Who Watches the Watchmen?

Published in Arkansas Times on Oct 10, 2017

Attorney Mike Laux has sued the city of Little Rock five times over police-involved shootings, winning well over $1 million in settlements and judgments. He’s just getting started – David Koon.

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The fact is, no matter how heinous the circumstance, no matter how damning the proof, no matter how clear the video, no matter how sympathetic the person who died, America just does not like to send cops to jail for killing in the line of duty.

According to a massive database of police use-of-force incidents since 2005 compiled by Bowling Green State University criminologist Dr. Philip Stinson, American police officers kill somewhere between 900 and 1,000 people every year while on duty. While it’s pretty much a statistical certainty that at least some of those shootings aren’t by the book and on the up-and-up, Stinson’s research also shows that cops who kill suspects in the United States are rarely charged for crimes related to those killings. They’re even more rarely convicted. Stinson can find only around 80 police officers who have been charged with murder or manslaughter after a fatal on-duty shooting since 2005. Only 29 of those officers were later convicted, with all but five convicted of the less serious crime of manslaughter.

The difficulty of securing a conviction against a cop played out in Little Rock in recent years, with former Little Rock Police Department officer Josh Hastings twice put on trial for second-degree murder in the 2012 slaying of Bobby Moore, a 15-year-old who was shot to death by Hastings as Moore and two friends tried to flee in a stolen Honda from a West Little Rock apartment complex where they had been breaking into parked cars. After two long and expensive trials in which prosecutors and experts alleged that Hastings shot Moore even though Hastings’ life wasn’t in danger and then he lied extensively to cover up what had happened, the jury hung twice, unable to reach a verdict after days of deliberation.

With anger about police killings of suspects — 748 nationwide so far this year, according to a running tally kept by The Washington Post — boiling over into popular culture in the form of the Black Lives Matter movement and the President Trump-fanned controversy over NFL players taking a knee during the National Anthem to protest police brutality, the federal civil rights lawsuit has become the strongest pry bar for those seeking justice, or at least some financial semblance of it, when official investigative channels and criminal prosecutions fail after questionable police use of deadly force. While criminal juries may be reluctant to put cops in jail following the “beyond a reasonable doubt” standard, civil juries, which only have to decide whether a plaintiff’s claims are more likely to be true than not, seem to have no problem meting out punishment to municipal pocketbooks over iffy police killings.

When it comes to civil suits against the Little Rock Police Department, the biggest thorn in its side right now is civil rights attorney Mike Laux. Laux (whose name is pronounced like “low”) has sued the city over questionable use of deadly force five times, including a recently filed lawsuit over the death of Roy Richards, a 46-year-old Little Rock resident shot in October 2016 after Richards pulled out a BB gun during a drunken fight with his uncle. From those lawsuits, Laux has won a string of settlements and judgments for his clients, including a $415,000 personal judgment against former LRPD officer Hastings in April over the Moore shooting, and a rare apology from the city and a $900,000 settlement related to the death of 67-year-old Navy veteran Eugene Ellison, who was shot to death by LRPD officer Donna Lesher after an altercation in Ellison’s apartment near Colonel Glenn Road and University Avenue in December 2010. The Ellison payout is the largest settlement in a civil rights case in state history.

Preparing for those cases meant deposing dozens of LRPD and city officials and plowing through reams of departmental documents related to past police shootings. In the process, Laux has taken a deep dive into the history of the LRPD’s use of deadly force and how the department handles cases where a suspect winds up in the morgue. Though he’s definitely got a profitable dog in the hunt when it comes to his opinion of how the LRPD uses deadly force, Laux believes that in most cases, official attempts to insulate an officer from responsibility begin the moment a fatal round is fired. Laux also believes that Little Rock’s pattern of resisting apology and defending cops in court at all costs, sometimes for years, following the questionable use of deadly force is a wedge that drives blacks and whites in Little Rock ever further apart.

A call from Little Rock

Laux knows what it is to walk a tightrope between worlds. Born to a white mother and black father in Milwaukee, Wis., in 1973, Laux said it was hard growing up biracial in a city he says is still one of the most racially divided in the country. But the diplomacy skills he had to cultivate as a kid have made him a good trial lawyer, and help him understand the push-pull that keeps race relations in Little Rock on edge. “I know that tension,” he said.

Laux said he wanted to be a lawyer because of his Uncle Elliott, the only attorney in his family. His uncle was the person his extended family called on in times of trouble, a calming force who always seemed to have the answers when his loved ones found themselves in a jam. As he got older, Laux realized that not every family has a person like that. “There are people in society who are disadvantaged, and who don’t have a voice,” he said. “We had Uncle Elliott. Some people don’t have an Uncle Elliott. Some people don’t even know a lawyer. They don’t know where to go.”

