The Little Rock City Board and Mayor Frank Scott Jr. have been informed that City Attorney Tom Carpenter has objected to a tentative settlement of the lawsuit against the city of Little Rock over the shooting death of Bradley Blackshire two years ago. He said City Board approval is necessary.
It’s a political bombshell that puts Carpenter on thinner ice with the mayor, if not necessarily with the important Board of Directors.
We first reported yesterday the outline of a settlement of $300,000 — shared by the city and the Arkansas Municipal League — that included requirements for police training.
As I reported then, the city has been defended by outside legal counsel and the city attorney’s office had been left out of communications, which apparently are overseen by Mayor Scott’s senior adviser, Kendra Pruitt.
Carpenter’s objection goes beyond one legal dispute I mentioned was brewing — whether the mayor, through City Manager Bruce Moore, could direct payment of $49,500 as the city’s share without board approval. The mayor thinks he can. Carpenter does not. But Carpenter also ventures into a seeming admission of liability by the city and the absence of board approval for police policy decisions.
Carpenter’s memo to the board, supplied to me by a board member:
Dear Mayor Scott and Members of the Board of Directors,
This afternoon I filed a notice with the U.S. District Court in the above case which said the governing body has not yet approved the settlement agreement that has been announced as having been reached. A copy of that notice is attached. Also attached are two emails that I sent to the Arkansas Municipal League last Friday, and today, expressing my concerns over the settlement without Board approval. Finally, I have attached a copy of the proposed settlement agreement to this email.
As to contact with the Arkansas Municipal League, shortly after I sent the first email on Friday, 08 October 2021, I received a telephone call from Mr. John Wilkerson, General Counsel. There were discussions about settlement, settlement authority, and what may happen to the litigation if the letter were sent at this time. I agreed Friday not to be concerned if there was no effort to take the case into Probate Court for a quick approval. However, the news articles in the Arkansas Democrat-Gazette and the Arkansas Times, the statements made by the plaintiffs caused great concern. In addition, the “non-monetary” terms, which are policy decisions only to be made by the policy makers for the City – i.e., the Mayor and Board of Directors together – I had greater concerns. For example, for over 30 years the training in the Little Rock Police Department has been attacked in state and federal court, and upheld every time. Many of these cases have withstood attack on appeal to the U.S. Court of Appeals for the Eighth Circuit. Two or three of them have not merited review when sought by the U.S. Supreme Court. So, why would the City enter into an agreement which suggests a deficiency in its deadly force training when none has ever been found. Further, the matters to be “added,” are things that are already done by the Training Division of the Little Rock Police Department. The throw away phrase that the Department can decide how and when to do the training only recognizes that the City has not failed to train its officers on the use of deadly force. It is possible that you would wish to sign such an agreement; but, the policy decision belongs to the elected body. That has not been done.
There are other reasons that this notice to the Court was filed, but I believe there is a better forum to discuss them. As this email was about to be sent, I received a response from Mr. Wilkerson to today’s email. I have not had a chance to read it, and we are scheduled to be in session in less than two hours. I will try to read it between now and then. Please let me know if you have any questions.
Here’s Carpenter’s letter to federal Judge Price Marshall, presiding in the lawsuit by Blackshire’s estate.
Here also is the full settlement agreement I outlined yesterday. The city has resisted providing this to date, despite Freedom of Information Act requests. Carpenter apparently has been provided a copy since his first response to my request last week said he had no copy and didn’t know a settlement had been reached until it was reported in media.
I reported yesterday that there was significant opposition on the City Board to settling the case and Carpenter’s communication says he’s heard the same.
Carpenter is speaking out against a settlement that enjoys the mayor’s support — though he has declined comment and though his chief PR spokesperson didn’t respond to my questions about this yesterday. The city attorney and city manager may be hired and fired by the mayor, but he must have six votes from the City Board to uphold a firing decision.
Carpenter’s e-mail to John Wilkerson, general counsel for the Municipal League, explained that he disagrees with assertions from the mayor’s office and Wilkerson that the city is free to pay its $49,500 settlement without approval from the City Board. UPDATE: Read for a strong disagreement from Wilkerson.
As I mentioned last night during our phone calls, the City has not authorized settlement of this matter. Although this is not a conflict of interest disqualification issue, I think that the Arkansas Supreme Court decision in Cash v. City of Little Rock, 277 Ark. 494, 509, 644 S.W.2d 229, 235 (1982), is quite instructive. There the city attorney stated that no conflict of interest issue would be raised. Even so, the Court noted that a subsequent resolution passed by the City board of directors negated a representation by the city attorney. Of course, in this situation, I have stated on several occasions that the Board of Directors would need to approve a settlement. After notice of the “settlement,” last night, I spoke with the various members of the Board of Directors. No vote was taken of course, but I can state that there is no support for this settlement.
