New legal fight erupts in lawsuit over fatal Virginia Beach police shooting

By Paul Duggan / The Washington Post

15:15 JST, December 31, 2022

A lawsuit settlement between the city of Virginia Beach and the family of a Black man killed by police has hit a last-minute snag, with the father of the dead man now embroiled in a court dispute with his attorneys over the terms of the agreement.

The shooting of 25-year-old Donovon Lynch in March 2021 by a Black officer in Virginia Beach sparked days of protests in the community almost a year after the police murder of George Floyd in Minneapolis ignited national unrest. Although authorities said Lynch was holding a handgun when he was killed, his loved ones contend that he did not pose a threat. His family and the city recently negotiated a settlement of a wrongful-death lawsuit, with Virginia Beach agreeing to a $3 million payout.

But just as the civil case, in U.S. District Court in Norfolk, seemed to be ending, a new round of litigation has begun. Lynch’s father, Wayne Lynch, is at odds with his lawyers, including former Virginia lieutenant governor Justin Fairfax. The family wants to make changes to the settlement agreement while Fairfax and his co-counsel, Thomas Martin, as well as lawyers for Virginia Beach, argue that the settlement should be finalized as currently written.

In early December, Wayne Lynch signed a legal “memorandum of understanding,” agreeing to the $3 million payout, but he has declined sign the final settlement papers. He said he wants the judge in the case to remove Fairfax and Martin as his attorneys and replace them with another lawyer, Joseph Sherman.

Sherman, in a statement Friday, cited “unacceptable differences between the Memorandum of Understanding and the formal settlement agreement.” Unlike the memorandum, Sherman said, the settlement agreement would bar Lynch from assisting the Justice Department in any future civil or criminal action against the city or the officer. He said Lynch objects to that language.

“Mr. Lynch holds out hope that the Department of Justice will investigate the City for the intentional killing of his son,” Sherman said, adding that Lynch “cares about the safety of the community and its young adults and will participate and aid any action by the Department of Justice related to Donovon’s unprovoked killing.”

The changes sought by the family are not specified in public court records, but Wayne Lynch alluded to them in a statement he issued in response to a request for comment.

“Money does not motivate me,” he said. “My son deserves zealous advocacy in negotiating the final terms of any settlement because my family . . . cannot agree to waive the right to participate in any investigation by the Department of Justice, or any other entity, of the City and its training, culture and hiring practices for police.”

Fairfax (D), who left office in January 2022 after a term as lieutenant governor, began representing the Lynch family in October after the attorneys who filed the lawsuit in 2021 withdrew from the case because of an “irreconcilable dispute” with Wayne Lynch regarding strategy, according to court filings. The original attorneys included New York lawyer Alex Spiro, whose roster of celebrity clients includes Grammy Award-winning musician Pharrell Williams, a Virginia Beach native and relative of the Lynch family.

In seeking to remain in the case and enforce the $3 million settlement, Fairfax told a judge in writing Thursday that Wayne Lynch has received poor advice from lawyer Jeffrey Reichert, who represents Donovan Lynch’s estate.

Reichert “improperly and without legal basis” instructed Wayne Lynch to back out of the settlement, Fairfax said in the court filing, adding that Reichert “has not provided a reason – let alone a compelling or legally permissible one – for his opposition.”

Sherman, who also represents Reichert, denied those allegations, saying in his statement that “Justin Fairfax refused to fight for Mr. Lynch’s right to participate and aid in other actions against the defendants related to Donovan’s death.”

Lauren Burke, a spokeswoman for Fairfax, declined to discuss the dispute in detail.

“Justin E. Fairfax and Thomas B. Martin have been honored to secure a $3M settlement in the death of Wayne Lynch’s son,” she said in a statement. “They remain the attorneys of record in this case.”

Martin did not respond to a phone message seeking comment.

A Virginia Beach police officer, Solomon D. Simmons III, fatally shot Donovon Lynch on March 26, 2021, during a chaotic night of violence on the city’s beachfront in which several people were wounded in separate outbreaks of gunfire. Friends and relatives of Lynch said he was not involved in the mayhem. They said he was out for a night on the town and was shot without warning.

In a recorded interview, Simmons told investigators that he happened upon Lynch while responding to a report of a shooting in the vicinity of a parking lot. He said he saw Lynch rise with a handgun from a crouching position behind bushes near the lot. He said he shouted at Lynch, then opened fire because he feared Lynch would shoot at officers and others in the area.

A grand jury cleared Simmons on criminal wrongdoing. In announcing the findings at a news conference in November 2021, authorities said Simmons was justifiably protecting himself and others.

“There were numerous people in that parking lot when Officer Simmons saw Mr. Lynch starting to come up with the firearm,” Virginia Beach’s top prosecutor, Colin Stolle, told reporters.

By then, the family had filed the wrongful death lawsuit, in June 2021, seeking $50 million from the city. Among other allegations, the plaintiffs said the city failed to properly train its police officers. Yet when Fairfax and Martin began representing the family a few months ago, “not a single deposition had been taken” in the case, Burke said in her statement.

“In 64 days, the case was settled,” she said.

She was referring to the memorandum of understanding signed by Wayne Lynch and attorneys for the city in early December in which they agreed to the $3 million settlement pending approval by Virginia Beach City Council, which subsequently authorized the deal. On Dec. 13, after the settlement was announced, Wayne Lynch stood with Fairfax before a cluster of TV news cameras.

“What a great day,” the father said. “We’ve come a long way in this fight for justice for Donovan Lynch, and I’m here today to tell you we have justice. . . . I can smile today with confidence and peace of mind – and a broken heart. Donovan is vindicated.” Putting an arm around his lawyer, Lynch added, “I want to thank my attorney, Mr. Justin Fairfax, who came in in a nick of time.”

The three-page memorandum, filed in court, said nothing about prohibiting the family from assisting in a federal investigation of the shooting.

According to court records, the agreement provides slightly less than $2 million for the Lynch family, $466,704 for Fairfax, $267,935 for Martin, $238,902 for other lawyers and $48,895 for a company that gives loans to people awaiting legal settlements. As part of the deal, neither the city nor Simmons acknowledged wrongdoing or liability.

In a joint statement at the time, Virginia Beach officials and the family said, “As we have learned more over time about the facts of that fateful night and encounter, we have come to understand that a series of unfortunate occurrences led to Donovon’s death that night – which in hindsight should never have occurred as it was later determined that neither Donovon nor the officer set in motion the events that transpired.”

Now suddenly the parties are at odds over the final settlement papers.

In his court motion Thursday, Fairfax asked a judge to force Lynch to take the payout, while a city spokeswoman, Tiffany Russell, declared in a statement: “The case was settled as of Mr. Lynch’s signing of the memorandum. . . . The City considers this case resolved and . . . will not engage in any renegotiation of the settlement terms.”