Perkins v. Hastings

• Citation: 915 F.3d 512
• Decision Date: 07 February 2019
• Docket Number: No. 17-2079,17-2079
• Parties: Sylvia PERKINS, as a Personal Representative of the Estate of Bobby Moore, III, Deceased, Plaintiff - Appellant v. Joshua HASTINGS, in His Individual and Official Capacities; Stuart Thomas, in His Individual and Official Capacities; Little Rock, City of, a Municipality, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

915 F.3d 512

Sylvia PERKINS, as a Personal Representative of the Estate of Bobby Moore, III, Deceased, Plaintiff - Appellant

v.Joshua HASTINGS, in His Individual and Official Capacities; Stuart Thomas, in His Individual and Official Capacities; Little Rock, City of, a Municipality, Defendants - Appellees

No. 17-2079

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2018

Filed: February 7, 2019

Michael J. Laux, Austin Porter, Jr., Little Rock, AR, for Plaintiff - Appellant.

Matthew Keith Wren, WREN LAW FIRM, Little Rock, AR, for Defendant - Appellee Joshua Hastings.

Amanda Marie LaFever, William Clark Mann, III, John Lennon Wilkerson, ARKANSAS MUNICIPAL LEAGUE, Legal, North Little Rock, AR, for Defendants - Appellees Stuart Thomas and Little Rock, City Of.

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Little Rock, Arkansas, Police Officer Joshua Hastings shot and killed fifteen-year-old Bobby Moore III, on August 12, 2012. Moore’s mother, Sylvia Perkins, acting as a personal representative of his estate, filed suit against Officer Hastings, Police Chief Stuart Thomas, and the City of Little Rock, alleging claims under 42 U.S.C. § 1983 and state law. The district court¹ granted summary judgment in favor of Thomas and the City, and the case against Hastings proceeded to trial. A jury found that Hastings had violated Moore’s Fourth Amendment right to be free from excessive force and returned a verdict in favor of Perkins. After final judgment was entered, Perkins appealed, challenging the summary judgment order. We affirm.

I. Background

Hastings applied for a position with the Little Rock Police Department in May 2006. Before being hired, Hastings submitted to a polygraph examination, during which he admitted that he had attended a Ku Klux Klan meeting when he was a junior in high school. In a statement, Hastings explained that he snuck into the meeting with two friends to "see what [his friend’s] grandpa does."

A hiring committee approved Hastings for hire by a vote of three-to-one. The committee was composed of Chief Thomas, a white male who had served twenty-nine years with the Little Rock Police Department, and three other high-ranking officers, all of whom had served more than twenty years on the police force. The lieutenant who cast the negative vote stated that Hastings’s attendance at a Ku Klux Klan meeting disqualified him from serving with the Little Rock Police Department. In a memo to his captain, the lieutenant wrote that he had "serious reservations regarding [Hastings’s] judgment and maturity" and that Hastings was "an unfavorable candidate and a potential liability for the Little Rock Police Department."

Hastings was hired in March 2007 and attended twenty weeks of police training. After graduation, Hastings underwent twelve weeks of field training, during which he rode along with more experienced officers. Hastings thereafter received forty hours of training per year, including refresher courses on the use of force.

Hastings was the subject of multiple disciplinary actions over the course of his five-year career with the Little Rock Police Department. He repeatedly failed to activate his motor vehicle recording device; failed to properly store property or properly complete paperwork; failed to properly investigate; failed to honor subpoenas; failed to notify supervisors; and failed to follow orders or left his district without permission. Hastings also used inappropriate language or engaged in unbecoming conduct; engaged in improper driving or damaged department equipment; slept on duty; and was untruthful. Hastings’s discipline for these violations ranged from counseling and reprimands to suspensions from one to fifteen days.

The Little Rock Police Department maintains an Early Intervention System (EIS) that monitors officers to identify patterns of misconduct. Supervisors have access to the system, and the office of professional standards receives an alert whenever an officer meets "an established threshold [of incidents] ... pertaining to use of force, on-duty motor vehicle accidents, police pursuits and complaints involving misconduct and inadequate service." Until the software was upgraded in 2012, the system did not distinguish between officers who had used force during an incident and those officers who had not used force but were otherwise involved.

