At a January trial, a federal jury must decide whether the city of Little Rock is liable for any excessive force used by an off-duty police officer outside a Hillcrest restaurant on Oct. 29, 2011.
But the jury may not determine whether the arrest by Lt. David Hudson, who was working as a security guard at the restaurant, constituted an unlawful arrest.
U.S. District Judge James Moody Jr. made those findings and others late last week in a written ruling on several pretrial motions, now that the 2012 lawsuit brought by Jon Christopher "Chris" Erwin and Travis Blake Mitchell over their run-in with Hudson is back in his court. The case was held up for several months at the 8th U.S. Circuit Court of Appeals in St. Louis, until a three-judge panel in April affirmed Moody's pretrial determination that Hudson isn't entitled to "qualified immunity" from liability.
Moody handed down a mixed ruling on summary judgment motions made by the city and its former police chief, Stuart Thomas; Ferneau LLC, the company that owned the now-closed Ferneau restaurant; Donnie Ferneau, the operator and part-owner of Ferneau LLC; and Erwin and Mitchell. Summary judgments are rulings on the legal arguments in a case. Any legitimate factual disputes that remain must be determined by a jury.
On the night of Oct. 29, 2011, Hudson was sitting on a stool outside the Kavanaugh Boulevard restaurant when a bartender came out and asked him to speak to two men about leaving the restaurant, according to Moody's summation of the arguments. The restaurant said Erwin and Mitchell, and their dates, were uninvited guests at a private party underway in one side of the restaurant, while the men said they didn't know a private party was going on.
Hudson went into the restaurant and told the men they needed to leave, and then they paid their tab and went outside, Moody said, noting that what happened after that is in dispute.
Hudson contends that Erwin approached him and demanded to know who asked them to leave. When Erwin wouldn't drop the issue, Hudson said, he told Erwin he was under arrest, then "spun him toward the wall where they wrestled," according to the order.
Erwin, however, contends that Hudson ran up to him outside the restaurant and "got in his face" and said, "I thought I told you to f * leave," the order states.
It continues: "The undisputed result of their encounter is that Hudson hit Erwin in the face seven times with a closed fist and arrested him for disorderly conduct and criminal trespassing. Mitchell attempted to intervene once Hudson began hitting Erwin and was arrested for public intoxication, disorderly conduct and interfering with a police officer."
A bystander recorded part of the scuffle on a cellphone, and the video has been viewed thousands of times online. Eventually, the misdemeanor charges against Erwin and Mitchell were dropped over an unrelated discovery issue.
Moody noted in the order that an internal police investigation found that Hudson had violated the department's policies prohibiting excessive force, and that Hudson was suspended for 30 days.
In a federal lawsuit Erwin and Mitchell filed nearly a year later, on Oct. 26, 2012, the men claimed violations of their civil rights. Also, Erwin made state claims of assault and battery, while he and Mitchell asserted state claims for false imprisonment and malicious prosecution. The plaintiffs also claimed Ferneau and his business should be held liable for Hudson's actions.
Moody found that "there are fact questions as to the city's liability" for excessive force, and denied the city's motion for summary judgment on that issue. He said Erwin has presented evidence that Hudson was trained by the department that a closed-fist punch to the face was an acceptable means to control a suspect. He said Erwin has also presented conflicting testimony from training officers about the city's actual policy on closed-fist punching.
Moody said jurors will be able to decide the plaintiffs' state-law claims of assault and battery, but he granted the city's motion dismissing the unlawful arrest, false imprisonment and malicious prosecution claims, saying the plaintiffs didn't respond to the city's arguments on those issues.
Moody said Thomas, the retired former chief, won't be held responsible for any supervision or training failures involving Hudson because the plaintiffs didn't show that the former chief had notice of a pattern of conduct by Hudson or was deliberately indifferent to his actions.
The judge threw out a personal liability claim against Ferneau, the restaurant's namesake and chef, but cited a 1974 Arkansas Supreme Court ruling, Dillard Dept. Stores Inc. v. Stuckey, in finding that jurors must decide whether Ferneau LLC is liable. He indicated that will depend on whether jurors find the arrest was made by the "servant," or employee, to advance the interests of the "master," or the company -- "or solely because the servant is an officer of the state or municipality," in which case "the master is not liable."
"It is a question of fact for the jury whether Hudson acted in his capacity as an employee of Ferneau or as an independent contractor at the time of his involvement with" Erwin and Mitchell, Moody said, denying motions concerning liability that were made by both the plaintiffs and Ferneau.
A jury trial in the case is scheduled to begin Jan. 9 in Moody's Little Rock courtroom.
Metro on 10/04/2016