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In wake, scrutiny and lessons

By Chad Day

This article was published July 3, 2011 at 5:30 a.m.

— Deadly force is intended to be used only when police officers fear for their lives or the lives of others.

That was clearly the case last winter, prosecutors say, when officer Donna Lesher fatally shot 67-year-old Eugene Ellison in his apartment after he charged at her with a walking cane at the end of a struggle.

But criminologists interviewed by the Arkansas Democrat-Gazette say the shooting’s justification isn’t all that needs to be examined as police leaders look for weaknesses in policy and training that were exposed by the confrontation.

“I think there are many things that you could have done to avoid that situation,” said R. Paul McCauley, a professor emeritus and former chairman of the department of criminology at Indiana University of Pennsylvania.

“If you take that moment of that shoot, I can see the prosecutor saying a man had a club raised over his head within two or three feet of the officer, then it was justified. Of course.

“In terms of policy, I ask the tactical question: What the hell are you doing standing five feet in front of the guy with a club?” he said.

Little Rock Police Chief Stuart Thomas said he doesn’t think Lesher, who was working off-duty as a security officer at Ellison’s apartment complex, had any choice but to shoot at that moment. But, he said, the “avoidability” of the shooting will be one of the factors examined by an internal deadly force review committee to be selected this week.

“The circumstances that presented themselves to the officers warranted their inquiry,” Thomas said, referring to Ellison’s open apartment door on that cold night and a broken coffee table that the officers could see inside.

“Should [the officers’ questions and entry] have upset Mr. Ellison? If he was simply angry? Yes. Was that justification to come forward and initiate physical contact with the officers? No,” Thomas said. “At that point, I don’t think the officers had a lot of leeway.”

Pulaski County Prosecuting Attorney Larry Jegley cited the moment that Ellison picked up his cane and advanced toward the officers when he ruled in May that Lesher was justified in shooting Ellison. His decision was based on a criminal investigation conducted by Little Rock homicide detectives that detailed the Dec. 9, 2010, shooting.

That evening, Lesher and Tabitha McCrillis, a detective, struck Ellison with their batons and shot pepper spray into his eyes after their questions about the man’s well being turned into a heated exchange of words and a struggle, the criminal investigation shows.

Those “nonlethal methods” failed to subdue Ellison during a three- to five-minute fight inside the cramped entry of his dwelling in the Big Country Chateau apartments at 6200 Colonel Glenn Road, according to the police file.

Officers told investigators that Ellison was able to take away McCrillis’ baton and use it against the two officers.

Moments later, Lesher fatally shot Ellison after he grabbed the wooden cane and advanced on the officers, according to the officers’ statements.

Officers later learned that Ellison was the father of senior narcotics officer Troy Ellison and longtime officer Spencer Ellison, who left the department in 2009.

Another complicating factor in the case was that Lesher’s husband, James Lesher, a sergeant in the department’s homicide division, drove her from the shooting scene that night to police headquarters.

The relationships of the victim and gunman contributed to a rift within the Police Department.

Criminologists say the internal strife and questions raised about some of the events show a need for a thorough review and possible changes to departmental policy.

And their questions start with the moment the officers got to Ellison’s open door.

FIRST CONTACT

Police have a range of options in resolving conflicts, from the verbal - calming words, barked orders - to the physical - fists, batons, pepper spray and bullets.

McCrillis and Lesher’s contact with Ellison covered the spectrum.

But a teaching moment can be found in the initial conversation that escalated from calm to heated, said David Klinger, an associate professor of criminology at the University of Missouri-St. Louis.

“This is not top-flight police work,” said Klinger, a former Los Angeles police officer.

He said Ellison’s manner should have led the officers to regard him as possibly emotionally distressed or mentally ill.

In such cases, officers should try to find common ground, speak in nonthreatening tones, “use appropriate language ... It’s sir. It’s ma’am. ... If things start to escalate, try to calm people down,” he said.

“Having mental-health issues is not a crime,” he said.

Klinger, who as a police officer fatally shot a butcher knife-wielding man who was attacking his partner, is the author of the book, Into the Kill Zone: A Cop’s Eye View of Deadly Force.

He is traveling the country interviewing officers who have shot people. The interviews are for a project funded by a grant from the Bureau of Justice Assistance, a part of the U.S. Department of Justice.

Klinger said Ellison’s initial replies that he was alone and OK would normally be enough for most officers to be on their way.

But McCrillis explained later that Ellison’s “attitude made me think that maybe somebody else was in the apartment and that he maybe just assaulted them.”

The officer’s next inquiry prompted Ellison to respond, “What do you think is wrong with me?”

“When he got mouthy with me ... I walked in and asked him what his problem was, and that’s when he got mad,” McCrillis told investigators.

Ellison flew into a rage, yelling at the women, “Get the f* out of my house!” and then attacked them, the officers said.

The criminologists point to that as a troubling moment.

“The minute these cops knew that this guy was emotionally disturbed or had reason to believe that, that should have been called in and they should have gone down to super-calming mode,” Mc-Cauley said.

Jeff Walker, a professor of criminology at the University of Arkansas at Little Rock, said he’s not sure that the officers had time to judge whether Ellison was emotionally unstable.

“The line between somebody who is belligerent, who is drunk or high, and who has emotional problems is very fine,” he said. “And in the course of two minutes, figuring that out is very, very difficult.”

And, Thomas said, while McCrillis’ aggressive tone wasn’t ideal, it’s also unclear whether a calmer approach would have made a difference, particularly after investigators later learned that Ellison had a history of mental illness including two violent confrontations with police officers in the 1980s.

