AT CIVIL SERVICE HEARING: Charles Starks with attorney Robert Newcomb.

Circuit Judge Tim Fox this morning ordered Charles Starks reinstated as a Little Rock police officer, but with a pay reduction. The city says it will appeal.

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Starks had been fired for the fatal shooting Feb. 22 of Bradley Blackshire during a traffic stop near 12th and Rodney Parham. Chief Keith Humphrey ordered the firing despite recommendations from others in the chain of command that, while Starks might have not followed all departmental rules, his actions didn’t justify the firing. Prosecuting Attorney Larry Jegley also ruled that the shooting was justifiable. Mayor Frank Scott Jr. took an aggressive role in the case, beginning with an early release of a professionally edited video of Starks’ encounter with Blackshire, who was driving a stolen car and who was found after the shooting to have a gun in the car. Blackshire kept driving after Starks ordered him repeatedly to stop.

Starks said he feared that Blackshire might be armed.  He jumped in front of the moving car and fired multiple times, killing Blackshire. It was his move in front of the car that violated departmental rules.

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The Civil Service Commission upheld the firing, but Starks appealed to Circuit Court, where Fox held an abbreviated hearing and decided the case on submitted briefs and the Civil Service hearing record. He said he didn’t need to hear more than a dozen witnesses on deck for Starks’ defense.

Here’s Fox’s ruling, first reported by KARK.

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Said Starks’ attorney Robert Newcomb: “I’m happy. Mr. Starks is happy. I hope the mayor and chief will let it lay.” He said Starks has no plans to appeal, but if the city does, Starks might have issues to raise on the findings of fact. He said the law clearly authorized the judge to reduce pay.

Newcomb said Starks plans to return to work and that his assignment would be a prerogative of the department. It might not be a patrol job, though it would be a job that certified officers do.

He noted that Starks had substantial support in the chain of command, even among those who thought rules might have been violated.

Police Chief Keith Humphrey declined comment in response to my e-mailed request.

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Stephanie Jackson, a spokesman for Mayor Scott, said the city planned to appeal the ruling and, as a result, the mayor would have no comment.

Omavi Shakur, an attorney for Blackshire’s family in a pending lawsuit, issued this statement for the family:

The family is alarmed and dismayed by Judge Fox’s orderJudge Fox concluded that Officer Starks wrongfully violated the Little Rock Police Department’s policy concerning officer uses of force. Moreover, the judge concluded that Bradley Blackshire died as a consequence of Starks’s violation. Judge Fox went on to explain that Starks’s actions placed bystanders in danger. These findings and conclusions suggest that the Civil Service Commission’s 5-1 vote affirming Starks’s termination should have been allowed to stand. Instead, Judge Fox opened the door for Starks to return to patrolling our community, armed. We hope the City will appeal the judge’s erroneous ruling.  In the meantime, we will continue to pursue justice for Bradley Blackshire in federal court.

UPDATE: A response has also been issued by private lawyers hired by the city —  Khayyam Eddings and Michael Moore of the Friday, Eldredge and Clark law firm — to defend the firing.

On behalf of the City of Little Rock, we respectfully believe that the Court erred.
The Court found that Officer Starks clearly violated General Order 303.II.E.2 of the Little Rock Police Department.

The Court also found that he made several non-emergency decisions that caused his violation of the General Order.

Finally, the Court found that “there is no question [Officer] Starks’ violation of Little Rock Police Department General Order 303.II.E.2 had serious and substantial consequences.”

Mr. Bradley Blackshire suffered the most serious and substantial consequence of Officer Starks’ violation of the General Order when he lost his life.

However, the Court made no analysis of mitigating factors that would justify a lesser penalty than termination — which it said is the absolute most severe consequence that could be levied against Officer Starks in this case.

Most often used in mitigation is acceptance of responsibility. In this case, Officer Starks steadfastly refused to accept responsibility for what the Court held was a clear violation of the General Order 303.II.E.2.

Understanding these facts, as counsel for the City of Little Rock we intend to appeal the Court’s decision and ask the Court to stay its order reinstating Officer Starks pending the appeal.

The judge wrote in his order:

On the 10th day of December 2019, this matter came on appeal with the Appellant appearing in person and by and through his attorneys and the Appellees appearing by and through their attorneys, and from the testimony presented, the evidence admitted, the transcript of the Little Rock Civil Service Commission hearing containing both testimony and evidence, and the argument of counsel, the court doth find as follows:

1. The decision of the Little Rock Civil Service Commission that Appellant Starks violated Little Rock Police Department General Order 303.II.E.2 is affirmed.

2. The decision of the Little Rock Civil Service Commission to terminate Appellant Starks is reversed.

3. Appellant Starks is ordered suspended without pay for the period from May 6, 2019, through June 4, 2019, the maximum thirty-days allowed for suspension pursuant to A.C.A.

4. Appellant Starks is ordered reinstated effective June 5, 2019.

5. Pursuant to A.C.A. $ 14-51-301(bX11XA), Appellant Starks’ salary shall be reduced to that of the entry-level salary for the Little Rock Police Department newly hired officers, as of June 4, 2019.

6. Appellant Starks shall be paid all salary at the reduced level, together with payment or reimbursement for all health benefits, retirement benefits, vacation accrual, sick
leave accrual, together with all remuneration due and payable from June 5, 2019, through implementation of this Order.

