Judge: Thwarted private eye can’t sue

Courts’ latest sovereign immunity issue features Tupac Shakur’s bodyguard

Tupac Shakur’s former bodyguard can’t challenge Arkansas regulators’ decision to deny him a private investigator’s license, Pulaski County Circuit Judge Tim Fox has ruled, citing the state Supreme Court’s reworking of the sovereign immunity doctrine.

Fox dismissed the lawsuit by Kevin Hackie, the owner of Beach City Investigation and Protection Services in Long Beach, Calif., after a hearing on Monday. Hackie was a bodyguard to Shakur, the rapper and movie star who was gunned down in Las Vegas in 1996.

The judge also simultaneously canceled Hackie’s application for an Arkansas license. Fox’s decision will allow Hackie, who did not attend the hearing, to reapply to Arkansas State Police for certification as a private investigator and bodyguard in Arkansas.

Hackie’s lawyer said she could not comment until the judge’s ruling has been formalized in writing and she has had time to study the decision.

State police rejected Hackie’s application in September. He sued to dispute the decision as part of the appeal process.

Fox told Hackie’s attorney, Hannah Wood of Little Rock, and state police attorney Mary Claire McLaurin that the Supreme Court’s recent rulings involving sovereign immunity left him with no options but to invalidate the regulatory process that led to Hackie’s application being denied.

He said the high court’s January ruling on sovereign immunity now bars almost any state agency from being sued in state court. The only exception is if an agency can be shown to have acted illegally.

The high court ruled that the General Assembly has no authority to write laws that allow the state to be sued. The only way the state can waive immunity is by changing the state constitution, the court ruled in a divided decision.

For decades up until that Jan. 18 decision, state judges had allowed lawsuits against state agencies either under laws like the Freedom of Information Act and the Administrative Procedure Act or when the legality of a state regulation or law had been called into question.

The new, stricter sovereign immunity definition had been considered a hurdle to litigation that practically could not be overcome.

But in a ruling last week by the high court in a case about state taxes on some Burger King hamburgers, the justices reaffirmed the long-standing position that sovereign immunity only comes into play if the state raises it as a defense to litigation.

That holding creates an issue in appeal lawsuits like Hackie’s case, Fox said, because state regulators might not always invoke the immunity defense.

Someone in Hackie’s position challenging a regulatory decision would then not know whether immunity is in play until they’ve filed their appeal lawsuit, according to the judge.

The uncertainty that situation creates denies people who believed they’ve been wronged by state regulators a meaningful appeal process, which violates due-process guarantees in the state and federal constitutions, Fox said.

The judge made the same findings in January when he threw out an appeal lawsuit against the Oil and Gas Commission involving a royalty dispute by some property owners in Cleburne County. Fox’s decision also negated the commission’s regulatory authority entirely. The attorney general’s office is appealing his decision.

Fox distinguished the Oil and Gas Commission ruling from Monday’s decision by pointing out that the state law could be interpreted to allow some appeals of state police decisions to the State Claims Commission.

However, the Oil and Gas Commission’s regulations can only be appealed under provisions of the Administrative Procedure Act, which the Supreme Court has effectively nullified, according to the judge.

Hackie’s Beach City Investigation is 18 years old and licensed for security work and private detection in California, Nevada and Tennessee. It has more than 3,000 employees in those states, according to the lawsuit.

Hackie’s application was rejected by Col. William J. Bryant, the state police director, because of his convictions in California for forgery in 1996 and felon in possession of a firearm in 1999. The state police regulates licensing of investigation, security and alarm system companies in Arkansas.

Hackie’s internal appeal of Bryant’s decision was rejected in November, and he filed his appeal lawsuit in December, about three weeks before the Supreme Court’s sovereign immunity ruling.

Hackie argued that police did not properly consider findings by a California court that he had been rehabilitated or how long it’s been since he served his sentence on those convictions.

Police should have also taken into account how he’s been certified in other states as evidence of his character and fitness for an Arkansas license, his lawsuit states.

Hackie’s affiliation with Shakur and the musician/actor’s record label, Death Row Records, never came up in the litigation.

Hackie was Shakur’s bodyguard in the early 1990s. He later revealed that he was also working as an FBI informant during that time.

Hackie, a former police officer, implicated Death Row executives in the March 1997 slaying of the star’s rival, the Notorious B.I.G., in retaliation for Shakur’s September 1996 killing.

Also known as Biggie Smalls, rap musician Christopher Wallace, 24, was gunned down by someone in another car firing into his sport utility vehicle while Wallace was on his way to an awards show afterparty in Los Angeles.

Wallace was killed six months after Shakur, 25, was fatally shot in Las Vegas as he and Death Row Records CEO Suge Knight drove down a Las Vegas street, hours after Shakur had brawled with a suspected gang member Shakur believed had taken part in an earlier robbery of some Death Row friends.