Fact Check

Did a Jury Find That a Cop Had Lied About a Fatal Shooting, But Brett Kavanaugh Threw Out the Verdict?

Judge Brett Kavanaugh once ruled against a police shooting victim’s family, blocking financial damages a jury awarded to them. But another part of that ruling was in the family’s favor.

Published Oct 1, 2018

 (everything possible / Shutterstock)
Image Via everything possible / Shutterstock
After an off-duty police officer shot Brian Hundley, a jury found the officer had acted negligently and lied about the event, but Judge Brett Kavanaugh overturned the finding.
What's True

Judge Kavanaugh overturned a lower court ruling that had awarded damages to the family of a victim of a police shooting on the grounds that the jury's logic had been inconsistent. Thus, Kavanaugh ruled in favor of the officer and the police department.

What's False

While this appeal did result in the loss of damages awarded by the lower court, Kavanaugh also remanded the case for a new trial in order to reconsider two complaints for which the original jury had exonerated the officer. This part of the ruling was in favor of the victim and his family.

At 1:30 am on the morning of 23 March 2002, a 41-year-old dental surgery student was shot and killed by an off-duty police officer while pulling his car from a parking lot in front of a D.C.-area apartment complex:

In the middle of a night in March 2002, Brian Hundley and a woman were in a car parked outside an apartment complex in Washington, D.C. Off-duty Metropolitan Police Department Officer Marcus Gaines tapped on the window of the car as he walked past. Hundley, who was in the driver’s seat, began to drive the car in the direction of Officer Gaines. Officer Gaines pulled his gun, yelled “police,” and ordered Hundley to stop and get out of the car. Hundley complied and exited the car.

According to Officer Gaines, while Hundley was standing outside the car, Hundley suddenly moved his right hand from behind his back and began lunging toward Officer Gaines, who was about 10 to 15 feet away. In apparent self-defense, Officer Gaines shot and killed Hundley.

The Hundley family brought a civil suit against Gaines, another officer, and the District of Columbia in three separate areas: First, a tort law claim of assault and battery based on the officer’s fatal shot; second, a violation of the Fourth Amendment's ban on excessive force; and third, a tort law claim of negligence based on Gaines’ initial stop of Hundley.

A jury awarded the Hundley estate $242,000 based on the the third claim, ruling that Hundley’s death was the result of a the officer’s negligence in performing this initial traffic stop. Both sides were unhappy with the ruling, according to the Washington Post's 2004 coverage of the trial:

The jury found that Officer Marcus Gaines was negligent in the steps leading to the shooting of Brian Hundley, 41, in a Northwest Washington parking lot. But it rejected the family's bid for more damages, finding that Gaines did not abuse Hundley, violate his civil rights or inflict emotional distress upon him when he killed him with a single gunshot to the chest ... Although the verdict was a victory on paper, Hundley's relatives and lawyers called the amount of the award a bitter insult to Hundley's life and said they will appeal.

"It really defies logic," said Carl Hundley, who brought the wrongful death suit on behalf of his late brother. "They found the [traffic] stop was negligent, they found my brother didn't threaten the officer. One is left to wonder if they are just deciding his life had no value." The family's attorney, Gregory L. Lattimer, called the award a "travesty ... A 41-year-old man dies at the police's hands without threatening him or doing anything wrong, and his life is worth $241,000. How are the police allowed to get away with this?" ...

A spokeswoman for the D.C. attorney general's office, which defended the department, said that the jury erred in siding with the family and that the city might seek to overturn the award.

On appeal, both the defendants (Officer Gaines et al) and the plaintiffs (the Hundley family) challenged that ruling, as described in court documents:

Hundley’s estate challenges the assault and battery and excessive force verdict, arguing that the jury’s verdict was inconsistent with the written interrogatory answer. Defendants challenge the judgment for plaintiffs on the negligence claim.

