Written by Daniel Royce, Esq.
Few public risk issues are as poignant, topical, and controversial as liability faced by law enforcement officers for actions undertaken in the line of duty. Our TVs and Social Media feeds are replete with stories of officers accused of bad behavior in the line of duty. Often, these matters result in civil actions where Courts are thrust into the difficult role of deciding cases wrought with emotion in an area of law not always well understood. The Supreme Court of Virginia was recently faced with such a case in the matter of Colas v. Tyree, 2023 Va. Lexis 4*, Record No. 211226 (Sup. Ct. Va., Jan. 26, 2023).
As often the case, the facts underlying this matter are tragic. On February 9, 2019, Officer Bradley Colas shot and killed Jeffrey Tyree. The Estate of Tyree brought an action for gross negligence and battery. The Estate alleged that police (and specifically Colas) shot Tyree while he was unarmed and lying on the ground. The trial Court denied Colas’ motion to strike, and the jury found Colas liable and awarded damages to Tyree’s Estate on the battery count only. Colas appealed the matter on the grounds that his Motion to Strike should have been granted because at the time he discharged his weapon, he was acting in defense of another, and thus the fatal shot was justified. In other words, Colas was asserting he had proved his affirmative defense as a matter of law. The Court found that the Estate’s own un-contradicted evidence established that Colas was justified, and applied the adverse party witness rule in reversing the decision.
Approximately 4-5 days prior to the event, Mr. Tyree began behaving erratically, and his family noticed significant deterioration in his emotional state. According to Tyree’s sister, “[h]e was very angry. He was all over the place with his texts and his conversations…just crazy behavior.” Members of the family tried to talk with Tyree and get him help, but his behavior kept “escalating”. On February 9, 2019, Tyree’s sister went to their mother’s home. When she arrived, Mr. Tyree was sitting outside on a chair. Tyree’s sister described that he was angry, and erratic, his hair was wild and veins were poking out of his neck. She told him he needed to go to the hospital and get help, or she would call police. In response, Tyree began body bumping and “cussing” his sister. He was hurling expletives and spitting at her. Ms. Tyree, who had never seen her brother act like this, called police after his body bumping forced her to the ground. As. Ms. Tyree left, she warned her brother that he would end up in jail if he didn’t get help to which he purportedly responded by stating, “[i]’m not going to jail. I’ll go to the morgue before I go to jail.”
Approximately 10-15 officers arrived. One of the first officers on scene saw Tyree with a knife and un-holstered his weapon. Tyree advanced toward him and the officer retreated from the yard and began efforts to calm him down. The knife wielded by Tyree was approximately six inches in length and described as a “military-style” knife. Colas was also on scene and had special training as a crisis negotiator. He was asked to act in that role with regard to Tyree. Several officers including, Colas, spoke to Tyree for several hours and tried to convince him to put the weapon down and seek mental health help. At times, Tyree appeared to calm down, but would lapse back into anger. Tyree threatened suicide and purportedly said, “this is only going to end one of two ways. I’m going to slit my throat and you guys are going to watch me bleed out or I’m going to charge at an officer and force you to shoot me.”
Ultimately, the officers formed a plan to entice Tyree with cigarettes in exchange for putting the knife down. At the decisive moment, the officers would exchange a signal, and one of the officers would fire rubber bullets at Tyree and subdue him. Unfortunately, the plan went awry, and the officer with the rubber bullets attempted to tackle Tyree instead of firing rubber bullets. This resulted in both men lying in the ground next to each other with Tyree in possession of the knife. Tyree lifted the knife into the air and Colas fired a single shot at Tyree (which would prove to be fatal). Colas testified that he fired because he believed his fellow officer was in danger of grave harm and it looked like Tyree was going to stab him. Several officers testified in accordance with this account.