Another interesting issue is that the City has allegedly pledge up to $50,000.00 as part of this $300,000.00 settlement of the case against the City – i.e., of course, the City pledge may be only $49,999.99. This payment cannot be made without the approval of the Board of Directors. There is a statute that permits a city manager to sign certain agreements without Board action. It reads, in relevant part, as follows:
(5)(A) To the extent that, and under such regulations as the board may prescribe by ordinance, he or she may:
(i) Contract for and purchase, or issue purchase authorizations for, supplies, materials, and equipment for the various offices, departments, and agencies of the city government, and he or she may contract for, or authorize contracts for, services to be rendered to the city or for the construction of municipal improvements. However, in such connection, the board shall establish by ordinance a maximum amount, and each contract, purchase, or authorization exceeding the amount so established shall be effected after competitive bidding as required in § 14-47-138;
(ii) Approve for payment, out of funds previously appropriated for that purpose, or disapprove any bills, debts, or liabilities asserted as claims against the city. However, the board shall establish by ordinance in that connection a maximum amount, and the payment or disapproval of each bill, debt, or liability exceeding that amount shall require the confirmation of the board or of a committee of directors created by the board for this purpose;
Ark. Code Ann. §14-47-120 (5) (A) [emphasis added]. The amount set by the Board of Directors is currently $50,000.00.
(a) (1) Where the amount of expenditure for any purchase or contract authorized in section 2-241 exceeds fifty thousand dollars ($50,000.00) or more, the city manager, or city manager designee, shall invite competitive bidding thereon by legal advertisement published one (1) time in any local daily newspaper or posting by electronic media, but in all instances, adequate notice shall be given; bids received pursuant to the advertisement shall be opened not less than seven (7) days, nor more than thirty (30) days following the date of invitation to bid unless the city manager authorizes an increase in the maximum number of days the bid shall be open due to the complex nature of the bid issue. Any such extension in the maximum number of days the bid shall be open must be authorized prior to the bid opening; provided; however, the city manager or board of directors may reject any and all bids.
Little Rock, Ark., Rev. Code §2-242 (a) (1) (1988) [emphasis added. In other words, while the city manager in Little Rock can authorize an expenditure for a purchase of no more than $49,999.99, such authorization is limited to a competitive bid process. Of course, that has not occurred. Only the governing body of the City can authorize this expenditure, and it has not done so.
To that end, it is important that the District Court be informed that authorization for settlement has not been made by the City. Please make sure that this information is provided to the Court today. Of course, please copy me on such a letter.
He reiterated that argument and delved more deeply into liability issues in another e-mail to Wilkerson. A portion of that:
Last week I wrote to outline why I believe it would be in the best interests of the City to have Judge Marshall apprised officially that there are questions as to the City’s settlement in this matter. Yesterday, you were quoted in the Arkansas Democrat-Gazette that the Mayor and City Manager could settle a case for the City despite the fact I have consistently stated to the contrary. Now the City, this office, and the attorneys in this case are at risk if Judge Marshall is not contacted immediately and told that the representation of City acceptance of the settlement terms was premature.
Of course, whether settlement is required, is necessary, is for the benefit of the City, or carries out an undertaking of a public nature, is a policy question to be decided by the governing body. In this instance, these policy questions have never been shared with the governing body. More to the point, the Arkansas Times reports that perhaps as many as eight elected members oppose this settlement. This is particularly true where AMLDP has consistently informed the City that Little Rock police policies were not the moving force behind the constitutional violation in this matter as late as Thursday, 07 October 2021. In addition, the AMLDP has never filed a motion for summary judgment to show that the City was not the moving force for the alleged constitutional violation, i.e., that the City meets the prerequisites for liability under civil rights law.
Of course, if summary judgment is denied to the City, then the matter has to proceed to trial before an appeal can occur. Or, as happened in the recent Cole v. Hutchins litigation – in which settlement offers were denied and a defense verdict was returned – a jury has to make factual findings which, among other things, may mandate a finding there is no City liability. AMLDP has not filed a motion for summary judgment in this case as to municipal liability.
It is clear that often a settlement includes language about no admission of liability. But, in this case the offending officer, who was fired for failure to follow City policy, pays nothing and for the first time in its history the City will pay damages for an officer’s actions after the officer was fired for these actions. This decision implicates future cases, and requires distinctions that might be interesting, but irrelevant, as to why one case is settled and another is not. Again, this is a policy question only the governing body has the authority to decide about this settlement, and no such decision has been made.
