ST. LOUIS -- Two Little Rock police officers asked a federal appeals court Thursday to dismiss them from a wrongful death lawsuit filed by the family of a man killed in his apartment, a case the victim's son has likened to the deaths of Michael Brown and Eric Garner.
The off-duty officer and a colleague were working private security for an apartment complex when one of them fatally shot 67-year-old Eugene Ellison in December 2010. The officers want the 8th U.S. Circuit Court of Appeals in St. Louis to overturn a lower court ruling denying their claims of legal immunity. A three-judge panel heard 30 minutes of testimony but did not issue an immediate decision, and the civil suit is on hold pending that ruling.
Police have said they saw Ellison's door open and walked in to see if he needed help because his apartment was in disarray. They say he attacked the officers and used a heavy wooden cane as a weapon. The lawsuit by Ellison's family says the officers entered without a proper reason and made the first physical contact by shoving Ellison. It alleges that Ellison was crouched in a corner and was shot when he tried to retrieve his cane.
Like the Brown and Garner cases, the Little Rock shooting involved a black victim and white police officers. A pair of investigations by Little Rock police and the local prosecuting attorney cleared the officers, Donna Lesher and Tabitha McCrillis, of wrongdoing. The Ellisons have appealed for a Justice Department investigation of Little Rock police force.
Lead plaintiff Troy Ellison, a Little Rock police sergeant, and his brother Spencer, a former Little Rock detective who now teaches criminal justice in Texas, say their father's death sparked a crisis of conscience as they struggle to reconcile their oaths to protect and serve with the pain and outrage over what they call excessive force.
"We want the same things as the families of Michael Brown and Eric Garner," said Spencer Ellison, invoking the names of people killed by police in nearby Ferguson, Missouri, and in New York, whose deaths have sparked worldwide protests and intense debates over police powers. "We just want answers. And we want accountability."
Little Rock City Attorney Tom Carpenter, responding to skeptical questions by the appeals panel, said the officers had a legal right to enter Ellison's apartment when they saw his door open on a cold day. Carpenter, who represents the two city employees, cited a "community caretaker" exemption to the Fourth Amendment prohibition against unreasonable search and seizure.
"They weren't acting as investigators of a crime," he said. "They were looking out for the welfare of a citizen."
In the lower court's October 2013 ruling rejecting the officers' immunity claims, U.S. District Judge Brian Miller said the two "unlawfully entered (Ellison's) apartment and ignored his requests" to leave. Lesher shot him after a brief scuffle that began when McCrillis shoved Ellison, a Vietnam veteran and retired factory worker, for being "mouthy," it said.
"It is undisputed that he was making no attempt to flee," the judge wrote. "Lesher also never warned him that she had a gun and would shoot if he did not drop his cane."
Miller did dismiss the city of Little Rock and its police chief from the suit, leaving the two officers and the apartment complex where they worked as defendants.
State Desk on 12/12/2014