Chris Dolan

Thursday, October 28th, 2021 // From 8:30am to 12:00pm

Subject: Anatomy Of A Civil Rights Trial- Excessive Force

3 hr Case Analysis

Biography

Case Analysis Details

"Donahue v. City of Roy & Johnson"

Voir Dire, Opening Statement, Closing Argument, & Rebuttal

February 9th, 2019, was a snowy day in Roy, located in Pierce County, Washington, about 50 miles outside of Seattle. Rice and his nephew, Donahue, had been out in their RZR UTV enjoying the 10-12 inches of snow traveling along trails, rail tracks, and “tearing it up” through the city streets in Roy.  Admittedly, they had been drinking beer (ten and 13 beers respectively over 6 hours) that afternoon and evening. Officer Johnson alleged that Rice, driving the UTV, committed various traffic infractions and that he tried to pull the UTV over in town claiming that he activated his lights and siren. After “drifting” in the UTV in town, Rice headed back to the tracks towards home. Rice and Donahue stated they were unaware of Johnson’s pursuit, the UTV had no mirrors, the vehicle was loud (108db), and the windows were “foggy” with condensation from their breathing and a footwell heater.  It was shown that the rail tracks are a commonly used UTV trail.  Johnson “canceled the beeper” meaning the priority on the radio but continued to try and track the UTV by driving parallel to the tracks to locate a place for an interception at a perpendicular rail crossing on one of several small residential streets and ultimately settled on 295th street.   

Dolan argued that “Johnson’s ego, being bruised,” led him to turn off his lights and siren and race ahead to try and cut off Rice and Donahue on the tracks at 295th St. As he approached the rail tracks, Johnson turned off all of his lights and positioned himself behind a tree.  As the UTV approached the crossing, Johnson then quickly turned on only his spotlight, not his flashers, and drove the police vehicle towards the tracks, but did not block them.  Home surveillance video, located nearby, peripherally caught the shooting on tape.  He shined his spotlight down the tracks towards Rice and the UTV, and ran from his police car, weapon drawn, towards the UTV.  Johnson admitted that he placed himself on the tracks, directly into the path of the approaching UTV and when the UTV didn’t stop, fired two shots into the front windshield and then two more into the passenger window as the UTV went by “fearing for his life.”  Johnson claimed he was hit by the UTV before firing.  Rice and Donahue testified that they were blinded by the spotlight, did not associate it with a police officer, and did not see Johnson until he shot them. They denied striking Officer Johnson.  After the shooting, “fearing for their lives,” they sped away towards home, but Rice could not drive with one hand for long and they went slightly off the road and stopped where Johnson caught up with them and held them at gunpoint until back-up arrived from the neighboring sheriff’s department.   

Defendants argued that the shooting was justified because Johnson had probable cause to arrest Rice for reckless driving, stop sign violations, felony eluding, and felony assault on a police officer.  Dolan used accident reconstruction, police procedures, and ballistics experts as well as the Chief of the Roy Police Department (the other half of the 2 sworn officers) and Johnson himself, to show that he violated Roy’s Use of Force and Police Pursuit Policies and engaged in excessive use of force.  Dolan and Jessup also prevailed on a Monelll Claim demonstrating the Chief and Mayor of Roy ratified Johnson’s conduct by failing to engage in an officer-involved shooting inquiry and by not engaging in a disciplinary review of Johnson’s conduct and maintaining him on the force.  The Plaintiffs both lost on their negligence cause so faction and, derivatively, Mrs. Rice lost her loss of consortium claim.

 

