He had a BB gun. A cop had a semiautomatic rifle. Without warning, the officer fired five times. – Arkansas Times

Brian ChilsonLITTLE ROCK POLICE HEADQUARTERS

Vanessa Cole remembers her older brother Roy Lee Richards Jr. as the storyteller of their tight-knit Central Arkansas family. When they got together for family dinners on the weekends, Roy entertained Nae his nickname for Cole her children, and his sons with old family yarns. When their mother passed away in 2002, Richards started calling Cole every day, telling her stories from their childhood that Cole hadnt heard before, mimicking family members voices, making her feel like she was right there with them.

That was one of the gifts God had given him, Cole said.

Nearly five years ago, Richards, who was Black, was shot and killed by Little Rock police officer Dennis Hutchins, who is white, on the steps of Richards uncles home. Hutchins and another officer were responding to a series of 911 calls about a fight between an intoxicated Richards and his uncle, Derrell Underwood, in the early morning hours of October 25, 2016. Without either officer announcing their presence, Hutchins fired five shots at Richards with his secondary patrol weapon, an AR-15 style semiautomatic rifle, striking him twice. Richards appeared to be holding a long gun at the time; it turned out to be a BB gun.

I dont know any officer that comes to your house that their sirens is not on, or their lights is not flashing, Underwood said in a recent interview. They basically snuck up on us.

Many lawsuits alleging excessive force against law enforcement officers are either settled or thrown out of court. Its notoriously difficultto sue a police officer because of a U.S. Supreme Court doctrine called qualified immunity, which can protect government officials from being held personally liable for constitutional violations if a court determines their actions didnt violate clearly established law. Hutchins motion for summary judgment on the basis of qualified immunity was rejected, however, first by a U.S. District Court judge in Little Rock and later by a three-judge panel of the Eighth Circuit Court of Appeals.Prosecutors declined to pursue charges against Hutchins, and an internal investigation by the Little Rock Police Department cleared him of wrongdoing. He remains on the force today. But he heads to a jury trial this week in a civil case filed by Cole on behalf of Richards estate.

The appellate court ruling concluded that Officer Hutchins use of deadly force against Richards was objectively unreasonable assuming the details of the shooting occurred in the way that Richards family claims. However, the court noted, if the jury determines that certain key facts occurred differently, the legal conclusions may be different. It will now be up to the jury to determine what actually happened that night.

Its the first time an Arkansas officer has faced trial in a fatal police shooting since the nationwide protests last summer over the murders of George Floyd and Breonna Taylor. Its a significant moment for the Little Rock Police Department, which has beenmired in controversyover allegations of misconduct, excessive violence and poor internal investigations.

For Richards family, its a chance at feeling at least a partial sense of closure after several long, harrowing years. Cole is represented by Chicago attorney Mike Laux, who has sued the LRPD many times in the past several years, including claims on behalf of the families of five people shot by police, and by the Little Rock firm Dodds, Kidd, Ryan, and Rowan. Little Rock City Attorney Tom Carpenter, the lead attorney representing Hutchins, did not respond to requests to be interviewed for this story.

Richards, who was 46 years old when he was killed, left behind two sons, now 17 and 19, and his father, who is in his 70s. The family has not been the same since his death.

I taught him how to ride his bike, Underwood said. He was just like my little brother. He was closer to a little brother than he was a nephew.

Cole said shes seeking compensation for the sake of Richards sons, as well as her father. My dad is just in a whole mess now, she said.

I hope that justice is served, she said. I really hope that it is, that we can finally go forward.

Shortly after 12:30 a.m. on Oct. 25, 2016, five people called 911 to report a disturbance outside of 512 East 8th Street in Little Rock, the home of Richards uncle Derrell Underwood. One of them was Underwood himself.

I got a person in my yard. Hes drunk, and hes my nephew, and Im trying to tell him to leave my house, Underwood says in the recording. But dont hurt him.

Another caller told emergency dispatch that Richards had a long gun. Underwood would later say in a deposition that Richards had come to his home twice that night, first around 11 p.m. and later a little after 12:30 a.m. Both times he was drunk, and both times Underwood asked him to leave.

The first time, Richards left. The second time, he pulled the butt of what appeared to be a long gun out of the trunk of his car.

Hutchins and another officer, Juston Tyer, responded to the emergency calls. Hutchins, a Marine veteran who had been trained to use a high-powered rifle in the military and as part of the LRPDs SWAT team, had been on the force for 15 years.

Underwood and Richards were in a fight by that point, according to witnesses, shoving each other in front of Richards car. Underwood said that as he had Richards pinned to the ground, a neighbor told him the police were there but he never saw the officers himself.

