“All I know is this. If you’re the kind of police department that would hire someone who attended a Ku Klux Klan meeting, you knew something like this was going to happen. How could you not know that?”
Sylvia Perkins is sitting in an oversized chair at her home in a Little Rock subdivision. She’s wearing a black sweatshirt displaying a photo of her son, Bobby Moore. He’s smiling and saluting while wearing a Boston Celtics cap. The shirt’s format is familiar. It is similar to shirts worn by participants in police brutality protests all over the country. It is a shirt you wear when someone you love was killed by the police.
Fifteen-year-old Bobby Moore was fatally shot in 2012 by Josh Hastings, a police officer with the Little Rock Police Department. Despite serving on the force for only five years, Hastings’s tenure would prove to be enormously consequential. He had been hired over the objection from a high-ranking black police officer, and that objection was well-founded: Before his hiring, Hastings had once attended a meeting of the Ku Klux Klan, then lied about it on his application. He went on to accumulate an astonishing disciplinary record, usually resulting in lax punishment for misconduct.
Hastings once boasted about body-slamming a homeless black woman to the ground. Video footage showed he had lied about a burglary investigation. He slept on the job, drove recklessly and had problems activating his dashboard-mounted camera. He admitted to using racist language. He sometimes needed help writing reports, and colleagues described him as lazy, incompetent and unfit to be a police officer.
Hastings’s ultimate confrontation with Moore, then, seemed almost inevitable. He confronted Moore and two other boys after reports that they were breaking into cars. When the boys managed to get one of the cars started, Hastings fired into the car, killing Moore. Hastings would later claim Moore was attempting to run him over, but forensic analysis showed the vehicle was either stopped or moving backward, and Moore’s wounds were consistent with a driver backing up, not surging forward. The other boys were not wounded.
But Hastings’s story isn’t one of a rogue, aberrant cop so much as a glimpse into the police culture of Arkansas’s largest city. Disturbing as Hastings’s disciplinary record may be, other officers in the department have even thicker personnel files. In fact, many of the very officers who trained and supervised Hastings have had lengthy histories of misconduct — including domestic violence, lying, and the use of excessive force.
A review of LRPD personnel records, emails and court cases dating back to Hastings’s hiring in March 2007 suggests a department plagued by nepotism, cronyism and racism — both blatant and subtle. Internal investigations of officer misconduct can be sloppy and incomplete, and are often haphazardly conducted by officers with clear conflicts of interest. There appears to be little supervision at any level, whether by sergeants over beat cops, the high command over supervising officers, or city and elected officials over the department’s leadership. When officers have been fired — and it takes a lot to get fired — they are often able to appeal and win back their jobs, either in court or through the city’s Civil Service Commission, usually with the help of the police union.
“The sheer number of misconduct allegations against some of these officers is staggering,” said Chiraag Bains, former senior counsel for the Justice Department’s Civil Rights Division. Bains, who is now a visiting fellow at Harvard’s Criminal Justice Policy Program and is now director of legal strategies for the reform group Demos, co-wrote the Justice Department’s report on policing in Ferguson, Mo. I asked him to look over and comment on my reporting from Little Rock. “Assuming these allegations are true, there’s a lot here that’s deeply disturbing. The lack of discipline and accountability is almost comical. And it appears to be a diverse array of misconduct, not just excessive force or shootings,” he said.
The Josh Hastings story, then, is also one of cascading institutional failure.
“Josh Hastings was fired and criminally charged,” said Lt. Johnny Gilbert Jr., the only high-ranking officer to raise objections to Hastings’s hiring. “But getting rid of him doesn’t get rid of the rot, of the internal rot, that allowed Josh Hastings to happen. If you don’t get at that rot, you just get more officers like Josh Hastings.”
Hastings has already been found personally liable for Moore’s death but holding the LRPD accountable for its failure to prevent the incident is more of a challenge. Under federal law, cities and towns aren’t liable for the actions of the police officers in the way private corporations are often liable for the actions of their employees. Instead, a plaintiff must show a pattern or culture of deficient training, supervision and misconduct so pervasive that constitutional violations are nearly inevitable — a type of lawsuit known as a Monell claim. Because elected officials are often loath to criticize police agencies, Monell claims are often the last best hope for reforming an out-of-control police department. But they are also expensive, time-consuming and rarely successful. It can be difficult to even get such a claim in front of jury. Consequently, there also aren’t many lawyers who will take them on.
Moore’s family filed a lawsuit alleging that Hastings was personally liable for the boy’s death and that the LRPD and city were liable under Monell. While they were successful against Hastings, last year, a federal district court judge rejected the Monell claim from Moore’s family, effectively removing the police department and city of Little Rock from its lawsuit. The family appealed. In April, the case moved to oral arguments before the U.S. Court of Appeals for the 8th Circuit. At those hearings, civil rights lawyer Michael Laux, representing Moore’s family, and lawyers for Little Rock debated whether the training, policies, supervision and disciplinary record of the Little Rock Police Department are deficient, and whether those deficiencies could foreseeably lead to violations such as the fatal shooting of Moore. The decision should come down later this year.
But the repercussions of this case could go well beyond Little Rock. The Trump administration has made clear that the Justice Department will no longer investigate and oversee problem police agencies as the Obama administration did in places such as Ferguson, Baltimore and Chicago. Police reformers say that will make it more difficult to draw attention to problematic police agencies, much less push for systemic reform. Difficult as they are to win, lawsuits such as the one brought by Moore’s family may still be the best chance.
“To me, this looks like a strong Monell claim,” said Bains. “I’d be really concerned if the 8th Circuit doesn’t overturn the district court’s ruling. If it doesn’t, the court is telling other plaintiffs, other victims of this sort of misconduct, that they aren’t going to get any relief either.”
Back in 2006, Gilbert found something odd on Hastings’s application to become a Little Rock police officer. In response to a standard question about whether the recruit had ever attended a meeting of “a subversive, violent or racist group,” Hastings checked no. But in different ink, and in different penmanship, there was also an explanation as though Hastings had answered yes. The added script explained that Hastings had once attended a KKK meeting with a friend and the friend’s grandfather, but only to see “what was going on in the community.”
Recruits are typically given polygraph tests after filling out their questionnaires. Gilbert, at the time, headed the LRPD division that oversaw the administration of polygraphs. “I was concerned,” he said. “So I started asking questions.” Gilbert learned that the person who administered the polygraph was the mother of one of Hastings’s longtime friends, and had known Hastings since childhood. Upon further examination, he discovered that Hastings’s polygraph had been halted — against policy — at the point in which the administrator would have asked about any affiliation with racist organizations. Gilbert believes Hastings failed the polygraph and, rather than report it, the administrator stopped the test, persuaded Hastings to be more forthcoming, and went back and wrote in the correct answer to the question. She then gave Hastings another attempt to pass the test — which he did.
Gilbert, who is black, wrote a memo to then-LRPD Chief Stuart Thomas strongly urging him not to hire Hastings. (Thomas would later confirm in a deposition that Hastings had failed the polygraph.) First, Gilbert wrote, Hastings’s attendance at a Ku Klux Klan meeting while he was in high school should have disqualified him, in and of itself. Second, Gilbert had seen countless black applicants rejected for far less.
“I saw young men — good young men — get rejected because they might have briefly been in a gang 10 or 15 years ago,” he said. “Or they had a brother in a gang, and maybe they were briefly a messenger,” Gilbert says. “Any affiliation at all, and you were disqualified. It was zero tolerance. The policy made no room for redemption. Now here’s this kid, he attends a meeting of the Ku Klux Klan, and we’re going to hire him?” Gilbert slowly shakes his head from side to side. “No. No, I can’t abide that.” Asked in a deposition why Hastings was hired, Thomas said, “The individuals who interviewed him made recommendations, and I went with their recommendations.”
At about 200,000 people (740,000 in the metro area), Little Rock is the largest city in Arkansas. But it can often feel more like a large town. There’s not much anonymity. The same family surnames pop up in politics and positions of power. At the LRPD, legacy hires are common, and dating and marriage are allowed within the department. All of this can create problems when police officers are asked to investigate one another.
