Tense legal drama in federal court today as attorneys squared off for a federal civil trial sought by a man who was pummeled by a Little Rock police lieutenant in October 2011 outside a restaurant on Kavanaugh Boulevard
As seen in a bystander's video of the incident [above], Chris Erwin was struck at least 7 times in the face by Little Rock Police Lt. David Hudson outside Hillcrest's Ferneau restaurant on Oct. 29, 2011. Hudson was working off-duty security at the restaurant at the time.
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.
Attorneys for Erwin, led by North Little Rock attorney Reggie Koch, told U.S. District Judge James Moody, Jr. today that they plan to call five witnesses, including former LRPD Chief Stuart Thomas and the Colorado attorney who filmed the altercation outside the restaurant. Attorneys for Hudson, led by Bill James, said they plan to call over two dozen witnesses. Moody said the trial to take three full days, not counting jury deliberations.
In his opening statement, Koch portrayed Erwin as a "rule follower" who has "done things right in his life" to the point that he'd never had more contact with the police than a traffic ticket prior to the incident in Oct. 2011, and has never sued anyone for money. Koch told the jury that they have an "extraordinary opportunity" to support good police officers and reject bad ones in this case. Hudson, Koch said, "is one of those police officers who doesn't like you asking him questions" and demands only obedience. He then displayed a photo of Erwin's battered face, taken in the emergency room at UAMS in the hours after Erwin was beaten.
Chris Erwin's face soon after the altercation with Hudson.
Koch pantomimed the heavy blows before saying Erwin "got his face pounded because he asked a police officer a question." Koch then gave a warning to the jury that Erwin has a "tic" which causes him to grin when he's nervous — something that was on display often during today's testimony by Erwin, who later said his doctor has him on a generic brand of Zoloft since the incident, to help him deal with anxiety and PTSD.
In the defendant's opening statement, Bill James pounced immediately on a mistake from Koch's closing in which Koch had said Erwin was born and raised in Little Rock and went to Catholic High. Erwin actually was born in Pine Bluff and graduated from high school there. Erwin, James said, might be a rule follower on every other night, but didn't follow the rules the night of Oct. 29, 2011. Hudson, James said, was a 33-year veteran of the LRPD, and had "dedicated his entire life to the community," working in every job in the department other than administration before his retirement. The photo of Erwin's bloodied face, James said, was "the aftermath of his conduct," because Erwin failed to comply with Hudson's lawful commands. "What choices did he make that left Hudson with no choices?" James asked. James said the jury would hear testimony that Erwin doesn't drink much, then James asked: Who acts the worst on alcohol? The guy who drinks every night on the person who never drinks? From there, James painted Erwin as a belligerent aggressor who got up in Hudson's face and demanded to know who had asked that he and his friends be removed from Ferneau's, then "physically stops complying" when he's told he's under arrest. James characterized the punches Hudson delivered as "jabs," which were intended to "wake [Erwin] up" and "startle him into submission." James pointed out that at the time the punches were thrown, Hudson didn't know if Erwin had a weapon, or the intentions of the people who were there with Erwin.
Chris Erwin took the stand first. Under questioning by Koch, Erwin said that he is a divorced father of two who sells insurance in a multi-state region, and drinks so rarely that he doesn't keep alcohol in the West Little Rock home he shares with his mother.
Erwin said that on the night of the incident, he and his three friends went to a fundraiser at Catholic High, then to Ciao Baci, but found it too crowded. After staying there 10 to 15 minutes, they moved on to Ferneau's. After walking in, Erwin said, they ordered two beers and two glasses of wine. They'd only been there a few minutes, Erwin said, when Hudson, who Erwin said was uniformed and wearing a badge, approached and told him he had to leave, the four having entered a room that had been reserved for a private party. Erwin testified that he went to close his bar tab, then went to the restroom and went outside. Erwin testified that Hudson's order was the only time he was ever asked to leave the restaurant by anyone, and he complied.
Outside, Erwin said, he'd just texted his girlfriend when, he testified, Hudson "comes charging up to me." Erwin said he asked Hudson who had asked them to leave. At that point, Erwin testified, Hudson told him "You're out of your fucking mind," then grabbed him by the neck and slammed his face into the brick wall of the restaurant, which Erwin said cut his cheek.
Erwin, who later testified he had never been in a physical fight in his life before that night, said that he was "truly scared for my life." He described Hudson's eyes as "enraged." Erwin said he brought his hands up to protect his face, "in survival mode," and Hudson began repeatedly punching him in the face. Asked by Koch if he had acted aggressively toward the officer, Erwin said "He was a police officer. Why would I be aggressive to him?"
