An expected five-day jury trial focusing on a two-minute scuffle outside a Hillcrest restaurant in 2011 is set to begin today in a federal courtroom in Little Rock.
Jurors in U.S. District Judge James Moody Jr.'s courtroom will ultimately be asked to decide whether a now-retired Little Rock police lieutenant working off-duty at the restaurant used excessive force when he punched an uninvited restaurant patron in the face while trying to make him leave the premises.
If jurors decide excessive force was used, they must decide whether the Little Rock Police Department, which trained Lt. David Hudson, or the company that owned the former Ferneau's restaurant, which hired Hudson as off-duty security, is liable for Jon Christopher Erwin's injuries.
Erwin said he suffered physical injuries as well as post-traumatic stress disorder.
At least part of the scuffle was captured on a bystander's cellphone and was viewed thousands of times on social media.
Hudson initially was suspended for a month after an internal investigation found that he had violated Police Department rules on excessive force, but the punishment was overturned on appeal by the city Civil Service Commission.
Misdemeanor charges of resisting arrest, disorderly conduct and trespassing against Erwin -- and misdemeanor charges of public intoxication, disorderly conduct and interfering with a police officer against his friend, Travis Blake Mitchell -- were dropped after an unrelated discovery dispute.
Erwin and Mitchell are seeking compensatory damages for Erwin's injuries and what they contend was Mitchell's wrongful arrest. They allege that their civil rights were violated and that Ferneau LLC, the company that owned the restaurant that closed a month later, should be held vicariously liable.
In October, Moody dismissed a personal liability claim against Donnie Ferneau, the restaurant's operator and chef, but said jurors must decide whether the company is liable for assault and battery. That, Moody said, will depend on whether jurors find that the arrest was made by a "servant," or employee, to advance the interests of the "master," or the company, or if it was made by Hudson acting as a police officer.
The city could be liable for damages if jurors determine Hudson's use of his closed fist was something he was trained to do as a police officer, as he has said. Moody has dismissed a negligence claim against the city.
The incident occurred on the night of Oct. 29, 2011. Hudson was sitting on a stool outside the Kavanaugh Boulevard restaurant when a bartender went out and asked him to speak to two men about leaving the restaurant, according to Moody's earlier summation of the case.
The restaurant said Erwin and Mitchell, along with Mitchell's wife and Erwin's girlfriend, were uninvited guests at a private party in one side of the restaurant. The men have said they didn't know a private party was underway.
Hudson went into the restaurant and told the men to leave, and they paid their tabs and went outside, Moody said in his October ruling, noting that what happened after that point 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.
Erwin 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."
Moody said, "The undisputed result of their encounter is that Hudson hit Erwin in the face seven times with a closed fist and arrested him. ... Mitchell attempted to intervene once Hudson began hitting Erwin and was arrested."
According to court documents, Erwin, Mitchell and the women went to Ferneau's that night after attending a fundraiser at Catholic High School and then having drinks at the nearby Ciao Baci restaurant.
The two-minute video from the bystander's cellphone showed Hudson confronting Erwin and grabbing his coat outside the restaurant. The officer tries to turn Erwin toward a wall before delivering the seven blows to Erwin's face while still holding his coat. A second man intervenes until he is moved away by a third man, who gets between Hudson and approaching spectators. Hudson then pushes Erwin to the curb.
The crowd briefly obscures the scene until the photographer moves forward and shows Erwin on his back with his hands raised above his face, gesturing, as Hudson straddles him and speaks into his radio. Hudson then puts his hand behind Erwin's head and rolls him onto his stomach while lying on top of him.
The view is again obscured momentarily by the crowd, then the video shows a woman walking up to the struggling men and leaning down near Hudson's face to tell him that the arrest is being recorded.
Erwin's attorneys have indicated they plan to introduce various medical records in support of his PTSD claim.
Witness lists indicate that in addition to Hudson, Ferneau, Erwin and Mitchell, attorneys intend to call to the stand a Colorado lawyer who videotaped the incident, various party guests and other witnesses, and police training officers.
Exhibits that are expected to be introduced are Mitchell's and Erwin's bar tabs from Ciao Baci, Erwin's bar tab from Ferneau's, photos of Erwin's face and records from Hudson's radio call to dispatchers.
Metro on 06/12/2017