Laux went to law school at the University of Wisconsin, graduating in 2002. In school, Laux came to love the symmetry and predictability of the law and the notion of reasonableness as a standard. After law school, he moved to Chicago and joined the firm of Johnson and Bell, specializing in medical malpractice defense. He did that for four years, but always felt something was missing. A chance meeting with attorney Johnny Cochran, famous for his defense of O.J. Simpson, changed Laux’s trajectory.

“We had a real nice conversation, and he said to me, ‘Mike, what are you doing with the defendants? You’ve got to come to the plaintiff’s side, son,’ ” Laux recalled. At the time, Cochran was forging relationships with black-owned firms across the country, including a loose partnership with the civil rights attorney Jim Montgomery in Chicago. Laux signed on as an attorney with Montgomery’s firm in 2006 and started working on civil rights cases.

Laux was working there in January 2011 when he got a call from brothers Troy and Spencer Ellison in Little Rock, both veteran officers with the Little Rock Police Department. On Dec. 9, 2010, their father, Eugene Ellison, was sitting in his apartment near Asher and University when Donna Lesher and Tabitha McCrillis, two off-duty LRPD officers working security at the complex, noticed Ellison’s door ajar and stepped inside. After Ellison told them to get out, a fight ensued, with Lesher and McCrillis both later testifying that Ellison had used his walking cane as a weapon. With the two officers unable to subdue Ellison, they called in backup. Though the facts of the case are disputed, after two other officers arrived on scene, the four officers were standing on the balcony outside Ellison’s apartment door when Lesher pulled her department-issued Glock and fired through the open door, shooting Ellison twice in the chest. He died at the scene.

Vincent Lucio, one of the backup officers, would later testify that at the time Lesher shot, he didn’t believe Ellison represented a deadly threat to the officers on scene. Another officer, veteran detective J.C. White, would later testify that it was his belief that the department and the city had made Ellison out to be “a monster” in the wake of the shooting. Nonetheless, in May 2011, Pulaski County prosecutors ruled the shooting justified and announced they wouldn’t be filing criminal charges against McCrillis or Lesher.

“[Spencer and Troy Ellison] were so credible that I didn’t have any reason to doubt them,” Laux said. “The facts were incredible to me. Shot in his own home? No crime, no call, not even, ‘there’s a suspicious person hanging around’? Just a routine sweep at an apartment complex and a man is dead because of a walking cane? Those facts are what drew me to it … . I basically just trusted these guys, and it just seemed like an important case in a historic city. It was really the caliber of those two men, and the hurt they were experiencing. The betrayal they felt — the true betrayal.”

Through Laux, Troy and Spencer Ellison declined an opportunity to comment for this story.

Right off the bat, Laux noticed a number of glaring abnormalities in the police investigation of the Ellison shooting. Lesher’s husband, Sgt. James Lesher, was the head of the section that investigated officer-involved shootings at the time. Laux would eventually learn that on the night of the killing, James Lesher had picked his wife up from the crime scene and drove her back to department headquarters, staying with her for four hours until she was officially interviewed. It was one of dozens of troubling things about the investigation. For example, Laux later learned that of all the DVDs containing footage from surveillance cameras in the complex that were collected as evidence by the LRPD, only the DVD containing footage from the camera pointed at Ellison’s door — footage that should have showed Lesher firing the shot that killed Eugene Ellison — was damaged. Though the LRPD use-of-force continuum, a kind of ladder of escalating force with deadly force on the top rung, stipulates that pepper spray should be employed if possible before shooting a suspect, and Lesher later stated that she’d used pepper spray on Ellison, not a single report filed in the case mentioned the odor of pepper spray in Ellison’s apartment. After it became an issue in the case, almost a dozen LRPD officers submitted supplementary reports saying they had, in fact, smelled pepper spray at the scene that night. Pulaski County Coroner Garland Camper and others would later confirm there was no pepper spray on Ellison’s body.

It was an autopsy report, however, that revealed what Laux believes is one of the most damning bits of evidence in the case. Though the official report said Lesher shot Ellison as Ellison rose from the couch to confront officers again with the walking cane they say he’d been using as a weapon, the autopsy found that the trajectory of both bullets through Ellison’s body entered his upper chest and ran the length of his torso before exiting at his lower back, as if he was bending over, on his hands and knees, or falling forward onto his face when he was shot.

