I argued a shooting death case in front of Amy Coney Barrett. Here’s why she shouldn’t be on the Supreme Court.
By: Dan Canon
Tags: Police, Law, Criminal Justice, Civil Rights, SCOTUS

I argued a shooting death case in front of Amy Coney Barrett. Here’s why she shouldn’t be on the Supreme Court. Dan Canon Follow Dec 28, 2020 · 5 min read

Brad King before he was killed by part-time sheriff’s deputies

Now that it’s been two months since Justice Amy Coney Barrett’s confirmation, I can confidently say she is not qualified to sit on the Supreme Court. Sure, she was nominated by the vilest figure in the last century of American politics. Sure, McConnell rammed her nomination through the Senate while millions of Americans were dying, getting evicted, and trying to figure out where their next meal was coming from. And sure, Barrett is an ideologue who will undoubtedly be toxic to women, unions, the LGBT community, immigrants, and any other vulnerable population you can think of. Those curiosities render her unqualified from the get-go. But this column is not about any of that stuff, about which billions of useless words have already been spent. This is a story about Brad King, who is dead, and his parents, Matt and Gina, who are alive. I had the privilege of representing them in front of then-Judge Barrett earlier this year, during the brief period of time she presided over the Seventh Circuit Court of Appeals.

Brad was killed in his own backyard in central Indiana after he called 911 to report a mental health crisis. He was 29. Because of his mild schizophrenia, he lived with his parents. He had no history of violent or aggressive behavior whatsoever. In her testimony, Brad’s mother Gina described him as “just sweet” and, as much as she worried about his mental health, she was never concerned about her safety or anyone else’s. A “bad day” for Brad was a day when he would “be more quiet and stay in his room.” Even in leaving him alone, Gina’s only concern was that she “felt sorry for him. Because I know sometimes when Brad would get nervous, he would want to call people. Sometimes if he was having a bad day, he would say, ‘I need to call my brothers and talk to them,’ or ‘Let’s call Grandma’ or something.”

Where the Kings live, as in most of America, the only responders to mental health calls are cops, many of whom might have had a few hours (at best) of training on recognizing mental health issues. But Brad had made emergency calls before, and experienced deputies were always able to talk him down without incident.

On November 29, 2016, things didn’t go so smoothly. Two volunteer, part-time sheriff’s deputies, one who was a full-time researcher for Eli Lilly and the other an insurance agent, answered the call. They killed Brad within thirty seconds of laying eyes on him. Their story was that Brad lunged at a deputy with a ten-inch kitchen knife that he produced from the pocket of his shorts.

Brad wasn’t able to tell his side of the story. But the story told by the cops didn’t add up. The knife they supposedly recovered had no fingerprints on it. One deputy said the knife was in his right hand; the other said it was his left hand. The knife was recovered from Brad’s left side, but he was right-handed. And even though Brad was supposedly charging directly at one of the deputies, the bullet entered his shoulder and traveled left to right through his body.

Even assuming deputies told the truth about what happened, it’s hard to see why they defaulted to lethal force. Brad’s father Matt summed it up aptly: “He called for help that day. That’s what I know. He called for help, numerous times. And they knew — they knew he was coming — they knew they were coming because there was a person suffering from a mental issue. They knew that. It wasn’t a criminal thing that they were investigating. It was a health-related issue. So those two guys should have never been there to begin with.”

None of this was enough to move Barrett or the two other judges on the panel, who refused to revive the Kings’ case after it was summarily tossed in the trash by a different Trump judge before it got to trial. The judges said that despite all the physical and circumstantial evidence, it wasn’t even worth letting a jury hear the case. The self-serving story of two part-time cops was good enough to deprive the Kings of any hope of closure for the death of their son.

Perhaps you’ve reserved some optimism for the whole “Barrett’s a mom and a Catholic so there must be some compassion there” thing. Sorry, but no. In her confirmation hearings, she spoke about how the George Floyd video was “very, very personal” for her family, and that she and her children “wept together” over what must have been the zillionth police murder in her history as a lawyer and mother. But her mentor, the late Antonin Scalia, seemed to think it was constitutional to put innocent people to death, despite his ultra-Catholicism. There’s no reason to believe that any sort of ideological consistency will prevail simply because of a judge’s familial status or bizarre metaphysical beliefs, and those factors made no apparent difference in Brad’s case.

Here’s where this gets complicated: In saying that being part of this horrendous decision should disqualify a judge from serving on the Supreme Court, by extension, I’m saying that damn near every federal judge is similarly unqualified. Almost none of them believe that cops should be held accountable for killing mentally ill people who call for help. This sort of thinking, in which cops are extended every benefit of every doubt, feasible or unfeasible, is the norm. Barrett didn’t even write the opinion in Brad’s case. It was written by a liberal judge who, like all her colleagues (of whatever political persuasion), was willing to write the police a blank check. That’s how our courts have operated for decades, and even in a post-BLM society, few of those in robes have the intestinal fortitude to do anything different.

So I am unmoved by Justice Barrett’s faith. I am unmoved by her status as a working mother of seven. I am particularly unmoved by her fake expression of sympathy for George Floyd, whose case she had nothing to do with, when she couldn’t spare any for the people who actually appear before her. I’m unmoved because I’ve seen so little compassion for grieving parents like Matt and Gina throughout my career, from any federal judge, let alone the Federalist Society drones who have lately taken over the judiciary. The basic inability to do what’s right for families like the Kings should be disqualifying. Not just for Amy Coney Barrett, but for the whole lot of ‘em.

A version of this originally appeared in LEO Weekly.