Attorneys for both the plaintiff and the defendant have rested this evening in a federal civil suit by a man who was beaten in October 2011 by an off-duty LRPD Lieutenant outside a restaurant in the Heights. After closing arguments tomorrow morning beginning at 9 a.m., the case will go to the jury.
As seen in a bystander’s video of the incident, Chris Erwin was struck at least 7 times in the face by Little Rock Police Lt. David Hudson outside Ferneau’s restaurant on Oct. 29, 2011. Hudson was working off-duty security at the restaurant at the time.
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Erwin and his friend Blake Mitchell, who were at the restaurant with Mitchell’s wife and Erwin’s date, were both subsequently arrested and taken to the Pulaski County Jail, though Erwin was later transferred to UAMS for his injuries, his face left a swollen and bloody mess. Mitchell was charged with obstructing governmental operations, criminal trespassing, public intoxication and disorderly conduct, while Erwin was charged with resisting arrest, criminal trespass, and disorderly conduct. All charges were later dropped. In Nov. 2012, after an internal affairs investigation of the incident, Hudson was suspended without pay for 30 days because the department determined he had used excessive force.
U.S. District Judge James Moody, Jr. has ruled that information about the LRPD’s determination that Hudson used excessive force and his suspension should be withheld from the jury in the civil suit.
The day started with former LRPD Lt. David Hudson on the stand, being questioned by Erwin’s attorney, Reggie Koch. Hudson said on the night of the altercation, he got to Ferneau’s at around 11 p.m. after working an 8 a.m. to 5 p.m. shift at LRPD. He was scheduled to get off from his off-duty security job at 2 a.m. He said he’d worked off-duty at Ferneau’s for around 18 months at the time so the incident.
Hudson testified that he was approached around 11:30 p.m. by a bartender who said there were uninvited guests in the restaurant’s party room. The bartender had approached them, Hudson said, only to be told: “Why don’t you throw my ass out?” At that point, the bartender came and spoke to Hudson.
Hudson said he approached the table where Chris Erwin, Blake Mitchell, Mitchell’s wife and Erwin’s date were sitting, and told them it was a private party and they needed to leave. At that point, Hudson said, Erwin began to ask why he had to leave. Hudson said after repeating that they weren’t invited two or three times, Erwin left to pay their bar tab, going first to the back of the party room where he spoke with another person. Hudson said he approached Erwin again, at which point, Hudson claims, Erwin asked him in a loud voice “Why don’t you just leave me alone.” Eventually, after what Husdon described as “repeated commands,” Erwin left the restaurant and walked outside. From the time he first approached the table to the time Erwin left the restaurant, Hudson said, was about two minutes. Hudson testified that while speaking to him, Erwin’s demeanor was “argumentative.”
Koch asked if Hudson had ever informed Erwin that he could leave the private party but stay at Ferneau’s. Hudson said he had not. Hudson said that he hadn’t seen Erwin’s foursome doing anything wrong, but said he told them over and over to leave. While Hudson said that he didn’t see any of them committing a crime at the restaurant, he would take “Why don’t you throw my ass out?” as a threat.
After Erwin left, Hudson said he went back to Mitchell and the three women, who were still in the private party room, and asked them to leave, with Hudson saying he touched Mitchell on the back of the arm as he did so. Hudson said Mitchell responded to the touch by saying: “Get your fucking hands off me.” (in yesterday’s testimony, Mitchell had denied ever saying that statement). Hudson said he took the alleged statement as “aggressive” and “not something you’d normally say to a police officer.” Hudson said he told the three that Erwin had already paid their bar tab and they needed to go. After they left, Hudson said he chatted briefly with the party hostess, Tracy Rivers, and the DJ, Seth Baldy, with Rivers telling him the ladies in Erwin’s party were being loud, obnoxious and spilling drinks. Baldy, Hudson said, told him that one of the ladies had threatened to “kick his ass” if he didn’t play better music. Hudson said Baldy thanked him for kicking them out. Hudson said that threatening to kick the DJ’s ass might be considered a crime.
Hudson said he went out a side door of the restaurant, intending to return to a bar stool outside the front door where he normally sat while working security. Asked if Mitchell was lying when he testified yesterday that Hudson had menacingly followed Mitchell and his wife out a side door, Hudson said he was, and was not following Mitchell. Hudson said that as he walked to the stool in an alcove outside the door, Mitchell and Erwin approached from the front door and repeatedly asked why they had been asked to leave, and who had asked that they be kicked out. Hudson said he didn’t feel threatened by the two, and told Mitchell and Erwin to let it go and leave.