Hutchins and Tyer parked their police cars around the corner and walked towards Underwoods house. The department releasedTyers dashcam video and audio from a recorder worn by one of the officersin September 2017, nearly a year after the shooting.

In the dashcam video, Hutchins appears to raise and cock his gun his secondary patrol weapon, a Bushmaster .223 caliber semiautomatic rifle before turning the corner and disappearing out of the cameras sight. The police remained silent as they approached the scene.

At some point, Underwood released Richards, and Richards walked towards the back of his car, where witnesses said he pulled out what appeared to be a long gun. On the audio recording of the incident, a neighbor can be heard yelling at Derrell Underwood, D, go in the house! D, go in the house!

This is where Hutchins story diverges from those of witnesses. Four seconds after the neighbor began yelling at Underwood to go inside, Hutchins started shooting. An officer shouted Drop your weapon! but only after Hutchins fired the first shot.

Hutchins claims that Richards chased his uncle up the steps while pointing the long gun at his back, and that he shot Richards because he feared Richards was going to shoot Underwood.

He had the rifle pretty much pointed at the guys back and was running after him and the guy was obviously trying to get away, he was scared and trying to get back to the door, I guess to the safety of his house but this guy, I mean, he was on him, Hutchins told an LRPD detective.

But in a deposition with attorneys for Cole, Richards sister, Hutchins said that he did not see Underwood and Richards together in his line of vision after Richards pulled the gun from his car.

Once I seen Mr. Underwood turn and run, and I seen Mr. Richards after him with the gun, with it pointed at him, I focused every bit of my attention on [Richards], he said. He told Laux in the deposition that he did not know whether Underwood was in the house or on the porch when he shot Richards. Hutchins field of vision was narrowed because he was looking through the sight of his rifle.

Others who witnessed the shooting say Underwood was inside his home when Richards was shot and killed. Underwood says the same thing.

Underwood, whose mobility was limited by health problems, said he wasnt moving away from Richards in fear.

My legs were messed up. And I knew my nephew, I knew he wasnt going to do nothing. There was no need to hurry, he said in a recent interview.

And as I pulled myself up on the porch, I walked across my porch, and I went in my house, shut my door, and locked my door from the inside, Underwood said. A friend of Underwoods, Kelvin Jenkins, was living with him at the time. I said KJ get up, Roys outside acting crazy. So KJ got up, and KJ faced me in the hallway, [and] we heard two shots. A week after the shooting, alocal chapter of Black Lives Matter releaseda video,below, in which Underwood said the same thing.

Jenkins told LRPD investigators that he and Underwood were in the house when Richards was shot. Those accounts are corroborated by Charles James, an artist who lived across the street from Underwood and observed the incident from his second-floor window.

By the time [Richards] got to the top of the porch, Derrell beelined into the house and slammed the door, James said in a deposition. At which point, Roy backed down the steps a couple of steps and then turned west towards his car and thats when the shots were fired. James also said Richards was pointing the BB gun towards the sky, not towards his uncle.

Hutchins fired five times, striking Richards on the steps of the home. One bullet hit Richards in the foot; another, the shot that killed him, behind his right ear. The LRPDs Crime Scene Search Unit found bullet holes in the trim and porch of the house next door that were possibly from Hutchins gun.

Hutchins and Tyer approached Richards body after the shooting; Hutchins can be heard on the audio recording warning Tyer that Richards finger was on the trigger of his gun. Tyer began chest compressions, and Hutchins called for backup. Richards was pronounced dead at the scene.

Underwood said in his deposition that an officer knocked on his door and took him to the steps of the house next door, where he sat for about 20 minutes. Later, they put him in the back of a squad car for close to an hour, he estimated. Eventually, an officer took him to the police station, where he gave his statement at about 4:30 a.m. It was only at that point, Underwood said, that he was told his nephew had been killed by an officer.

I dont know where my mind was at. I wasnt thinking about all the shooting that had been going on with police departments across the country. I didnt think about that, he said recently.

Underwood referencedthe June 23 shooting of Hunter Brittain,a 17-year-old white teenager who was killed by a Lonoke County sheriff deputy during a traffic stop, sparking community outcry. These people are supposed to serve and protect us, and they dont, he said. Its not just me. And its not even a Black and white thing no more.

According to the Washington Postsdatabase of fatal police shootings, 95 people have been fatally shot by Arkansas law enforcement since Jan. 1, 2015, 11 of them this year. Richards death was one of 15 fatal police shootings in 2016.

Few such cases result in an officer being successfully sued. Wrongful death suits against cops are often thrown out on the basis of qualified immunity, a legal doctrine intended to protect government officials including police officers from individual liability.