Hastings triggered three EIS alerts during his career. In April 2009, the EIS system identified Hastings as having been involved in six use-of-force incidents during the preceding year. The department had previously investigated the incidents and exonerated Hastings of any wrongdoing. According to the facts gathered by the internal affairs division and set forth in the EIS report, three incidents involved suspects attempting to punch Hastings, to which Hastings responded with a "brachial stun," a punch, and "several straight punches," respectively. The remaining incidents involved force related to taking down noncompliant or fleeing suspects. Hastings’s immediate supervisor reviewed the EIS report and concluded that Hastings had employed "the minimum use of force necessary to carry out his assigned duties as a patrolman." The sergeant determined that the report was a "false alarm" and recommended no disciplinary action. Two lieutenants, a captain, and Chief Thomas all concurred in the sergeant’s recommendation.

The next EIS alert occurred in February 2010, after Hastings was involved in ten use-of-force incidents in the preceding year. The department previously had investigated those incidents and exonerated Hastings of any wrongdoing. According to the EIS report, Hastings used force when confronted with suspects who were noncompliant, fleeing, resisting arrest, or attempting to punch or kick the officers. Hastings used force similar to that which was reported in the April 2009 EIS report, including takedowns and punches. He also used a "straight arm bar," a "shoulder pin maneuver," "straight arm strikes," and baton strikes.

After reviewing the file, his sergeant wrote that Hastings’s use-of-force incidents were "not that high," in light of his "patrol area consist[ing] of the highest violent crime area and ... the heaviest call-load." She did not recommend discipline but indicated that she would monitor Hastings’s performance. The lieutenant agreed, and the captain advised that he had asked Hastings’s supervisors to work with Hastings "very close[ly] to ensure he is professional and works to avoid uses of force." The assistant chief of police recommended additional monitoring and supervision, however, in light of the number of incidents involving the use of force and vehicle pursuits, as well as an on-duty motor vehicle accident and other disciplinary issues. Based on the assistant chief’s recommendations, Chief Thomas ordered Hastings to have bi-weekly counseling sessions and required bi-weekly progress reports for six months.

While the investigation into the second EIS alert was pending, Cedric McSwain filed a citizen complaint against Hastings. McSwain reported that he was standing in an alley on March 15, 2010, when he saw officers approaching. McSwain reported that he offered his identification, put his arms in the air, and told the officers his name and address. According to McSwain, officers grabbed him by the arms and legs, threw him to the ground, put a foot on his back, and punched him in the eye. The police report indicated that McSwain was intoxicated, belligerent, and resisted arrest. The report further indicated that because the officers believed McSwain to be a suspect who had fled on foot, they took him to the ground. According to the officers involved in the incident, Hastings held McSwain’s left arm during the takedown and thereafter handcuffed him. Hastings did not submit any documentation about the incident or his use of force.

Following an internal affairs investigation, Chief Thomas found that Hastings had violated the department’s general orders requiring police-incident reports and use-of-force reports. Hastings was exonerated from the allegations that he had used excessive force and failed to properly operate his motor vehicle recording device. An allegation of untruthfulness was deemed "not sustained." Chief Thomas ordered counseling and remedial training on documenting the use of force. McSwain later filed a lawsuit against Hastings, Chief Thomas, and other officers. The lawsuit was dismissed after McSwain failed to respond to the merits of the defendants’ motion for summary judgment. See McSwain v. Hastings, No. 4:13-cv-122-DPM, 2015 WL 731286 (E.D. Ark. Feb. 17, 2015).

Hastings triggered a third EIS alert in April 2010 after being involved in six use-of-force incidents between January 24, 2010, and April 18, 2010. The department investigated those incidents and exonerated Hastings. Like the previous reports, this report indicated that Hastings had used force against individuals who were noncompliant, fleeing, actively resisting arrest, or attempting to punch or kick officers. Hastings’s use of force included takedowns, the use of pepper spray, and the use of "his bodyweight to maintain control" of a suspect. Hastings was ordered to continue with his bi-weekly counseling.

Hastings did not trigger any further EIS reports during his time on the police force, nor were any further citizen complaints or lawsuits filed against him. According to his concise officer history report, Hastings was involved in a total of forty-one incidents involving the use of force. His only use of deadly force during his five-year career occurred when he shot Moore.

Chief Thomas authorized an investigation on June 27, 2012, into allegations that Hastings had been untruthful and was guilty of dereliction of duty. According to the internal affairs report, Hastings had been dispatched to a store at 4:13 a.m. on June 25, 2012, after an alarm company called and reported glass breakage. The alarm company...