Asked why he didn’t want to give the pair the information about who had asked for them to be removed from the private party room, Hudson said police don’t generally give out information about people who call the police, giving the example of a neighbor calling the cops on a loud party. Hudson said that giving out such information could lead to retaliation against a person who talked to the police, adding it’s not good police practice, and “I wasn’t going to give that information out even if I had it.”
Hudson said he attempted several times to tell Erwin that it wasn’t important. Then Erwin, Hudson said, began to demand the information, saying it was his right to know. “I decided there was no way out of this except to arrest Mr. Erwin,” Hudson said. He added that when he’s working off-duty security, arresting someone is “the last thing I wanted to do” while working a job he’d only taken to “make a little money.” He’d later say that time spent filing paperwork on the arrests that night was uncompensated, keeping him out until 4 a.m.
Hudson testified that he told Erwin he was under arrest, grabbed his arm, and turned him toward the wall. After telling him to get his hands out, Hudson testified, Erwin tried to turn back around to face him. Hudson said he grabbed Erwin’s coat, and the two then “wrestled down the wall” of the restaurant, with Erwin breaking away from him. Erwin, Hudson said, was not complying, but wasn’t hitting him or making threats. Hudson said that Mitchell’s testimony from yesterday, in which Mitchell said he and Erwin were never told they were under arrest until backup arrived, is a lie.
Hudson said that once Erwin broke away, he reached for his lapel mic to call for backup, only to find that it had detached from his shirt and was dangling at his knees. As Hudson called for backup, he testified, Erwin turned and approached. Hudson called the act of approaching again after breaking away “a huge red flag.” Asked whether Erwin charged at him, Hudson said: “How he came at me is not as important that he came at me. It’s not normal behavior.”
Hudson said that it was a possibility that Erwin’s head had struck the wall in the altercation, but said “I never grabbed his head and slammed it into the wall.” Shown a picture of Erwin’s battered face, Hudson said he didn’t know when in the altercation that Erwin sustained various injuries, but said that if he face had been slammed into a wall, it would have been more abraded. “He doesn’t appear to be stumbling or disoriented,” Hudson said. “He’s on a mission.”
Hudson said that at the time the video starts, they had already struggled down the wall and he’d called for backup. Hudson said that normally when suspects have an altercation with the police, they will either continue to fight, submit to arrest or run. That Erwin approached “is not normal.”
Hudson said that in the video, Erwin can be seen grabbing the officer’s arms and throat while refusing repeated commands to stop resisting, though Hudson admitted he couldn’t recall that happening. “After I realized I couldn’t get him under control,” Hudson said, “I was out of options.” At that point, Hudson began striking Erwin in the face. Asked if taking Erwin to the ground instead of punching him in the face was an option, Hudson said that going to the ground while alone leaves the officer vulnerable and limits the ability to defend against other attackers.
Koch asked Hudson repeatedly at this point about his training in Pressure Point Control Techniques, and Hudson said he had not been trained in that. If the LRPD had wanted him to do anything other than what he did in the altercation with Erwin, Hudson said, they should have trained him in different tactics. Every bit of force he used during the altercation, Hudson said, was within the LRPD’s departmental use-of-force continuum. Asked if Erwin was drunk that night, Hudson said: “Yes, sir.” though Koch later pointed to a comment in Hudson’s deposition in the case, in which he said that Erwin wasn’t so drunk that night as to be a danger to himself or others.
“The goal of the face punches was to try to get him to submit to arrest,” Hudson said, adding that he believed the punches were all absolutely necessary to get the Erwin under control. Hudson testified that only after the 7th and final punch did he feel Erwin’s body had “eased up” and that he was ready to submit to arrest. “You did that analysis right there while it was going on?” Koch asked, and Hudson said he did. Hudson said his goal was never to make Erwin feel apprehension and fear, only to effect the arrest. Asked if he would feel apprehension and fear while being punched in the face seven times, Hudson said that if he was failing to comply with a police officer at the time, he would feel as if he’d gotten what he had coming.
Soon thereafter, Koch asked if Hudson had hit Erwin in the face “just like you hit Chase Cooper in the face four months earlier?” The statement was immediately objected to by Bill James. Cooper was another Ferneau’s patron Hudson had punched in the face multiple times while trying to arrest him after Cooper was thrown out of the restaurant in Feb. 2011. Information on that case hasn’t been mentioned in the civil trial, and after the jury had exited, Bill James later asked Judge Moody for a mistrial over the mention of the incident involving Cooper. Moody denied the motion.