On Friday, 08 October 2021, counsel for the plaintiff’s decedents made numerous comments about the settlement. These include:
[Omavi]Shakur said there’s no provision for “restorative justice” in his settlement with Little Rock. He said the settlement includes monetary and non-monetary provisions but he wasn’t prepared to discuss them yet.
https://arktimes.com/arkansas-blog/2021/10/08/little-rock-settles-lawsuit-over-shooting-death-bradley-blackshire (last accessed 11 October 2021 @ 1007) [explanation added][emphasis added]. Of course, while there has been some indication about monetary elements, there has been absolutely no communication with the governing body about non-monetary settlements and whether they are acceptable. In addition:
[Mr. Shakur] said the Blackshire family would view this outcome as “just the beginning” of efforts to bring justice to Little Rock police department practices.
He said he believed the settlement was helped in part by work of their expert on police practices, Seth Stoughton, who testified for the prosecution in the George Floyd murder case. Shakur said Stoughton had found a pattern in the department of “dangerously poor tactics” that increased the likelihood an officer would use deadly force. He said Starks’ decisions the day of the shooting were inconsistent with good police practice, from the initial stop to stepping in front of Blackshire’s moving car and then firing multiple times. Had he used “generally accepted” practices, the consultant reportedly found, Blackshire wouldn’t have been killed.
Id. [explanation added] [emphasis added]. What additional efforts are forthcoming, and is it acceptable to the City governing body to accede to them? Of course, the fact that Mr. Starks did not follow City police practices in this shooting is why he was terminated. This termination was confirmed by the City, as affirmed by the Little Rock Civil Service Commission. The Circuit Court set aside the termination, but stated that there was a violation. This decision has been reversed by the Arkansas Court of Appeals, and the mandate has been returned to the Circuit Court. If there is a transcript of Mr. Stoughton’s deposition, I would like to see it.
A news release from the Blackshire family lawyers elaborated:
Today, plaintiffs represented by the NAACP Legal Defense and Educational Fund, Inc. (LDF), co-counsel Loevy & Loevy, and the Initiative for a Just Society reached a settlement – subject to the approval by the probate court – with the city of Little Rock, Arkansas for monetary and non-monetary relief. This lawsuit was filed in June 2019 on behalf of the family of Bradley Blackshire, a Black man who was repeatedly shot and killed by former Little Rock Police Department (LRPD) Officer Charles Starks. The suit brought forth several claims, including counts of excessive force, failure to provide medical attention, and wrongful death.
The LRPD’s history is checkered by unconscionable violence and police misconduct pervasive problems that were again readily apparent in Blackshire’s case. For too long, the city of Little Rock has maintained policies and practices that allow LRPD officers to engage in deadly force with little to no accountability. “Bradley Blackshire should be alive,” said Practitioner-in-Residence at the Initiative for a Just Society Omavi Shukur. “Former Little Rock Police Department Officer Starks’ fatal actions — and the municipal policies and practices that precipitated them — have caused unspeakable grief, which has only been exacerbated by the machinations of a callous legal process. Litigation alone has proven to be inept at preserving Black life and providing justice to communities being ravaged by state-sanctioned terror. The family believes that true justice lies outside of the current legal system and intends to continue to pursue justice for Bradley well into the future.”
Id., [emphasis added. Did the AMLDP attorneys decide to settle this case without governing body approval because of these comments? It does not make sense. In the first place, the comment that the legal process is “callous”, and that litigation is ”inept” belies the integrity of the federal judiciary. For over 30 years – the period of time that I have been City Attorney – federal District Courts, and the U.S. Court of Appeals for the Eighth Circuit, has consistently rejected this argument from plaintiffs. As stated in Perkins v. Hastings — a City case handled by AMLDP – the Court said:
Perkins first contends that the violation of her son’s Fourth Amendment rights was caused by the City’s failure to adequately investigate police misconduct. To establish a municipal custom based on a failure to prevent police misconduct, a plaintiff must show that the municipality acted with deliberate indifference to the rights of persons with whom the officers come into contact . . . Parrish v. Luckie, 963 F.2d 201, 204 (8th Cir. 1992) (“To establish a city’s liability based on its failure to prevent misconduct by employees, the plaintiff must show that city officials had knowledge of prior incidents of police misconduct and deliberately failed to take remedial action . . . The district court determined that Perkins’s failure to show a pattern of constitutional violations foreclosed her inadequate-investigation claim.