There are demographic problems at LRPD, too. For one, as of late last year, the department was 100 officers short of capacity. In a department of currently about 500, that’s a significant shortage of manpower. “It means longer shifts, less backup and more stress,” said Gilbert. “When officers are tired, worried, on edge, they’re less patient. You’re more likely to resort to force. You’re more likely to panic.”
The LRPD faces this shortage despite the fact it pays nearly as well as or better than any police agency in the state. “It’s an image problem,” Gilbert said. “Particularly in the city, no kid dreams of becoming a cop someday. We’re the bad guys. And that’s on us.”
As with many cities, Little Rock experienced significant white flight over the latter half of the 20th century — white people made up 74 percent of the city population in 1970, compared with about 47 percent now. But the department itself is still 65 percent white. Perhaps more importantly, most officers — and a large majority of the white officers — live outside the city limits. “It’s a problem, no question about it,” said Charles Blake, a state legislator who represents a working-class, 70-percent black district in southeast Little Rock. “If police officers don’t have a personal investment in the communities they patrol, there’s no sense of being on the same team. They need to reach out more — we need better relationships between the LRPD and black neighborhoods in Little Rock.”
Reaching out would help, but so would taking racism within the department more seriously. Colleagues say Hastings was once heard calling a group of blacks a “bunch of monkeys.” Other colleagues have said in depositions that Hastings and another officer were also known to refer to a particular black neighborhood in Little Rock as the “n‑‑‑‑‑.” (In a 2016 deposition, Hastings denied using the term, but said he did hear another officer use it.) Hastings himself testified at a deposition that he often used the n-word, and that his high-ranking LRPD father had used it around the house when he was growing up.
Hastings’s partner, Arthur McDaniel, also testified to using the word, though he said he avoids saying it directly to black people — “out of respect.” In 2014, McDaniel was accused of calling a white woman who was dating a black man a “n‑‑‑‑‑ whore.” He denied the accusation, but retired (apparently due to post-traumatic stress disorder), and the department ceased its investigation. Another officer was also allowed to retire for medical reasons as he was being investigated for calling a group of black residents “a pack of spades.” Officer Todd Payne was perhaps the worst example. In 2010, he sent an email to fellow officers about an officer’s shooting of an elderly black man with the words “Dead N‑‑‑‑‑” in the subject line. (The deceased happened to be the father of two LRPD officers.) Payne also once left white-supremacist magazines in his squad car, and left misogynist, homophobic and threatening messages on the voice mail of an insurance agent. Payne was finally fired in 2010 — not for any of those incidents, but for feigning an illness to avoid breaking up a bar fight.
It seems to be a self-perpetuating problem. Many of the city’s black residents don’t trust the police department, for reasons that range from personal experience, to poor officer outreach, to the aforementioned incidents — some of which made local headlines. Gilbert and other critics believe hiring more black officers would help to change the culture at LRPD, as would hiring more officers who live in the city. But the department’s image problem makes it difficult to recruit.
Gilbert knows this as well as anyone. When he first applied to become a Little Rock police officer during the 1980s, he had just been honorably discharged after serving as a military police officer in the Air Force. Despite those strong qualifications, he was rejected. Then, a few years after his rejection, he received a phone call. If he still wanted the job, the voice on the line told him, it was his. But the call hadn’t come from the LRPD. It had come from the Justice Department. The city had entered into a consent decree with the federal government as the result of a discrimination suit brought by the Little Rock Black Police Officers Association. Gilbert’s father, himself an LRPD officer, had founded that organization and had initiated the lawsuit. Johnny Gilbert Jr. has been with the LRPD ever since.
One thing that has particularly bothered Gilbert over the years is that, even after Hastings admitted to attending the Klan meeting, no one followed up. No one interviewed Hastings’s friend or the friend’s grandfather to see if Hastings’s story was true. Nor had anyone looked into Hastings’s past to see if there might be other indications of bias or bigotry.
But no one needed to, because like Johnny Gilbert, Josh Hastings was also a legacy. Two of his cousins were Little Rock cops, as were his uncle and his brother-in-law. Most importantly, Josh’s father, Terry, was one of the highest-ranking officers in the department — he was the department’s spokesman — and was a police academy classmate and longtime friend of Stuart Thomas, the Little Rock police chief.
Josh Hastings was hired.
Officer of the Month
Before he had even put on his badge for the first time, Hastings was exposed to a particularly destructive dynamic that would continue throughout his career. First, he was surrounded by badly behaving cops who rarely suffered consequences for their misbehavior. Second, the evidence suggests it was made clear to Hastings that even the lax rules that governed those officers simply didn’t apply to him.
It began almost immediately, during his time at the police academy. In a deposition, one of Hastings’s classmates at the academy recalled an incident in which the entire class had to retake a test in an effort to save Hastings’s job. (Capt. Heath Helton, who was in charge of training at the time, has disputed this story in a deposition, as has Hastings.) Another classmate also recalled Hastings’s father sometimes stopping by the academy to bring items that his son had forgotten, whether it was police equipment or, in one case, his lunch.
After graduating from the academy, new police officers are assigned to a field training officer, or FTO, who is tasked with teaching the rookie the day-to-day aspects of the job. Hastings’s FTO was Officer Ralph Breshears. By the time he retired late last year, according to police records, Breshears had been disciplined numerous times, including for multiple car accidents. He was involved in two shootings. He had at least 12 citizen complaints of excessive force against him that were ruled unfounded or unsustained, as well as five complaints for threats or verbal abuse, two complaints for theft, and one for racial profiling. Breshears was actually fired in 2002 after making an illegal arrest, then lying about the incident in his police report. He sued, won back his job, and was reinstated. He was then disciplined again in 2005 for hog-tying a handcuffed man, and then again in 2006 for failing to activate his dash cam. It was after all this that Breshears was assigned to be Hastings’s FTO.
After training Hastings, Breshears went on to have misconduct charges against him sustained again in 2009, and then again in 2010. Breshears would later reappear in Hastings’s career. When Hastings killed Moore in 2012, Breshears was on the team that investigated his former protege. Early on, Breshears claimed with little evidence that the car Moore was driving could not have been in reverse, a conclusion that might have cleared Hastings had forensic analysis not later shown it to be wrong.
About 10 months into the job, Hastings was sustained on his first violation: failing to activate his dash cam. (“Sustained” means that an internal investigation verified and upheld the complaint or accusation.) In a deposition with Helton, the head of LRPD training, Laux asked about what he perceived to be a pattern in this area — repeated incidents in which officers had failed to activate their dash cams or body microphones during a use-of-force incident. Many such cases also involved a citizen who had filed a complaint alleging excessive force. Often, Laux found, the officers would be sustained for failing to activate the device, but exonerated for excessive force. They would then receive minor discipline for failing to activate the device. Some exonerations for excessive force came even after the officers’ account was directly contradicted by one or more people.
Laux asked Helton whether it was possible this pattern might incentivize officers to turn off their devices before a potential excessive-force situation. Helton replied, “No.”
Laux followed up, asking Helton whether officers might less likely to follow the rules if the rules aren’t properly enforced. “No,” Helton replied. “I think people tend to make choices on their own.”
Hastings was cited five times for failing to activate his recording device. He was exonerated once; the other four charges were sustained, with discipline ranging from counseling to a one-day suspension.
In all, Hastings was sustained for disciplinary violations more than 30 times — on charges including loafing or sleeping on the job, abusive language, failure to file reports, failure to appear in court, failure to notify authorities of a dead body, conduct unbecoming an officer, insubordination, and untruthfulness. He was also repeatedly cited for reckless driving. At one point, after multiple warnings for speeding and engaging in too many high-speed chases, he was instructed not to exceed 85 miles per hour. Soon after, he was involved in another high-speed chase that ended with his suspect crashing into a children’s hospital. Hastings was exonerated of any wrongdoing.
