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A judge was right to allow a federal lawsuit to proceed against a Little Rock police officer who shot and killed a man in 2016 outside the home of his uncle on East Eighth Street, a federal appeals court panel said Thursday.

The panel of the 8th U.S. Circuit Court of Appeals in St. Louis upheld U.S. District Judge Leon Holmes' February 2019 order refusing to dismiss a lawsuit filed by the slain man's sister against officer Dennis Hutchins.

Holmes, who has since retired, said that based on the evidence before him, a jury could reasonably find that Roy Lee Richards Jr. didn't pose an immediate threat when Hutchins fired five shots from a distance, fatally striking Richards in the head as he walked outside his uncle's home, carrying a long gun that turned out to be a pellet gun.

Holmes said a factual dispute existed that a jury must resolve. He said accounts from witnesses differed as to whether Richards was shot after his uncle, Derrell Underwood, was already inside his house and Richards had backed down the porch steps and turned toward his car, or while Underwood was on the porch with Richards walking toward him with the gun.

Holmes said there were also conflicting reports about how Richards was holding the gun after he got it out of his car. He said some people reported that he held it vertically and didn't point it.

Before Richards got his gun out of his car, he and Underwood had a loud fistfight in the yard, prompting neighbors to call 911, according to Holmes' order. It noted that Hutchins, then a 16-year veteran, and his partner, Justin Tyer, parked half a block away and approached on foot after being told that one of the men was intoxicated and armed.

Hutchins used a semi-automatic rifle to shoot Richards, 46. Holmes noted that a neighbor reported telling the men that the police had arrived.

The shooting occurred outside the house at 514 E. Eighth St. early Oct. 25, 2016. Richards' sister, Vanessa Cole, filed a wrongful death lawsuit on Aug. 31, 2017, alleging Hutchins used excessive force.

While Holmes threw out claims in the lawsuit against the city and its former police chief, Kenton Buckner, he said Hutchins wasn't entitled to qualified immunity because officers knew that the law allowed the use of deadly force "only to protect himself or another person from an imminent threat of serious physical injury or death," and a jury could find that the threat didn't exist.

A city may be held liable when one of its employees deprives someone of a constitutional right, but only under certain circumstances, Holmes said.

According to an opinion written by U.S. Circuit Judge Raymond Gruender of St. Louis, evidence shows that "roughly five seconds after Underwood had entered his home and slammed the door, Officer Hutchins fired on Richards without warning, striking and killing him. From when he shut his door to the moment shots were fired, Underwood had time to lock the door, walk ten or eleven feet inside his home, and begin speaking to a friend who had been staying at his house."

The panel, which included U.S. circuit judges Morris Arnold and Bobby Shepherd, both of Arkansas, added, "We emphasize the limited nature of today's holding. We do not decide that Officer Hutchins in fact violated Richards' rights. If the factfinder later determines that key facts are not as we must assume them to be -- for instance, how Richards held the gun when he was shot, how much time elapsed between when he began to retreat toward his vehicle and when he was shot,whether Richards retreated at all, whether Richards turned away from Underwood's door at all -- the legal conclusions that may be drawn at that time may be different than the ones we draw here."

Metro on 05/29/2020


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