7. Appellant Starks is to be reimbursed any and all transcript costs incurred in prosecuting this appeal.

8. If Appellant Starks seeks the award of his reasonable attorney’s fees and costs incurred in this matter, he is to submit his motion together with all supporting documentation and argument in accordance with the Arkansas Rules of Civil Procedure. Appellees shall be given the response time as set forth in the Arkansas Rules of Civil Procedure.

 

The court is entering Findings of Fact and Conclusions of Law on even date herewith. Such Findings of Fact and Conclusions of Law are incorporated herein as though set forth word for word.

IT IS SO ORDERED AND DECREED.
TIMOTHY DAVIS FOX

The judge’s order followed several pages of findings of fact.

In reciting events of the day, Fox noted how little time elapsed between the time Starks got out of his car and being struck by Blackshire’s car — 38 seconds. The judge noted the four superiors who’d said Starks should be exonoerated from a charge of violating general orders.

He wrote that Starks was not accused of using excessive force, but of violating a general order. His reasoning that an order was violated:

Little Rock Police Department General Order 303.II.E.2 has three component pieces that must be analyzed to determine whether Appellant Starks committed a violation of such policy: (i) voluntary placement in a position in front of an oncoming vehicle, (ii) where deadly force is the probable outcome, and (iii) if confronted by oncoming vehicle the offrcer is required to move out of the vehicle’s path, if possible, rather than fire at the vehicle.

 

In determining whether Appellant Starks violated Little Rock Police Department General Order 303.II.E.2, the court has applied two legal standards. For the relevant period of time up to Appellant Starks’ exit from his patrol car, the court has utilized the standard of a reasonable certified law enforcement officer with five (5) years’ training and experience in a non-emergency situation. For the relevant period of time from Appellant Starks’ exit from his patrol car to conclusion of the incident, the court has utilized a reasonable certified law enforcement officer with five (5) years’ training and experience in an emergency situation.

 

The court concludes that, with respect to all three components of the subject policy, for the relevant period of time from Appellant Starks’ exit from his patrol car to conclusion of this incident, Appellant Starks’ actions were those of a reasonable certified law enforcement officer with five (5) years’ training and experience in an emergency situation.

If the scope of the inquiry were limited to the period of time from Appellant Starks’ exit from his patrol vehicle to conclusion of this incident, the court’s conclusion would have been that Appellant Starks did not violate Little Rock Police Department General Order 303.II.E.2.

 

As previously noted, this appeal involves a termination from employment. It does not address issues relating to any possible criminal charges. If such matter were within the scope of this court’s review, it would be this court’s opinion that as a matter of law, based on the testimony and evidence submitted, Appellant Starks did not commit any violations of criminal law with respect to his actions in this incident.

 

As previously noted, this appeal involves a termination from employment. It does not address issues relating to any possible civil causes of action. If such matter were within the scope of this court’s review, it would be this court’s opinion that as a matter of law, based on the testimony and evidence submitted, Appellant Starks did not engage in any tortious conduct of any nature with respect to his actions in this matter.

 

The appropriate analysis of whether Appellant Starks violated Little Rock Police Department General Order 303.II.E.2 does not, however, begin when Appellant Starks exited his patrol vehicle at the scene. Appellant Starks did not suddenly appear by the driver’s side door of the stolen vehicle. Complete analysis of whether there was a policy violation requires an examination of the entire sequence of events of Appellant Starks’ actions beginning at the point in time when he first notified Dispatch he would respond to the notice concerning the stolen vehicle.

The court concludes that a number of Appellant Starks’ non-emergency decisions fall below the threshold of a reasonable certified law enforcement officer with five (5) years’ training and experience in a non-emergency situation.

 

These illogical decisions culminated in Appellant Starks’ non-emergency decision to intentionally and voluntarily park his patrol car where it only partially blocked the parked stolen vehicle, and that he also made a non-emergency decision to intentionally and voluntarily park his patrol car in a configuration where he then had to walk across the front of the parked stolen vehicle to address the driver of the stolen vehicle.

 

The court therefore affirms the decision of the Little Rock Civil Service Commission that Appellant Starks violated Little Rock Police Department General Order 303.1.8.2

The judge concluded, though Starks’ action had serious consequences, beginning with the loss of a life and including damage to property, that the state law placed limits on potential punishment and termination was not warranted, in part because consequences could have even been worse.

The statutory maximum suspension period of thirty (30) calendar days without pay is clearly warranted. Suspension by itself is insufficient for Appellant Starks’ violation. It does not appear from the testimony and evidence that a reduction in rank is an option in the present matter. A reduction in compensation is the only other available statutory remedy.

 

A reduction in compensation is appropriate and warranted in this matter as the court has determined that Appellant Starks, in his non-emergency decisions, did not act in accordance with the standard of a reasonable certified law enforcement officer with five (5) years’ experience. The court assesses the additional penalty of reducing Appellants Starks’ salary to that of the entry level for the Little Rock Police Department newly hired officers, as of the final day of his 30-day suspension.

 

Fox’s opinion that there was no “tortious” conduct is interesting, though not applicable, in light of the fact that Blackshire’s estate has filed a federal civil lawsuit over his death.

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LAWSUIT FILED: Bradley Blackshire’s mother at past news conference about lawsuit over his death. (Brian Chilson photo)