A Little Rock woman whose son was killed in 2012 by a Little Rock police officer who said he feared for his life, but who was later fired over the shooting and charged with manslaughter, is asking a federal judge to reconsider his dismissal of the city and a former police chief from her 2015 wrongful death lawsuit.
In a brief filed Friday afternoon, Sylvia Perkins, mother of the slain 15-year-old boy, Bobby Moore, said a 17-page grant of summary judgment issued in the city's favor on Jan. 27 did not seem to adequately address some 2,000 pages of documents that she had filed in opposition to the city's summary judgment request.
"Respectfully," wrote Perkins' attorney, Michael Laux of San Francisco, "it is unfathomable how [Perkins'] massive, thoughtful, heavily-cited and fact intensive submission does not get her supervisory liability case in front of a jury."
Laux's 41-page brief asserts that Chief U.S. District Judge Brian Miller's order dropping the city and former Police Chief Stuart Thomas from being held liable for the boy's death is "erroneous because, based on the Court's own ruling and comments, controlling case law was fundamentally misstated, incorrect legal standards were applied, and [Perkins'] evidence was not given its due weight on countless occasions."
In the Jan. 27 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 [Little Rock Police Department] that was similar to the shooting of Bobby Moore. Consequently, neither is liable for a failure to train, supervise or discipline."
Miller's ruling left the former officer -- Josh Hastings, now of Bauxite -- as the sole defendant in the case that is to go to trial before a federal jury April 3.
The lawsuit seeks compensatory and punitive damages, but without the city or Thomas as defendants, it is unclear how much of a monetary judgment could be assessed against Hastings if jurors decide he is liable for damages. Hastings' current attorney has only been on the case since October, after an earlier attorney withdrew, citing Hastings' inability to pay him.
Perkins has said she is determined to hold those responsible for her son's death accountable.
Bobby Joe Moore III was shot and killed by Hastings about 5:30 a.m. Aug. 12, 2012, in a parking lot outside the Shadow Lake Apartments at 13111 W. Markham St.
His friends, also youths, later admitted to police that they had become bored and decided on the spur of the moment to break into cars at the complex, with which they were unfamiliar. One of them said that after Moore broke a car's window and the car alarm sounded, he urged Moore to drive them home.
Police, however, had already been called to the complex about possible car break-ins, and Hastings and a partner responded. The boys later said Moore was driving away and didn't initially see, or maybe never saw, Hastings emerge from a wooded area off to the side and in front of them.
One of the boys, who was in the front passenger seat, said he told Moore to back up because the police had arrived. He said that Moore, after putting the car in reverse, was shot twice through the windshield. A resident of the complex reported looking out her window after hearing the shots, then seeing the boys' car rolling backward with a uniformed officer walking toward it.
Hastings was fired two months later, after an internal police investigation found that he violated police procedures in his handling of the situation. Prosecutors later filed a manslaughter charge against Hastings, but they stopped pursuing the criminal case after two separate Pulaski County Circuit Court juries became deadlocked in 2013 on whether to convict Hastings. Perkins' federal lawsuit was filed two years later.
"To be sure," Laux wrote in the brief filed Friday, "the Court addressed but a scant portion of the evidence provided."
The brief argued that the court "uniformly adopted the rendition offered by the ... city, and even without regard to the serious credibility problems which beset the city's interested witnesses. The net result is an impermissible burden shift from the city over to the plaintiff."
Laux added that based on Miller's comments in the order, "it is apparent that [Perkins] was required to prove her entire case at the summary judgment stage, rather than merely demonstrate the existence of a genuine issue of material fact."
He further argued that the court "ignored" the sworn statements of a police practices expert that he said "constitute admissible evidence that must be considered in ruling on summary judgment."
The court, Laux said, has "cut off [Perkins'] case against the Defendants at the knees."
The city had argued in its motion for summary judgment, filed Oct. 31, that despite dozens of misconduct complaints against Hastings in his five years with the department, none involved the use of deadly force, and thus they couldn't be used to prove a pattern of similar unconstitutional conduct that was ignored by his superiors. Hastings is the son of a now-retired veteran officer, Capt. Terry Hastings, who was also a friend of Thomas'.
Miller said in dismissing the city and Thomas that a supervisor may be held liable only 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."
Laux also asserted that Miller's order used a "phantom" quotation that "grossly misstates an extremely significant 8th Circuit decision," Rogers v. City of Little Rock, from 1998.
Laux was referring to a part of the order that said, in parentheses, "'Investigation of a complaint is sufficient as a matter of law' to defeat a claim of deliberate indifference to prior misconduct."
That phrase, Laux wrote, "simply does not exist" in the written opinion in the Rogers case.
If the motion to reconsider is denied, Perkins can then appeal the dismissal order to the 8th U.S. Circuit Court of Appeals in St. Louis. Laux has indicated he plans to do so.
Metro on 02/26/2017