FORT SMITH — A federal lawsuit regarding an officer-involved shooting in Fort Smith can move forward once again after an appeals court upheld a U.S. District Court judge’s earlier ruling in the case.

FORT SMITH — A federal lawsuit regarding an officer-involved shooting in Fort Smith can move forward once again after an appeals court upheld a U.S. District Court judge’s earlier ruling in the case.


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 2012 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.


U.S. District Court Judge Robert T. Dawson dismissed claims against the department and board of directors in June 2013, but in November he refused to dismiss claims against Davis and the city, which appealed Dawson’s decision.


The appeal put the case on hold, but the U.S. Court of Appeals for the 8th Circuit upheld Dawson’s decision and the mandate upholding the decision was filed Thursday, clearing the way for the case to move forward to settlement or trial.


The lawsuit claims that Eric Berry was unarmed when he was shot; that Davis didn’t identify himself when he entered the home, where officers had gone at Connie Berry’s request; and that 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.


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.