Civil trial postponed again in 2010 apartment shooting

A civil jury trial alleging that police officers violated the civil rights of 67-year-old Eugene Ellison before he was killed in his Little Rock apartment in late 2010 has been postponed again.

Earlier this month, U.S. District Judge Brian Miller scheduled the jury trial to begin Nov. 2, after a federal appeals court panel partially upheld his refusal to grant qualified immunity to officers Donna Lesher and Tabitha McCrillis on claims of illegally entry, use of unlawful nondeadly force and use of unlawful deadly force.

The panel agreed with Miller that both officers should face allegations of illegally entering Ellison's apartment at the Big Country Chateau apartment complex on Colonel Glenn Road just west of University Avenue. But the panel said both officers should be immune from liability on allegations of using illegal nondeadly force.

On the biggest claim, the allegation that the officers used illegal deadly force, the panel said that only Lesher, the shooter, should face that claim in front of a jury. The panel reversed Miller's ruling on McCrillis, saying she is entitled to qualified immunity on that claim.

Qualified immunity shields police officers from lawsuits unless their conduct violates a clearly established right of which a reasonable official would have known.

Until the panel's Aug. 6 ruling, the case had been on hold since the city of Little Rock appealed Miller's Oct. 25, 2013 pretrial ruling on immunity. On the day the panel released its opinion, Miller set the trial to begin Nov. 2.

But on Wednesday, City Attorney Tom Carpenter notified Miller that the city has asked the 8th Circuit for a rehearing by the panel or the entire court. He noted that depending on the outcome, the city then has 90 days to appeal the matter further to the U.S. Supreme Court, should it decide to do so.

Carpenter asked that the trial be removed from the court's calendar in light of the timing issues and the fact that the 8th Circuit still has jurisdiction of the case. Miller released a new order Thursday leaving the trial date unscheduled.

The officers were working off-duty as security guards for the apartment complex on the night of Dec. 9, 2010. They said they noticed Ellison's apartment door ajar, and signs of a possible struggle, and entered the apartment to check on his welfare or the welfare of a possible other party, despite his request that they leave him alone. The officers contend Ellison, a large man, became irate and came at them with his cane, forcing Lesher to shoot him.

The wrongful death lawsuit was filed by Ellison's son, Troy Ellison, who is also a Little Rock police officer. In addition to Lesher and McCrillis, the other defendants are the apartment complex and its owner, Carl Schultz, who hired the officers to work off-duty. Miller dismissed the city and former Police Chief Stuart Thomas from the suit in his Oct. 25, 2013 ruling.

Metro on 08/28/2015

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