Over the course of his short career, LRPD records show that Hastings used force against a Little Rock resident or visitor 41 times. But during discovery for the Moore family’s lawsuit, Laux found a number of incidents in which a use of force wasn’t properly classified or Hastings failed to document it. He puts the total number at 63. Of those 63 incidents, Laux calculated that 49 involved Hastings using force against a black person. In all, 84 percent of the people against whom Hastings used force were either black or Latino. To put it another way, while non-Hispanic whites make up about 47 percent of Little Rock’s population, they make up just 16 percent of the people against whom Hastings used force.
In one incident in July 2010, Hastings body-slammed a homeless, mentally ill black woman, then sat on her stomach as he waited for her to be taken for treatment. (He claimed the woman slapped him after he woke her up.) He admitted in a deposition years later that “body slam” was the appropriate term for what he had done. Yet, at the time, Hastings’s supervisor made the young officer seem almost gallant. He wrote that Hastings merely “wrapped his arms around” the woman, and “placed her on the ground.” Hastings also later admitted that his supervisor’s account of the incident wasn’t accurate.
Notably, up until he shot Moore, Hastings was almost always disciplined only for conduct that affected other police officers, or over internal matters. Nearly every time he was accused of misconduct by someone outside the department, he was cleared of any wrongdoing. At worst, he might be sustained for failure to activate his recording device, but not for the behavior that was the subject of the complaint.
“You see this a lot,” Laux said. “They’ll discipline officers for lying to other officers, for missing a shift, for not appearing in court. But if it’s an officer’s word against a citizen of Little Rock, especially a black citizen, you almost have to have video catching them in the act. And even then.” According to department records, Hastings’s longest suspension came in April 2012: 15 days for sleeping in his car. By contrast, he wasn’t even disciplined for body-slamming the homeless woman. (He was sustained and given counseling for using profanity, which was picked up by his body mic.)
Hastings’s colleagues and supervisors seemed to enable his conduct. One supervising officer admitted that she had to assist the young officer in writing his reports, due to “illegible handwriting . . . often misspelled words; improper grammar” and “improper usage.” (Hastings also once suggested his wife had written one of his reports, but later backtracked.) When Hastings was suspended in 2011 for missing court on six occasions over just a few months, he assured his commanding officers that he had taken measures to make sure it wouldn’t happen again. Those measures: He had asked his father to call him to remind him when he was to appear in court. Hastings was 26 years old at the time.
Between March 2008 and March 2009 alone, Hastings was suspended, warned for failing to submit reports, warned for submitting incorrect reports, given a “letter of counseling” for missing court, given a poor performance review and issued a letter of reprimand. The following April, he was named Officer of the Month.
Next to mentor after Breshears was Sgt. Cristie Young, who oversaw Hastings from the fall of 2007 through 2010, had been suspended multiple times, including for making “terroristic threats,” insubordination and interfering with an investigation. Young was then fired in 2011 after a domestic violence incident with her husband in which she barricaded herself in her home. She was found to have lied to her supervisor, internal affairs investigators and a judge about that incident. She later sued, won and was reinstated with $250,000 in back pay. She was fired again in 2016, this time for allegedly lying about an incident involving other officers during her testimony in a deposition. Currently, she is again suing for reinstatement. Young was Hastings’s supervisor and mentor for most of his career.
Sgt. Corey Hall, Hastings’s direct supervisor in 2008 and 2009, also had a lengthy disciplinary history. (Given Hastings’s history, it is worth noting that Hall is black.) In 1997, Hall was fired after he drove to Oklahoma and allegedly pointed his gun at his ex-wife’s boyfriend. He sued the department, won and was reinstated. He has since been sued for harassing a female officer (he was ordered to apologize), was the target of an excessive force lawsuit settled by the city and was suspended for 30 days in 2009 (while supervising Hastings) for a domestic violence incident. The same year, he was disciplined for failing to report a use of force. In 2011, Hall was fired again, this time for getting into two off-duty fights in Little Rock bars over a six-month period. He sued in 2013 and was reinstated, albeit at a lower rank. He is still on the force.
Another supervisor was Officer Kelly Lepore, who was Hastings’s driving instructor. Just over a year before Hastings started, Lepore pulled her gun on a DWI suspect, then pushed her gun into the car near the driver’s face, despite later admitting she had no reason to suspect he was violent. The driver fled, perhaps understandably. He was later apprehended by another LRPD officer who, hearing Lepore’s report, shot the driver after seeing him reach for something “shiny.” The driver was unarmed. Though Lepore was cleared of any wrongdoing at the time, LRPD officials later admitted in depositions that Lepore’s actions during the initial stop were unprofessional, and contributed to the subsequent shooting.
In 2012, Lepore ordered subordinates to stand on the legs of an obese man who had already been pepper sprayed and handcuffed. As she would later admit in a deposition, Lepore told her officers, “You ain’t going to hurt this big boy.” The man stopped breathing and died at the scene. Under questioning from Laux during a 2016 deposition, Lepore conceded that she was unfamiliar with official LRPD policy in several areas, including use of force and traffic stops. This seems especially troublesome given that, in addition to teaching police driving, Lepore also was a field training officer for recruits.
Hastings’s final supervisor, Sgt. Jackie Parker, had also been disciplined for untruthfulness and was twice cited for failing to activate his recording device. He was once described in a deposition by Helton — again the officer who oversaw LRPD training — as “one of those guys . . . [who] required some supervision himself.” (Parker is currently represented by Laux in a separate racial discrimination suit against the LRPD and alleges that the disciplinary actions taken against him were racially motivated.) But even Parker was concerned enough about Hastings’s behavior to write a memo questioning the young officer’s fitness for law enforcement. He recommended that Hastings undergo a mental evaluation. No one ever acted on the memo.
Hastings’s attendance at a Ku Klux Klan meeting was revealed to the public in 2010. An LRPD officer had been caught on video flashing his badge while confronting a black rap group and using the word “jigaboo.” In response to protest from civil rights groups, the city held a community forum on race relations. At the forum, a black officer asked Chief Thomas to address Hastings’s attendance at a Klan meeting. Hastings’s high-ranking father was furious and, by one account, had to be physically restrained. The elder Hastings later sent an open letter to local media in which he lambasted the officers who brought up the Klan meeting, claimed his son’s honor had “been proven by investigation and his years of service as a LRPD officer,” and called Thomas “one of the best chiefs this Department has ever had.” The revelation created a stir in Little Rock, but not enough for Hastings to be removed from the force. In the two years that followed, Hastings received four more letters of reprimand and four more suspensions.
A month before Hastings shot and killed Moore, he was called to investigate a report of a burglary. He later wrote a report explaining that he had checked the business’ doors and windows, found no evidence of a burglary, and dismissed the incident as a false alarm. The business owner later called back and complained that no LRPD officer ever showed up. Security footage from the business later showed a prowler breaking the store’s front window with a rock and climbing inside. It also showed Hastings’s patrol car driving by the scene. He never stopped, much less got out of his car to investigate. He was found to have been “untruthful,” but he was allowed to stay on the force.
The death of Bobby Moore
At about 6 a.m. on Aug. 12, 2012, Sylvia Perkins received a phone call from her son Bobby’s phone. When she answered, it wasn’t Bobby, but her daughter. “Momma, Bobby’s been shot,” she said. Perkins thought her daughter was playing a bad joke on her. She chided the girl and hung up. The phone rang again. Again, it was her daughter, calling her on Bobby’s phone. “Momma,” she said again, “Bobby’s been shot.”
One of the boys with Bobby the night before had fled, found Moore’s sister, and told her what had happened. Perkins’s daughter was already at the scene, the Shadow Lake apartment complex in western Little Rock. It was a warm Sunday morning. Perkins and her husband arrived about 7 a.m.
The boy who had been in the car with her son confirmed to Perkins what her daughter had told her on the phone — that Bobby had been shot. When she asked who was responsible, the boy pointed at the police. “They did it,” he said. A Little Rock officer overheard the boy, realized who he was, and arrested him on the spot.