Erwin repeatedly said he didn't resist. "I was trying to follow his commands, but I was being punched and body slammed," Erwin said. There was no struggle prior to the punches being thrown, Erwin said, other than Hudson shoving his head into the wall. After his head hit the wall, Erwin said, he was dazed and terrified. "I thought I was going to get shot," Erwin said.
After a lunch break, Erwin's attorneys asked for and received the admission of audio from a patrol car dash cam that picked up Erwin's voice after he was handcuffed and placed in a squad car. In the audio clip, which was played today for the jury, Erwin can be heard saying: "That guy is out of control. I just asked him who asked me to leave and he started hitting on me." Later in the audio, Erwin said he didn't "lift a hand" before Hudson started hitting him, then said "I've never had a black eye in my life."
After being transported to the Pulaski County Jail, a nurse recommended that Erwin be transferred to UAMS for his injuries. Erwin said that he was left with an injured back, a cut on his cheek and what he described as a large "knot" on his cheek that took weeks to go down. He still has numbness in his face at that spot, he said. His doctor bills related to the incident were over $13,600, including visits to UAMS, his primary care doctor, a chiropractor, an eye clinic, a neurologist, and a therapist. He said that after the incident was reported in the press, children at school approached his two children and taunted them, saying that their father was a drunk who got beat up by police in a bar.
Erwin testified that he still has trouble sleeping. At his job, he said, he spent several months not speaking to anyone, to the point that he felt "pretty secluded." He can't bear to watch the video of the incident, he said. "It's so embarrassing. It hurts to watch."
After being told by the Judge several times that any attempt by Erwin to diagnose himself for the jury would be hearsay, Erwin eventually said his anxiety is due to PTSD — a statement that was objected to immediately by Hudson's lawyers. Erwin later said that because his job requires sales and going to peoples' houses, which has been hard since the incident, it's hard to quantify if he's suffered income loss. Erwin said the litigation itself has been a source of stress. "I'm so ready for it to be over," Erwin said. He later added that he was no different from anyone in the courtroom, and was just one of a group of friends going out of the night in Oct. 2011. "That night, there was nothing special about us," he said.
During a break before cross examination of Erwin by Bill James, Koch told the Arkansas Times that mention of the LRPD Internal Affairs investigation that led to Hudson's 30 day suspension for excessive force has been excluded from the proceedings, meaning the jury may never hear that Hudson was found to have used excessive force in the incident by his own department.
During the sometimes-combative cross examination of Erwin by Bill James, James walked Erwin through what he'd had to drink the night of the incident, with Erwin saying he'd had two small beers at the Catholic High fundraiser, had ordered another at Ciao Baci but didn't drink it because they left so soon, then another beer at Ferneau's before being ordered to leave. Erwin repeatedly insisted that he wasn't drunk that night.
Erwin said they walked between Ciao Baci and Ferneau's, and didn't know the room had been reserved for a private party until Hudson approached and told him they have to go. After he stepped outside, Erwin said, he was only standing there a moment when Hudson "charged up" to him and said "I've been looking for you." James hammered Erwin on this point for several minutes, given that Erwin had apparently never testified to Hudson making that statement before.
James then walked Erwin through the cell phone video of the incident, frame by frame and with still shots at times. Erwin testified that the moment when Hudson allegedly slammed his head into the wall of the restaurant came prior to the video camera being turned on — a contention that would later put his testimony at odds with that of his friend Blake Mitchell, who was there with Erwin and witnessed the beating.
Though Erwin had earlier said he never approached Hudson and never grabbed Hudson's arm, James repeatedly played a clip from the video which shows Erwin taking three steps toward the officer just before he was punched, and a still which James said shows Erwin's hand on Hudson's arm — movements that Erwin blamed on being "dazed" from having his head slammed into the wall. At the time, Erwin said, he was terrified," with Hudson exhibiting what Erwin called "eyes of rage." After slamming his head into the wall, Erwin said, Hudson was "throwing a bunch of commands at me," then repeatedly punched him and threw him to the ground. James asked him why he would take three steps toward a person he claimed to be terrified of, and Erwin repeated that he was dazed at the time, a statement he would reiterate multiple times during questioning.
