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Cole v. Hutchins

United States District Court, E.D. Arkansas, Western Division

February 22, 2019

VANESSA COLE, as Personal Representative of the Estate of Roy Lee Richards, Jr., Deceased PLAINTIFF
DENNIS HUTCHINS, Individually; KENTON BUCKNER, Individually and Officially; and the CITY OF LITTLE ROCK DEFENDANTS



         Shortly after midnight on October 25, 2016, Little Rock police officer Dennis Hutchins shot and killed Roy Lee Richards, Jr. Vanessa Cole, as personal representative of Richards's estate, has sued Hutchins, claiming under 42 U.S.C. § 1983 that he used excessive force when he shot Richards, violating the Fourth Amendment. She also alleges Arkansas-law claims of wrongful death and survival against Hutchins. In addition to suing Hutchins, Cole sued Kenton Buckner, then Chief of the Little Rock Police Department, [1] in his individual and official capacities, as well as the City of Little Rock. She asserts that the LRPD has a custom of tolerating excessive force by failing to adequately investigate police-involved shootings. She contends that Buckner allowed or authorized this custom in the LRPD.

         All the defendants move for summary judgment, arguing that there is no need for a trial because the material facts underlying Cole's claims are not genuinely disputed and that the undisputed facts show that the claims fail. For the reasons that the Court will explain, the defendants' motion is granted in part and denied in part. Buckner and the City are entitled to summary judgment. Cole's claims against Hutchins individually, however, depend on facts that are sharply in dispute. A jury, not the Court, must decide those facts.

         A court should grant summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court must view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences that can be drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015). If the nonmoving party fails to present evidence sufficient to establish an essential element of a claim on which that party bears the burden of proof, then the moving party is entitled to judgment as a matter of law. Id.

         Claims Against Hutchins

         Cole brings her first claim against Hutchins under 42 U.S.C. § 1983, which provides a civil action for a deprivation of federal rights against any person acting under color of state law. Cole argues that Hutchins, as Little Rock police officer, violated Richards's Fourth Amendment rights by using excessive force against him. “Since this case presents an issue of whether an officer used excessive force, the case must be analyzed under the Fourth Amendment's objective reasonableness standard.” Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005) (citation and internal quotation marks omitted). See also Capps v. Olson, 780 F.3d 879, 884 (8th Cir. 2015) (quoting Craighead, 399 F.3d at 961); Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). The issue is whether the officer's actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his intent or motivation. Craighead, 399 F.3d at 961 (quoting Graham v. Connor, 490 U.S. 386, 388, 190 S.Ct. 1865, 1867-68, 104 L.Ed.2d 443 (1989)). The use of deadly force is reasonable if an officer has probable cause to believe the suspect poses a threat of serious physical harm to the officer or others. Loch, 689 F.3d at 965 (citing Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)).

         Hutchins asserts the defense of qualified immunity. He contends that a reasonable officer in the circumstances would have believed that Richards posed an imminent threat to another person's life and that it was objectively reasonable for him to use deadly force to protect that person. In assessing the merits of this defense, the Court must view Hutchins's actions objectively from the perspective of a reasonable police officer in his shoes at that time, while assuming the facts in the light most favorable to Cole. Loch, 689 F.3d at 965.

         Hutchins is entitled to immunity from Cole's claim unless the record evidence, viewed in the light most favorable to Cole, shows that he violated a constitutional right that was clearly established at the time of the violation. Malone v. Hinman, 847 F.3d 949, 952 (8th Cir. 2017). To be clearly established, preexisting law must have made the unlawfulness of an officer's conduct apparent so that he had fair and clear warning that he was violating the constitution. Estate of Walker v. Wallace, 881 F.3d 1056, 1060 (8th Cir. 2018). Still, to defeat a claim of qualified immunity a plaintiff is not required to “show that the ‘very action in question has been previously held unlawful.'” Ellison v. Lesher, 796 F.3d 910, 914 (8th Cir. 2015) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The defense of qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Estate of Walker, 881 F.3d at 1060 (quoting White v. Pauly, __U.S.__, 137 S.Ct. 548, 551-52, 196 L.Ed.2d 463 (2017) (per curiam)). It serves to protect officials who make bad guesses in gray areas, and it gives them breathing room to make reasonable but mistaken judgments. Id.

         The undisputed facts are as follows.[2] Late on October 24, 2016, Richards, who was intoxicated, came to the front door of the home of his uncle, Darrell Underwood, on East Eighth Street in Little Rock. Richards and Underwood began to have an on-again-off-again altercation. Underwood asked Richards to leave, which he did, but Richards eventually returned. Around midnight, several neighbors heard a commotion involving the two men in Underwood's front yard. Some heard yelling and saw Richards go back and forth to his truck. Underwood came in and out of his house numerous times. Underwood became angry when Richards showed him that he had a gun. Underwood called 911. Document #63-9 at 23. Eventually, the two men fought in the front yard. Several neighbors called 911, and several continued to watch the situation unfold.

