During oral arguments Thursday over whether two Little Rock police officers were properly ordered to stand trial in a civil-rights lawsuit over the 2010 shooting death of an elderly man in his apartment, appellate judges repeatedly expressed concern about conflicting accounts of what led to the shooting.
In a written ruling issued Oct. 25, 2013, Chief U.S. District Judge Brian Miller dismissed the city and its police chief from the lawsuit on the basis of purely legal issues that judges, rather than juries, must decide. But Miller denied the city's motion to dismiss officers Donna Lesher and Tabitha McCrillis on the grounds that, as officers, they are entitled to "qualified immunity."
The legal provision protects government officials from civil liability unless the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a clearly established constitutional or statutory right.
Citing "discrepancies and variations in the officers' testimony that make it impossible to determine what facts and circumstances confronting Lesher were at the moment when she shot and killed" the man, Miller said the officers must face trial before a jury, which has the duty to decide factual disputes.
The trial over the death of 67-year-old Eugene Ellison has been on hold as a result of the city's appeal of Miller's ruling. On Thursday, City Attorney Tom Carpenter and Chicago attorney Mike Laux, who represents the plaintiff, one of Ellison's sons, appeared in St. Louis to make oral arguments before a three-judge panel of the 8th U.S. Circuit Court of Appeals. The panel has no particular timetable in which to issue a ruling.
Plaintiff Troy Ellison is also a Little Rock police officer. He claims that the two female officers violated his father's civil rights by entering his apartment without legal cause; sparking a physical fight with him; and then killing him, claiming self-defense. On the night of the shooting, the officers were working as off-duty security guards for the apartment complex at 6200 Colonel Glenn Road -- then called the Big Country Chateau Apartments and now called the Chateau DeVille apartments -- in Little Rock.
The officers said they entered the elderly man's apartment, despite his insistence that he didn't need their help, after they noticed his front door open on a cold night and looked inside to see him sitting on the couch in front of a coffee table with a shattered glass top.
They say they were concerned about his welfare, or the welfare of anyone else who might have been inside the apartment, when they refused to leave and continued asking him more questions despite his insistence that they leave him alone. They say he quickly became belligerent and then violent, overpowering them during a struggle and prompting Lesher to shoot him to defend herself and McCrillis.
The lawsuit accuses the officers of making an illegal entry, using excessive force and illegally using deadly force.
In his refusal to dismiss the officers from the case, Miller acknowledged that officers may enter a home without a warrant to render emergency assistance or protect an occupant, but he said the officers themselves gave conflicting testimony in depositions and during an internal investigation as to whether they had an "objectively reasonable basis" to believe they should enter the apartment.
Miller noted that although Eugene Ellison had a history of mental illness, the officers didn't know that and it didn't play into his decision.
The three-judge panel that questioned attorneys during presentations that lasted less than half an hour altogether indicated they were confused about many details of the case after reading Miller's order, which they agreed "was rather skeletal in its review" of the contested facts. The panel consisted of U.S. Circuit Judges Roger Wollman of Sioux Falls, S.D.; Steven Colloton of Des Moines, Iowa; and Duane Benton of Kansas City, Mo.
The judges said they wanted more details about how cold it was on the night of the shooting -- Dec. 9, 2010 -- and whether the broken glass in the coffee table could be seen from the doorway where the officers stood, whether Ellison appeared relaxed at any time during his encounter with the officers, and whether he was holding or swinging his cane when he was shot.
At one point, one of them asked Carpenter, "How can that entry begin to be legal when the owner says, 'I don't want you here and leave me alone'? Where is that imminent threat of anything here, at that point, according to what the District Court said?"
Carpenter said, "I think this court will have to do some study of this record in light of the dearth of information in the District Court's order." He also told the appellate judges, "The law is not what the District Court thinks with 20/20 hindsight is reasonable. The law is what a reasonable officer would think at the time."
Carpenter said the officers' encounter with Ellison from the time they saw the door ajar until he was shot lasted five minutes at most, but probably more like three minutes.
Laux, on the other hand, argued that "at every single, critical juncture of this very tragic incident, there exists a multitude of very disputed facts." He said that while Carpenter portrayed the situation as uncertain and rapidly evolving, "it certainly was not."
"We are just looking for our day in front of a jury," he said. "There are many, many disputed facts."
He also told the panel, "This is a 67-year-old Vietnam vet who has paid his dues in life and is entitled to sit in his home and mind his own business like we all are. ... Mr. Ellison was not Lou Ferrigno [an actor and former body-builder who portrayed the Incredible Hulk]. Mr. Ellison was an elderly man, and he used the walker for ambulation." He said he believes that Ellison walked toward the officers with his cane only to close the front door, not to intimidate or harm the officers.
Carpenter complained that Laux has broken the situation down to its "micro-seconds," which isn't fair to the officers, who were simply trying to do a welfare check and stumbled upon an "unnatural situation."
Metro on 12/12/2014