Get to Know David Parker

The Recipient Of The Pioneer Excellence Award

HOW DID YOU END UP IN PUBLIC RISK MANAGEMENT?

Like many risk managers, my path was not planned. I had developed a first-of-its-kind program for San Diego County to help defend highway claims from people who crashed on county roads. I moved to Phoenix when my wife and I married. The Arizona Department of Transportation (ADOT) was experiencing a similar challenge and hired me to develop a similar program. While waiting for the position to be established, a Transportation Board member heard about risk management and wrote the ADOT Director suggesting we should develop a program and help political subdivisions, too. The Director decided it was something good for “the new guy.”

WHAT ARE THE THREE MOST SIGNIFICANT WAYS RISK MANAGEMENT HAS CHANGED SINCE YOU STARTED 35 YEARS AGO?

The early leaders in public risk management had laid the initial groundwork. Sovereign immunity was being eliminated or greatly curtailed. Insurance wasn’t available at any price. Self-insurance and pooling were in their early states. GASB-10’s adoption made management of risk a hot topic. Risk was ‘bad’ and anything ‘risky’ was avoided. Fortunately, we learned to think more strategically, to better support the pursuit and accomplishment of important objectives. We transitioned from being a controlling decision maker to facilitating risk assessment and aligned decision making where everyone is a risk manager. We didn’t stop there. Enterprise Risk Management (ERM) is strongly supported in the higher education community and special districts, and a more strategic approach is beginning to take root in state and local government. The next natural extension is aligning compliance and ethics with ERM.

WHAT ARE THE TOP THREE BENEFITS PRIMA PROVIDES TO YOU?

PRIMA provided most of my early risk management education and support, both nationally and the chapter level. I may never remember his name, but the keynote speaker at my first PRIMA conference (1997) made a lasting impression and inspired me to adopt this as my life’s work. The Governmental Risk Management Seminars (now PRIMA Institute) were an annual educational experience. Leadership development through PRIMA expanded my horizon and caused me to want to help further the practice, funding a Kennedy School of Government leadership program (an early PERI grant) and providing an international exchange to ALARM in the UK. That prompted my love of public policy and how it can be improved. PRIMA and its chapters also provide an amazing opportunity to develop relationships and support each other.

WHAT PRIMA BENEFITS DO YOU THINK BEST SERVE NEW RISK MANAGERS IN THE FIELD?

Several PRIMA opportunities are especially important for new risk managers. First is a community, available to all members, eager to provide support, whether through responding to a PRIMAtalk question or calling to discuss concepts in more detail. PRIMA Institute is not only an outstanding, structured education program, but it provides the opportunity to spend a week with some leading thought leaders. The Annual Conference provides more of a potpourri of educational and networking opportunities. Webinars and blogs prompt thought before you need to deal with something and the archives are available on-demand. I regularly discuss concepts in more detail with PRIMA members years after webinars went into the archive.

WHAT ARE TWO THINGS PRIMA COULD GET BETTER AT (WHETHER IT’S EDUCATION, REACH-OUT, ETC.)?

I had the opportunity to help develop PRIMA Core Competencies, which remain relevant and timely. I always hope to see more development of the soft leadership skills and those that would round out our members into organizational management and leadership. It will always be a challenge as many are focused upon improving their technical skills. Arizona PRIMA was instrumental in the antitrust settlement that resulted in PERI, now managed by PRIMA. The Senior Executives in State and Local Government program at Kennedy School made such a huge impact upon my career, and upon me personally, that I would like to see more opportunities of that type. We should also be a recognized source for growing organizational managers and leaders.

IF A NONMEMBER WAS ON THE FENCE ABOUT JOINING PRIMA, WHAT WOULD YOU SAY TO THAT NONMEMBER TO GET THEM TO JOIN?

I think you will find PRIMA to be a great resource of outstanding value across several dimensions. Join PRIMAtalk. Make connections. Call or email members to discuss ideas and gain insight. Peruse archived webinars, blogs, podcasts, and Public Risk articles, all of which come without any cost. Seriously consider PRIMA Institute to begin structured education, followed by the Annual Conference. Take advantage of the ARM study materials and obtain your industry credentials. Learn about ERM through PRIMA/URMIA’s orientation program. Dip your toe in the water, then jump in. Become engaged in learning, growing, and stretching. Make a difference for your organization and your profession!

VIRGINIA SUPREME COURT REVERSES JUDGMENT AGAINST POLICE OFFICER: AFFIRMING HIS DEFENSE OF ANOTHER AS A MATTER OF LAW

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 thusthe 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

Daniel Royce, Esq is Managing Partner, Auto Liability Litigation Group

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.