The current standard, which the court talks about very clearly in the Cole v. Hutchins case, is essentially whether or not theres clearly established law, said Teressa Ravenell, an associate dean and professor at Villanova University School of Law who is an expert in qualified immunity. The rationale is that its unfair to hold a government official liable if, at the time of their conduct, they wouldnt have known that what they were doing was illegal.

The clearly established law standard means an officer who has used excessive force may still be immune from liability, simply because a court could find no previous cases involving similar conduct. With Hutchins, though, the court said there was precedent that allowed the case to proceed to trial.

The court did identify a case that seemed to have relatively similar facts but a very clear holding that after a danger had passed, that it was no longer a reasonable use of force, Ravenell said.

In general, the law allows an officer to use deadly force only to protect the officer or another person from the imminent threat of being killed or seriously injured. Hutchins said in the aftermath of the shooting that he shot Richards because he was afraid for Underwoods life. Importantly, he did not claim that the shooting was justified because he was afraid for his and Tyers lives.

A district court judge denied Hutchins motion for summary judgment in 2019, and the Eighth Circuit Court of Appeals affirmed that decision in 2020. In the appellate courts ruling, Judge Raymond Gruender wrote that if Coles version of events the night of October 25, 2016, is correct, Hutchins use of deadly force was objectively unreasonable in the circumstances of the case for two reasons.

First, it was clearly established that a person does not pose an immediate threat of serious physical harm to another when, although the person is in possession of a gun, he does not point it at another or wield it in an otherwise menacing fashion. Second, it was clearly established that a few seconds is enough time to determine an immediate threat has passed, extinguishing a preexisting justification for the use of deadly force, the ruling says.

But Gruender emphasized the limitations of the ruling. We do not decide that Officer Hutchins in fact violated Richardss rights, he wrote. If the factfinder [the jury] later determines that key facts are not as we must assume them to be the legal conclusions that may be drawn at that time may be different than the ones we draw here.

Among the facts in question: Was the barrel of Richards gun pointing at the sky or at the ground when Hutchins fired, or was it pointed forward? Was Richards facing the front door, or going back down the steps? How much time elapsed between Underwood going inside and Hutchins opening fire? And was it feasible for Hutchins to give Richards a warning before he killed him?

Because Hutchins and Tyer parked their cars around the corner from Underwoods house, there is no video recording of the scene. (The officers were not wearing body cameras.) The LRPD also lost dashcam video from the six police cars that arrived after the shooting, despite a request from Coles lawyers in the following weeks that they preserve it. Coles lawyer has asked the court to sanction Hutchins because this evidence was destroyed.

Its largely going to come down to the Fourth Amendment question as to whether it was unreasonable, and whether or not its going unreasonable depends a lot on what you believe happened that night, Ravenell said. This case really turns on whose story you believe.

Laux, Coles attorney, said Arkansass open carry gun laws could be a focal point of the defense.

They could have said, Hey, hey. Knock it off, what are you guys doing? Let me see your hands, [or] Drop the gun. Drop it or Ill shoot, I will kill you, Laux said. But you got to give the person, especially in an open carry state like Arkansas, you got to give a person a chance to not get freaking killed.

I think thats a really important holding, Ravenell said. If people have the right to bear arms, we need to think about the relationship between the Second Amendment and the Fourth Amendment, which gives officers the right to use force during the course of a seizure.

Its not clear what made Richards retrieve the BB gun from his car that night, but he was used to handling one. Richards and Cole grew up in England, Arkansas, the seat of rural Lonoke County, and Cole recalls her brother spending his childhood hunting and fishing, sometimes shooting rabbits with a BB gun out of the back seat of his dads Chevy. As an adult, she said, he took the BB gun with him when he went fishing to protect himself against snakes.

Cole was at home when Richards was killed. Underwood had called her after Richards came to his house the first time, and told her that Richards had been drinking. She called her brother then, as he was leaving.

He said, Nae, Im okay, I love you, she recalled. And I said Okay, I love you too.

Coles phone was off the rest of the night, and she didnt get news of her brothers death until the next morning.

My son was getting ready to go off to college. I guess he had the news on his phone, and he came right on back, he turned around, and he said, Mama, they shot Uncle Roy.

Cole said she never received a phone call from the police but the calls from her friends and neighbors kept coming in that morning. Everybodys telling me the police killed your brother, the police killed your brother. But Im on the phone trying to call Brother to see whats going on, because I know its not true, she said. And I found out that it was true.

Cole and her father drove to the Little Rock police station. She says they asked to see Richards body and were told no; their other questions about the circumstances of Richards death were met with assurances that the LRPD was conducting an investigation. Eventually, when it seemed they would get little more information, Cole and her father decided to leave. She says they never heard directly from the LRPD about the investigation into his death again. (The LRPD public affairs office did not respond to requests for comment for this story.)