Under cross examination by Bill James, Hudson said he had been involved with the LRPD since 1975, joining as a cadet two days after he graduated from high school and later attending the police academy in 1978. After going through his career, including several years in Narcotics and others heading the LRPD motorcycle, K9, police helicopter, airport and special events units, Hudson said he’d received 25 to 30 letters of commendation before retiring on April 1, 2016. He said he’d been married for 29 years, and is the father of three children. Hudson briefly became too overcome with emotion to speak when he talked about his son, who was injured in Afghanistan while serving the Army.
The night of the altercation, Hudson said that Erwin had asked “Why do we have to leave?” at least seven times before the decision was made to place him under arrest. At the time he tried to make the arrest, Hudson said, Erwin and Mitchell were “within a foot or two” of him, and demanding to know who had asked that they be kicked out. The distance was dangerous, Hudson said, because it doesn’t leave him much reaction time if the incident turns violent. Mitchell and Erwin, he said wouldn’t let it go. “I’m basically arguing with a wall.”
Hudson said that from the moment he told him he was under arrest, Erwin never complied until he was handcuffed, with Erwin turning out to be much stronger than he had expected. James then walked Hudson through the LRPD use-of-force continuum, which stipulates when officers can escalate to the next level or force, from verbal commands all the way up to shooting a subject. Hudson said again that he’d exhausted other options involving lesser force to try and compel compliance when he punched Erwin.
After lunch, former LRPD Chief Stuart Thomas took the stand, telling the jury that in cased of “defensive resistance” by suspects, an office can move up to a higher level of physical force if they believe lower levels are unlikely to be effective. Asked by Koch about deescalation, Thomas said that officers have to look at the circumstances that got you were it was necessary to use force, and that the use-of-force continuum is not one-size-fits-all for every occasion.
Under cross examination by Bill James, Thomas said that there are circumstances where a punch to the face is within LRPD guidelines. He and James spoke at length about the varying levels of resistance a suspect might display while being arrested, up to an including “aggressive resistance” which can be met with higher levels of force. Thomas agreed that pain can be used to compel compliance.
On recross by Koch, Thomas said that while officers can use force while making an arrest, “it is incumbent on ta police officer when he uses force to explain to supervisory review that actions and the thought processes that officer went through.” Thomas agreed that an officer can’t use more force than is necessary.
During a break with the jury out of the room, Thomas offered proffered testimony about the investigation into Hudson’s use of force against Erwin, which led to Hudson being suspended for 30 days without pay in Nov. 2012 for using excessive force in the Ferneau’s incident. Thomas said that from what he could see in the video of the incident, Hudson had Erwin “contained” before he started punching him in the face. Asked if he believed Erwin was posing a threat to Hudson or public safety at the moment he was punched, Thomas said: “In my opinion, no,” adding that he believed Hudson used more force than was necessary in the arrest.
Asked by Arkansas Times why the testimony about Hudson’s suspension for excessive force was excluded from the civil trial over Erwin’s beating, Reggie Koch said he didn’t know, other than that Moody had ordered it.
On the stand following Hudson was Maria Torres, the Colorado lawyer who filmed the altercation. Torres told the jury that she was on the patio with a college friend that night, and happened to have a camera that could shoot video on the table between them. Torres said she saw Mitchell and Erwin walk past the patio, smiling and laughing, then “the next moment” she heard an altercation and turned to see Erwin “being flung around” by Hudson. She never heard a raised voice before that, Torres said. She said that Erwin wasn’t being aggressive, and was “panicked,” raising his handing in “the univeral ‘I submit’ motion.” Asked by Koch if Erwin was resisting, Torres said: “The exact opposite. He was doing everything to comply and make this stop.”
“I was horrified,” Torres said. “I felt like a person I didn’t know was about to be injured or shot.” That caused her to pick up the camera and start filming. She later provided the video to Erwin’s friends.
On cross by Bill James, Torres said she didn’t hear any words passed between Hudson and Erwin prior to the altercation, with Torres saying it was quiet on the patio, with no loud music playing. She began recording when she heard the scuffle. James later played Torres the video she shot, noting that a song by the Red Hot Chili Peppers was playing loudly from the bar in the video. Torres said she didn’t see Hudson following Mitchell and Erwin, or running up to them, which contradicts key testimony from yesterday.
