Civil rights attorneys want to question Vallejo police Ofc. Ryan McMahon about the night in 2018 when he shot and killed a man after stopping him for a minor traffic infraction, but for now, McMahon has other plans.
He’s pleading the fifth.
Court records filed Wednesday say McMahon signaled his intent to exercise his Fifth Amendment right against self-incrimination, in a federal lawsuit over the February 2018 shooting death of Ronell Foster.
McMahon fatally shot the 33-year-old man seven times after the two tussled behind a building in the 400 block of Carolina St. on Feb. 13, 2018. County prosecutors are still investigating the shooting.
On Thursday, Federal District Judge John A. Mendez agreed with both sides’ attorneys to delay McMahon’s deposition and consented to push back all case management dates in the case for at least four months.
But Vallejo City Attorney Claudia Quintana said McMahon’s invocation of the Fifth Amendment is not indicative of a desire to avoid a deposition, and suggested he would be deposed once the Solano County District Attorney’s Office completes its probe.
“Officer McMahon has not refused to give a deposition and it’s not uncommon to pause civil proceedings while a criminal investigation is pending,” Quintana said in an email Thursday. Foster’s family, through the law offices of Oakland civil rights attorney John Burris, sued the city and police department three months after Foster was killed. Burris’ attorneys intended to depose McMahon in anticipation of a trial.
“It is certainly unusual and very telling, but not surprising since he executed an unarmed man by shooting him in the back of the head,” said Melissa Nold, an attorney in Burris’ office, on Thursday. “Based on the irrefutable evidence from the lapel camera, we strongly feel that Defendant McMahon should be charged, convicted and imprisoned for murder.
“If I was his attorney I would advise him to invoke his fifth amendment right to remain silent also,” she added. “That may be the best legal advice the City Attorney’s Office has given its clients in decades.”
Because the suit was filed in federal court, jurors will be able to weigh the fact that McMahon is taking the fifth. If it were a state case, the jury wouldn’t be allowed to know that detail.
That’s because of a piece of the California evidence code, which goes beyond the Fifth Amendment in protecting people’s right to self-incrimination. The law protects McMahon’s employers from using his decision against him as well.
McMahon was also one of the six officers who shot and killed 20-year-old Willie McCoy at a Taco Bell drive-thru in February. McCoy was asleep in his car, a gun in his lap. The shooting provoked a backlash in the community, as well as another federal lawsuit also filed by Burris’ firm.
Lafayette-area attorney Daniel Horowitz, who handles civil and criminal cases, said he’s seen several other suits where officers invoked the Fifth Amendment, and predicted it will be an even more common tactic as officers face increasing scrutiny.
“Outside of the lawsuit, there is no downside to it,” Horowitz said.
It all started when McMahon stopped Foster for bicycling without a light at night.
McMahon told investigators that he attempted to stop Foster and “educate” the man about driving recklessly and not having a light on the bicycle, according to documents released this year, under the state’s new police transparency law, SB 1421.
Foster fled on the bicycle, leading McMahon on a chase over several city blocks. Foster ditched his bicycle at one point and started running while the officer got out of his cruiser and ran after Foster.
During the chase, McMahon said he saw Foster reaching for his waistband several times and Believing the man may be armed with a weapon, McMahon discharged his Taser. One of the two probes struck Foster in the back but that didn’t stop the pursuit as Foster continued to run away until falling along a walkway behind building on Carolina Street, McMahon told investigators.
That allowed McMahon to catch up and push Foster down as he tried to get up. The officer said he used a drive stun approach of placing the weapon against Foster’s body to subdue the man but that didn’t work as well.
McMahon said he began hitting Foster with a flashlight. At some point, Foster got up and “ripped” the flashlight from McMahon’s hand.
McMahon told investigators he feared for his life.
“This guy just took my light from me, we’re fighting and nothing I’ve used on him is working. He is gonna smack me in the head,” McMahon said to investigators. “He’s gonna take my gun and shoot me or he’s gonna beat me down with my own flashlight and there’s nobody here to help me and nobody knows where I’m at.”
McMahon said he attempted to activate his body camera throughout the incident, pressed the buttom after shooting Foster. The system records the 30 seconds prior to activation without audio.
The video begins with Foster laying on his back and side as McMahon drive stuns the man. Foster leans up and appears to make a move toward the weapon but due to the jostling of the body worn camera there isn’t a clear image until Foster is again down on his left side.
McMahon then seems to strike Foster several times with the flashlight. Foster is able to get up and he is then fatally shot by the officer. The video shows that before firing, McMahon backed up and the flashlight appeared to be held by Foster. However, due to the movement of the camera it’s not definitive.
Foster slumps backwards into what looks like a planter and doesn’t move. Arriving officers put handcuffs on Foster’s body before conducting life-saving measures, they reported in the same documents released by the city. Foster was pronounced dead the scene.
Foster was shot three times in his chest, once in the head, left shoulder, left arm, and in the right side of his back, autopsy records show. Marijuana, methamphetamine, and amphetamine were found in Foster’s system as well.