Court: Lawsuit over Arkansas killing by cop may proceed

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Posted: Aug 06, 2015 6:01 PM

LITTLE ROCK, Ark. (AP) — A federal appeals court said Thursday the family of a 67-year-old man shot to death after two off-duty police officers entered his Little Rock apartment without a warrant or an invitation can move forward with a lawsuit.

Eugene Ellison died Dec. 9, 2010. His family alleges Officer Donna Lesher and Detective Tabitha McCrillis, working as private security guards, unlawfully entered his home and that Lesher improperly used deadly force following an argument and scuffle.

Prosecutors declined to press charges, saying the officers' attempts to use non-lethal means to subdue Ellison had failed. The women remain on the force.

Thursday's decision by the 8th U.S. Circuit Court of Appeals in St. Louis did not address the merits of the case, only whether the officers could be sued along with the apartment complex that hired them. The three-judge panel said that, at this stage, courts were obligated to consider the case only from the Ellison family's perspective.

The officers have said they noticed through an open door that Ellison's apartment was in disarray and that when they asked if he was OK, Ellison responded with an ambiguous "What does it look like?"

"The apartment was very disheveled. ... The glass-topped coffee table was shattered in an area in front of Mr. Ellison," said Bill Mann, a deputy city attorney for Little Rock. "The manner in which Mr. Ellison spoke led them to be suspicious and wonder if he really was OK."

As officers checked on Ellison, he became "mouthy," according to McCrillis. After a struggle, Lesher fired twice, believing Ellison was reaching for a cane he could have used to strike her after refusing her commands to lie down.

A lawyer for the family said Thursday that, in light of the ruling, the city needed "to grasp and to own" that its officers had acted improperly.

"The city has had its head in the sand too long," Mike Laux said. "I'm not convinced this will teach the city anything they should have already known."

But Mann said the city would continue to defend its officers, even with recent attention to other deaths of people in police custody or shot by officers such as those in Ferguson, Missouri, and Baltimore.

"I wouldn't be naive enough to say that a climate in the country might not have an impact," Mann said. "But I also would say that I believe that 12 jurors who would give an oath to consider only the evidence which is presented in trial, either in the form of documents or from the testimony — I would trust that jury to honor that oath."

Ellison was the father of a Little Rock police officer and a former officer.

The officers say they should be immune from a lawsuit because they were acting within the scope of their normal duties. The 8th Circuit said the two would be able to raise the same claim before a jury.

"They presumably will present evidence at trial to support their version of events," the appeals court wrote.

The appeals court did drop a portion of the lawsuit alleging the officers improperly used non-lethal force before Ellison was shot.

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Follow Kelly P. Kissel on Twitter at www.twitter.com/kisselAP