FORT SMITH -- A former city police officer told a federal court jury Tuesday he had no choice but to shoot and kill Eric Berry in his home in 2009.
Brandon Davis testified when he opened the door to Berry's home at 8500 S. 35th Terrace in Fort Smith on Nov. 11, 2009, Berry was sitting at a dining room table in a darkened house and was pointing a .45-caliber pistol at him.
Davis, shining a flashlight on Berry, said he ordered Berry 10 times to put the gun down before firing twice at him, striking him with one fatal shot in the chest, just below his right collarbone.
Davis, who is now with the Greenwood Police Department, was on the witness stand all afternoon on the first day of an estimated four-day trial before U.S. District Judge Robert T. Dawson.
Berry's wife, Connie, and father, J.W. Berry, claim in the federal court complaint filed in 2012 Eric Berry wasn't pointing the gun at Davis or the two officers with him but the gun was instead lying on the table. They claim Davis used excessive force in the shooting death of Eric Berry, 41.
The Berrys also are asking the jury of six women and two men to find Fort Smith inadequately trained Davis, constituting deliberate indifference that deprived Eric Berry of his constitutional rights.
They also claim in the lawsuit the city didn't take adequate steps to respond to Davis' supervisory and training needs to compensate for post-traumatic stress disorder they say Davis developed from multiple deployments to Iraq as an Army military police officer.
They are asking for monetary damages for their loss and for a violation of Eric Berry's constitutional rights, as well as for punitive damages against Davis, according to court documents.
According to Davis' testimony and opening statements, Connie Berry went to the police station Nov. 11, 2009, and reported her husband had entered her bedroom, head-butted her twice and tried to smother her with a pillow. She had a bump above one of her eyes.
Probation officer and domestic violence volunteer Karen Pearson and another volunteer were at the station and offered to accompany Berry home so she could get some belongings. Pearson rode with Berry, but on the way, she decided not to take Pearson with her. Pearson got out and followed in another car.
When Connie Berry made her initial report, two officers were sent to the Berry home but left after she said she didn't want police to arrest her husband. The officers didn't speak with Eric Berry.
A neighbor of the Berrys called 911 shortly after to report Connie Berry said when she arrived home, Eric Berry pointed the pistol at her head. Three officers, including Davis, were dispatched to the scene.
That day, Davis was wearing a video camera on a headset that recorded video and audio and captured his movements. Davis said the unit was in development, and the video and audio quality weren't high quality.
Dissected minute by minute by attorneys during Davis' testimony, the audio showed Davis going to the neighbor's home and having Connie Berry unlock the front door so officers could arrest Eric Berry.
The Berrys said Connie Berry didn't give police permission to enter her home but Davis forced her to unlock the door for them.
After unlocking the door, the video unit Davis was wearing picked up Connie Berry telling Davis not to shoot her husband. She then hurried back to the neighbor's home.
Davis said he stood just outside the front door and shined his flashlight into the darkened home. Inside, the flashlight shined on Eric Berry, who was sitting at the far end of a cluttered dining room table facing the open door. In addition to the cluttered table, between Eric Berry and Davis was a 4-foot-tall wall shelf with posts running to the ceiling that was holding a bust statue.
The low-resolution video picture made it nearly impossible to make out the gun, but Davis said he immediately saw Eric Berry was pointing the gun at him and the two other officers, Brandon Lowdermilk and Cory Calhoun.
The video recorded Davis pointing his .40-caliber pistol at Berry and ordering him to put the gun down. Berry made some nearly inaudible replies.
Davis said when he saw Berry start to lean to his left, it appeared he was trying to get a clearer view of Davis, a sign Davis interpreted that he was about to shoot. Davis said he fired twice at Berry and he then sprang from the chair and fell to the floor.
During questioning by one of the Berrys' attorneys, Chris Blankenship of Stigler, Okla., Davis said when he arrived, neither Connie Berry nor anyone else was in imminent danger from Eric Berry would have required deadly force.
Blankenship also questioned what pressing circumstances required Davis to enter the Berry house and confront Eric Berry.
Davis said given the events from earlier in the day, there was a chance he could have been in court Tuesday testifying in a lawsuit about why he didn't take steps to save Connie Berry from being killed by her husband instead of testifying about killing Eric Berry.
Testimony is set to resume at 9 a.m. today.
NW News on 05/06/2015