(Posted January 26, 2023) There’s universal agreement that the circumstances of Colas v. Tyree were tragic. Nor does anyone dispute that those circumstances wrought an irreparable loss. But today’s split decision from the Supreme Court of Virginia generates substantial disagreement as to the liability question, and a major debate about an arcane evidentiary rule.

The tragedy arose here in Virginia Beach, my hometown. It began when a 57-year-old man, Jeffrey Tyree, suffered what the court describes today as a mental breakdown while at his mother’s house. His sister described his behavior as crazy, angry, and erratic, a major change from his usual calm demeanor; he was usually “the most caring, giving person you could ever meet.”

I’ll interrupt this analysis to say that I anticipate your skepticism. Perhaps you believe that the sister’s laudatory description was hyperbole. But this case comes to the Supreme Court on a verdict in favor of the sister, as Tyree’s personal representative. Because of that verdict, we have to take the evidence, including the sister’s description of her brother, as true.

Tyree’s erratic behavior prompted a call to police; the goal was to get him to consent to mental-health treatment. When officers arrived – and they came in droves – they observed that he had a knife in his hand. This wasn’t a table knife; one officer described it as a military-style blade.

Because Tyree was inside a fenced yard, the officers began to speak with him in an extended effort to de-escalate the situation. The conversation lasted over two hours, during which time Tyree’s mood temporarily calmed, though he never did agree to receive treatment. He occasionally placed the knife down but didn’t surrender it. He told the officers that he had no desire to harm them and never threatened or lunged at any of them.

The officers designed a plan to get Tyree to drop the knife for a moment, at which point they’d fire rubber bullets at him to enable them to subdue him. Tyree dropped the knife as they had asked, but the careful plan vanished when one officer named Tuft-Williams, contrary to the established plan, charged Tyree and tackled him. (Today’s majority opinion describes this phase as “The Plan Goes Awry”; I think that’s a euphemism.)

Tyree and Tuft-Williams landed on the ground, near each other. The officer started to roll away, and Tyree picked up the knife and held it aloft. At this point – about two seconds after the tackle – a detective at the scene, Bradley Colas, fired a single shot, hitting Tyree. Despite receiving immediate medical attention, Tyree died.

Tyree’s personal rep sued for gross negligence and battery. At trial, the circuit court allowed the jury to decide both claims.

Detective Colas testified that the fired his weapon because he believed that Tyree was about to stab Officer Tuft-Williams. He said that he perceived that Tyree was moving the knife toward Tuft-Williams, though other officers at the scene saw no such movement; all they said was that Tyree held the knife in the air.

The jury sided with the personal rep, awarding her damages against Colas on the battery claim only; the circuit judge entered judgment on the verdict. The detective got a writ.

Today a bare majority of the Supreme Court votes to reverse and enter final judgment for the detective. Justice McCullough writes for Justices Powell, Kelsey, and Chafin; he concludes that the adverse-party-witness rule compels a finding that the detective acted in defense of another’s life.

Normally, a jury is free to accept or disregard any testimony in a trial. Credibility is purely a jury question, and appellate jurists have long shied away from second-guessing the body that got to hear witnesses testify live. But there’s a narrow exception to that principle: When a party calls an opponent as an adverse witness, the calling party is bound by that testimony unless it’s contradicted by other evidence or is inherently incredible.

Today the majority concludes that the detective’s testimony about his perception of danger is uncontradicted and is not inherently incredible. It thus finds that a finder of fact was effectively required to believe it, so the trial court should have struck the plaintiff’s evidence. That is, the justices rule that the detective’s testimony conclusively established the defense-of-another defense.

I mentioned a dissent, and it’s spirited. Not that one would expect a subdued dissent from Justice Russell, who writes for the chief justice and Justice Mann. The dissent acknowledges the evidence cited in the majority opinion, and concurs that the adverse-party-witness rule is an exception to the right of the jury to make unfettered credibility determinations. But in the dissenting justices’ view, the majority’s recitation of the facts is too breezy, and omits evidence that could entitle a reasonable jury to find that the detective’s version of the story ain’t necessarily so.

Here’s one key example. As I mentioned above, after the tackle the detective saw the knife in the air, analyzed the situation, and concluded that his law-enforcement partner was in grave danger, so he fired – all within two seconds. Part of that calculus was his testimony that Tyree was moving the knife toward the officer. But the other officers didn’t corroborate that perception, and a jury might not have found that Tyree was actually threatening anyone with it.

