A federal judge on Friday dismissed Little Rock and Police Chief Stuart Thomas as defendants in a wrongful-death lawsuit stemming from an off-duty officer’s fatal shooting of 67-year-old Eugene Ellison at his Little Rock apartment on the night of Dec. 9, 2010.
Last week, Chief U.S. District Judge Brian Miller refused to drop as defendants the Big Country Chateau apartment complex, where the shooting occurred, and its owner, Carl Schultz, who hired the off-duty officers.
Aside from the complex and its owner, that leaves just the two officers who encountered Ellison that night while working as security guards at the complex in an off-duty capacity - Donna Lesher, who fired the fatal shot, and Tabitha McCrillis - as defendants in the suit brought by Ellison’s son, Troy Ellison, who is also a Little Rock police officer.
In a 15-page order issued Friday afternoon, Miller said the city may be held liable forthe actions of officers who deprive others of their constitutional rights if the violations were caused by an official city policy or misconduct so pervasive as to constitute a custom or usage with the force of law.
Miller said there was no official policy that resulted in civil-rights violations, leaving Troy Ellison to show the existence of a “widespread, continuing, persistent pattern of unconstitutional conduct” or “deliberate indifference or tacit authorization of such conduct by municipal policymakers after receiving notice of the misconduct,” and that the custom was the “moving force” behind the rights violation.
Although Troy Ellison argued that Little Rock police had a custom of using excessive force, improperly investigating the use of force and failing to properly discipline officers for excessive force, Miller said Troy Ellison provided no such evidence.
“On the other hand,” he said, “the city has shown that an investigation is conducted every time deadly force is used, which is then turned over to the prosecuting attorney.”
Miller said Troy Ellison also alleged that the city fails to properly train its officers, but, “The undisputed record is that LRPD requires officers to attend its training academy and complete 432 hours of instruction, significantly more than the 280 hours of training required by the Arkansas Commission on Law Enforcement Standards and Training.”
The judge said that Troy Ellison also failed to prove that Thomas “was deliberately indifferent to or tacitly authorized” the shooting. He noted that although Thomas, then a captain, had recommended Lesher be fired in 1992, she was a civilian employee at that time and Thomas was only referring to her performance of clerical duties.
Miller said Troy Ellison also failed to prove his claims that Thomas was part of a conspiracy to conceal facts related to the shooting, “much less that it was fueled by an invidiously discriminatory animus.”
Troy Ellison alleged that Lesher and McCrillis violated Eugene Ellison’s Fourth Amendment rights to be free from unlawful search and seizure by illegally entering his apartment that night when they spotted his door ajar in bitterly cold weather. City Attorney Tom Carpenter has argued that the officers’ entry into the apartment was justified based on exigent circumstances.
Miller said that officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury, but an officer doesn’t need “ironclad proof that a likely serious, life-threatening injury exists.”
“The problem here,” he wrote, “is that the officers’ own statements are conflicting as to what the circumstances were when McCrillis and Lesher entered Ellison’s home. “
Miller said it is “undisputed” that Eugene Ellison was sitting upright and able to tell the officers he didn’t need or want their help. He noted that both officers said that because Eugene Ellison was shaking and the apartment was in disarray, they believed he needed medical attention or that a domestic dispute may have occurred.
“McCrillis, however, also stated that when they first engaged Ellison, he appeared relaxed and that after he responded to their questions, she no longer believed that he needed medical attention or that a domestic dispute had occurred,” preventing him from deciding whether an “objectively reasonable basis” existed for them to enter the apartment.
As to the allegations of force, Miller said he must look to the “totality of the circumstances,” and that the use of force is considered reasonable if an officer has probable cause to believe that someone poses a threat of serious physical harm to the officer.
“The problem with this case is that the predicate facts cannot be established without making impermissible factual determinations as to the totality of the circumstances that existed when Lesher killed Ellison,” Miller said. “Lesher asserts that Ellison threatened the officers with his cane and that the use of deadly force was not unreasonable because he posed a risk of serious physical harm to the officers.”
He said the officers noted that Eugene Ellison was swinging his cane and there was a danger he might knock one of them over the waist-high railing outside the second-floor apartment, but all of the officers testified that they could have walked away. Also, a backup officer who arrived just before the shot was fired said that “he never felt Ellison posed a risk of serious physical harm to the officers.”
Miller noted, “Further, all of the officers were standing outside of the apartment when Lesher shot into the apartment and killed Ellison.”
Although Eugene Ellison had a history of mental illness, “this was not known to any of the officers; therefore, his history was not part of the totality of the circumstances” that night, Miller said.
“Simply put,” he wrote, “the facts, when viewed in the light most favorable” to the plaintiff, which judges are required to do in weighing motions for summary judgment, “indicate that Ellison … was standing in his own home when he was killed by Lesher, after she and McCrillis unlawfully entered his apartment and ignored his requests for them to leave.” Miller added that even though Eugene Ellison refused to lie on the ground as the officers directed, they didn’t try to physically subdue him, and he clearly wasn’t trying to flee.
“Lesher also never warned him that she had a gun and would shoot if he did not drop his cane,” Miller said. “As a result, a reasonable jury could find that Lesher used deadly force against a person who did not pose an immediate threat of serious physical injury or death to [the officers].”
The judge cited “discrepancies and variations in the officers’ testimony” that “make it impossible to determine what the facts and circumstances confronting Lesher were at the moment when she shot and killed” Ellison. Because it can’t be determined if their actions were objectively reasonable, he said, it can’t be determined whether they are entitled to qualified immunity, as they contend.
He said the case is one whose outcome may depend on what testimony the finder of fact - a jury - believes.
Later Friday, Little Rock chief deputy city attorney Bill Mann filed a notice that Lesher and McCrillis are appealing Miller’s finding that they aren’t entitled to qualified immunity. He asked Miller to stay the case until the appeal is decided by the 8th U.S. Circuit Court of Appeals in St. Louis.
Arkansas, Pages 9 on 10/26/2013