$3.35M settlement reached in Tony Robinson lawsuit over police objections

Feb. 24--The family of Tony Robinson, who sued the city of Madison after he was killed by officer Matt Kenny in 2015, has settled the federal civil rights lawsuit for $3.35 million, attorneys for the family said.

Robinson's grandmother, Sharon Irwin, called the settlement "bittersweet," and said it offered proof that Kenny lied to investigators, but city and police union leaders decried the settlement that they said was a business decision made by the city's insurance company, Wisconsin Municipal Mutual Insurance Company, despite Kenny's strong objections.

"Matt was prepared to go to trial and have a forum in which he could confront the wild accusations the Robinson family has been making for quite some time," Wisconsin Professional Police Association Executive Director Jim Palmer said. "Nothing about this agreement, which includes no admission of wrongdoing, changes the fact that he has been fully and repeatedly exonerated."

The settlement is the largest in state history for a police shooting. It surpasses the $2.3 million the city agreed to pay the family of Paul Heenan in 2015 to settle a civil rights lawsuit against the city and the former police officer who shot and killed him.

"I understand there was tremendous pressure on the remaining parties to the lawsuit to settle the case, rather than have this matter continue with no end in sight," Madison Mayor Paul Soglin said. "I do not suggest that we forget this event but I do recommend that we learn from the settlement and move forward to build a stronger, better community."

The facts of the case according to Madison police is that Kenny shot Robinson, who was unarmed, after the teen, who had taken hallucinogenic mushrooms, punched Kenny in the head and knocked him into a wall during an altercation in the narrow stairway of a Williamson Street apartment home on the night of March 6. In May of that year, Dane County District Attorney Ismael Ozanne determined the shooting was a lawful use of deadly force and declined to bring criminal charges. A state review and an internal investigation also found Kenny acted appropriately.

Irwin and family attorneys David Owens and Anand Swaminathan said the settlement was made because defendants knew Kenny's story wasn't going to hold up in court and they would likely lose in a jury trial. Also, Andrea Irwin, Robinson's mother, said the attorneys for the defendants approached her attorneys to request the settlement. "Their attorneys came to us Monday night with an offer," Irwin said.

Irwin and Robinson's father, Tony Robinson, Sr., decided to settle because they wanted to spare the family of having to suffer through hearing all the details of the shooting in a trial, according to Irwin. "And my son deserves some sort of peace," Irwin said.

Owens said two forensic experts who were going to testify at the trial had evidence that proved Kenny lied to investigators from Madison police and state Division of Criminal Investigation when he told them that he fired all his shots at Robinson from close range. Owens said police opposition to the settlement is misplaced, adding they should be upset with Kenny.

"If they had known what happened that day, they would not want Kenny in their department," Owens said.

There also is evidence to dispute Kenny's description of the altercation in the stairwell and that he suffered a concussion after Robinson punched him in the head, according to Owens. He said the only head injury suffered by Kenny was a minor cut and it wasn't caused by a punch. He also said Kenny's medical expert told him there was no objective evidence that Kenny suffered a concussion but Palmer produced medical documents that showed a diagnosis of a concussion on two return visits to doctors after the incident.

The lawsuit, brought by the family against the city Aug. 12, 2015, was supposed to go to trial on Feb. 27. The city was removed as a defendant by U.S. District Judge James Peterson last week after he ruled that the lawsuit presented no evidence to suggest that city practices or procedures led to Robinson's death. He referenced the police department's review in his ruling. The city's insurance company was still involved in the lawsuit and is responsible for paying the settlement because Kenney is insured under the city's policy with WMMIC, according to city attorney Michael May.

Peterson denied Kenny's request that he be dismissed as a defendant, ruling that the facts of what happened when he confronted Robinson in the stairwell are "sharply and genuinely disputed."

The Robinson family's attorneys said they will continue to push to get Kenny fired and that they plan to use the tonyrobinsonjr.com website to publish more evidence that they say will expose flaws in the investigation. Owens said he has contacted the Federal Bureau of Investigation and requested it to look into how Madison police investigated the shooting. Swaminathan, who grew up in Madison, said he hopes, at a minimum, that Madison police will re-open its investigation. "(Soglin) should demand the internal investigation that was never done," Swaminathan said.

The attorneys were not critical of the findings by the state Division of Criminal Investigation of the shooting other than that investigators showed Kenny the evidence before they questioned him. They also said Dane County District Attorney Ishmael Ozanne made a difficult interpretation of the DCI findings in his ruling.

The statements made Thursday by the Robinson family and their attorneys are "a striking contradiction", according to Palmer of the Wisconsin Professional Police Association. "I don't know how to reconcile the notion that they settled the lawsuit to spare their family additional trauma, which I get on its own. But in the same breath, they said they are going to spend the next several week basically litigating this in the court of public opinion."

Kenny, who was placed on paid leave following the shooting, was assigned to the police department's training section and mounted patrol after being cleared, and remains in those duties today.

Police Chief Mike Koval said the settlement didn't help either side because it could not adequately compensate for the loss, the pain and the grief the Robinson family has to contend with and it continues to allow doubt to be cast on Kenny's story. "This is an officer who has basically had his career marooned and placed on a desert island for the past two years, subject to the court of public opinion," Koval said.

The Madison police union also expressed opposition to the settlement.

The settlement is "tantamount to throwing him under the bus," said Dan Frei, president of the Madison Professional Police Officers Association. "Frankly, given how the plaintiffs in this case (the Robinson family) have publicly demanded justice, I'm actually shocked they would settle it short of having their day in court."

Swaminathan disputed claims by Soglin and May that the city was not involved in the decision to settle the case. "Under state law, the city is responsible for paying any verdict or judgment against officer Kenny; the city had to approve the settlement; and the city had to contribute financially to the settlement. Any claim to the contrary is false," he said.

WMMIC has the authority to make settlements under its policy with the city, according to May. "The city need not approve the settlement in any way, and cannot tell WMMIC not to settle," he said in a statement. The city's retention, or deductible, in the settlement is $350,000 and its premiums have ranged between $364,000 to $436,000 annually over the last seven years, according to May.

Soglin said the settlement leaves too many unanswered questions. "Unfortunately, the way the case was concluded leaves the public and all local governments still struggling to understand how police officers are to proceed in dangerous situations when confronted by individuals who are impaired by substance abuse or mental health issues," he said. "We know that more officer training will help. We know that the city of Madison, its police department, and its residents will continue to find solutions. Tragically, as long as mental illness goes untreated, as long as substance abuse is ignored, these tragedies will continue to confront us."

State Journal reporters Molly Beck and Bill Novak contributed to this report.

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