“If you could only ask one question of Donna Lesher,” Laux said, “it was this, ‘If Mr. Ellison was standing upright when you shot him, like you say he was, why did the bullets go the length of his body? Answer that question.’ Because if I shoot somebody, and I say they were approaching me standing up, and the bullets go up and down — vertical and not horizontal [through their body] — I’m in a lot of trouble. I dare say there’s a lot of people doing time right now because their stories don’t match the physical evidence. That’s a question that was never asked of her. It was never asked of her until I took her deposition, and she had no answer for it.”

In preparing for the case, Laux made what he called “a very, very big document request” from the city of Little Rock: the prosecutor’s file on every fatal police shooting in Little Rock since 2005. The resulting files filled 30 packed bankers boxes. In between other cases, he started plowing through the reams of paper, learning the ways the LRPD investigated their own when a suspect wound up dead.

“I swear to God, there was not one file that I looked through that was, ‘OK, that’s legit,’” he said. “It was always something. Sometimes it was huge. Sometimes it was curious. But there was always something. A witness said something extremely provocative that no one followed up on. Or, ‘Where’s the video these guys keep talking about?’ Or, ‘Why didn’t they dust for fingerprints?’” Laux said there are a number of troubling themes that pop out from the police questioning of witnesses, suspects and officers following officer-involved shootings. “Let’s say someone’s cousin gets blown away before their eyes. They question the cousin,” he said. “You’d think the cousin is the criminal. They’re hard-assed with the cousin. They’re like, ‘You didn’t see that, right? You didn’t see his hands, right? Well, I think I did. Well you said before you didn’t. Now you’re changing your story? Well, I didn’t see it at the time …’ Treating him like an asshole. What they try to do is, they try to rule out that any particular witness saw the victim’s hands at the exact time of the shooting.”

Laux said that what the witnesses don’t realize about a conversation like that is, it’s a sort of de-facto deposition, which Laux believes is designed to insulate the officer from responsibility should the shooting ever be the subject of official scrutiny or a lawsuit.

“Sometimes these people are barefoot and still have bloodstains on them,” he said. “They literally saw someone blown away an hour and 40 minutes ago. Now they’re being threatened with charges of perjury. They tend to not be the most sophisticated citizens. The cops know where they live. It’s a terrible situation. Fast-forward to the officers and it’s like night and day. Open questions, vague questions, no follow-ups.”

In October 2011, Laux and the Ellison brothers announced they would be filing a federal civil rights lawsuit over the shooting of Eugene Ellison. Over the next five years, Laux would spend over $200,000 and untold hours on the case, deposing almost every officer or city official who ever came near it. After years of back and forth between the parties and thousands of hours of work, U.S. District Judge Brian Miller refused the city’s request to dismiss the case. The city appealed to the U.S. Supreme Court, which declined to hear it, which allowed the Ellison brothers’ lawsuit to go forward. On May 6, 2016, the Friday before the case was set for trial in Miller’s court, Laux announced his clients had reached a historic settlement with the city that included a $900,000 payment, an apology to the family and the installation of a bench dedicated to the memory of Eugene Ellison. The city refused to admit liability in the death of Ellison. An undisclosed settlement reached on April 27 with the owners of the apartment complex where Ellison lived when he was killed pushed the total awards in Ellison’s death to well over $1 million.

Even though the settlement benefited both Laux’s pocketbook and his practice, he said it’s an expenditure of money, time and resources the city could have easily avoided. “If they had told Spencer and Troy, ‘We’re mortified by what happened. This is a terrible shooting. We’re not going to arrest her, but we’re going to discipline the shit out of her and she’ll never be on the street again, and can we make a $10,000 donation to the U.S. Veterans fund?’ those guys would have said yes and turned the page. That’s the kind of guy those guys are. But instead, they spent all kinds of money fighting this. They created all kinds of discord and division fighting this … . They wound up giving $900,000 anyway and suffering a black eye, and made me a folk hero of sorts, deservedly or not. They created me. Now they’re bitching about me. But they created me.”

$415,000

Laux eventually sued over two other LRPD shooting cases: the July 2008 death of 25-year-old Collin Spradling — who police say was killed after he pointed a gun at them, though a witness said that at the time he was shot, police had him on the ground with both hands behind his back — and the November 2009 death of Landris Hawkins, a mentally ill man whose family called police after Hawkins put a knife to his throat and threatened suicide. Hawkins was shot four times, 98 seconds after the first officer arrived on the scene. Laux settled the Hawkins case. The Spradling case is still pending.

