FORT SMITH -- A federal court jury Friday rejected claims that a Fort Smith police officer used excessive force when he shot a man in his home in 2009.
The jury of six women and two men deliberated for nearly three hours before returning a verdict in favor of former Fort Smith police Cpl. Brandon Davis and the city of Fort Smith.
Davis and the city were sued by the estate of Eric Berry, 41, who was shot in his home in south Fort Smith on Nov. 11, 2009, after his wife called 911 to report that Berry, who was drunk, had pointed a gun at her head.
The estate, represented by Berry's wife, Connie, and father, J.W., claimed that Davis was not justified in shooting Berry because it said Berry was not pointing a gun at Davis and other officers when he was shot.
Berry's estate, which was asking the jury to award monetary damages, also alleged that the city violated Berry's constitutional right against illegal search and seizure because the Police Department failed to properly train and supervise Davis.
In closing arguments Friday, after more than three days of testimony, the attorney for the city, Colby Roe, said the attorneys for Berry's estate did not prove their claims.
Davis and Fort Smith had argued that the shooting was justified because they said Berry was pointing a gun at Davis and another officer when they were trying to enter the Berry home at 8500 S. 35th Terrace St. under the consent of Connie Berry.
'"Connie, do you want to let us in so we can take him to jail?'" Roe quoted Davis as asking Connie Berry that day.
"Of course she wants to let the police in and take her husband to jail," Roe said.
As soon as Davis opened the front door and shined his flashlight into the darkened house, he saw Berry sitting at the dining room table pointing a .45-caliber pistol at him and officers Rory Calhoun and Brandon Lowdermilk, Davis testified.
The three responded to Connie Berry's 911 call. She testified during the trial that her husband threatened her with the loaded gun when she returned home after reporting to police that he had head-butted her twice and tried to smother her with a pillow earlier that morning.
Jurors were told at the close of testimony that Berry's blood alcohol level was 0.24 percent when he was shot. The level for being considered intoxicated in Arkansas is 0.08 percent.
The complaint by Berry's estate claimed that Davis illegally seized Berry -- by killing him -- because Davis was not authorized to enter the house. The attorneys for the estate claimed that Connie Berry did not give the police permission to go into the home, there was no emergency to justify entry and they did not have a warrant that would have given them authority to enter.
"Eric Berry that day should have gone to jail. He should not have gone to the morgue," Berry estate attorney David Blades of Tulsa said in his closing arguments.
A video camera Davis was wearing on a headset that day recorded him pointing his gun at Berry and yelling for him to put the gun down. The video recorded him giving the command 10 times before he fired twice at Berry. One bullet struck Berry in the chest, killing him.
The quality of the video and audio were poor given the distance of Berry from the microphone and the darkened interior, so Berry's gun and its positioning were not visible on the video from where Davis fired the fatal shot.
Blades argued that Berry told Davis twice that he put the gun down before Davis shot him. He said the fact that the video camera was pointed to the wall outside the front door proved that Davis was not looking at Berry when he fired the fatal shot but was behind cover and couldn't see that Berry had put the gun down.
If Berry was holding the gun, he said, it was unlikely that it would have been lying on the table without disturbing the dishes and glasses around it.
Blades also pointed to testimony by Berry's work supervisor, James Wiltse, who testified that he was on the line on Berry's cellphone during the fatal shooting and heard Berry reply to Davis that he put the gun down and then that the gun was on the table.
NW News on 05/09/2015