There’s more. Here’s a passage from the dissent:

Tyree was fifty-seven years old and suffered from physical disability that caused him to use a cane or walker to get around. Both the video evidence and the testimony established that his movements were not those of a physically vigorous person, with one police witness characterizing Tyree’s movements as “shuffling or stuttering[.]” This contrasts with Tuft-Williams, who was younger, an active member of the police force, and who, from the video evidence, did not suffer from a physical disability sufficient to impair his movements. Certainly, Tuft-Williams’ movements at the time of the tackle and immediately afterwards would not be characterized as “shuffling or stuttering.” A rational juror was entitled to consider the contrast in the physical condition of these two individuals in determining whether it was reasonable for Colas to conclude that Tyree posed a lethal threat to Tuft-Williams, even if Tyree fell in close proximity to Tuft-Williams after Tuft-Williams tackled Tyree by surprise.

The majority opinion mentions nothing about Tyree’s physical (as contrasted with mental) condition; the dissent has to drag these facts into the case long after the majority has rested. The majority doesn’t even touch this issue.

Note that there are two components to the detective’s defense. He had to establish that he actually perceived an imminent risk of serious harm or death, and that that perception was reasonable. The first of these is subjective while the second is objective. The dissent insists that his testimony can only establish, at best, the first component, and that assumes that the jury believes him; it was up to the jury, assessing all of the evidence, to decide the objective criterion. The Supreme Court has now countermanded the jury’s decision on that aspect of the defense.

This is the second consecutive SCV opinion to feature a troubling dynamic: The dissent raises important points that the majority decides not to touch. Last week, Justice Mann’s solo dissent in Forness v. Commonwealth contained multiple highly plausible arguments that the concise opinion of the court just ignored, without attempting to refute them. These objections aren’t surprises; the justices who write majority and dissenting opinions exchange drafts in advance, so each can see and address what the other is writing.

Justice Russell acknowledges that a reasonable jury, receiving testimony such as this, may well choose to accept the detective’s version and return a verdict accordingly. But that didn’t happen here; the jury saw the testimony the other way. The Supreme Court’s decision today, the dissent posits, amounts to a finding that no rational jury could have found otherwise.

O those among ye who try cases, harken to my warning: This opinion is a strong suggestion that you should call an adverse party as a witness only under extremely dire circumstances. The Supreme Court, normally deferential to jury verdicts, has signaled its willingness to take away a plaintiff’s verdict based on a defendant’s self-serving adverse-witness testimony. If you have other evidence that flatly contradicts the self-serving parts, then you can probably go ahead and force the Bad Guy to take the stand; but in my humble view, that’s still probably too risky now, in almost all circumstances.

For brevity’s sake, I haven’t discussed all of the disputed issues here. You’ll find disagreement over whether the plaintiff established that a battery had occurred, because that includes the component of whether a touching was justified or not. Under the law, the plaintiff has to prove a lack of justification to establish a battery; it’s essential to his case in chief. At trial, the detective’s lawyer admitted to the jury, “A battery occurred.” Despite that admission, the majority concludes that the plaintiff’s evidence establishes that the touching (here, by a bullet) was justified. The dissent just can’t stomach that inconsistency, making for very interesting reading for courtwatchers like us.

One last point. Citing the guaranty in Art. I, section 11 of our constitution, the Supreme Court often repeats the admonition that reviewing courts must accept the evidence in the light most favorable to the party who got the jury verdict. The dissent’s primary critique here is that the majority turns its back on that ancient principle, essentially reengineering the facts in favor of the detective.

After reading today’s opinions, you may agree or disagree with that criticism; I won’t try to steer you either way. Just don’t assume that fact-bending like that never happens on appeal. I can cite multiple occasions where appellate courts have rejiggered the facts to fit a desired conclusion. I’d prefer to believe otherwise, but having seen it before, I no longer subscribe to such a naïve perspective. It happens.




(Posted January 25, 2023) Opinion day at Ninth and Franklin is tomorrow – maybe; there’s no assurance that we’ll get anything new – so let’s see what’s going on elsewhere in the appellate world.


