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Attorney Won’t Be Deposed In Civil Suit Against Police Officer

A U.S. District Court judge on Monday quashed a subpoena seeking to depose an attorney representing a police officer who shot and killed a man while attempting to arrest him in 2009.

Brandon Davis, formerly a corporal with the Fort Smith Police Department, shot and killed 41-year-old Eric Wayne Berry on Nov. 11, 2009, at Berry’s residence when Davis and other officers went there to arrest him on a domestic battery complaint. Davis is now with the Greenwood Police Department.

Stigler attorney Chris Blankenship filed a lawsuit in November on behalf of Eric Berry’s widow, Connie Berry. It claims Davis used excessive force that deprived Eric Berry of his constitutional rights and the city, police department and Fort Smith Board of Directors were negligent in the supervision and training of Davis. It claimed further the city, directors and police department were aware Davis had a “propensity regarding the improper use” that was disregarded and resulted in their adopting an unconstitutional custom or policy.

J.W. Berry, Eric Berry’s father, was substituted for Connie Berry as the plaintiff earlier this year.

On Wednesday, Rick Wade was served with a subpoena issued by Blankenship to be deposed Monday morning. Colby Roe, Wade’s co-counsel, filed a motion to quash the subpoena Friday, and U.S. District Court Judge Robert T. Dawson issued an order rejecting the attempt to depose Wade.

In the motion to quash, Roe argued the plaintiff was seeking information protected by attorney-client privilege and the plaintiff’s request was untimely because Blankenship waited until one week before the discovery deadline to attempt to depose Wade.

Dawson didn’t address the privilege argument; in granting the motion to quash he said, “the court is concerned about the timeliness of the issuance of the subpoena … .”

The lawsuit claims Eric Berry was unarmed when he was shot; Davis didn’t identify himself when he entered the home, where they’d gone at Connie Berry’s request; and Davis was behind a door frame and unable to see Eric Berry when he ordered Berry to drop his weapon and then fired two shots at Berry.

When Davis arrived at the residence, officers Brandon Lowdermilk and Matthew Calhoun informed him Eric Berry refused to answer the door and Connie Berry unlocked the front door for them, according to an affidavit by Davis.

When they opened the front door, Eric Berry was sitting at a dining room table and Davis told him at least 10 times to put down his gun. Berry’s reply was to tell police to get out of his house, then Davis fired two shots, according to multiple affidavits.

Although Lowdermilk told investigators he couldn’t see the gun, he heard Davis order Eric Berry multiple times to drop his weapon. Calhoun told investigators he saw Eric Berry pointing a pistol toward him and Davis and heard Davis order Eric Berry multiple times to drop the weapon.

On Nov. 23, 2009, Sebastian County Prosecuting Attorney Dan Shue ruled the shooting justified and the Federal Bureau of Investigation also cleared Davis, according to court documents.

In his report, Shue noted that a .45 caliber pistol Berry pointed at officers had a clip with three rounds and one round in the chamber.

On Nov. 11, 2009, prior to the shooting, Connie Berry went to the police department and filed a complaint, accusing her husband of hitting her and attempting to smother her with a pillow and threatening to kill her son, according to a police report.

Connie Berry left and returned to the police department, saying she wasn’t sure if she wanted to go through with filing the report because she was afraid her husband, who threatened her at gunpoint two weeks earlier, would kill her, according to a report.

Dawson scheduled a bench trial for the week of Nov. 4 although J.W. Berry recently requested a jury trial. There is no ruling yet on the motion.

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