An excessive force lawsuit against former San Jose police officer Mark McNamara has been temporarily halted as he appeals a federal judge’s decision to proceed with the case. McNamara, who resigned amidst controversy, is seeking qualified immunity in the on-duty shooting of K’aun Green in 2022. The trial, originally scheduled to begin next week, has been put on hold pending the outcome of the appeal.
McNamara’s appeal challenges Judge Nathanael Cousins’ refusal to grant him qualified immunity, which would have shielded him from civil litigation. The appeal process is expected to conclude in July, with briefing deadlines set by the 9th U.S. Circuit Court of Appeals.
In addition to the trial delay, McNamara’s request to change the trial venue to McKinleyville in Humboldt County has also been postponed. The motion for a venue change, filed prior to Judge Cousins’ ruling rejecting summary judgment, cited concerns about biased media coverage and the need for a fair trial. McNamara’s attorney, Susan Coleman, argued that the local press coverage had fueled perceptions that her client unlawfully shot Green due to alleged racism.
The shooting incident occurred on March 27, 2022, during an altercation inside a taqueria near San Jose State University. Green, who had disarmed a handgun from someone else, was shot by McNamara as he backed out of the restaurant with the weapon raised. The incident immediately sparked controversy.
Last November, the San Jose Police Department announced McNamara’s resignation following an internal criminal investigation that uncovered numerous text messages containing racial slurs. McNamara, who is white, used the N-word prolifically in the messages, referring to himself and insulting Black individuals, including Green and his attorneys in the lawsuit. No charges were filed against McNamara as a result of the investigation.
The motion for a venue change has been met with opposition from Green’s legal representation, Lawyers for the People. They argue that the cited news articles, including those mentioned in the motion, do not constitute a “barrage of inflammatory publicity” required for a venue change. Attorney Patrick Buelna contends that the jury selection process is sufficient to address any potential bias and that moving the trial 300 miles away from the shooting location would burden witnesses and attorneys.
The city of San Jose has taken a neutral stance on the trial venue change request.
Judge Cousins denied McNamara qualified immunity, stating that there were disputable facts that should be evaluated by a jury. Green claims that he immediately lowered and dropped the gun, raising his hands in surrender when he saw police outside the restaurant. McNamara, on the other hand, argues that the gun was moving around as Green exited and that he saw Green’s finger on the trigger.
Cousins ruled that Green’s federal claims of excessive force, battery, and negligence, as well as state civil rights violations, should proceed to trial. He emphasized that, under the summary judgment standard, Green’s version of events prevailed when considering the totality of the circumstances.