The district court did not err when it required Perkins to establish a pattern of constitutional violations to prove her claim. See Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir. 1999 (“Evidence that a police department has failed to investigate previous incidents similar to the incident in question may support a finding that a municipal custom exists, and that such a custom encourages or allows officers to use excessive force without concern for punishment.”
Rogers v. City of Little Rock, 152 F.3d 790, 798 (8th Cir. 1998)(“In order to subject the city to § 1983 liability Rogers must show that the city had a ‘ “policy or custom” of failing to act upon prior similar complaints of unconstitutional conduct, which caused the constitutional injury at issue.’) . . . Although Perkins maintains that the City’s investigations into misconduct were “nothing more than a facade, designed to exonerate officers,” . . . she has not addressed the substance of the district court’s decision to grant summary judgment to the City—that she had not presented sufficient evidence to show a pattern of constitutional violations . . .
At summary judgment, Perkins argued that the evidence established a “pattern of shooting at moving cars that do not pose an objectively reasonable fear of imminent death or great bodily harm.” She presented some evidence regarding six incidents in which officers had used deadlyforce against individuals driving vehicles. The district court concluded that only one of the shootings was arguably unjustified and that the remaining incidents involved drivers attempting to run over police officers. . . The court concluded that Perkins thus had not shown a pattern of constitutional violations, even assuming that some officers had “acted imprudently because they could have stayed inside their vehicles, waited for backup, or gotten out of the way.” Perkins has not explained whether or how the district court erred in its analysis of those incidents, but rather argues that she has established “that several officers fired at several vehicles despite them not being in the path of said vehicles.” . . . Even assuming that the evidence can support her assertion, Perkins still has not shown that excessive force was used in those shootings, for constitutionally permissible reasons could exist for an officer to shoot at a moving vehicle even when not in the vehicle’s path.
Perkins also argued at summary judgment that certain other police shootings demonstrated a pattern of excessive force. The district court considered evidence of those shootings, but found “Perkins’s accounts of these events [to be] largely speculative.” . . .
Perkins contends that her expert established “instances of ‘facade’ investigations and inadequate supervision” . . . We find no error in the court’s conclusion that those statistics alone were insufficient to present a triable issue on Perkins’s failure-to-investigate claim. . . .
In sum, Perkins claims on appeal that the City maintained a custom of facade investigations based on alleged shortcomings in the City’s investigations into officer-involved shootings. The actionable municipalcustom here must be one of deliberate indifference to a pattern of excessive force, however, which Perkins has not established in light of the fact that she has not shown a pattern of underlying constitutional violations.
Perkins v. Hastings, 915 F.3d 512, 521-23 (8th Cir. 2019)[emphasis added]. The custom or practice allegation against the City was also rejected in Malone v. Hinman, 847 F.3d 949, 955 (8th Cir. 2017)(after also finding no constitutional violation in the use of deadly force by the Little Rock Police officer).
Finally, it is not clear that settlement for monetary and, until yesterday afternoon, unknown non-monetary reasons concludes this matter:
“The Blackshire family have lost a . . . loved family member. We cannot ever forget that. This settlement is an important step forward; it includes small steps to begin the process of reform within the Little Rock Police Department. Those steps are just the beginning, however, as we work to eradicate a culture of violence in policing,” said attorney David B. Owens.
“Bradley Blackshire’s fatal shooting is the result of the systemic police violence that unjustly kills Black people not only in Little Rock, Arkansas, but across the country,” said LDF Assistant Counsel Lauren Johnson. “Today’s settlement is an important point of departure for a locality that too often offers no relief to victims of police violence and their families . . . A significant transformation of the Little Rock Police Department is critical to ensuring that more Black lives are not taken by the Department in the future.”h
https://arkties.com/arkansas-blog/2021/10/08/little-rock-settles-lawsuit-over-shooting-death-bradley-blackshire (last accessed 11 October 2021 @ 1007)[emphasis added]. The non-monetary issues include a 10-year requirement to show a film of the plaintiff’s family, an obligation to contact the family of persons killed by City use of deadly force about mental health counseling, and to change training to include items such as de-escalation and when to withdraw weapons – issues already taught – even though the City can decide what and when to teach in these areas. This last one is problematic since there has never been a successful claim against the City on failure to train, but this settlement language suggests there has been a deficiency. To take a step like that is a clear policy issue, and only the legislative body – i.e., the Mayor and Board of Directors, make policy decisions under Arkansas law.
In light of the comments from the plaintiff that have been made since you and I last talked, and the other issues raised in this email, it is incumbent that U. S. District Judge D.P. Marshall, Jr., know the City governing body has not approved this settlement agreement. It seems appropriate to me that a simple letter, such as Mr. Shakur sent last Friday, is all that is required. Do you wish to send this letter, or do you wish that it come from this office?
