From left, Tony Robinson's uncle, Turin Carter, family attorney, Jon Loevy, and Tony Robinson's grandmother, Sharon Irwin, speak to reporters Tuesday, May 12, 2015, after the Dane County District Attorney announced he would not charge the officer who killed Robinson.
When Dane County District Attorney Ismael Ozanne announced this week that he won’t be charging Madison Police officer Matt Kenny in the shooting death of Tony Robinson, he closed the door on criminal charges in the case.
But Robinson’s family may still get its day in court.
"I will not be defeated," Robinson's mother, Andrea Irwin, told a crowd of protesters that gathered in front of Grace Episcopal Church after Tuesday's decision. "I'm going to fight."
Irwin, who is represented by Chicago-based civil rights law firm Loevy & Loevy, has said she plans to pursue a civil lawsuit against Kenny -- a move that Madison attorney Jeff Scott Olson says would provide the family a better chance to seek justice and enact change within the law enforcement system that some say contributed to Robinson's death.
"When it comes to doing some real good in the world, civil litigation is much, much more promising," Olson says.
Civil actions against law enforcement are brought under the Fourth Amendment, which prohibits unreasonable search and seizure.
"Shooting someone is a seizure," Olson says. His law office is pursuing other civil suits against the city of Madison for officer shootings, including the 2012 death of Paul Heenan. That case is set to go to trial this summer.
Unlike criminal cases that are prosecuted by the state, which can seek punishments such as jail time, civil cases are brought by individuals seeking monetary compensation. This allows victims and their lawyers to decide when to start the formal litigation, what legal theories and trial strategies to employ and what terms a settlement might contain.
"Oftentimes, the victims feel like a fifth wheel in the context of a criminal prosecution," Olson says.
Beyond that, civil plaintiffs can decide whether their case can be used "for some broader purpose" beyond simply compensating the victims. That is, civil cases can create "incentives for change" on the part of the defendants, who must pay damages and attorney fees. In the Robinson case, the defendant would be Kenny and could also be the city of Madison itself, as Kenny is a municipal employee.
Adding the city as a defendant would likely bring into question whether the city's police force training or policies caused the Fourth Amendment violation, Olson says.
If a civil lawsuit is brought against Kenny, he will likely be represented by the city of Madison or by its insurance company, says Jim Palmer, who is the is executive director of the Wisconsin Professional Police Association and represented Kenny while Ozanne contemplated whether charges were warranted.
The WPPA will not be involved in any civil proceedings, put Palmer says he believes "any such claim is entirely without merit" and that "the death of Tony Robinson, while tremendously tragic, was not the result of any wrongdoing on the part of Officer Kenny."
"Civil lawsuits are settled for all sorts of reasons," he wrote in an email. "Some in our community would improperly interpret a settlement in this matter as some form of vindication in the wake of the district attorney's decision to exonerate Officer Kenny after thoroughly reviewing the exhaustive, independent and transparent investigation that was conducted."
No individual lawsuit could compel a department to change its practices, Olson says, but a "substantial settlement" or a verdict of "excessive force" could put pressure on the police department to consider changes.
"I think police training and culture in our country has become kind of monolithic," Olson says. "There's not much in the way of experimentation or innovation in the use-of-force training, culture and policies for a long, long time."