United States District Court, E.D. Arkansas, Western Division
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
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
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,  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.
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
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.
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
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.
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.
undisputed facts are as follows. 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.
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.
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. 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 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.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.
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.
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.
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. § 16-62-102(a)(1). Because the
questions of fact discussed above preclude making this
determination as a matter of law, ...