Judge: Officer’s gun use justified
Cleared LR man sues after verdict
Ralph Breshears, the Little Rock police officer who shot a robber fleeing in a stolen car, was cleared of wrongdoing Friday by Pulaski County District Judge Wayne Gruber.
Breshears immediately denounced the criminal case as pure fiction contrived by the Police Department because he has complained to federal regulators that he had been the victim of racial discrimination by supervisors.
Prosecutors contended that Breshears had been negligent in the July 2017 incident, saying that he had no justification to shoot the man and that by opening fire he had put bystanders and the female carjacking victim in danger.
Gruber announced his decision six weeks after the September trial, acquitting Breshears of misdemeanor battery for shooting 24-year-old Rudy Leonard Avila Jr. in the parking lot of the Chick-fil-A at 12500 W. Markham St.
Breshears, 57, retired from the force before he was charged in January. He
faced up to a year in jail.
Breshears responded to the judge’s ruling by immediately suing Little Rock and Police Chief Kenton Buckner in federal court, contending that the criminal charge was actually revenge for how he reported his discrimination complaints to the Equal Employment Opportunity Commission.
Breshears, who is white, contended that he had been discriminated against when the department promoted a less-qualified black officer over him to an investigator’s position in June 2016.
“The criminal action … was pursued against the plaintiff without any supporting facts or law,” his four-page lawsuit filed by attorney Floyd Healy states. “The criminal complaint … was nothing more than a retaliatory maneuver on behalf of the defendants to embarrass and harass the plaintiff as a direct and proximate result of his bringing a discrimination case against the city.”
Breshears is seeking compensatory and punitive damages, stating that he has been the victim of retaliation, false imprisonment, false arrest, malicious prosecution and slander, among other things.
In calling for Breshears’ acquittal on the battery charge, defense attorneys Blake Hendrix and Annie Depper argued that he could not be convicted of acting negligently because he deliberately shot Avila.
“Breshears intentionally shot at Rudy Avila, with the intent to hit Rudy Avila, and Breshears achieved the result he intended — Rudy Avila was shot twice in his arms,” the lawyers wrote in their post-trial brief. “Such action cannot constitute negligent battery in the third degree because intentional conduct — anticipating and intending a result — cannot meet the definition of ‘negligently.’”
The defense also disputed assertions by prosecutors that Breshears put the robbery victim in danger.
Breshears said he had his Taser out and was ready to confront the fleeing man when he pulled the woman out of her car at the restaurant drive-thru. He told the judge that he only went for his gun because he thought Avila was assaulting the woman and that he then fired when Avila refused his order to get out of the car.
Breshears testified that he didn’t see the woman in his line of fire when he took aim or when he fired at Avila. Video of the event shows that she was facing toward the back of the car and running away when Breshears fired his first round through the passenger side window, his attorneys said. He fired three shots at the moving car, hitting it each time while wounding Avila twice.
The defense also argued that evidence that Breshears might have put anyone else at risk, including the woman, doesn’t matter, because no one else was hurt. The law requires that prosecutors prove that negligence caused physical injury, they said.
“Breshears caused her no injury. Claiming that [she] was somehow a victim of Breshears confused the issue and is irrelevant,” Hendrix and Depper wrote in their brief.
In evaluating how Breshears came to decide to fire his gun, his attorneys asked the judge to examine the situation the officer was in and to consider that his decision was based on his experience as a policeman with specialized training in car-accident reconstruction.
“He was only in the situation … because of his position as a law enforcement officer. Were Breshears to be viewed as a reasonable person who was not a law enforcement officer, the very fact that he was pointing a gun at a fellow citizen could be cause for criminal charges,” the brief states. “The nature and purpose of Breshears’ conduct was that of a law-enforcement officer acting in the course of his employment; acting to protect his community.”
Breshears testified that he had no way to get safely clear of the car because his only escape would have taken him over an 8-inch curb, through a row of knee-high bushes onto a sharply declining embankment overlooking heavy traffic on the street. He told the judge that based on his experience evaluating the physics of moving vehicles, he thought the rear wheels of the car would have hit him.
Prosecutors John Johnson and Reese Lancaster told the judge the legal standard that the judge should use to evaluate Breshears’ actions is what a reasonable person would have done in that situation. The defense was asking for Breshears to be held to a different standard than the law allows, they stated in their brief.
“Defense wants the court to create a reasonable police officer standard,” the brief states. “However, such a standard does not exist under Arkansas law. There is only a reasonable man standard.”
Prosecutors contended that the video “drastically” contradicts Breshears’ account and that robbery victim Adrian Harris was standing at the driver’s window outside the car when Breshears shot Avila.
“Testimony showed that she was in harm’s way [of] being directly shot or hit by a ricochet,” the prosecution contended in its post-trial brief. “Additionally, while the defendant was tracking the car, he continued to point and shoot his gun at the moving vehicle, which put other lives in danger. Furthermore, it is clear from the video that the defendant was several feet to the side of Ms. Harris’ vehicle, thus never in any danger of being run over.”
Breshears and fellow officer Aaron Martin first encountered Avila that day at Home Depot on Chenal Parkway where they had been dispatched for an aggressive shoplifter. Police said Avila had been seen shoplifting the night before, and store guards recognized him when he returned and, police said, started stealing again.
The officers handcuffed Avila and were escorting him out of the store when he pulled free of Aaron and bolted. He ran south toward Markham and the nearby Chick-fil-A. Aaron chased him on foot while Breshears took the patrol car to try and cut him off.
Avila was able to pull one hand from his cuffs as he ran to the restaurant, where he spotted Harris, 23, in her blue 2010 Chevrolet Malibu in the drive-thru. She had just placed her order, and her driver’s window was down.
Avila, whom she had never seen before, told her to get out of the car. Harris refused, telling police she thought he was joking until he reached for her car door. She said she realized he was serious when she saw the handcuffs on his arm.
Harris started to get out of the car when Avila grabbed her by her arm and threw her out of the car. She said the car was moving, and she started to run. She told police she heard someone, not the robber, yelling, ‘Get out of the car.’ She said she heard gunshots and then fainted, thinking that the robber had shot her.
Witnesses said the police officer yelled for the robber to get out of the car, then fired through the passenger side window as the Malibu kept moving, screeching its tires as the robber “slams on the gas,” as one witness described it.
Despite being shot, Avila kept going until he crashed the Malibu head-on into a gray 2015 Jeep Wrangler driven by 52-year-old Tim Lincoln of Mabelvale, who blocked his escape. Lincoln told police he hoped the driver would be deterred by seeing his Jeep and turn instead of hitting him.