“Is there a better way of saying that? There probably is. Did it change or alter the situation? I can’t tell because Mr. Ellison is simply not available to answer that question. I don’t know if he would have reacted that way if anything had been said in any other manner,” Thomas said.

Klinger said McCrillis’ statement after the shooting raises other questions.

“Last time I checked there’s no law against quote-unquote ‘being mouthy,’ particularly in your own home. That for me is the biggest point: What legal justification did they have for going into his house?” he said.

THE ENTRY

An apartment in “disarray,” a broken coffee table and Ellison’s mannerisms were the reasons McCrillis and Lesher gave for stepping into his home, according to the criminal investigation.

They said those factors left them thinking there was possibly another person in the house. Maybe even someone Ellison had hurt, they told investigators.

The reasoning gives Klinger pause.

“You have a Fourth Amendment right to privacy in your own house whether the door is open or closed. If there’s nothing in plain view regarding evidence of a crime, you just can’t go into people’s houses,” he said.

Challenging an officer’s authority and having a disheveled house aren’t good enough reasons for an officer to enter a house, he said.

“If that gives the police the reasonable suspicion to enter ... they could go into any college dorm they want. They could go into many houses,” he said.

UALR’s Walker said the officers had reason to enter the apartment.

“Going into the house itself I don’t really see as a problem because they were still trying to fully assess what was going on and look into any potential danger either to the person’s self or others,” he said.

Thomas said “the door being open, the manner in which the apartment appeared to them at that moment, the demeanor of Mr. Ellison, I think warrant their concern and their inquiry.”

Once Ellison engaged the officers, there’s wide agreement among most criminologists contacted by the newspaper that the officers reacted typically.

“In an instant, officers have to make ... judgments about how to handle enraged people, and that isn’t easy to do ... it’s easy to make second judgments,” said David Jacobs, a professor of sociology at Ohio State University.

In this case, police leaders and criminologists have said that even when Ellison attacked, the struggle may not have turned deadly had the officers been armed with another nonlethal device, such as a Taser.

In Little Rock, only about 5 percent of officers can have Tasers at any one moment because the department can’t afford to spend the more than $630,000 to equip the entire force.

“Could it have stopped it [from escalating to deadly force]? It could have,” Mc-Cauley said.

“They could have missed ... but if the thing worked perfectly and the guy went down to the ground and they handcuffed him, of course it would,” he said.

Subduing him with a Taser also would have avoided a complicated investigation.

THE INVESTIGATION

The intertwined relationships among Ellison, Lesher and members of the Police Department - fully realized hours after the shooting - prompted calls for an outside agency to investigate the case.

Criminologists differed on whether an outside agency was necessary, but all agreed that it would have gone a long way toward avoiding the appearance of a conflict of interest.

Many departments the size of the Little Rock’s would have sought an outside agency, said Trisha King Stargel, who was a police officer for 25 years and has been an adjunct professor of criminal justice at Seattle University in Washington since 2004.

“For most agencies, if they had a situation, especially as complex as this, ... it would very definitely be investigated by a separate police agency,” she said.

“I can’t imagine that [state police] wouldn’t have been totally qualified to handle it,” she said. “That’s not saying we don’t trust our investigators. That’s saying we want to make sure that nobody has any reason to think otherwise.”

Little Rock police tried to get an outside inquiry a week after the shooting, asking the Arkansas State Police to investigate, but the state police declined, saying too much time had passed for them to conduct a credible investigation.

The investigation by the Little Rock detectives has come under internal scrutiny because of a few miscues - including an inaccurate transcript of an audio recording of the shooting - discovered by the Democrat-Gazette after it obtained the file through the Arkansas Freedom of Information Act.

Thomas said the thoroughness of the investigation is another thing that the deadly force committee will review, but he stands by the decision to keep it in-house.

“As it pertains to Mr. Ellison’s relationship with a member of the department that wasn’t really identified until several hours into the process. And at that point it becomes very difficult to detach because you’ve already done a crime scene, you’ve already done interviews and you’re well into the investigation at that point,” Thomas said.

“As a practical matter, if you’re going to have an investigation, then we need to conduct it from start to finish,” he said.

Thomas said the most likely change in policy will be with companion officers - those immediately assigned to comfort officers involved in shootings.

After the shooting, James Lesher was briefly allowed to be his wife’s companion officer and drive her to the detective division before she was questioned. Thomas said allowing the two to be alone together before her formal questioning was a miscue but didn’t violate policy.

“It does give an appearance of a conflict, more so in this situation just given the nature of Sgt. Lesher’s assignments. It was doubly problematic for us because he’s the person that would normally be in charge of this investigation,” he said.

“That’s something that we’re going to look at - what should the nature of that companion officer be, should we put further limitations on that and what should those limitations be, given the various nature of the relationships within the department.”

King Stargel said it’s just that appearance that having an outside investigative agency can help a department avoid.

“Even if nothing untoward happened ... that decision doesn’t lend itself to making sure that as much as possible everything is without question aboveboard,” she said.

In this case, she said, the decisions of Lesher and Mc-Crillis and the investigation that followed show the need for the Police Department to take a hard look at its policy and training.

“You have a situation here where everything that could go wrong did - all of the people involved, their relationships to each other, the circumstances, policies that don’t require outside investigations - And it’s predicated on past practices: ‘We’ve been OK so far, we’ll be fine in the future,’” she said.

“Then the perfect storm happens, and it’s all right in front of you and it’s a great big giant, ‘Oh crap’ ... and it just leaves a bad taste in everybody’s mouth.” Information for this article was contributed by C.S. Murphy of the Arkansas Democrat-Gazette.

Front Section, Pages 1 on 07/03/2011

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