Decision upholds exclusions in suit over boy’s killing

The mother of a 15-yearold boy who was shot and killed in 2012 by a Little Rock police officer who was later held individually liable for violating the boy’s rights can’t try to hold the city or a former police chief accountable as well, a federal appeals court decided Thursday.

In a 21-page opinion, a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis affirmed Chief U.S. District Judge Brian Miller’s 2017 ruling refusing to let Sylvia Perkins pursue liability claims against the city or Stuart Thomas, who was the police chief at the time of the shooting.

In a civil wrongful-death trial three months later, in April 2017, former officer Joshua Hastings was left as the sole defendant. Jurors found that he used excessive force when he fired two bullets into a car that Bobby Moore, a car break-in suspect, was driving early Aug. 12, 2012, in the parking lot of the Shadow Lake Apartments at 13111 W. Markham St.

Moore was killed as he sat behind the wheel of the car in which he and two friends were trying to flee. Hastings, who had turned on his flashlight and yelled, “Police! Stop the car,” said he believed the car was driving toward him, so he fired in self-defense. But Perkins presented evidence that the car was stopped or backing up when Hastings, standing in front of it, fired into the driver’s side.

The department fired Hastings, saying he violated rules prohibiting officers from using deadly force ex-

cept to protect themselves or others from an immediate threat of death or serious injury, and also prohibiting them from firing at a moving vehicle or using deadly force instead of moving out of an oncoming car’s path.

Hastings was also criminally prosecuted on a manslaughter charge, but after two Pulaski County Circuit Court juries failed to reach a verdict, prosecutors dropped the charge.

The jury in the federal trial awarded Perkins $415,000 in damages, saying Hastings violated Moore’s Fourth Amendment right to be free from excessive force. Six months later, Miller ordered Hastings to pay an additional $382,585 in attorneys’ fees and costs to Perkins.

Perkins’ attorney, Mike Laux of Little Rock, said Thursday that the boy’s mother hasn’t been able to collect any of the money. Hastings filed for bankruptcy last March, and Laux said he has filed a lawsuit in bankruptcy court in an effort to collect some of the judgment for Perkins.

In appealing Miller’s pretrial ruling, Laux reiterated his arguments that Miller had rejected: that the city “maintained a widespread custom of excessive force and untruthfulness,” that Thomas and the city failed to properly train or supervise officers, and that Thomas should be held liable for hiring Hastings and for retaining him after numerous complaints were filed against him during his five years at the department.

Hastings’ father was a captain in the department and a friend of Thomas, and Perkins has alleged that allowed Hastings to get away with more infractions than would otherwise have been tolerated.

Miller found that Perkins hadn’t established an underlying pattern of excessive force, and hadn’t demonstrated that Thomas or the city was deliberately indifferent to a pattern of unconstitutional conduct by officers that was similar to Moore’s shooting. The panel said Miller was right in requiring Perkins to show a pattern of constitutional violations and that Perkins didn’t explain in her appeal how the judge erred in determining that the pattern wasn’t established.

Perkins also complained that Miller failed to address evidence submitted by the

plaintiff’s expert, but the appellate judges disagreed, saying Miller found that the expert couldn’t establish a pattern because his opinion was based only on statistical analysis and not actual incidents.

The opinion was written by U.S. Circuit Judge Roger Wollman of Sioux Falls, S.D. The panel also included Chief U.S. Circuit Judge Lavenski Smith of Little Rock and U.S. Circuit Judge James Loken of Minneapolis.

The judges also said evidence that Thomas was friends with Hastings’ father, that Hastings attended a Ku Klux Klan meeting in high school and that a lieutenant advised against hiring Hastings “cannot establish the essential link between Thomas’s decision to hire Hastings and his use of excessive force against Moore.”

“Hastings’ disciplinary record indicates that he was a lazy and careless police officer, seemingly unable to complete the paperwork requirements or meet the scheduling demands of police work,” the panel said. “He also engaged in unbecoming conduct and used inappropriate language. While those violations … speak volumes about Hastings’s general unfitness for police work, they do not establish a pattern of constitutional violations, nor do they show that Thomas’s failure to train or supervise Hastings resulted in Moore’s death.”

The appellate judges noted that Thomas had ordered additional supervision and training for Hastings after he triggered three Early Intervention System alerts, which the department used to identify patterns of misconduct, and that after the remedial actions, Hastings didn’t generate any further alerts or citizen complaints related to the use of force.

“We are surprised by the Eighth Circuit’s unfortunate decision today,” Laux said Thursday. He said the panel cited an expert’s statement “that wasn’t even in existence when the District Court made its ruling. Thus, that statement could not be a part of the universe of facts reviewed by the court when granting summary judgment.”

He also said, “We produced reams of evidence of historical toleration of police misconduct,” and, “We are discussing our next steps.”

John Wilkerson, an attorney for the Arkansas Municipal League who represented the city and Thomas, declined to comment on the 8th Circuit’s order.