Too many questions surround an off-duty police officer's shooting of two men in the Park Plaza mall parking deck in December 2011 to allow the men's lawsuit against the officer to be thrown out, a federal judge said Friday.
In an order dismissing the city of Little Rock, its current and former police chiefs and a mall security guard from the case, U.S. District Judge Billy Roy Wilson said a jury must decide whether officer Christopher Johannes used excessive force in shooting into a fleeing car, and whether he and the mall, which hired him in an off-duty capacity, are liable for the men's injuries and any civil-rights violations.
Wilson's order allows the case to proceed to trial as scheduled Oct. 9 before a federal jury, but now with only Johannes and the mall as defendants.
The men pursuing the case are Keith Pettus, Joseph Williams and Johnnie Campbell, who were in a car driven by Williams that was backing out of a parking space on the mall's lower-level parking deck when Johannes and a mall security guard walked up. Johannes said he went to investigate after a shopper reported to mall security that the men asked her 17-year-old daughter to get in the car with them.
In court documents, attorneys for the city and Johannes said he fired 12 shots into the 2006 Chevrolet Malibu -- hitting Pettus, a front-seat passenger, once in the face and Williams four times in the back -- because it was backing out at high speed after he told the driver to stop. Campbell, who was in the back seat, wasn't shot. Attorneys said Johannes feared he and the unarmed security guard, Sara Hawkins, were in danger of being hit.
But in an order filed Friday, Wilson said the locations of Johannes, Hawkins and a pedestrian "are all in dispute," as is whether Johannes ever directed the vehicle to stop. While a judge can throw out claims ahead of a trial on legal grounds, undisputed facts must be decided by a jury.
Wilson said it is undisputed that the men were in a car that was trying to leave the mall before encountering the security officers.
"When Johannes fired shots at the car, it was driving away from him," Wilson wrote. "Yet, he says he used deadly force because he believed [the] car was going to either hit him or one of the other security officers."
The car changed direction after the shots were fired and crashed into a concrete median. The passengers tried to flee, despite two of them being injured, but were apprehended.
Police found two bags of cocaine and about $2,400 cash during a pat-down of Williams, and other pills and pistols inside the car. Williams was hospitalized, and after he was released, he pleaded guilty to gun and drug charges. He was returned to prison, where he remains. He won't be eligible for parole until 2023, according to online prison records.
In a response filed earlier this month to the city's and the mall's requests that Wilson dismiss the allegations against them, the plaintiffs' attorney, Willard Proctor Jr. of Little Rock, argued, "At best, when [Johannes] fired his gun, he only knew that a white female had been approached by a black male or males. Armed with that, he fired his duty weapon ... supposedly to stop a threat which he created when he approached the car."
Proctor said the bullet that struck the left side of Pettus' face remains lodged there and that Williams continues to suffer from his wounds.
The shooting occurred about 2:30 p.m. Dec. 27, 2011.
The lawsuit was originally filed in late 2014, but the plaintiffs withdrew it two years later and then refiled it last year.
Wilson noted in his order that a civil-rights claim for apprehension by force, deadly or not, rests on whether the action was "objectively reasonable." In the context of the Fourth Amendment, which the plaintiffs cite, determining reasonableness "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting or attempting to evade arrest by flight," Wilson said, citing case law.
He said the U.S. Supreme Court has held that in situations in which an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others, "it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given."
In addition to Johannes and the mall, Proctor sued the city and its police chiefs -- Stuart Thomas, who was chief at the time, and Kenton Buckner, who is the current chief -- alleging that the Police Department had a widespread custom of permitting excessive force. But Wilson said the examples Proctor cited of other officers' actions failed to support the claim.
The lawsuit also cited several complaints registered against Johannes before the 2011 shooting as evidence that the city and Police Department were deliberately indifferent to an obvious risk of unconstitutional behavior by Johannes. They included a 2009 lawsuit alleging Johannes used excessive force that was settled by the city in 2012 after the department's Internal Affairs division concluded the allegations were false; a May 2005 complaint that Johannes hit a man in the back of the neck with a baton; a November 2005 complaint that Johannes taunted and beat a man; a May 2006 complaint that Johannes insulted a man; and a September 2007 complaint that Johannes taunted and punched a man.
Without any documentation to support the allegations or question the outcome of investigations of them, Wilson said, he couldn't find that the city was deliberately indifferent to bad behavior by Johannes.
Wilson also rejected the mall's argument that it should be dropped from the lawsuit because the plaintiffs were "trespassers" instead of "business invitees." He dismissed Hawkins, though saying she was simply a witness to the incident.
Proctor said Friday afternoon that he had yet to read the order thoroughly, so he didn't want to comment.
Metro on 09/29/2018