Other officers milled about, in and out of the sealed-off scene of the shooting. Perkins spotted Lt. Terry Hastings. She had known Hastings for years, from when he had been the community outreach officer in her neighborhood. “I called out to him, Terry! Terry!” she said. “And he stopped. And he looked at me. I said, ‘Can you please tell me what’s happened to my baby? He just turned and walked away. Didn’t say a thing.’ ”
As word got out about Bobby, Perkins’s friends and family began to assemble near the apartment complex. Her father drove in from two hours away. At one point, a homicide investigator named J.C. White — a black officer who would soon retire — pulled Perkins and Bobby’s father aside, and asked them to join him in his patrol car. “He was real serious,” she said. “He told me, ‘Miss Perkins, you need to get yourself a lawyer, because there ain’t nothing good about this.’ ”
The Shadow Lake apartment complex has two gated entrances. Both were blocked off by police. But the complex’s buildings and parking areas all sit below the road, making them visible from the outside perimeter. Perkins and her family had gathered just outside the complex. She would later find out her son’s body was in the car the entire time. He had died instantly, and was never taken to the hospital. A funeral home director later told her that her 15-year-old son had been shot in the head.
Hours passed, still with no official word from police officials about what happened. Perkins agonized as the crowd grew and the midday heat crept in. She watched parishioners file into a nearby church, then watched them file out after Sunday services had ended. Some had heard what happened, and joined the family to pray.
Finally, about 1 p.m., two homicide detectives pulled up in a patrol car. One tried to pull Perkins aside, but she insisted that whatever he had to say, he could say to her friends and family. Perkins recalls what happened next. “He said, ‘Ms. Perkins, we did confirm that it was your son Bobby Moore in the car. And he didn’t make it.’ ”
Perkins collapsed to the grass and passed out. When she came to, she asked, “Can we at least see him?” According to Perkins, the officers just climbed back into their patrol car and left. She wouldn’t see her son’s body for another week.
The confrontation between Moore and Josh Hastings had taken place early that Sunday morning. Hastings and his partner, Arthur McDaniel, received a report of some teens breaking into a car at the Shadow Lake apartment complex. The two agreed on a plan to confront the suspects, but when they arrived, Hastings ditched the plan after finding a hole in the perimeter fence leading to the parking lot. He ducked behind a dumpster, where he saw the suspects — Moore and two teenage friends — attempting to break into a Honda Civic. When the boys managed to start the car, Hastings jumped up from behind the dumpster and drew his gun.
By Hastings’s account, he ordered the car to stop, then approached from the side, giving it plenty of room to drive around him. He testified that the car then accelerated toward him, eventually reaching 25 to 30 miles per hour. As he moved toward an embankment, the car jumped the curb, climbed the embankment and threatened to pin him against a fence. This, he said, is when he fired twice. (He actually fired three times.) According to Hastings, the car stopped just inches from him. It then rolled back down the embankment and into the parking lot before hitting another car and a light pole.
But Hastings’s version of events contradicted much of the available evidence. The spent shell casings from Hastings’s service weapon didn’t match up with where he claimed to have been standing when he fired. While the statements from the other boys in the car had minor inconsistencies, both said Hastings had shined his flashlight in their eyes just before jumping directly in front of the car. They said Moore then tried to put the car in reverse and began to back up. One said the car was in reverse when Hastings fired; another said it was stopped. But neither of the boys said Moore was driving toward Hastings, or that the car jumped a curb or climbed an embankment. Police investigators and forensic experts hired by the state and Moore’s family later testified that there was no damage to the car to suggest it had jumped a curb or twice traversed a rocky embankment. There was also no evidence on the curb or embankment that either had recently been run over by a Honda Civic.
Then there were Moore’s wounds. One bullet had entered the front of his hand through his left middle finger, then struck him on the left side of his head. The wounds suggested that Moore had one hand on the steering while looking back over his shoulder — the position most people take while driving or preparing to drive in reverse. Finally, the car’s gear shift was found in neutral. According to the medical examiner, Moore died almost instantly — he wouldn’t have been able to shift after he was shot.
There also appear to have been problems with the way Hastings’s colleagues investigated the shooting. Despite the obvious and important question about how the car ended up in neutral, for example, the gearshift was never dusted for fingerprints or tested for DNA. Two witnesses who saw the immediate aftermath of the shooting were never asked to give formal statements. There were differing accounts about which officer first took possession of Hastings’s gun, raising questions about chain of custody. And the crime scene logs — which list who had access to the evidence as it was being collected — lacked exit times for the homicide detectives and supervisors conducting the investigation.
Perhaps most disturbing, internal affairs officers also found a prescription bottle for the opioid hydrocodone in the Honda Civic — the car that Moore and his friends were allegedly trying to steal. The name on the bottle was Philip Staggs — the officer who instructed Hastings at the police academy, and who had been fired over misconduct related to drug abuse. There is little reason to think Moore or the other boys in the car knew Staggs, and there was no trace of opioids in Moore’s system. There is also no reason to think the car’s owner knew Staggs or had stolen his medication. That leaves as the most likely explanation that either Hastings or McDaniel were in possession of a former colleague’s hydrocodone and either intentionally or mistakenly left it in the car.
That, in turn, raises the question whether either officer had taken the opioid on the night of the shooting. Yet the bottle was never checked for fingerprints. The LRPD keeps records of drug tests administered to officers, and there is no record that either Hastings or McDaniel were given a drug test that night. There is also no evidence that the department’s internal affairs division made any effort to investigate how the bottle got into the Civic. In a deposition, former chief Thomas said the possibility that Hastings or McDaniel may have left the bottle at the scene “never even occurred” to him.
In the end, neither the questionable investigation, nor his family’s cachet in Little Rock were enough to save Hastings’s job. He had finally done something egregious and consequential enough to cost him his badge. This was no small thing. Since 2000, Little Rock police officers have shot and/or killed at least 90 people. Only two of the officers involved in those shootings were found to have used excessive force — Hastings, and just this past January, his old FTO, Ralph Breshears.
On Sept. 12, 2012, a month after the shooting, the head of the LRPD homicide unit recommended criminal charges against Hastings, who was then arrested and charged with manslaughter. The following month,
internal affairs investigators determined that Hastings was untruthful during questioning after the shooting. Thomas responded by terminating Hastings, but only for the shooting. Contradicting his own internal affairs division, the police chief declined to sustain the charges of lying to investigators.
“This was about damage control,” said Laux, the lawyer representing Moore’s family. “They knew this was bad, and they were trying to keep Hastings out of prison. If a case boils down to whether a police officer showed poor judgment in shooting someone, most juries will ultimately side with the cop. But if they see evidence that the cop is lying — that’s the one thing that will get them to turn very quickly.”
“None of them was ever on our side”
Hastings’s first trial on the manslaughter charge began in June 2013. According to criminologist Philip Stinson, who keeps a database of police arrests and convictions, over the past 13 years, 96 police officers have been charged with murder or manslaughter for a fatal, on-duty shooting, or about 7 per year. Nearly half of those — 46 — have been since 2015.
Of those 96, 34 were convicted, or just less than three per year. Seven were convicted of murder, but four of those convictions were later overturned. The rest were convicted on lesser charges. So while police officers shoot and kill about 1,000 people each year, about 0.7 percent of those shootings result in criminal charges and about 0.3 percent result in convictions. Just 0.1 percent resulted in murder convictions, and just one of 3 murder convictions in 13 years was upheld on appeal. Stinson said he has yet to find a case in which a police officer has been convicted during a bench trial (when the officer asks for the judge to determine guilt or innocence instead of a jury) for an on-duty fatal shooting.
There are a few reasons for the dearth of convictions. First, the law affords police officers a great deal of discretion when it comes to the use of deadly force. Second, juries tend to trust law enforcement. If a police officer says he feared for his life, most juries will take him at his word. Third, there’s the blue code of silence — the tendency of police officers to cover for one another.
There is one other possible, somewhat more controversial reason police officers are so rarely convicted of using excessive force: Prosecutors may not work as hard to win convictions in these cases. The trial of a police officer puts prosecutors in a precarious position. They rely on the police to investigate crimes, arrest suspects and provide evidence. If a prosecutor loses the respect and cooperation of the police department, it can make his or her job a lot more difficult. As former federal prosecutor and Columbia Law School professor Daniel Richman told NPR in 2014, “I do think that working with police officers, relying on them regularly for them to be your connection to the outside world and your source of cases and evidence, is going to affect how you judge interactions.”
