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This article was originally published in www.isthmus.com

FEBRUARY 23, 2017

Madison has settled a lawsuit brought by the family of Tony Robinson for $3.35 million, the largest settlement in state history for an officer-involved shooting, according to the family’s attorneys.

However, City Attorney Mike May would not confirm the settlement or comment in any way about the case. A trial is scheduled to begin Feb. 27 in Dane County Circuit Court.

The unarmed Robinson, 19, was shot and killed by Madison Police Officer Matt Kenny on March 6, 2015. Earlier that evening, emergency calls reported a young man jumping in and out of traffic on Williamson Street and assaulting people. Kenny was dispatched and entered a nearby home looking for the young man. Moments later, Kenny fired seven shots from his handgun, all of the bullets striking an unarmed Robinson. Kenny, who remains on the force, was cleared of wrongdoing by both Dane County District Attorney Ismael Ozanne and the Madison Police Department.

Attorney Anand Swaminathan of the Chicago firm of Loevy & Loevy, which represents Robinson’s estate, says that the settlement — expected to be announced Thursday at a news conference — shows that their case against the city was strong.

“That settlement figure is absolute vindication for the family,” Swaminathan says. “The story that Kenny told is false, and, in fact, something very different happened in that stairwell.”

The state’s previous record settlement — $2.3 million — for an officer-involved killing involved Paul Heenan, who was fatally shot by a Madison officer in 2012.

Jim Palmer, executive director of the Wisconsin Professional Police Association, condemns the settlement in a statement.

“Matt [Kenny] strongly believes that this lawsuit should have gone to trial, and he deeply regrets that he is being deprived of the opportunity to defend himself before a jury of his peers,” Palmer says. “While we continue to extend our sympathies to Mr. Robinson’s family, they have made some outrageous claims about Matt that will never be resolved. We would have preferred that they demand that the case go to trial, because rather than offer any amount of closure, this settlement only serves to further cast a pall over Matt’s devotion and service to the community, and that of the dedicated men and women of the Madison Police Department.”

According to court documents, Kenny told investigators that when he arrived at 1125 Williamson St., “he was faced with a rapidly evolving scenario, which led him to believe Robinson was assaulting [someone] in the upstairs unit. Kenny responded in an effort to help, but was confronted in the stairwell by Robinson in an aggressive state. Robinson punched Kenny in the head, leading to a concussion, and continued to repeatedly swing at Kenny. Kenny, fearful that he would lose consciousness and be disarmed, fatally shot Robinson in an effort to protect himself.”

In their lawsuit, the plaintiffs challenge Kenny’s account of what happened that night, arguing that forensic evidence and dashcam video directly contradict the officer. They contend video shows Kenny exiting the stairwell during shot two of the first string of three shots. They also argue that because of the trajectory of the bullet wounds, Kenny could not have been at the top of the stairs and in close contact with Robinson when he began shooting.

“We were going to bring in multiple scientists who were going to look at the forensic evidence and explain to a jury very clearly why Officer Kenny’s story was provably false,” Swaminathan, who grew up in Madison, tells Isthmus. “There was going to be audio and video evidence [from Kenny’s squad car dashcam] that a jury could [have] seen with their own eyes that would have shown unequivocally that [Kenny’s] story was false. That [evidence] and the two scientists we would have brought in was what [the city] didn’t want the jury to hear.”

David Owens, another attorney with Loevy & Loevy, says the forensic evidence casts doubt on Kenny’s account that he was in a physical struggle with Robinson and feared for his life. “There are seven gunshots and [forensic experts can show] that three of them are from a distance of three to four feet away,” he says. “Three of the gunshots are also in three really bizarre places — one through Tony Robinson’s mouth that also hit his shoulder, one goes through his hand, one goes through his shoulder in another way.”

That evidence, Owens says, suggests that Robinson wasn’t battling Kenny, but that he was tumbling down the stairs.

“Robinson is falling down the stairs towards him. That’s what we think really happened in the stairwell,” Owens says. “There’s no universe in which it’s possible that Tony Robinson was on top of Matt Kenny the whole time. There’s no way that can be true.”

Plaintiff attorneys also argue that Kenny lied about announcing his presence as a police officer when he arrived on the scene and in the stairwell.

“There were neighbors downstairs — basically under that stairwell — that were interviewed, and they never reported hearing any of the things that Kenny said happened,” says Owens. “The reason that this lie is important for Kenny is that he has to say that they interacted in the stairwell and Robinson knew he was a police officer because that way, he would be justified in shooting him. That’s the reason for the lie.”

The lawsuit stated it forcefully: “Tony Robinson Jr.’s life was taken through an act of intentional homicide — a violation of [his] constitutional rights — by Madison Police Department Officer Matthew Kenny.”

In their defense of the killing, lawyers for the city argue in court filings that Kenny had been well trained to deal with these types of situations and that he was justified in using deadly force based on the circumstances.

The city’s insurance agent, Wisconsin Municipal Mutual Insurance Company, hired the law firm Boardman & Clark to work with the city on the case. Kenny is represented by Crivello Carlson, also hired by the insurance company.

The defense motions note that photos taken after the incident show Kenny suffered head injuries, corroborating the officer’s account that Robinson attacked him. They point out that Kenny believed a victim was in the apartment.

“Robinson charged, attacked, and engaged in an active physical struggle with a police officer,” a city motion states. “Kenny reasonably believed that his life was in danger and that a potential victim of Robinson’s actions remained in [the apartment] and was in imminent danger should Robinson render Kenny unable to assist.”

A main part of the city’s defense involved the precedent of giving police officers wide latitude in determining what constitutes an imminent threat of “death or serious bodily injury,” the standard for when deadly force is justified.

In particular, the city noted a 1988 federal case, Sherrod v. Berry, involving an Illinois police officer who killed an unarmed man in 1979. The court found the killing was justified based on what the officer knew at the time.

Attorneys for the city cited this ruling: “It is not necessary that the danger which gave rise to the belief [that death or serious bodily injury was imminent] actually existed; it is sufficient that the person…reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken. In forming such reasonable belief a person may act upon appearances.”

Dan Frei, president of the Madison Professional Police Officers Association, also condemned the settlement in a statement: “The outrageous decision by the city’s insurance company to settle this lawsuit over Matt’s objection is tantamount to throwing him under the bus. Despite the fact that he and his conduct have been rigorously scrutinized by multiple agencies, the Robinson family has done their best to drag his name through the mud. Frankly, given how the plaintiffs in this case have publicly demanded justice, I’m actually shocked that they would settle it short of having their day in court.”