UPDATE: The Municipal League provided a copy of Wilkerson’s response to Carpenter. He disagrees sharply with Carpenter’s take on several points.
Good afternoon Tom,
I’ll begin with your statement that I was quoted in the paper saying “the Mayor and City Manager could settle a case for the City despite the fact I have consistently stated to the contrary.” That is simply untrue. You and your office have not consistently stated that the City Manager cannot settle a case on behalf of the City. In fact, quite the opposite is true. In my nearly 7 years of representing the City and in my 3 years as General Counsel, you and your office have consistently led us to believe that a settlement amount that will cost the City less than $50,000 can be approved by the City Manager without Board approval. The best and most recent illustration can be found in the transcript of the settlement conference in Willie Davis, et al. v. City of Little Rock, 4:18-cv-00183-BSM. In that transcript, Bruce Moore was asked to acknowledge the following, which he did:
The city manager, Bruce Moore, represents and acknowledges that he has full and complete authority to act on behalf of the City of Little Rock in accepting and agreeing to the terms of this settlement agreement. And he further represents and acknowledges that this settlement agreement is final and does not require approval or authorization from the Little Rock city board.
I’ll note the total settlement amount was $200,000 with the City paying $36,543 of that amount. I’ll also note that Alex Betton, Deputy City Attorney for the City of Little Rock, was present for this settlement conference, as well. At no point did Mr. Betton stop the proceedings and instruct the Court that Mr. Moore’s acknowledgement was incorrect. Yet, based on your new position, it would be. Of course, if the City Board was required to approve the expenditure of $36,543, which must be done in a formal public meeting, and if the City did formally approve this settlement, I would appreciate a copy of that motion, resolution, ordinance, or minutes illustrating a verbal resolution was presented and passed by the Board.
I mentioned the Davis case to you specifically when we spoke Thursday night, but now that I’ve had additional time to reflect I am reminded of other settlements on behalf of the City I know about in which Mr. Moore settled on behalf of the City. Schiefelbein & Jones v. City of Little Rock comes to mind. In that case, Mr. Moore agreed to settle the case for $50,000, in which the City paid $25,000 of that amount. Again, I am not aware of the Board formally approving that settlement. Of course, if the City Board was required to approve the expenditure of $25,000, which must be done in a formal public meeting, and if the City did formally approve this settlement, I would appreciate a copy of that motion, resolution, ordinance, or minutes illustrating a verbal resolution was presented and passed by the Board.
I’m also reminded of the shooting case Campbell v. Johannes. In that case, the settlement was $77,000; of that amount, the City paid $7,700. Again, my understanding was that Mr. Moore approved that settlement and the Board did not formally approve that settlement. Of course, if the City Board was required to approve the expenditure of $7,700, which must be done in a formal public meeting, and if the City did formally approve this settlement, I would appreciate a copy of that motion, resolution, ordinance, or minutes illustrating a verbal resolution was presented and passed by the Board.
One final sub-$50,000 settlement – Nikita Hawkins v. James Christ, et al. – a shooting case in which I represented the City and its officers. This case settled for $90,000. Of that amount, the City paid $9,000 yet I do not believe any formal Board approval occurred. Of course, if the City Board was required to approve the expenditure of $9,000, which must be done in a formal public meeting, and if the City did formally approve this settlement, I would appreciate a copy of that motion, resolution, ordinance, or minutes illustrating a verbal resolution was presented and passed by the Board.
These instances in which Board approval was not required belies your claim now that you have consistently told me the City Manager cannot settle cases where the settlement amount to be paid by the City is less than $50,000. This is precisely why I, as well as the rest of the City’s legal team in this case, understood and believed the City Manager has the authority to settle this case without formal Board approval. The City is responsible for $49,500 of this settlement, which is below the $50,000 limit under which we’ve always operated under.
This brings me to one final case settlement – Ellison v. City of Little Rock. This case is different from the ones mentioned above because the City’s portion of that settlement exceeded $50,000. Thus, we agree that the settlement of the Ellison v. Little Rock case required formal Board approval. However, we can find no formal Board approval done in an open public meeting.
As for the rest of your concerns, all I can say is that this is the settlement terms agreed upon by the City of Little Rock.
Finally, as to your comment about sending a letter to Judge Marshall, if you’re thinking of contacting the Court, I’ll note you’re no longer an attorney of record for the City in this case due to the conflict you’ve as stated in the Motion to Withdraw as Counsel of Record on August 12, 2020. However, if the Mayor and City Manager would like us to send such a letter, we’ll certainly welcome that discussion.
All the best,