Perkins and Bobby Moore’s other relatives allege the state went easy on Hastings — that his trials were mostly for show. For example, there was that burglary that Hastings investigated about a month before the shooting. Hastings’s own police department determined he had lied in his report. Hastings’s manslaughter trial more or less hinged on his credibility, on whether jurors believed his account of the shooting. Yet John Johnson, the chief deputy prosecutor, didn’t introduce the burglary investigation or any of Hastings’s lengthy disciplinary history at trial. To Moore’s family, it looked as though the state was handicapping its own case.
During a phone interview, Johnson said he didn’t introduce Hastings’s disciplinary record because it wouldn’t have been admissible under the state’s rules of evidence. But other lawyers disagree. “If Hastings was found by his own police department to have lied, I’d certainly have tried to get that in,” said John Wesley Hall, a longtime defense lawyer in Little Rock, who also served as a prosecutor during the 1970s. “And I think there’s a good chance that the judge would allow it.”
One person whose opinion would seem to be especially important agrees with Hall and disagrees with Johnson: The judge who presided over Hastings’s trial. “I really don’t understand why they didn’t try,” the judge, Wendell Griffen said. “Especially given that in the first trial, Hastings took the stand for his own defense. They could have confronted him with that. But they never tried.” (It must be noted that Griffen himself is an outspoken and controversial figure. The state supreme court recently prevented him from presiding over death penalty cases after he participated in a protest against capital punishment last year. Laux is representing Griffen in his lawsuit against the state Supreme Court.)
As for Johnson’s claim that Hastings’s disciplinary record wouldn’t have been admissible, Griffen said, “You certainly can attack a witness’s credibility based on a previous record or pattern of dishonesty. Mr. Johnson is an excellent attorney, but I don’t know why he’d think you can’t. I have a whole lot of case files in my office that say otherwise.”
Johnson also never called two eyewitnesses to the immediate aftermath of the shooting. That seems significant, since their statements clearly contradicted Hastings’s story. According to the witnesses themselves, no one from the prosecutor’s office ever interviewed them.
In the end, the jury deadlocked and Griffen declared a mistrial. One juror would later tell a local television station that the two holdout jurors voted for acquittal because they “couldn’t get past the badge.” One allegedly said during deliberations that, in shooting Moore (who had a lengthy juvenile record), Hastings had prevented the youth from committing any more crimes. (In response to the Moore family’s criticism, Johnson also points out that, while the jury in the first trial deadlocked, the vote was 10 to 2 in favor of conviction.)
After the mistrial, Griffen brought lawyers from both sides in to address an issue that had been bothering him. During jury selection, Hastings’s attorney repeatedly used his preemptive strikes against prospective jurors who were black. The first jury was entirely white. More troubling to Griffen, the state didn’t bother to object. “I recall being quite surprised — in an unpleasant way — at what was happening,” Griffen said. “The defense struck black person after black person, and the state let it go on. I didn’t feel I could speak up at the time and still retain my impartiality.” According to Griffen, Johnson told the judge he didn’t object because he didn’t believe Hastings’s attorney (who often represents police officers accused of misconduct) would strike jurors solely on the basis of race. In a court filing, Johnson referred to the challenges as “race neutral.”
Hastings’s second trial followed in September. During the first trial, the state had called an accident reconstruction expert who said the forensic evidence contradicted Hastings’s version of the shooting. In the second trial, the state never called that expert to testify. “I was completely baffled by that,” Griffen said. “The man was in the courthouse, and they didn’t call him. He completely discredited the defense in the first trial. When they didn’t call him, there was no case. I remember thinking the defense wouldn’t need to call a single witness. Sure enough. They didn’t. There was nothing to challenge.” Johnson would later tell reporters that because Hastings didn’t take the stand, the state didn’t need the expert to rebut him.
As during the first trial, the state never mentioned Hastings’s history of problems at the police department, and again failed to call the two eyewitnesses. The second trial boiled down to the word of Hastings, a former police officer, against the word of the two teenage boys in the car with Moore. The jury deadlocked again, but this time, the vote was 11 to 1 in favor of acquittal.
“I knew we were in trouble after the first hung jury,” said Perkins. “I knew they’d never convict him. But I felt like they just gave up the second time.”
In April of 2014, just a few weeks before a third trial was scheduled to begin, Johnson announced that the state would request that all charges against Hastings be dropped. He added that, while he believed Hastings was guilty, he had also concluded that persuading a jury to convict the officer would be impossible.
Moore’s family opposed the decision. Griffen told the family that nothing precluded prosecutors from refiling charges at a later date. But Perkins said she knew then it would never happen. “When they announced that the charges were dropped, [Pulaski County Prosecutor] Larry Jegley came in and he shook all of their hands,” Perkins said. “He shook the hands of every police officer in the room. No one shook my hand. No one came up to us and said, ‘Sylvia, we’re sorry about this.’ I had never seen Mr. Jegley before, except on TV. He never tried to reach out to us. We were the victims. He was supposed to be on our side. There he was shaking hands with the other side.”
Perkins added, after a pause, “That’s when I realized. They were all together. None of them was ever on our side.”
“I feel for that family,” Johnson said. “I know they were hurting, and I’m sure they still are. But I completely disagree with the idea that we didn’t want a conviction.”
Dysfunction on Markham Street
Josh Hastings’s career stands out because of the circumstances of his hiring, and because his career ended after he shot and killed someone. But there is considerable evidence that the problems at LRPD that allowed him to be hired and keep his job are systemic — that the end of his troubled career didn’t end the problems at LRPD, it merely exposed them.
The department’s early-warning system is a good example. Like many police agencies, the LRPD uses automated computer software to flag potential problem officers. The idea behind such systems is that certain patterns of behavior — for example, multiple citizen complaints — are good predictors of other behavior, such as use of excessive force or questionable shootings. “A good early-warning system isn’t just used to punish,” said Seth Stoughton, a former police officer who now teaches law at the University of South Carolina. “It should also be used to identify officers who are struggling and to provide help.” Early-warning systems can also be used to detect issues such as mental illness, or to find officers coping with unusually high stress. An alert is supposed to notify a supervisor, trigger an investigation and, if appropriate, ultimately result in an intervention — such as counseling, mentoring, or if merited, disciplinary action.
The Little Rock Police Department uses software called the Early Intervention System (EIS). Over five years, Hastings triggered 19 EIS alerts. Only one resulted in an intervention: After 21 use of force incidents, 15 vehicle pursuits and 6 misconduct investigations, Hastings was, in April 2010, briefly required to attend biweekly counseling. Over the next eight months — six of which were while he was under “counseling” — Hastings had another nine sustained violations. And yet throughout that period, his supervisors continued to write memos that excused his failures by noting his promises to do better in the future.
Odder still, in court documents for the Moore case, the LRPD claimed that the EIS had issued only three alerts for Hastings. Either the department misled the court, or it paid so little attention to the system that leadership somehow wasn’t aware of the other 16 alerts.
But it wasn’t just Hastings. Officer Kelly Lepore was flagged nine times by the system in the three years before the death of the obese man she had ordered her subordinates to stand on. No action was taken.
Another example is Officer Christopher Johannes, a member of Hastings’s squad who was flagged 7 times in six years after 69 use of force incidents. Johannes’s dash cam, too, had an uncanny knack of malfunctioning at critical times during incidents that later resulted in citizen complaints. In one incident, a suspect accused Johannes’s partner of punching him while he was handcuffed. Johannes denied seeing or hearing the punch. The dash-cam video improbably malfunctioned for only the six minutes surrounding the alleged punch. But the audio function did continue recording, and captured both the sound of a punch and Johannes scolding his partner for the strike he’d later claim he never saw. Neither officer was disciplined. The sergeant who investigated the incident ultimately said she trusted the honesty of Johannes’s partner more than she trusted the audio recording. Two months later, Johannes was named Officer of the Month.
Between July 2010 and the end of 2015, the EIS issued alerts on potential problem officers more than 700 times. Just two of those resulted in intervention, according to department records. Both were for abuse of the sick-leave policy.
