An Oakland man shot multiple times outside a downtown San Jose taqueria in 2022 by a now-former police officer tied to a racist texting scandal could receive a multi-million dollar settlement as early as next month, according to city records.
K’aun Green, a former high school football star at McClymonds High School, had sued San Jose after the incident, accusing police of wrongfully shooting him four times from about five feet away, resulting in serious injuries to his left arm, left leg and abdomen, in addition to emotional distress.
Green’s attorneys from Pointer & Buelna, LLP alleged that their client had attempted to diffuse an altercation during the early hours of March 27, 2022, inside a La Victoria restaurant. After disarming a gunman and subsequently walking backward to the front door with his hands up while holding the weapon, Green, then 20, was met by police officers who had been at the scene of a nearby fatal shooting, at which time now-former officer Mark McNamara opened fire.
The 9th U.S. Circuit Court of Appeals ruled in September that Green’s excessive-force lawsuit could proceed to trial, but now the San Jose City Council could approve an $8 million settlement at its Jan. 13 meeting.
“This is a negotiated settlement between the parties to avoid the risks inherent in litigation,” City Attorney Susana Alcala Wood wrote in a memo to the City Council recommending the settlement. “The proposed agreement will conclude the litigation without further cost, expense, or risk of loss to the City or City employees.”
Green’s attorneys were not available for comment. The city of San Jose declined to comment.
Green’s attorneys had previously said that their client was waiting for food at the taqueria when an unknown man instigated a fight. As Green and the other man tussled, a man identified by police as Bryan Carter pulled out a gun, prompting a friend of Green to attempt to wrest away the weapon.
After Green jumped up and grabbed the weapon, Carter and the initial assailant kept walking toward him, leading Green to walk backward to the door with his arms up, unaware that San Jose police officers had just arrived at the scene after hearing about a man with a gun in the restaurant.
A major point of contention during legal proceedings was what the police knew before the shooting.
Thirty minutes before police shot Green, police had responded to a fatal shooting a few hundred feet away. The police contended that the commotion at La Victoria prompted them to believe that it could have been the same shooter.
In court, McNamara and his attorney, along with the city of San Jose, argued that McNamara should be granted qualified immunity, which was denied. He claimed the “gun was moving around” as Green exited and that “he saw Green’s finger on the trigger.”
Green’s representation disputed those accounts, saying Green was not in a threatening stance and had dropped the gun when he saw police. They also contended that Green was given little time to comply with their orders before opening fire.
Ultimately, a federal judge and the 9th U.S. Circuit Court of Appeals agreed that the case should proceed to trial.
“A reasonable jury could find that McNamara violated Green’s Fourth Amendment right not to be subjected to excessive force by shooting him as he surrendered,” Judge Kim McLane Wardlaw wrote in an appeals court ruling. “Police officers do not act reasonably when they shoot an armed individual who is surrendering or who does not pose an immediate threat.”
Adding more intrigue to the case was the emergence of an internal affairs investigation into McNamara, who is white, which revealed that he had sent dozens of text messages to other officers in which he used the n-word and disparaged Black people. McNamara resigned from the department in November 2023.
McNamara’s text messages also included him making light of the Green shooting, including one in which he wrote “N— wanted to carry a gun in the Wild West … Not on my watch” and “They should all be bowing to me and bringing me gifts since I saved a fellow n— by making him rich as f—. Otherwise, he woulda lived a life of poverty and crime.”
Reporter Robert Salonga contributed to this report.
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