Chief Judge Decker gets another term

The Supreme Court announced last week that Court of Appeals Chief Judge Marla Decker has been elected by the 17 CAV judges to a second term in the center chair. She’ll serve another four-year term as of January 1, 2023. No matter what happens between now and the dawn of 2027, it likely won’t be as eventful as her first term, when she oversaw the expansion of the court from 11 judges to 17 and the beginning of the court’s plenary appellate jurisdiction. I assure you that she wasn’t bored.


SCOTUS stumbles out of the gate – finally!

The Supreme Court of the United States handed down its first decision of OT’22 on Monday. That doesn’t seem like major news, especially where the ruling was 9-0 in a fairly arcane area of the law. The real news is that it took the Court over 100 days to announce its first decision of the term. We’ve never seen a pace this slow before. Don’t just take my word for it; the stats geeks at Empirical SCOTUS are backing me.

It isn’t as though the justices are overtaxed with merits cases; the granted docket is quite small as measured by the standards of just a few years ago. The delay might be a function of the leak last spring of the opinion in the Dobbs abortion appeal. That is, it might take longer because the Court has implemented security and secrecy precautions. But we can’t know, because any such secrecy measures are, appropriately enough, themselves secret.


The Case of the Missing Writs

This was probably the title of an obscure Hardy Boys book, or maybe Nancy Drew; I forget. If only we could set one of these youthful sleuths onto the trail of all those SCV appeals that just must have been granted over the past three months.

Wherever they’re hiding, the Supreme Court isn’t handing out any hints. As I’ve noted here recently, the justices have convened two sets of writ panels since last autumn. The December panels comprised just 26 appeals; I think I recall that the October panels included something on the order of 45, though my memory of that isn’t clear. From that pool of roughly 70 petitions, the court has announced just four writ grants – one from the October panels and three from December.

In my previous musings on this worrisome subject, I’ve posited that the likely cause might be that the Clerk’s Office is backed up and is getting writs posted on the court’s website after a substantial delay. I no longer believe that that’s a likely explanation. Instead, I conclude that the Supreme Court simply decided to award only one appeal out of the 40-some petitions argued in October. One!

If you make your living at appellate lecterns, as I do, you should read this news and tremble. It’s nice to have an of-right appeal in the CAV, but if the justices will now be handing out writs with even tinier tweezers than before, that’s a bad sign – at least in my view.


A return to the blogosphere

I was delighted to learn over the weekend that Jay O’Keeffe has resumed posting commentary at his website De Novo, after an absence of almost a year and a half. Jay writes very well and offers wonderful insight on the appellate world.

This welcome development means that Jay is joining John Koehler and me as, I hope, regular contributors to the discussion of appellate matters here in the Commonwealth. We occasionally hear from John O’Herron (this is subtle encouragement for you to write more often, John) at ThompsonMcMullan, too.

Want to join us? There’s room! Don’t imagine for a moment that we’ve covered the waterfront on Virginia appellate matters. I’ll repeat my offer: If you’re publishing and I don’t know about you, or if you’re just jumping in, let me know and I’ll help spread the word for you.

One last point: On Saturday at the Virginia Bar Association’s annual meeting, a panel comprising CAV Judge Dan Ortiz and Jason Konvicka of Allen & Allen spoke for an hour about what we’ve learned from the first year of of-right appeals. Jay posted an excellent summary of the presentation, so rather than my duplicating his labors, I’ll just send you his way.


Tone deafness

This last point isn’t appellate, but I can’t stop myself. The American Bar Association – of which I’m a proud and happy member – will convene its Midyear Meeting next week. (The ABA’s calendar runs from August through July; that’s why February 1 counts as “midyear.”) A horde of lawyers will descend on New Orleans, Louisiana, for six days, ostensibly to talk law stuff but in reality to indulge in Louisiana’s incomparable cuisine. It’s just as well that I’m not going to this one, as I don’t need to gain 20+ pounds in a single week.

This is one of the association’s two biggest events of the year, so its numerous sections, conferences, and other subdivisions will be well-represented there. The host hotel, the Sheraton, is big but not big enough to house everyone, so a number of ABA subdivisions will gather at other nearby hotels. The one that caught my eye was the Forum on Affordable Housing. That body will meet, awkwardly enough, at the Ritz Carlton. You may insert your self-generated punch line here.