For early warning systems to be effective, supervisory staff need to be well-trained on the system and receive ongoing training as the software is tweaked to suit the needs of the department. In a deposition, Thomas, the former chief, testified that the department often failed to send someone to the annual training conference to learn about updates to the system. The sergeant that Thomas assigned to implement the system later testified that he hadn’t even read the Justice Department manual on how to operate it. Even some instances of deadly force somehow never made it into the system.
“To have just two interventions after over 700 alerts, and for low-level misconduct, is just drastically out of proportion,” said Bains, the former senior counsel for the Justice Department’s Civil Rights Division. “It signifies a deep problem in the department. It’s a sign of a broken system.”
The LRPD’s issues with training also weren’t limited to Hastings. In 2014, the Arkansas Democrat-Gazette reported that just more than half the department’s officers had not been trained and certified to use a Taser. In fact, among the untrained was the captain in charge of LRPD’s training. The paper found that 44 officers hadn’t been trained to use a baton, and 29 hadn’t been trained to use pepper spray.
According to Stoughton, the law instructor at the University of South Carolina, it isn’t unusual for a police agency to take some time to get its officers trained on a newish weapon such as a Taser. “I think you’ll find a lot of police departments can take years to get all of their officers trained on something like a Taser. That doesn’t excuse it. And I’m really alarmed by the high number who aren’t trained to use a baton.”
If an officer isn’t trained to use a particular weapon, they shouldn’t be carrying it. It is unclear how many of the LRPD’s officers have carried a Taser without proper training, but at least one fatal shooting suggests it has happened. In one instance in 2006, several officers responded to reports that a man was acting erratically while holding a meat cleaver. Jaime Alvarez, who was having a mental-health crisis, was approached by 10 officers who, with guns drawn, slowly backed him up against the outside of a church. Alvarez was indeed holding a cleaver, but he had pressed it against his own neck, and hadn’t threatened anyone with it. Nevertheless, once they had Alvarez cornered, an LRPD lieutenant attempted to shoot him with a Taser, but missed. Alvarez, who, again, to that point hadn’t threatened any of the officers, responded by throwing the cleaver at the officer. The 10 officers then collectively fired 43 bullets at Alvarez, killing him. Police bullets were later found in the church pews and altar. After the incident, the LRPD admitted that the lieutenant who shot the Taser had never been trained to use the weapon.
Training problems have also surfaced after other high-profile incidents. After Officer Donna Lesher shot and killed an unarmed, 67-year-old black man in December 2010, she was asked why she hadn’t tried to subdue the man with her baton instead of reaching for her gun. Lesher responded that she didn’t carry a baton because she wasn’t proficient with it, and didn’t feel confident using it. When Capt. Heath Helton, the officer in charge of LRPD training, was asked about Lesher’s statement in a deposition, he questioned Lesher’s own doubts about her ability to use a baton.
A cellphone video, taken in October 2011, showed Lt. David Hudson repeatedly punching the face of Chris Erwin, a patron at a Little Rock restaurant. At the time, Hudson was off duty and working security at the restaurant. He claimed Erwin had refused his order to leave an area of the restaurant, and that Erwin then grabbed his arm. Erwin later said he didn’t remember grabbing Hudson’s arm, but if he had, it was because he was in a daze after Hudson had slammed his head into a wall. In fact, Hudson, a high-ranking and long-serving Arkansas police officer, had a history of punching people in the face. In 1983, he was suspended for striking a suspect with an open hand. In 1993, he was found to have violated department policy, again after punching a man in the face. Hudson was reprimanded for not reporting an incident in which several other officers beat and punched a man in the face at a 2006 college football game. Later the same year, Hudson punched another man in the face, allegedly for being “sarcastic.” He was accused of punching another man in 2007, but that complaint was dismissed because the alleged victim’s account differed from the police account. Dash-cam footage could have resolved the discrepancy, but it had been recorded over. Finally, eight months before the 2011 incident caught on video, Hudson had punched another man in the face at the same restaurant,
then arrested that man for battery.
After video of the altercation with Erwin was posted online and made local news, Hudson was initially suspended for 30 days. He appealed the suspension to the Little Rock Civil Service Commission, where he made a surprising argument: He claimed he had no choice but to punch Erwin because he had never been trained to use any other type of force. (Erwin had not punched or threatened Hudson.) Terry Hastings, a longtime friend, vouched for Hudson. He, too, told the Civil Service Commission that Hudson only punched Erwin because, despite his 25 years at the department, and despite his history of punching people, no one had taught Hudson how to resolve an altercation another way. Helton agreed in a deposition a few years later. “I mean, that’s the only thing he was kind of trained to use from. You know, if that was the only thing that he had at his disposal . . . then that’s what he used.”
The Civil Service Commission revoked Hudson’s suspension, finding that he was “being punished by the same people responsible for not preparing him.” As Bains put it, “To suggest that this longtime law enforcement officer knew of no way to resolve a dispute other than pummeling a man in the face, it just speaks to how broken the system of accountability really is there. It’s just a farce.”
Then there are the questions about the thoroughness and objectivity of the LRPD’s internal investigations. When someone dies at the hands of a police officer, the incident is first investigated by the department’s homicide division. Once that investigation is complete, the internal affairs division (IAD) conducts its own investigation. Afterward, another panel known as the Deadly Force Review Board (DFRB) then assesses not only the incident itself but also the thoroughness and fairness of the homicide and IAD investigations. At first blush, it seems like a fairly robust system, with multiple layers of oversight. But the department has regularly come under fire for sloppiness, bias and clear conflicts of interest in how it investigates officer-involved shootings.
“The victims of the shootings and their families aren’t getting justice,” said Blake, the state representative. Blake recently introduced a bill in the Arkansas legislature that would require all police-involved shootings in the state be investigated by an outside agency. It is similar to a bill recently passed in Wisconsin. “Look, if a shooting was by the book, I have no problem validating the officers’ actions. We should be clearing their names. But if these shootings are all justified, then I don’t see the problem in asking a different police agency to investigate. If the officers are in the right, they’ll still be vindicated. But they’ll be vindicated in a way that earns more trust from the community.”
Blake points to the aforementioned shooting involving Officer Donna Lesher. That shooting was investigated by officers in the homicide division. But the head of the homicide division at the time was Sgt. James Lesher — Donna Lesher’s husband. The investigation would repeatedly come under criticism for allegations of favoritism. Some of that criticism came from other officers. “Even if you were to conduct the most objective investigation possible, you still have this problem in which the investigators are looking into a shooting by their boss’s wife,” said Stoughton. “You don’t earn community trust that way.”
As previously mentioned, the team that initially looked into Josh Hastings’s shooting of Moore included Ralph Breshears, Hastings’s former FTO. And when Hastings’s partner, McDaniel, shot and killed a man in 2010, one of officers who investigated was also McDaniel’s union representative at the administrative hearing about the very same shooting.
In some cases, LRPD internal investigations have cleared officers without even looking at the relevant department policies. For example, the department has a specific policy detailing how officers are to interact with the mentally ill. But Laux found multiple deadly-force incidents involving mentally-ill suspects in which officers violated the policy, including the Jaime Alvarez shooting. Worse, the homicide and IAD investigations that followed never addressed the officers’ violations of the policy. The subsequent DFRB review of both the shooting and the ensuing investigations also failed to even mention the policy.
One of the more striking examples came in 2014, Laux deposed Capt. Heath Helton about the Alvarez case. At the time, Helton was both head of training at LRPD and served on the DFRB. Laux asked Helton why the review board’s reports in that case and others did not mention the protocol that officers are required to follow when they encounter someone suffering from mental illness. Helton replied, “Obviously, it’s easy to Monday morning quarterback a deal, but, you know . . . I can’t testify to what or speak to what they were seeing at that time, so I don’t — I don’t know.”
But the DFRB is not only charged with assessing the officers’ actions, it is also supposed to review the adequacy of the ensuing investigations. One of its main functions is to consider policy or protocol changes that could prevent unnecessary deaths. “Monday morning quarterbacking is exactly what the DFRB is supposed to do,” Laux said. “I mean, that’s why it exists. It’s one thing to say we shouldn’t second-guess a cop who is caught in a volatile situation. I don’t agree with that, but I get it. But these investigations are supposed to gauge the officers’ actions in light of LRPD policy, and LRPD has a specific policy for interacting with the mentally ill. If the homicide, IAD and DFRB investigations don’t evaluate the officer’s actions against that policy, if they don’t even mention that policy, what’s the point in having the policy in the first place?”