Under questioning once again by Koch, Torres said that Erwin never resisted Hudson. She described Hudson’s face during the incident as “unbridled rage, unbridled aggression.”
“I remember seeing the white of his eyes,” Torres said. “It was beyond any sort of control. It was scary.”
After Torres was released, Erwin’s attorneys rested their case at around 3:20 p.m.
After a break, Bill James called witnesses to make the case for Hudson, starting with interior designer Tracy Rivers, who was hosting the private party at Ferneau’s on Oct. 29, 2011. Rivers said that there were no signs posted saying that the room had been reserved, and that she had asked others who weren’t invited to leave earlier in the night. The party featured an open bar and food, she said.
Erwin’s party came in at the same time and sat near the DJ booth, Rivers said, adding that she first noticed them because they weren’t wearing costumes. “They were dressed sort of nicely,” Rivers said, “so I let then stay a little bit.” Rivers estimated the time as between 30 and 45 minutes.
The ladies in Erwin’s party, Rivers said, were “dancing provocatively,” including one of them “raising her skirt to the point I felt uncomfortable.” Rivers testified that at one point, one of the women told the DJ that she would kick his ass if he didn’t play different music.
Because of their behavior, Rivers said, she felt that kicking them out was “something I shouldn’t get involved in.” so she asked a bartender to ask them to leave. After the didn’t leave, Rivers said, someone retrieved Lt. Hudson. Rivers said she didn’t see the altercation outside, and didn’t see Hudson grab any of the four or act unprofessionally. After the altercation, Rivers said, Hudson’s demeanor was calm and professional.
Under questioning by Koch, Rivers said that from their behavior, she assumed the women in Erwin’s group were drunk that night.
The defendant’s witnesses for the rest of the afternoon consisted of others who were at the party, bystanders who saw the altercation or employees of Ferneau’s. D.J. Seth Baldy, who was hired by Rivers to D.J. that night, said that the women in Erwin’s group put drinks on the DJ table, with one of the women telling him “You need to play some dance music or I’m going to kick your ass.” Baldy said he didn’t think the woman really wanted to harm him, but did say it was rude. He later told Rivers about it.
Baldy said when Hudson came in to ask the four to leave, he turned the music down during the 2 to 3 minute encounter so they could hear the officer. Hudson’s behavior, Baldy said, was never rude or unprofessional. After seeing a commotion outside through the window next to the DJ booth, Baldy said he went outside to see what was going on and saw Hudson punch Erwin five to seven times, then throw him to the ground, with Mitchell attempting to “push him off” as the two struggled on the sidewalk. Baldy said he didn’t think Erwin was complying and was intoxicated, with Erwin “rolling around” as Hudson attempted to handcuff him. While being questioned on cross, Baldy said “it looked a little excessive to me,” but added that he’s not a law enforcement officer.
Also testifying for the defense was Ferneau’s bartender Jeffery Araha, who was asked by Rivers to tell Erwin’s group they had to leave. In brief testimony, Araha said that Erwin responded to his request to leave with: “Why don’t you kick my ass out?” At that point, Araha said, he went to get Hudson.
Last up for Hudson was Matt Lieblong, who is seen in the video of the incident wearing a white polyester jumpsuit, part of the “Saturday Night Fever” costume he was wearing that night. Lieblong said he was at a party at a different restaurant about 30 yards from Ferneau’s when he heard a commotion and say Hudson pushing Erwin against a wall. A former bar bouncer, Lieblong said he initially shrugged it off as “another drunk being arrested,” but became concerned after he looked back and saw that Erwin wasn’t submitting to arrest. He didn’t want to see “a cop getting jumped by multiple people” Lieblong said, so he rushed to the scene and attempted to help by keeping bystanders back as Hudson struggled with Erwin on the ground. He said Erwin was “resisting to some degree,” and “trying to turn around, asking what’s wrong, what’s going on?” Lieblong said he never saw Hudson throw the punches, and assumes they happened while he was turned away.
Based on his experience working in bars, Lieblong said, he believed that Erwin and his group were intoxicated at the time of the incident, including slurring his words. Koch countered by showing a picture of Erwin’s bloodied face and asking whether a person might slur their words after being repeatedly punched in the face. Lieblong reiterated that he felt Erwin was intoxicated. After Lieblong left the stand, attorneys for Hudson rested.
Closing arguments begin at 9 a.m. tomorrow with Judge Moody saying he hopes to have the case to the jury by 11 a.m.