The questioning spiraled into theater at one point, after James began a line of questioning about Erwin's contention that he had risen from his stomach to a standing position without assistance while handcuffed, with James lying on the floor on his stomach before the jury box with his hands behind his back to demonstrate how difficult it would be, then asking Erwin if there was a possibility he'd hit his head while trying to do so. After getting the nod from his attorneys, Erwin came down from the jury box, lay on the floor on his stomach with his hands behind his back, then easily rolled over, got his legs under him and rose to a standing position — a moment James would call a "feat of strength" several times in questioning.
Repeatedly going through the video, James continued trying to make the case that Erwin had resisted or failed to comply with Hudson's orders, at one point freeze framing on a shot and seeking to imply that it showed Blake Mitchell with his fist cocked back as if to strike Hudson. Erwin denied repeatedly that he had resisted or failed to comply in any way, and Mitchell would later deny that he attempted to strike Hudson.
On redirect by Koch, Erwin said that after he was pummeled by Hudson, "I was dazed. I was scared. I was a deer in the headlights."
"I went from one minute tabbing out to the next minute being struck by a police officer," Erwin said.
Erwin's attorneys next called Blake Mitchell, who was out with Erwin the night of the incident. Mitchell's testimony would contradict Erwin's on several small but key points, the first being that Mitchell claimed the foursome had driven between Ciao Baci and Ferneau's, with Erwin driving, while Erwin had claimed they walked.
Mitchell said that after they entered the room, they weren't challenged or asked to leave by anyone until Hudson approached Mitchell and said; "I thought I told you to leave." Mitchell said he told Hudson he was the first to tell him to leave.
"He had a crazy look in his eye like he was mad about something," Mitchell said, later describing Hudson as having "an aggressive, crazy look" and being "very aggressive and anxious" and "trying to provoke." Mitchell said he exited the restaurant out a side door immediately after being told to leave, with Hudson following closely behind. He said Hudson continued to follow as he walked down the sidewalk on Kavanaugh in front of the restaurant. Mitchell said he was going to look for his wife when he walked past Chris Erwin, who was standing in an alcove at the front of the building, and overheard him ask Hudson who had asked them to leave. Immediately after, Mitchell said, Hudson pushed Erwin against the brick wall of the restaurant hard enough that the back of Erwin's head smacked the bricks (another small but key discrepancy between Mitchell and Erwin's testimony, with Erwin saying his cheek hit the bricks, opening a cut there).
The beating that followed, Mitchell testified, "was the most violent thing I'd ever seen." As Erwin was being punched and thrown to the ground, Mitchell said "I was just trying to get in between [Hudson] and Chris because I thought he was going to kill him." Asked if Erwin was acting aggressively toward Hudson, Mitchell said he'd ever seen Erwin act aggressive toward anybody.
During the incident, Mitchell testified, Hudson had a "crazy look" in his eyes, which Mitchell described as "That look like, when you're a little kid, and you see Charles Manson on TV." The Manson comment was met with a loud objection by Bill James. Throughout his testimony, Mitchell denied that Erwin had resisted at all. "It was a one man fight," he said.
On cross by Bill James about what he remembered from the night, Mitchell said "I've tried to forget all of it to be honest with you. It was a terrifying event," later adding that he felt intimidated and bullied by Hudson after he approached him in the restaurant. Mitchell repeated his claim that Erwin was pushed into the wall and struck it with his back and the back of his head, with Mitchell saying Hudson put his hand on Erwin's upper chest and throat area.
In a moment of testimony sure to be crucial later on, Mitchell also testified that the moment Hudson shoved Erwin into the wall occurred AFTER the video camera began to roll, with Mitchell saying he would have never left his friend if he was being beaten by Hudson (in the video, Erwin is seen walking away, then turning back toward Erwin after he hears the altercation beginning). By contrast, Erwin had testified that Hudson had shoved him face first into the wall just prior to the beginning of the video.
Mitchell denied that he ever tried to strike Hudson, saying he'd been actually falling backward and trying to steady himself, and never made a closed fist. As Hudson was throwing Erwin to the ground and handcuffing him, Mitchell said, he was telling Hudson he was wrong. Asked by Bill James who gave him the authority to tell a police officer that, Mitchell said: "I've been raised to know the difference between right and wrong."
Since the incident, Mitchell said, Erwin suffered mental after effects, including deep anxiety any time he sees a police officer. Erwin, he said, "did everything he was told," including leaving the restaurant after being approached by Hudson. Contrary to the idea that Erwin began to resist after being told he was under arrest, Mitchell said the first and only time he and Erwin were told they were under arrest was after police backup arrived, at which point, Mitchell testified, Hudson pointed them both out and said "Arrest him and arrest him." When other officers asked "for what?" Mitchell claimed, Hudson told them "I'll write it up later."