In the summer of 2014, Laux was contacted by the family of Bobby Moore, which was frustrated after two mistrials and an announcement by the Pulaski County prosecuting attorney’s office that Josh Hastings wouldn’t be put on trial for a third time. In April this year, arguing before an all-white jury, Laux won a $415,000 personal judgment against Hastings in the case. “I’ve never had an all-white jury before and certainly never in the Deep South,” Laux said. “To be able to get them to see the light and focus on what’s right and what’s wrong is very important to me. I was very proud of that.”

Sylvia Perkins, Moore’s mother, said that she believes her family would have never been able to reach a successful conclusion in their case without Laux’s help. She believes part of the reason Laux is successful is because, being from out of town, he isn’t part of the Little Rock system. “Mike Laux don’t know nobody here,” Perkins said. “He works for his clients. He don’t work for himself. He don’t work to make himself look good, he works to make his clients feel good. … When I got into the civil suit, there was a lot that I heard and found out that I didn’t know nothing about from the other trials. Mike showed me a lot. He put a lot in my face that I feel like was hid from me. I fault Little Rock. I fault the police department.”

Laux said Perkins is a very special client who reminds him a lot of his late mother. While Bobby Moore was a different kind of victim than Eugene Ellison, Laux believes Moore didn’t deserve to die for breaking into cars.

“No one likes that. That’s a total breach, and Bobby did that. That’s what he was doing. I’ve had cases like that with clients before, with clients who weren’t doing good stuff,” Laux said. “But he was 15 years old. On the one hand you say, ‘What the hell is a 15-year-old kid doing out there?’ Which is a legitimate question. But we all do the best we can with the resources we have. Sylvia was working 65 hours a week. She was the woman who cleans up your hotel. She did the best she could with her boy.”

These days, Laux has only a handful of cases pending in Chicago and California, where he splits his time. The lion’s share of his work is in Little Rock. While he said Little Rock is full of fine civil rights attorneys and more than its share of excellent African-American attorneys, he sees being headquartered elsewhere as an asset. “If you really take racial injustice to the mat here, no holds barred, the way you should advocate for your client, and you happen to be an African-American lawyer, you can run into big problems,” he said. “I believe that I am invulnerable to a lot of the pressures that can be placed upon the great, well-intentioned black lawyers in this town. …

Socially, politically, all of the above.” His current caseload includes a civil suit filed in August over the shooting of Little Rock resident Roy Richards, 46, who was killed on Oct. 25, 2016, on E. Eighth St. by LRPD Officer Dennis Hutchins with an AR-15 rifle during a drunken altercation with Richards’ uncle, Derrell Underwood. Though the official report claims that Hutchins fired the fatal shots because he feared for Underwood’s life after seeing Richards pursuing his uncle with a rifle — a rifle that turned out to be a BB gun — Richards’ family, including Underwood, contends that at the time Richards was killed, Underwood had already gone into his house, locked the door and had gone to a back bedroom to wake a sleeping relative. Video from LRPD cruiser dash cams shows Hutchins and another officer arriving on scene without even their headlights on, much less blue lights and sirens, then approaching the scene in the dark. Though the actual shooting isn’t captured on the footage, the audio is, and no verbal command or announcement of the officers’ presence can be heard before the fatal shots were fired.

Another high-profile case Laux has pending is a First Amendment-based suit on behalf of Pulaski County Circuit Judge Wendell Griffen, who was stripped of his ability to hear cases associated with the death penalty by the Arkansas Supreme Court after Griffen participated in a 2017 Good Friday vigil at the Governor’s Mansion, which saw Griffen lay down on a cot while members of his church and protestors with anti-death penalty signs stood nearby. The vigil happened the same day Griffen had ruled against the state in a claim filed by the drug supplier McKesson, with his ruling temporarily halting a raft of executions scheduled by the governor. Though initial news reports said Griffen was emulating a condemned inmate on a gurney, the judge has since said he was actually acting in solidarity with Jesus, with the Governor’s Mansion chosen because of the similar role played by Pontius Pilate in the crucifixion.

Griffen said he chose Laux to represent him in the case because Laux is “the real deal,” and is carrying on the work of longtime Little Rock civil rights attorney Rep. John Walker (D-Little Rock). Griffen believes civil suits over police shootings, like those filed by Laux, have an important role to play when internal investigations and criminal trials over questionable police shootings bear no fruit.