SEVERAL KEY FACTS AND CHALLENGES

  1. After associating into the case, it was found that the local attorney had not ordered numerous depositions, including key factual witnesses, so they were being read after the trial commenced.
  2. The case had three plaintiffs.   The driver and passenger had claims for violation of their civil rights and excessive force under the fourth amendment, as expressed through 42 USC § 1983, as well as common law negligence claims.  The spouse had a loss of consortium claim which was dependent upon the husband winning his negligence claim.
  3. Washington State provides a full and complete affirmative defense to claims of negligence if it can be shown that the Plaintiff was intoxicated or involved in the commission of a felony at the time of their injury and the plaintiff was more than 50% at fault (for the intoxication defense).  These affirmative defenses had to be proven by the Defendants to the criminal standard, beyond a reasonable doubt. This provided for, in essence, the trial of a criminal case within a civil case with two separate burdens of proof.  Local counsel had not informed Dolan and Jessup of these defenses or risks.
  4. Local counsel had not proposed a juror questionnaire.
  5. Ten minutes was allowed for voir dire.
  6. Plaintiffs admittedly had been drinking heavily in the 6 hours before the shooting. One Plaintiff, the driver, admitted to consuming 10 beers, and the passenger 14. 
  7. One plaintiff had a criminal history including felonies for the production and distribution of methamphetamine 20 years earlier.  The referring attorney had these expunged.       
  8. Both Plaintiffs had prior DUI’s.
  9. One Plaintiff had an extensive history of marijuana use.
  10. Part of the damages included PTSD and the development of an alcohol dependency disorder as a coping mechanism.
  11. It was unlawful to operate a UTV within the City limits of Roy.
  12. The UTV was unlicensed and unregistered.
  13. The UTV did not have side or rear-view mirrors.
  14. It was snowing with 10-12 inches of snow on the ground.
  15. Plaintiffs had testified in deposition that they were “tearing it up” around town, purposely “drifting” (sliding) around corners, and ignoring traffic signs including stop signs.
  16. The railroad tracks were the private property of BNR Railroad and were occasionally active for use of trains.
  17. Plaintiffs claimed they were unaware that they were being pursued and denied seeing the lights and siren.  There was surveillance video from a gas station security camera showing the UTV being pursued by the police vehicle with flashing lights running through a stop sign.
  18. Future medical and psychological special damages were arguably not supported with an appropriate foundation.
  19. Plaintiff’s orthopedic expert, whose trial testimony was taken as a “preservation video,” during a trial because the expert was unavailable during the trial. Given time constraints, his testimony needed to be heavily edited.  He testified that future shoulder surgery was “possible” leading to a motion to exclude evidence of future surgery.  He provided no testimony on costs for the future surgery, PT, or time off work. 
  20. Several key experts had been excluded based on untimely Rule 26 declarations.
  21. Prior to trial, certain evidence, unfavorable to Plaintiffs’ cause, was stipulated as admissible and admitted into evidence when valid objections and basis for exclusion existed.
  22. The Judge, sitting for 50+ years, was not welcoming to the Plaintiffs’ “California Counsel.”
  23. Each side had been allotted 25 hours, not including opening or closing, for testimony, cross-examination, and any argument on trial issues.   It was a “chess clock” trial rigidly monitored by the court clerk.  Plaintiffs had consumed 22.6 hours putting on 14 witnesses with the 3 Plaintiffs, and the orthopedic expert, yet to testify.  Plaintiff made several requests for additional time which were denied, without prejudice, and it appeared that Plaintiff would not have time to conduct cross-examination of Defendant’s witnesses throughout their case in chief.  Local/referring counsel had designated 25+ witnesses and had agreed to the 25-hour time limit for the entire case (including direct, cross, and arguing objections). Plaintiffs finished their case in chief with 20 minutes remaining and requested 20 minutes of the cross for each defense witness.  The Court granted ten minutes for cross on each witness, including all of the Defense experts.  The Court, upon request, granted another 5 minutes, for a total of 15 minutes, to cross the police procedures expert whose direct testimony took 3 hours.
  24. Federal court sucks.

 

Major themes for discussion:

  1. Framing the 42 U.S.C. § 1983 excessive force case.

 

  1. Elements, defenses, advantages.

 

  1. Juror selection, areas for inquiry and association/affiliation;
    1. The burden of proof;
    2. Pre-conceptions – benefit of the doubt;
    3. Early identification of the alleged crime and use of force;
    4. Juror experience and tolerance;
    5. BLM;
    6. Defund the police;
    7. Exposure to police activity;
    8. Fear of, discomfort with, respect for, and reliance upon feelings towards authority;
    9. Recognition of inherent bias in policing and incarceration; 
    10. Contemporary trends in evidence collection;
    11. Damages;
    12. Loss of consortium; and 
    13. The commitment.

 

  1. Opening statement- the commitment. 

 

  1. Creating the juror choice paradigm;
    1. Understanding the origins of bias in favor of police authority;
    2. Understanding jurors’ concept of safety;
    3. Policies designed to protect the accused/pursued;
    4. Establishing a rules-based framework and window for consideration of the facts;
    5. Truth vs. embellishment;
    6. Breach of trust; and
    7. Empowering and deputizing the jury.

 

  1. Critical evidence;
    1. The thin blue line;
    2. Innocence – police decisions usurping the role of the jury;
    3. Brady and the criminal case;
    4. Order of evidence – the rhythm of the trial;
    5. Building the decision-making framework;
    6. Policies and Procedures;
    7. Basis, origins and need for policies;
    8. Discretion vs. deviation;
    9. Restraint;
    10. Facts of the case; 
    11. Investigation and evidence collection;
    12. Inherent unfairness and bias in an investigation; 
      1. Who is the accused, when is the officer identified as a potential suspect and the injured a potential victim;
      2. Divergence in rights and interrogation;
      3. Absence of critical inquiry;
      4. Inconsistency in factual collection – witness statements;
      5. Who was not interviewed;
      6. What was not collected; and
      7. Inferences.
    13. Decision making for review of behavior; and
    14. Ratification/ Monell.

 

  1. Closing Argument
    1. Methods of preparation – inclusion of the whole team;
      1. Expanding and prioritizing the case, witnesses, and evidence
    2. The commitment; 
    3. Courage;
    4. The thin blue line;
    5. Lies;
    6. Available stronger evidence;
    7. Willful destruction of evidence;
    8. Jury Instructions vs. intuition;
    9. Fact-based testimony = truth;
    10. Ballistics;
    11. Images are worth more;
    12. Ratification Monell;
    13. The injuries;
    14. Deputizing; and
    15. The ask;
      1. Constitutional importance
      2. The relative scarcity of cases that get reviewed by citizens; and
      3. Breaking apart the categories of damages.
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