This appeal was heard by the D.C. Circuit Court of Appeals, and the opinion was written by Judge Brett Kavanaugh, who later became President Trump's controversial nominee to the Supreme Court.

The crux of the appeal argument centered on jury inconsistency. In the original trial, the jury was asked to rule on the three issues brought to the court and, in what is known as an interrogatory jury question, on the reliability or truth of Officer Gaines' version of events:

In addition to asking the jury to render a verdict on the assault and battery and excessive force claims, the judge also instructed the jury to answer a written interrogatory: “Do you find that Brian Hundley was shot after placing his right hand behind his back and then making a lunging motion toward Officer Marcus Gaines?” ... The written interrogatory tracked Officer Gaines’s testimony regarding the apparent self-defense shooting. The jury answered “No.”

Both the lawyers representing Gaines as well as the lawyers representing the interests of the Hundley family pointed to this fact as a reason for appeal, as jury inconsistency is a valid grounds for appeal under in Federal Law. In the Hundley family’s case, they argued that “the jury’s written interrogatory response is inconsistent with the jury’s findings for defendants on the assault and battery and excessive force claims.” Gaines et al, on the other hand, pointed to the finding as a reason to reject the damages awarded to the Hundleys by the jury, as their verdict with respect to negligence relied on a narrative the jury themselves said was not truthful. Kavanaugh agreed that the jury verdict was inconsistent:

Two distinct versions of events were presented to the jury. The jury could conclude either that Officer Gaines shot Hundley in self-defense as described by Officer Gaines, or that he shot Hundley without justification.

In making their cases to the jury, both sides agreed that liability turned on which version of events the jury believed ... Yet the jury found for defendants [Gaines et al] on the assault and battery and excessive force claims while simultaneously answering a written interrogatory indicating that the jury did not believe Officer Gaines’s version of events. The two answers cannot coexist; they make no sense in the context of the evidence presented in this case.

Ultimately, Kavanaugh rendered a 180-degree shift on both sides of this argument. He ruled that because the negligence claim relied on a narrative deemed false by the jury, that that charge and the damages awarded because of it should be overturned. This aspect of the decision has led to the online narrative that “a jury found that a cop lied [but] Brett Kavanaugh threw out the verdict”:

While this meme expresses a factually accurate statement, it tells only a portion of the story. Using the same logic that prompted the reversal of the negligence charge, Kavanaugh also overturned the earlier rulings that did not hold the officer liable for assault or excessive force, remanding that aspect of the case for a new trial:

We agree with Hundley's estate that the jury verdict on the assault and battery and excessive force claims was inconsistent with the jury's answer to the written interrogatory. We agree with defendants that the negligent stop, as a matter of law, did not proximately cause the shooting death and thus cannot justify the damages for the shooting death. We therefore reverse the judgment of the District Court and remand for a new trial for Hundley's estate on the assault and battery and excessive force claims.

It is uncertain if the Hundley family sought a retrial after this ruling or reached a settlement with the defendants. (An email to the lawyer who represented the Hundley’s in this matter was not immediately returned.) Regardless, Kavanaugh’s ruling did have the effect of reversing a cash settlement given to the Hundley family, but it also allowed for a new trial on first two claims the Hundleys had lost during their initial trial.


U.S. D.C. Circuit Court of Appeals.   “No. 05-7152 & 05-7161"     24 July 2007.

Tucker, Neely.   "Family Sues in Police Slaying."     The Washington Post.   6 April 2002.

Leonnig, Carol D.   "$242,000 Award Ordered by Jury In Police Killing."     The Washington Post.   8 December 2004.

Levy-Edwards, Ariel.   "Brett Kavanaugh’s Poll Numbers Are Firmly in the Red."     The Washington Post.   26 September 2018.

U.S. Federal Rules of Civil Procedure.   “Rule 49. Special Verdict; General Verdict and Questions."     Accessed 1 October 2018.

Alex Kasprak is an investigative journalist and science writer reporting on scientific misinformation, online fraud, and financial crime.