A request that a federal judge reconsider his dismissal of Little Rock and a former police chief from a wrongful-death case set for trial April 3 is a "last ditch effort" that should be rejected, the city said Tuesday.
The request for reconsideration was filed Friday evening on behalf of Sylvia Perkins, whose 2015 lawsuit named the city, retired Police Chief Stuart Thomas and Josh Hastings, the officer who shot and killed Perkins' 15-year-old son in 2012 while investigating car break-ins outside an apartment complex.
Hastings, who was fired over the shooting, is the only remaining defendant in the lawsuit since Chief U.S. District Judge Brian Miller dismissed the city and Thomas on Jan. 27, saying there was no evidence that either was aware of or deliberately indifferent to a pattern of unconstitutional conduct in the Police Department.
In the reconsideration request, attorney Mike Laux of San Francisco, who filed the suit for Perkins, called Miller's decision "unfathomable." Laux cited his "massive, thoughtful, heavily cited and fact intensive submission" in support of making sure the city and Thomas faced the scrutiny of a jury on whether they should be held liable for Hastings' actions. The "submission" consisted of some 2,000 pages, including a 214-page brief.
But in the city's response filed Tuesday, attorneys John Wilkerson and Amanda LaFever used much different words to describe the submission.
They said Laux's brief and supporting exhibits failed to establish that a pattern of similar unconstitutional conduct caused the death of Perkins' son, Bobby Joe Moore III, and thus required the dismissal of Perkins' claims of failure to train, failure to supervise and discipline, and failure to adequately screen Hastings.
They wrote that "the best [Perkins] can muster in her last ditch effort" to defeat the summary judgment ruling "is to create a phantom pattern" by citing incidents involving other officers, dating back several years, that weren't unconstitutional, didn't involve the use of deadly force or didn't establish a pattern that the department was deliberately indifferent to misconduct.
The attorneys representing the city said Laux's claims of new evidence were "misleading," in that a woman he deposed after Miller's dismissal of the city and Thomas had given a statement to police last year.
They also dismissed an opinion of the plaintiff's proposed expert witness on police practices, saying the witness couldn't identify a pattern of similar unconstitutional conduct and admitted to having not reviewed case files of other officer-involved shootings.
The proposed expert, Roger Clark, "cannot and does not opine in his expert report or in his deposition that any officer involved shooting in the seven years prior to Bobby Moore's death amounted to excessive force," Wilkerson and LaFever wrote. They added that "despite Mr. Clark's rampant speculation, self-serving contradictions, and admissions of failing to examine key documents, [Perkins] maintains the court 'ignored'" Clark's statements.
"Even if the Court had 'ignored' Mr. Clark's opinion, it was right to do so," they asserted.
The attorneys for the city also took issue with Laux's assertion that Miller used a "phantom" quotation in his order that "grossly misstates an extremely significant 8th Circuit decision."
While the precise quote may not be found in the 1998 case that was cited by another federal judge in the Eastern District of Arkansas, and then borrowed by Miller, "that mistake does not mean the standard of law recited is inaccurate," they said. When read in the context in which the quote was used, they said, the holding of the 1998 case "is consistent with Eighth Circuit law."
Perkins' assertion that the Little Rock Police Department has "willfully concealed excessive force and other serious misconduct" doesn't establish what excessive force or other misconduct was concealed, the attorneys argued.
They said the best Perkins could "muster" to support that contention was a former police sergeant's claim that her husband, an ex-officer, had beaten a man to death and then conspired to conceal it. Wilkerson and LaFever noted that Perkins "failed to note that this allegation has been investigated and proven false: LRPD detectives located and interviewed the allegedly dead man; he was not dead, remembered the incident, and made no claim of impropriety against the LRPD."
"Rather than establish a cover-up," the attorneys wrote, "this investigation further establishes the uncontested fact that the LRPD is not deliberately indifferent to allegations of unconstitutional misconduct."
Metro on 03/01/2017