“The civil remedy does allow oppressed people who have been victimized by abusive and homicidal police conduct to recover what damage has been done to them,” Griffen said. “Eventually, taxpayers and voters ought to get tired of having part of their revenue stream being used to basically defend and to pay damages for abusive and homicidal conduct. This is money that is being spent in the name of the public for conduct that the public has every right to detest. I think eventually people ought to say, ‘We can figure out how to stop this. If we have to fire some folks, we can fire folks until they learn how to not get sued.’ ”

Griffen said the $900,000 settlement in the Ellison case should send the message that people who have been victimized “are not going to tolerate this kind of conduct.” He said he’s seen no evidence that it’s a lesson the city has learned yet. “There is something systematically wrong with the way the city of Little Rock does policing that cannot be cured by business as usual,” Griffen said. “You can’t keep doing the same thing you’ve always done, expecting different results. So, I think these lawsuits and these recoveries show that people are fighting; secondly, that the fights are going to be waged seriously; and third, that the fights are going to succeed. The question is whether or not the Little Rock Police Department is going to get the message and change their ways.”

A Theory of Everything

Here’s news that should send a shiver through the powers that be: Mike Laux, having forged friendships and relationships here, has considered moving his growing family to Little Rock. He’s been on TV enough now that he gets honest-to-God “Rocky” style shouts of encouragement while walking down the street, with people rolling down their windows to shout and honking their horns to give him an attaboy. He’s been coming here for seven years now, and he has seen the city develop an energy to it like Austin or Nashville, becoming what he called a “complete place,” full of aspirations, dreams and talented people, ready to bloom. But he also believes that energy, and attempts at healing the city’s racial divisions, is being held back by an old guard who doesn’t really want things to change.

“This place could pop like nothing if you took the shackles off of it,” he said. “People don’t like to do business where there’s corruption. People don’t like to do business where there’s bad vibes and bad headlines. I feel like maybe in a generation, it’ll be different, but it’s like there’s this old claw that won’t quite let go.” That claw, Laux said, belongs to a select few grasping at power, squeezing tighter as it slips through their fingers. He believes that struggle touches every facet of life in the city. Call it Mike Laux’s Theory of Everything.

“It’s about control,” he said. “If you want to talk about an overarching situation that affects everything — Wendell Griffen, the LRPD, Roy Richards, I suspect the [Little Rock School District] — it’s about controlling resources and power. … Everyone can feel it percolating — diversity. But this place is stifling that diversity because I think it’s threatened by it.”

While Laux believes breaking that stranglehold is a complicated puzzle, he said it could start with truly changing things at the LRPD, including requiring independent review of police-involved shootings by an outside agency, possibly the Arkansas State Police, with civilian input.

“I’ve said to [LRPD officials] so many times in depositions: ‘If you trust your training, if you trust your people, if you trust your curriculum, if you trust your officers, why would you be adverse to independent review? If you’ve trained them the way they’re supposed to be trained, if they’re doing what they’re supposed to be doing, why not say, ‘Bring it on’? But it’s a power thing. They don’t want to relinquish that power.”

Another piece of the puzzle, Laux believes, would be the city admitting fault and moving to atone for mistakes when the evidence clearly shows a police shooting has gone wrong. During the Ellison case, Laux said, he told attorneys for the city as much, and tried to convince them that a protracted legal fight could only deepen the city’s divisions, whereas offering an apology and settlement would help heal them. It’s an argument he’s prepared to make again in the Roy Richards case.

“If the city apparatus as it were really wanted to make a statement and really wanted to signify something,” Laux said, “they should come out and say, ‘This was a bad shooting, and we’re sorry, and we want to make it right.’ Not only is that the right thing to do for the family and the right thing to do for that officer, but do you know what a political boon that would be for them? Do you know how refreshing that would be to this city?”

By fighting every lawsuit over a police shooting tooth and nail, Laux said, Little Rock further alienates the black community, making African Americans feel more adversarial to the police and divorced from ownership of their city. “Citizens need to feel like they have a stake in the game,” he said. “Again, it’s all inter-related. If you don’t feel like you have a stake in the game, if black folks get killed and nothing happens, you’re not going to feel like you’re a participant.

If you don’t feel like you’re a participant, then who gives a shit? ‘I’ll vandalize anything, I’ll steal from anyone, I’ll jack anyone.’ I really feel like that about the city as a whole.”

As for his practice, Laux is keeping track of police shootings in Little Rock. He’s currently doing research on a number of shootings that have crossed his desk and will be filing more suits in the future, trying to dig deep enough into the city’s purse that officials finally get the message that things need to change. He believes he owes it to a city he has adopted as a second home. “We’re talking about universal rights in my opinion,” he said. “So I’m not going anywhere.”