There are other deadly-force cases during which high-ranking department officials have later admitted that, not only did LRPD officers violate various policies that initial investigators failed to pick up but also that the DFRB then failed to take note of either the violations or the investigators’ lapses. In other words, not only did the investigators fail, the backup investigators did, too. “The implications here go well beyond a few bad cops getting away with bad decisions,” Laux said. “When both the initial investigation and the backup investigation fail to pick up on the critical mistakes, training deficiencies and flawed policies that lead to preventable deaths, those problems don’t get addressed. So more people die.”
And then there is the problem of who serves on the DFRB. As the committee that ultimately reviews the work of other investigators, it would be reasonable to think the board is staffed with the most trustworthy officers in the department. But Lt. David Hudson served on one between 2006 and 2010, despite his documented history of face punching (Hudson, now retired, also had a lengthy history of other disciplinary problems, including multiple suspensions for damaging city property, other allegations of excessive force, and several citizen complaints that he had stolen money or property from them during searches.) Capt. Tom Bartsch, who also served on the DFRB, had once been suspended for 30 days when he and other off-duty officers working security at a music festival started drinking, got in a fight with a group of black teenagers and failed to report the incident until the teens’ parents complained.
Additionally, DFRB members have sometimes lacked sufficient expertise to conduct a proper investigation. One chairman of a DFRB that investigated a shooting of a mentally-ill man admitted during a deposition that he wasn’t familiar with LRPD policy in that area. A member of another DFRB conceded that he lacked the familiarity with autopsy reports required to determine if the bullet wounds in a body were consistent with the police officers’ account of the shooting.
“On its face, the multitiered system of investigating police shootings in Little Rock seems like a reasonable setup,” said Bains, the director of legal strategy for the advocacy group Demos. “But such systems are meaningless if they aren’t staffed with people who take them seriously. It’s just words on paper. In fact, it might be worse than meaningless, because it gives the false appearance of accountability while exonerating officers for unnecessary killings.”
In June 2015, Michael Laux filed a lawsuit on behalf of Bobby Moore’s mother, Sylvia Perkins. The lawsuit named not only Hastings, but also former LRPD chief Stuart Thomas for deficient oversight and training. To win a Monell claim against the city, Laux would need to show not only that Hastings violated Moore’s constitutional rights but also that the police department had a pattern or custom of tolerating abuse and excessive force, or so insufficiently trained its officers that Hastings’s shooting of Moore was foreseeable.
The city fought, and ultimately failed, to keep the disciplinary records of Little Rock officers under seal — perhaps understandably so, given what was in those files. “We had a lot of material to work with,” Laux said. He found that many of the worst practices on display at the Hastings shooting — the incomplete crime scene logs, the lax investigation of police shootings, the soft-glove discipline of habitual-offender officers — were common throughout the LRPD. In fact, Laux was so disturbed by what he found that in October 2014, he wrote a letter to the U.S. Justice Department to ask for an investigation.
Laux searched through personnel files and compiled a list of officers who had been sustained on charges of “untruthfulness,” a term that could include providing false information on the witness stand, in depositions, in police reports, or to investigators. Laux found 79 names.
Legally, this is exculpatory information. Under Brady v. Maryland, police departments are supposed compile a list of such officers and provide it to prosecutors, who are then obligated to share it with defense attorneys. In a deposition,
Thomas conceded that the department didn’t even keep such a list.
“That seems odd to me,” said John Wesley Hall, the longtime Little Rock defense attorney. “I know that the sheriff’s department keeps one, so I don’t know why the police department wouldn’t keep one, too.”
As with the Josh Hastings case, Laux found multiple examples in which LRPD investigations of police-involved shootings were tainted by incomplete crime-scene logs and sloppy evidence handling. Investigators also often asked the officers they were investigating leading questions designed to elicit responses that would help exonerate them. Contrary to practices recommended by groups such as Police Executive Research Forum and the International Association of Chiefs of Police, officers involved in shootings weren’t immediately separated. They were allowed to confer, sometimes for hours after a shooting.
Perhaps more relevant still to the Hastings shooting, Laux also found numerous other incidents in which Little Rock police officers had fired their guns at moving vehicles. There are only a few rarely-occurring scenarios when it would make sense for police to shoot into a moving vehicle. The 2016 terrorist attack in Nice, France, in which the driver of a truck was clearly using the truck as a weapon, is one such example. Most of the time, however, firing at a moving vehicle endangers both bystanders and potentially innocent passengers in the car — either with stray bullets or a car careening because of an incapacitated driver. It also may put the police officer at risk, because he is concentrating more on neutralizing the driver rather than getting out of the way. Even if it is driving directly toward a police officer, killing the driver is unlikely to stop a car. For these reasons, the Police Executive Research Forum has recommended prohibiting the practice. When the New York Police Department banned the practice 45 years ago, police-involved shootings dropped by a third the following year. Police departments in Boston, Chicago, Philadelphia, Washington and Denver have also barred officers from shooting at moving cars.
The LRPD does ban officers from shooting into cars, but allows an exception if the officer’s life is in danger. This, again, fails to account for the fact that killing a driver is unlikely to remove the threat. “In most of these shootings, the car is moving rapidly and in close quarters to the officer,” Bains said. “So incapacitating the driver isn’t going to take the officer out of danger.”
Despite the ban, Laux found several incidents in which Little Rock police officers fired at vehicles that appear to have posed no direct threat to the officers themselves. In 2005, for example, four officers shot 43 times into a moving car. One officer testified that he was able to get out of the way when his gun jammed, which suggests that shooting at the vehicle wasn’t the only remaining option. The following year, two other officers shot at a truck they claimed was driving at them, despite the fact that all the bullet holes were on the right side of the vehicle. They claimed they were trying to incapacitate the driver — which, again, wouldn’t likely have stopped the vehicle.
In 2007, two other officers claimed they had no choice but to open fire when a truck surged toward them in reverse. Again, all the bullet holes were in the side of the truck. That same year, two officers fired 19 rounds at a truck at a crowded gas station. One officer later said she fired after she tripped and fell into the vehicle’s path. Most of the shots struck the side of the vehicle, but at least one struck the adjacent convenience store.
In June 2010, Officer Arthur McDaniel (Hastings’s partner on the night of the Moore shooting) approached a car whose occupants he suspected of burglary. The car fled, and McDaniel pursued in a high-speed chase through a residential neighborhood. When the car reached a dead end, McDaniel exited his own vehicle and engaged. The suspects’ car shifted into reverse and attempted to flee. The car didn’t strike McDaniel, but drove around him. McDaniel fired most of his shots as the car moved away. He continued to fire after the car drove into a grove of trees and got stuck. When a passenger exited the car and tried to flee, McDaniel began firing at the man from 50 yards away. The passenger was unarmed. He was later apprehended, but was never charged with a crime. McDaniel killed the car’s driver and shot a second passenger in the face.
McDaniel was later cleared of any wrongdoing, though he was asked to attend a remedial use-of-force class. On the same day he was asked to attend that class, he was named Officer of the Month.
It is perhaps understandable why LRPD officials might have sympathized with these officers. These were adrenalin-fueled incidents, some after high-speed chases. If someone suspected of criminal wrongdoing drives a car even vaguely in an officer’s direction, it isn’t difficult to see how that officer could mistake an attempt to flee for an attempted homicide by automobile. But if those officers don’t face consequences, a dangerous — and ineffective — practice is never corrected.
“When you have a policy barring a tactic, but it’s accompanied by a complete failure to enforce that policy, you end up sending the opposite message,” said Bains. “The real policy here is that there are no constraints on officers shooting into cars.”
