Josh Hastings triggered dozens of complaints of misconduct in his five years as a Little Rock police officer before he shot and killed 15-year-old Bobby Joe Moore III, who was suspected of breaking into cars outside a west Little Rock apartment complex on Aug. 12, 2012, an attorney for the city conceded Monday.
But none of the complaints, including those that resulted in departmental discipline, involved the same type of conduct -- use of deadly force -- that resulted in Hastings being charged with manslaughter and fired Oct. 18, 2012, the attorney said in a motion asking a federal judge to dismiss a lawsuit filed by Moore's family.
The lawsuit was filed June 1, 2015, by Moore's mother, Sylvia Perkins of Little Rock. It makes four claims against the city and former Police Chief Stuart Thomas: failure to properly train Hastings, failure to adequately supervise and discipline him, maintaining a widespread custom of excessive force and untruthfulness, and hiring Hastings in the first place.
It seeks compensatory and punitive damages against the city, the chief and Hastings, who now lives in Bauxite and is being represented separately by attorney Keith Wren of Little Rock. Wren joined the case just three weeks ago, after a Springdale attorney withdrew, citing Hastings' failure to pay him.
A jury trial is to begin Feb. 13 before Chief U.S. District Judge Brian Miller.
Before the lawsuit can proceed in its bid to hold the city or Thomas liable for what it contends was an unconstitutional shooting, it "must show that a pattern of similar unconstitutional misconduct existed and that the City and Chief Thomas did nothing to stop it," argued attorney Amanda LaFever of the Arkansas Municipal League. LaFever said neither situation has been shown, which means the case must be thrown out.
She filed a 27-page brief Monday in support of her request that Miller grant summary judgment -- a ruling based on purely legal arguments -- and prevent the case from going to trial. No response had been filed by Tuesday evening.
Hastings has said that while investigating a report of car break-ins, he shot into a fleeing car of suspects because the vehicle was about to run over him and he feared for his life. He was arrested a month later after the results of a police inquiry contradicted his version of events. He was fired six weeks later.
Hastings is the son of now-retired police captain Terry Hastings. The younger Hastings was tried twice in 2013 by a Pulaski County Circuit Court jury on a manslaughter charge, but both juries deadlocked. Prosecutors cited the deadlocks in declining to try him a third time.
Mike Laux, a San Francisco attorney representing Perkins, told reporters in announcing the filing of the lawsuit that the plaintiffs will have to meet a lower burden of proof -- preponderance of the evidence -- than the beyond-a-reasonable-doubt standard used in a criminal case. He said Perkins is seeking "accountability."
Laux has alleged that partly as a result of Terry Hastings' position and friendship with Thomas, the city hired the younger Hastings despite knowing that he had attended a Ku Klux Klan meeting -- which Josh Hastings said he attended only briefly with a friend, out of curiosity, during his junior year in high school. Hastings is white; Moore was black.
In her brief, LaFever said Josh Hastings volunteered the information during a polygraph examination, and the lie-detector test indicated that he was telling the truth.
She said a hiring committee that included Thomas, who is white, and three black officers -- Assistant Chief Eric Higgins, Capt. Patrice Smith and Lt. Johnny Gilbert -- approved Josh Hastings' hiring by a vote of 3-1, with Gilbert opposing it because of the KKK meeting and his "serious reservations" about Hastings' judgment and maturity.
LaFever wrote that Josh Hastings was hired March 26, 2007, after which he attended 20 weeks of training on matters including the use of force and deadly force; constitutional law; probable cause and the laws of arrest; departmental rules, regulations and general orders; the Arkansas criminal code; cultural diversity; juvenile laws and procedures; and firearms training.
After graduation, she said, Hasting underwent 12 weeks of field training with other officers. She said he also received 40 hours of training each year on various topics, including an annual refresher course on the use of force.
"Over the course of his career, Hastings was the subject of multiple disciplinary actions," LaFever wrote. "However, Hastings had no policy violations for the use of excessive force, and he had never, until the shooting at issue here, used deadly force during his career with the LRPD."
She noted that Hastings was the subject of one citizen complaint of excessive force, for which the department found no wrongdoing, and which resulted in a federal lawsuit that was thrown out.
Between 2009 and 2010, LaFever said, Hastings triggered three reports from the department's Early Intervention System, which notifies supervisors when officers are involved in a certain number of uses of force over a certain amount of time, to identify areas of concern "before they become actual liability issues."
She said an April 1, 2009, report, which his supervisor called a "false alarm," concerned Hastings' involvement in six such instances in the previous year, all of which resulted in the department exonerating him. Another report, in February 2010, cited his involvement in 10 use-of-force instances, for which he was also exonerated while being ordered to attend biweekly counseling sessions. The third report cited six use-of-force instances between Jan. 24, 2010, and April 18, 2010, again for which the department exonerated him.
LaFever said that after his counseling and remedial training, Hastings worked for two years as a patrol officer without generating another Early Intervention System alert or citizen complaint.
When he shot and killed Moore, she said, Hastings "was trained on the use of deadly force and was fully aware of the Constitutional parameters of the use of deadly force."
"The plaintiff has offered nothing to establish that the City or Chief Thomas was deliberately indifferent to any pattern of unconstitutional misconduct," LaFever argued. She added that even if Moore's shooting was unconstitutional, "there is no showing that the City or Chief Thomas were the moving force behind that violation."
Metro on 11/02/2016