On appeal, the Court noted it was required to view the evidence most favorably to the Estate and grant all reasonable inferences to the prevailing party. “The trial court’s judgment is presumed to be correct, and we will not set it aside unless the judgment is plainly wrong or without evidence to support it.” Xspedius Mgmt. Co. of Va. v. Stephan, 269 Va. 421, 424 (2005). Here, the Court was informed by the “adverse party witness” rule which stands for the proposition that “when an adverse party is called and examined by an opposing party, the latter is bound by all of the former’s testimony that is uncontradicted and not inherently improbable.” Economopoulos v. Kolaitis, 259 Va. 806, 812 (2000).
Colas was called as an adverse witness by the Estate and therefore the Estate is bound by his testimony insofar as it was un-contradicted and not inherently improbable. In reaching a decision, the Court noted several cases in which it reversed jury verdicts on the basis of un-contradicted adverse witness testimony. See, e.g. Beale v. Jones, 210 Va. 519, 522 (1970); Nosay v. Owens, 193 Va. 343, 347-49 (1952). The Court has also applied the adverse party witness rule to affirmative defenses. See S&W Motor Lines, Inc. v. Bayliss, 212 Va. 124, 124-25 (1971). The Court did not look at Colas’ testimony as it would in an ordinary sufficiency of the evidence case, rather it was required to determine what was un-contradicted v. contradicted (or inherently incredible).
In Virginia, battery is, “an unwanted touching which is neither consented to, excused, nor justified.” Koffman v. Garnett, 265 Va. 12, 16 (2003). Not every touching is a battery and touching is not battery if it is “justified or excused”. Defense of another is a settled legal principle similar to self-defense. Defense of others is ordinarily a fact question, but undisputed facts may establish this defense as a matter of law. See, e.g. Hines v. Commonwealth, 292 Va. 674, 681 (2016); Hensley v. Commonwealth, 161 Va. 1033, 1036 (1933). Once battery is established, the burden rests with the defendant unless justification is apparent from the plaintiff’s evidence. The jury in the trial court was properly instructed on these issues.
Ultimately, the Court found there was no possible dispute over several key facts: 1) Colas shot and killed Tyree; 2) Tyree was experiencing a protracted mental breakdown and was angry and agitated; 3) Tyree expressed suicidal and homicidal ideation. Furthermore, Colas testimony as an adverse witness was neither incredible nor contradicted. Colas’ testimony was corroborated that at the moment of the fatal shot, Tyree was brandishing a knife capable of serious harm or death to another officer, and it was raised in the air at the time of the shot. Body camera footage confirmed that the events immediately surrounding the fatal shot elapsed in less than two seconds (i.e. the time between Tyree was tackled and when he was shot).
The Court found that in applying the adverse party witness rule, the evidence established Colas faced an immediate and possible mortal danger to a colleague, and was justified in taking a single shot in defense of another. The Estate did not point to any contrary evidence or testimony. The body camera footage did not contradict the testimony of Colas (or the other officers). In reversing, the Supreme Court noted specifically that this case was not about sufficiency of the evidence, rather it was about application of the longstanding adverse party witness rule, and its application compelled reversal. The Court further noted that Tyree’s death constituted irreparable loss to his family and friends, and while both tragic and unfortunate, the evidence and specific facts of this case met Colas’ burden of establishing defense of another as a matter of law.[1]
The experienced trial lawyers of KPM spend great time and effort to stay aware of pertinent cases in the Public Risk Management Arena, and we can be counted on to be experts in evidentiary rules which can often prove dispositive in cases involving tragic facts and complicated legal issues. You can trust KPM to be knowledgeable in public risk management, and continue to keep you updated on cases and authorities that will significantly impact our clients. Please don’t hesitate to reach out to us with questions, concerns, or for assistance.
[1] Justices Russell Goodwyn and Mann joined in a dissenting opinion on the grounds that the evidence adduced did not require reversal as a matter of law. These Justices found that in viewing the evidence in the light most favorable to the estate, a rational fact finder could conclude that Colas failed to prove his affirmative defense. As a result, the trial court did not err in denying Colas’ motion to strike. The dissent drew the distinction that evidence was sufficient to allow a juror to reach a conclusion that Colas satisfied his burden, but was not such that it required the jury to reach such a conclusion.