Rumors of Gerry Spence's retirement are, well, overstated, even if the rumors were started by Spence himself. After winning an acquittal of Geoffrey Fieger in Detroit earlier this year, Spence announced he was retiring. Well, it wasn't quite an announcement. He told jurors that at 80, he was a spend Spence. He was leaving the fray to others.
Not so fast, Gerry.
According to Oregon's SandyPost, the Wyoming trial lawyer is due in a Portland federal courthouse in April. This time he'll have two lawmen in his sights, Officer's William Bergin and David Willard. The two men are accused in a civil proceeding of having shot to death Fouad Kaady in 2005.
The defendants moved for summary judgment, attempting to persuade U.S. magistrate Judge Paul Papak that the uncontested facts were such that the shooting was justified or, in the alternative, that the officers should be granted immunity from suit because reasonable officers would believe the shooting justified. Papak rejected that contention last month.
The circumstances leading to the shooting death are, in fact, bizaare. Officers responded to a call in early Septmeber 2005 of a Gresham, Oregon businessman who reportedly saw a man dressed only in boxer shorts running away from a parking lot. When Kaady returned in his mother's car with a gas can, he could not find his pickup truck. Kaady had a can of gasoline with him, which ignited when he lit a cigarette in the car, setting him on fire and leading to several hit-and-run collisions. When his car crashed, Kaady attacked a man trying to assist him. Thereafter, police tried to restrain him, using a Taser, and, ultimately shooting him to death. There are cases like this in every jurisdiction: anxious officers face-to-face with the bizarre, often ending in death or serious injury.
Whether Spence actually appears at trial is an open question. Despite the trial lawyer's swagger and boast of not having lost a civil case in 40 years, this is a tough case. It was apparently filed by Michelle Burrows of Portland. Ms. Burrows is a graduate of the trial lawyer's college founded by Spence.
When reached for comment about the summary judgment ruling, Spence had nothing to say, fueling speculation that his appearance in the case had a certain Potemkin quality. It is not likely that the master has been involved in pre-trial preparation. Summary judgment motions have all the glamor and appeal of dental hygiene.
In most parts of the country, this would be a case on which the defendants would offer nothing by way of settlement. Police confront the bizarre daily, and there is plenty about the Kaady case that, from a distance, looks bizarre. Convincing a federal jury that the officers in this case shot a wounded man out of vengeance or spite is a tall order. Many jurors will forgive the officers a mistake, being persuaded that split seconds in tense and evolving circumstances are the only margin between life and death for a patrol officer.
Here's my bet: The defendants offer a nominal sum out of respect for Spence. Ms. Burrows grabs it to recover the litigation expenses to date. Kaady's family declares a victory of sorts, and the case is closed. But I am hoping to be proven wrong. I'd like to see what Spence can do with this fact pattern. He pulled Fieger from as hot a fire, and now the two are fast friends, lecturing together about how to beat the feds at their own game.
Mark your calendar: This April in Portland. Ringside seats.