Defendants dropped in wrongful death suit filed after teen suspect fatally shot by Little Rock officer

Just two weeks before a federal jury is to begin hearing evidence in a wrongful death lawsuit filed by the mother of Bobby Joe Moore III, a 15-year-old boy who was shot and killed by police outside a Little Rock apartment complex in 2012, a judge has thrown out all claims against the city and its former police chief.

Mike Laux, a San Francisco attorney who filed the suit on behalf of Moore's mother, Sylvia Perkins, said Monday evening that he is "very dismayed" by the ruling but still intends to try the case on Feb. 13 against the only remaining defendant, former officer Josh Hastings.

Hastings, now of Bauxite, was tried twice in 2013 in Pulaski County Circuit Court on a manslaughter charge stemming from his shooting of Moore, but in both cases, the juries became deadlocked and a mistrial was declared. Prosecutors cited the deadlocks in declining to try him a third time.

In an order signed Friday, Chief U.S. District Judge Brian Miller granted a motion for summary judgment filed on behalf of Little Rock and Stuart Thomas, a retired city police chief. In the federal lawsuit filed June 1, 2015, Perkins alleged that Hastings violated Moore's civil rights when he shot into a car that Moore was driving at about 5:30 a.m. Aug. 12, 2012, outside the Shadow Lake Apartments at 13111 W. Markham St. Hastings, then a Little Rock officer of five years, said he shot into a car of breaking-and-entering suspects who were trying to flee, because the vehicle was about to run over him. Two shots hit Moore.

The department fired Hastings after an internal investigation into the shooting, but the lawsuit alleged the city and Thomas should nevertheless be held responsible for failing to properly train Hastings, for failing to adequately supervise and discipline him, for maintaining a widespread custom of excessive force and untruthfulness, and for hiring Hastings in the first place.

The lawsuit sought compensatory and punitive damages against the city, the former police chief and Hastings, whose previous attorney withdrew from the case in October, citing Hastings' failure to pay him.

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In a motion filed Oct. 31 asking Miller to dismiss the claims against the city and Thomas on legal arguments, attorney Amanda LaFever of the Arkansas Municipal League said that despite dozens of misconduct complaints against Hastings during his time with the department, none involved the use of deadly force. To proceed to trial, she argued, the lawsuit must show that a pattern of similar unconstitutional misconduct existed, and that the city and Thomas did nothing to stop it.

In a 17-page order, Miller said that "the undisputed facts do not demonstrate that either Thomas or the city of Little Rock was aware of and deliberately indifferent to a pattern of unconstitutional conduct by the LRPD that was similar to the shooting of Bobby Moore. Consequently, neither is liable for a failure to train, supervise or discipline."

Miller also noted that "liability cannot attach to a supervisor merely because his subordinate violated someone's constitutional rights." A supervisor, he said, may only be held liable "if he directly participated in a constitutional violation or if his failure to train, supervise, or discipline the offending subordinate directly caused the constitutional deprivation."

Miller noted that Perkins' attorney doesn't dispute that Hastings attended police recruit school or had at least 1,304 hours of police training, including on firearms and deadly force.

Although Perkins had cited two other deadly force shootings by Little Rock police to support her case, Miller said, "In both cases, the undisputed facts demonstrate that it was objectively reasonable for the officers to believe there was an immediate threat to human life."

He also noted that when previous instances of similar conduct are shown, "deliberate indifference" doesn't apply if the alleged misconduct was investigated and the officer was either exonerated or disciplined.

Miller said examples of nonlethal force used previously by Hastings in his work as a Little Rock officer are "not similar enough" to the Moore case "to demonstrate similar misconduct."

"Although they all constitute uses of force to some degree, neither tackling, pepper spraying, fighting, punching, kicking, nor slapping someone is sufficiently similar to shooting someone to put anyone on notice of a similar pattern of misconduct," the judge wrote.

Laux said Monday that while he intends to go forward with the trial against Hastings, he "absolutely" intends to appeal Miller's order.

Metro on 01/31/2017

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