         On October 25, 2016, Dennis Hutchins had been a police officer with the LRPD for sixteen years, frequently working in high crime areas. After 911 calls had reported a disturbance at the East Eighth Street residence, Hutchins and his partner that shift, Officer Justin Tyer, responded. LRPD communications informed them based on the calls that the subject was intoxicated and armed with a long gun. Because of the report that the subject was armed with a long gun, Hutchins and Tyer parked half a block away on the opposite side of the street and approached the residence on foot, out of concern for officer safety. A neighbor, Henry Michael Stotts, told Richards and Underwood that the police had arrived. Underwood got up and walked toward the porch steps. Richards got up and walked toward the driver's side of his vehicle, which was parked in the driveway.

         Viewing the evidence in the light most favorable to Cole, and drawing all reasonable inferences in her favor, a jury could further find the following. At the time Stotts announced the police presence, Underwood and Richards continued to fight on the ground for ten seconds or more. Document #63-13 at 46-47.[3] After they stopped fighting, Richards walked to his vehicle. Observers, including Hutchins, thought Richards walked to the vehicle to leave. Instead, Richards retrieved what all witnesses believed was a rifle[4] from the driver's side door, and turned towards Underwood's house. By that time, Underwood had walked up the steps to his porch, and was in the middle of his porch. Document #63-9 at 34-35; Document #63-8 at 31. Holding the gun, Richards walked toward Underwood's porch. Document #63-13 at 49-50. Hutchins first saw Richards with the gun when Richards emerged from behind the vehicle because Hutchins approached the property facing the vehicle's passenger side. Richards began walking up the steps to Underwood's porch. Document #63-8 at 32. According to one witness - Charles James - Richards never held the gun with the barrel pointed at Underwood. Document #63-8 at 32-33. At least two witnesses say that Richards carried the gun vertically - either pointed up toward the sky, as one might hold a flag, or pointed down toward the ground, along his leg. Document #63-8 at 30; Document #63-5 at 58.[5]Underwood walked into the house and slammed the door. Document #63-9 at 34, 55; Document #63-8 at 30; see also Document #63-9 at 14. According to James, Richards then backed down a few steps and turned in the direction of his car. Document #63-8 at 30. James testified, “he's backing down . . . the stairs and turned slightly that way with the gun again, vaguely, like at about ten o'clock (gesturing). And the shots were just fired . . . .” Id. at 34. Richards, James said, was moving “backwards and west. But there were so many shots fired in such a quick succession . . . and he could have been spun around. I don't know. I mean, he just - he just hit the ground so fast (gesturing).” Id. at 35. James believes that Richards was not facing Underwood's house when the shots were fired. Id. To James it appeared that Richards was turning to leave. Id. at 78-79. At this time, Hutchins was still a little more than eighty feet away from Richards. Giving no warning, Hutchins shot his gun toward Richards five times. One of the shots struck Richards in the head, killing him. James estimated that, at the time Hutchins fired the shots, Underwood had been inside his house for five seconds. Id. at 38. By the time the shots were fired, Underwood had locked the front door, walked across the room and into the hallway, and begun speaking to his roommate. Document #63-9 at 35-36; Document #63-5 at 105. On this version of the facts, a jury reasonably could conclude that Richards did not pose an immediate threat of physical injury or death when Hutchins began firing.

         Other witnesses describe the events differently. The testimony is in conflict on key points. Disputed fact questions and conflicting testimony, however, cannot be resolved on summary judgment. Henderson, 909 F.3d at 940. The jury, not the Court, must make credibility determinations, weigh all the evidence, and make legitimate inferences from all the evidence in order to resolve the predicate facts. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

         It was clearly established on October 25, 2016, that a law enforcement officer may use deadly force only to protect himself or another person from an imminent threat of serious physical injury or death. See Garner, 471 U.S. at 11, 105 S.Ct. at 1701 (deadly force unjustified “[w]here the suspect poses no immediate threat to the officer and no threat to others”); Craighead, 399 F.3d at 962-63 (collecting cases holding that deadly force may not be used unless the officer reasonably believes it is necessary to prevent serious injury or death). By October 25, 2016, police officers had fair and clear warning that they could not use deadly force against a person who posed no immediate threat to cause serious physical injury or death. Hutchins is therefore not entitled to qualified immunity on Cole's Fourth Amendment claim.

         Hutchins argues the wrongful death and survival claims under Arkansas law fail because the undisputed facts show that his conduct did not constitute a wrongful act. See Document #50 at 23-24; Ark. Code Ann. ยง 16-62-102(a)(1). Because the questions of fact discussed above preclude making this determination as a matter of law, ...

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