Hutchins was placed on administrative leave following the shooting and was cleared to return to work on Nov. 7. An internal LRPD investigation eventually cleared Hutchins of wrongdoing, as did city prosecutors. The investigation concluded that his use of deadly force was justified because Richards posed an immediate threat to Underwoods life.

Coles attorneys question how thorough the LRPDs investigation really was. Their report claims Hutchins told LRPD homicide detectives he shot Richards because he had no other viable option to protect himself or the citizen from the use of deadly force. But Hutchins never told detectives that he shot Richards out of fear for his or Tyers life, a fact the lead investigator later admitted in a deposition with Coles lawyers.

In their report, the Crime Scene Search Unit misidentified the side of Richards head that was struck by the bullet a fact which went unnoticed by LRPDs investigation. Hutchins and Tyer gave detectives conflicting statements about the position of Richards gun when Hutchins opened fire: Hutchins claimed Richards was pointing the rifle at Underwoods back, while Tyer said in one statement that he held it vertically along his leg and in another that he held it horizontally by his leg. The lead investigator also admitted in the deposition that there were a number of potential policy violations uncovered during interviews that she did not follow up on.

They rubber stamp everything. Theres no officer accountability, Laux said. They bend the rules, they ignore facts. When theyre aware of policy violations, they dont enforce them. They go out of their way to exonerate the officer.

Coles complaint initially named the city and former police chief Kenton Buckner as defendants, saying the Little Rock Police Department had a history of crime scene tampering and less-than-thorough internal investigations of police shootings. (Buckner, who left the department in November 2018, was chief at the time of Richards death.) The complaints against the LRPD and its former chief Buckner were thrown out by a district judge in 2019.

The trial comes at a tumultuous moment for the Little Rock Police Department.

Just over a year ago, Frank Scott Jr., Little Rocks first elected Black mayor, opened an independent review of the department. During his 2018 campaign, he called for a federal Department of Justice investigation followinga Washington Post report on the departments abuse of no-knock warrants. That put him on the bad side of the police union, which endorsed his runoff opponent.

Scott hired the current chief, Keith Humphrey, in March 2019. Humphrey promised reform, but his tenure thus far has beenrocky. Several of Humphreys subordinates have sued him, saying he retaliated against them for publicly criticizing his leadership; Humphrey in turnfiled a countersuit against many of those same employees and other parties, alleging a conspiracy by the police union to prevent reform within the department. Mike Laux, Coles attorney, also represents Humphrey in his lawsuit against his own subordinates.

Lauxs career has become entangled with the LRPDs internal dramas, but his record of lawsuits against the department is formidable. He represented the family of Bobby Moore,a 15-year-old Black child killed in 2012 by an LRPD officer with a long disciplinary record. A federal juryawardedthe family $415,000 in damages in 2017. Later, he represented the family of Eugene Ellison, a 67-year-old Black Navy veteran and the father of two police officers who was shot and killed by police in his own home in 2010.That case resulted in a $900,000 settlement and an apology from the city in 2016.

For the past five years, Richards sons, his nephews, his sister, and his father have struggled to fill the hole left by Brother, as Cole calls him. Cole has been in therapy for the past three years. Richards sons have moved back and forth from Coles home to their mothers. Family get togethers are not the same without Richards stories to entertain them.

When the working day was done, hed come to my house, wed sit on the porch and have beers, Underwood said. I still literally look for him to pull up to the house. I see somebody walking and I say Hey, that guy looks just like Roy.

The song Wish You Were Here by Pink Floyd has taken on a special meaning for him. Every time I hear that song, I think about Roy. When I play that song, I start crying because I think I wish he was here, he said.

The familys trauma has been compounded by the circumstances of Richards death.

It took a big toll on my life, said Cornelius Cole, Vanessas husband. Richards introduced the pair to each other when Cole worked with him at the family tree business. Its hard to get up and go to work or even go to sleep at nighttime because being a Black man youre thinking oh my god, am I going to get assassinated? After a recent injury, Coles fingers were wrapped in a black cast; he went back to the doctor and had them replace the cast with a different color because he was afraid his fingers would be mistaken for a gun.

It seems to be that because we are dark-skinned people, our skin is a weapon, Vanessa Cole said. Because of the color of our skin, were treated as rough, as violent. We are not.

Our life can never be put back, Cole said. Theres a place in my heart for that man, theres a hole in my heart there for him. And itll always be that he had to die out in the street, like an animal. He didnt deserve that.

It didnt have to be, she said. It did not have to be.

This story is courtesy ofthe Arkansas Nonprofit News Network, an independent, nonpartisan news project dedicated to producing journalism that matters to Arkansans.

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He had a BB gun. A cop had a semiautomatic rifle. Without warning, the officer fired five times. - Arkansas Times