Out of time
In January 2017, U.S. District Court Judge Brian S. Miller dismissed Perkins’s Monell claim against the city of Little Rock. Despite the police department’s considerable history of lax discipline, poor training and bad hiring practices, Miller ruled that Perkins had failed to demonstrate a pattern or practice of policies and customs that made Hastings’s shooting of Moore foreseeable.
Miller dismissed Laux’s argument that the LRPD failed to properly train Hastings by pointing out that, over the course of his career, Hastings received more than 1,300 hours of training. He also ruled that the incidents involving poor training were irrelevant, because few of them involved the use of lethal force, and even fewer were related specifically to the practice of shooting into moving vehicles.
But Laux also did cite the above incidents, as well as others, in which Little Rock police officers had fired into moving cars. Miller dismissed those cases as “speculative.” He noted that, in each case, the officers were ultimately exonerated.
Miller similarly dismissed arguments related to the LRPD’s history of lax punishment, writing that “the failure to investigate an officer who misses a court date or an officer who punches someone under questionable circumstances, for instance, does not logically cause an officer to believe he could shoot and kill someone in violation of the Constitution without fear of punishment.”
But again, Laux did cite numerous incidents in which officers had not been punished for questionable shootings. Here again, Miller simply noted that they had been investigated and exonerated.
Bains contends that Miller’s ruling misapplied the law. “The court ignored the phenomenon in which failure to discipline in serious but unrelated conduct can make officers perceive that there’s no check on any misbehavior,” he said. “In a motion to dismiss, the court is also supposed to consider all disputed facts in favor of the plaintiff. Here, the judge made credibility assessments in favor of the police, such as when he characterized the plaintiff’s version of some events as ‘speculative.’ ”
The ruling also demonstrates just how difficult it can be to hold problematic police departments accountable. Laux’s claim against the LRPD included long expositions on the deficiencies in the agency’s investigations of its own officers — including allegations of bias, evidence tampering and conflicts of interest. Miller dismissed these claims because most of the investigations Laux cited weren’t specifically about deadly force. Where they were on point, Miller dismissed Laux’s characterization of them as “speculative.”
In other words, Miller dismissed the criticism of the LRPD’s internal investigations as irrelevant. He then dismissed any attempt to show a pattern of abuse, misconduct and questionable shootings within the agency by noting that the officers had been cleared by an internal investigation.
Laux even got high-ranking police officials — including former chief Stuart Thomas — to admit under oath that some internal investigations overlooked key facts and mistakenly exonerated officers for clear violations. In the shooting of the 67-year-old man by Officer Donna Lesher, for example, Thomas conceded in a deposition years later that the shooting likely did not happen the way Lesher claimed it did. That would seem to be an indication that even Thomas thought that particular investigation was flawed. Instead, Miller wrote only that it “supports an inference that at the time, they accepted a set of facts and reached an incorrect decision.”
“Overall, I think the ruling misses the forest and focuses not just on the trees, but on the branches and the leaves,” Bains said. “The court distinguishes incident after incident after incident. ‘These incidents aren’t comparable.’ ‘The plaintiff’s citing of these other incidents is speculative.’ ‘These incidents resulted in some discipline’ — never mind that it was too light to have much effect. But if you step back, the court seems undisturbed by a trove of evidence demonstrating egregious misconduct.”
Such circular logic makes it nearly impossible for a plaintiff such as Perkins to prevail. If a plaintiff argues that an investigation was botched and the police department disagrees, she’s engaging in speculation. If she can show that even the police chief agrees that an investigation was botched (but only years later, after the officers involved have long been cleared of wrongdoing), that isn’t evidence that the investigative process is flawed but, rather, shows that the department’s leadership is capable of admitting when they got something wrong, thus refuting the argument that they’re indifferent.
While the city of Little Rock and the LRPD have so far escaped liability for Bobby Moore’s death, Josh Hastings did not. Last April, a federal jury found that Hastings was liable for Moore’s death and awarded Perkins $415,000 in damages. But Hastings, who now works in construction, can’t pay anything near that amount. He recently filed for bankruptcy. The city of Little Rock conceded that Hastings illegally shot and killed Moore, but also denied any culpability for Hastings’s hiring, training, lax discipline, or the police culture that led to the fatal encounter. The city also refused to indemnify him, virtually assuring that Moore’s family will never collect.
All of which means that, unless Miller’s ruling is overturned, the only lasting result from Moore’s death will be that Hastings will owe Moore’s family money he can’t pay. But even if he had been convicted in his criminal trial, the city had already designated him a rogue officer. It is unlikely much would have changed. Reform advocates such as Bains say that while it’s important to hold individuals officers accountable — both civilly and criminally when appropriate — systemic change usually requires the sort of indictment of an entire police department that can only come from a successful Monell claim or a Justice Department investigation.
“I have both prosecuted individual police officers and conducted investigations into systemic problems,” Bains said. “I think the criminal code is the way we enforce our values as a society, so I think it’s important that officers who commit crimes while using force be held accountable. But I’ll concede that that’s a limited way to bring about lasting change. There are very few examples in which a criminal trial against an officer resulted in broad reforms.”
Bains said systemic investigations like those conducted by him and his Obama administration colleagues into the Baltimore, Chicago and Ferguson, Mo., police departments are a better route to reform, together with consent decrees and court enforcement of those agreements. The authority of a federal investigation is a good way of drawing local attention to ongoing problems. Ironically, while such investigations don’t punish individual officers or police leadership, they are incredibly divisive, and seen by police groups and conservatives such as Attorney General Jeff Sessions as imposing federal will on local cops. There is also disagreement in criminal-justice scholarship about whether consent decrees work over the long term.
Perkins takes little comfort in the judgment against Hastings. “This was never about money,” she said. “This was about holding the Little Rock police accountable for the death of my baby. For the way they treat people in this city. If the courts don’t want to make them change, we’ll find another way. We’ll keep fighting.”
Thomas retired as chief in 2014, and was replaced by Kenton Buckner, previously of the Louisville Metro Police Department. Buckner, who is African American, initially inspired some hope that change would come to Little Rock. Those hopes dissipated after Buckner began publicly feuding with the Little Rock Black Police Officers Association. Buckner first suggested that the group merge with the Fraternal Order of Police, a group that black leaders in Little Rock say has long been part of the “good ol’ boy” system responsible for LRPD’s problems in the first place.
Then, last November, the head of the LRBPOA sent Buckner a letter drawing attention to a recent department recruit who had used the n-word on his Facebook page. Buckner dismissed the recruit, but then also fired a black recruit for using the same word. Buckner then fired another black recruit for using an offensive word on social media when she was 16 years old. He also suspended Sgt. Willie Davis, who first reported the white recruit’s slur, for going public instead of using the usual chain of command. The discrepancy was not lost on the department’s black officers — Lt. Johnny Gilbert Jr. had gone up the chain of command about Hastings. He was ignored.
Nearly six years after the shooting, Gilbert, the one LRPD official who tried to prevent Josh Hastings’s hiring, seems to be the only Little Rock official who feels any guilt about Moore’s death.
“Oh, it haunts me,” Gilbert said. “It haunts me. I mean, on some level it ought to be self-evident. You don’t hire a police officer who attended a meeting of the Ku Klux Klan. It feels ridiculous to even say it, doesn’t it?”
Gilbert pauses and rubs his forehead. “I wonder sometimes. What if my memo had been harsher, more strongly worded? What if I had spoke up louder, and more often? I wonder if I had done more, if Bobby Moore would still be alive. But then I remember that this is about more than one officer. It’s about more than Josh Hastings. This is about being better. We’re the police. This is on us. We have to do better.”
“The problems at the Little Rock Police Department are systemic,” said Griffen, the Pulaski County circuit court judge. “Excessive force, unnecessary shootings, cultural incompetence. These problems are systemic because the city’s leadership refuses to hold the police department accountable. The police are what they are because the elected officials are who they are.”
Griffen fears that without substantive change, Little Rock could erupt the way Ferguson or Baltimore did. But elected officials haven’t seemed interested. And with the Justice Department scaling back oversight, that really just leaves the courts. All of which means a lot could be riding on how the 8th Circuit comes down later this year.
“Police-community relations here are poor and worsening,” Griffen said. “Little Rock is running out of time.”