistant Federal Public Defender in Kansas. He is very experienced and very thoughtful.

He read my post entitled Competent but crazy. In that post, I wrote that “I want to learn of the experiences of practitioners who have dealt with clients in this place of darkness and eternal suffering. That is, tell me please of your experiences in dealing with the crazy but competent.”

Kirk responded by personal e-mail. I found his response very practical and helpful. He has graciously allowed me to pass it along to you:

Your Honor-

Here is what I have learned over the years about clients with profound mental illness that does not render them legally incompetent.

1. Lean in and speak softly. When visiting these clients, the conversational tone is critical. When they speak louder, I speak more softly. When they get agitated and move toward me, I need to lean in to meet them. A quiet, close conversation creates a better bond.

2. All mitigation is double-edged. Judges perceive mental illness as mitigating and aggravating. Presenting a client as mentally ill without a plan for where we go from here is not mitigating at all. It is a recipe for recidivism. After de-institutionalization, jails are the only place that society has provided to contain many of my folks. But by getting Probation involved early in the process, a plan can be developed for what happens after whatever period of incarceration occurs. It works sometimes.

3. Much of the time, I can help only at the margins. The legal standard for competency is not high. My old boss referred to the test as “slipper-eating crazy.” If the client was not actually consuming his footwear, he is legally competent. On the ground, that is the case. It is our job as defense counsel to manage the detritus. As a result, we have a parens patriae relationship to our folks. It’s very hard. We spend a lot of time talking about these questions in our office.

Feel better.

No, Kirk I don’t feel better. But, I am very glad there are defense counsel like you who understand the problem, who deal with it as best they can, and who show empathy in the process. Thank you!


A parable

There once was an old man and an old woman. They lived in the midwest. They were conservative types, but not crazy. They weren’t particularly religious. They were white. Outside of work, they knew few black people. They had grown up believing the motto that the police were there “to protect and serve.”

One evening, they sat down in front of the TV to watch the news and eat their evening meal. On the TV, a news reporter spoke of a black man in Baltimore who died in police custody. His spine was nearly cut in two. The cops who made the arrest were all white.

The old woman turned to the old man, and asked: “What’s wrong with the police in this country?” The old man said he had no idea. He added, “If folks like us have lost confidence in the police, can you imagine what colored people (he slipped back in time and used a term common to his youth) must think?” The old woman nodded. After that, they were silent for the longest time.


Update: Going out with a bang–and a sniff–but not a whimper

downloadShannon O’Connor won the dog sniff case before the Supreme Court. See Adam Liptak, Supreme Court Limits Drug-Sniffing Dog Use in Traffic Stops, New York Times (April 21, 2015).  Thus, Shannon’s last official act before his retirement as a federal defender was to argue and win his first case before the high Court. Shannon, and everyone else at the Federal Public Defender’s Office for the District of Nebraska, have reason to be very proud. Shannon went out with a bang and a sniff, but not a whimper!


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