Federal lawsuit against city of Nashville granted continuance


    Terrica Hendrix
    News-Leader staff

    NASHVILLE  – The federal lawsuit trial – set to begin June 26 – involving the 2010 Main Street fire in Nashville has been continued, Nashville Mayor Billy Ray Jones confirmed during a special-called city council meeting Tuesday afternoon.

    Mayor Jones told the council that he felt “confident that there’s nothing we did that was wrong” and that prior to the special-called meeting, he received information that “court has  been cancelled” for Monday.

    As of press time, the Court has not rescheduled a trial date.

    The order issued by United States District Judge Susan O. Hickey on June 20 stated that, “the Court finds that a continuance of the trial is necessary for the Court to determine whether Jerry Harwell had municipal final policymaking authority as a matter of law so as to potentially give rise to municipal liability for purposes of 42 U.S.C. 1983…Based on the record, it appears that Plaintiffs believe the City of Nashville, Arkansas, is amenable to suit under 42 U.S.C. 1983 because the decision of Jerry Harwell, Nashville Fire Chief and Fire Marshal, to demolish Plaintiffs’ building constituted  the official policy of the City of Nashville.”

    The lawsuit was filed on behalf of Carl and Justin Johnson, who reside in Prescott, Ariz., and owned the business formerly known as “Collectible Corner.” The lawsuit names several current and former city officials as defendants. The trial was scheduled for June 26 in the United States District Court Western Division of Arkansas in Texarkana.

    The initial lawsuit filed by the Johnson brothers was dismissed but was ordered back to trial following an appeal. The case was dismissed again on April 2, 2014 “without prejudice” and gave the plaintiffs one year to re-file their complaint. The case was re-filed March 31, 2015.

    The Johnsons’ business was located in the block where fire consumed several businesses the afternoon of Aug. 26, 2010. The business owners contend their building was unnecessarily knocked down during the course of fighting the fire, effectively violating their constitutional rights.

    The plaintiffs are seeking monetary judgment against the defendants, jointly and severally, in the amount of $224,985 as the replacement cost of their building and $927,320 as the fair market value of their inventory, as well as attorney fees and other relief. The Johnson brothers have requested a jury trial to settle the matter.

    The defendants listed in the case include the city of Nashville; Nashville Fire Chief Jerry Harwell; former Nashville mayor Mike Reese; current mayor Bill Ray Jones; and current Nashville City Council members Matt Smith, Nick Davis, Monica Clark, Vivian Wright, Jimmie Lou Kirkpatrick, Kay Gathright, James Parker, Carol Mitchell, Andy Anderson and Mike Milum. Also listed as defendants are former city council members Freddy Brown and Jackie Harwell.

    Jones also told the Council that he, Harwell, and others met in Texarkana recently (with their attorneys and the plaintiffs) to discuss a settlement.  “No deal was made…when I say numbers, they were way up in the dollar figures and we were in little of nothing and I’m not going to go into numbers.”

    The order continued, “Therefore, if the Court finds as a matter of law that Harwell did not have final policymaking authority for the City of Nashville, there will be no need for a trial because Plaintiff’s theory of  the case rests on the assertion that Harwell was a final policymaker for the municipality. Furthermore, in their brief on the issue of Harwell’s policymaking authority, Defendants argue that Harwell did not have final policymaking authority for the municipality and “assert that this Court should dismiss this case with prejudice. Accordingly, for the foregoing reasons, the Court finds that the trial of this matter should be and hereby is continued until the Court rules on this issue. The deadlines imposed by the Court’s previous Final Scheduling Order have passed and are not extended by this Order.

    When the Main Street fire reached the plaintiff’s property, they claim it suffered only minor damage. And, Fire Chief Jerry Harwell “made the decision, pursuant to a standing policy or custom established by (the city of Nashville), to demolish plaintiff’s property without notice to plaintiffs or without determining the structural soundness of the plaintiff’s building, causing the building and inventory of antiques and collectibles within the building to de destroyed.”

    The lawsuit further contends a construction company inspected the content of the building after the fire and concluded only 15 percent of the items inside Collectible Corner contained smoke or water damage. The plaintiffs, who were not in town at the time of the fire, claim Carl Johnson contacted the Nashville Fire Department and was assured the building would not be demolished.

    As the fire was being extinguished in the adjacent building and immediately after, Johnson family members and friends were prepared to secure the building and appealed to the fire departments officials to allow recovery of inventory prior to demolition. But, they were “told by fire officials not to interfere and to clear away” and were unable to salvage any items before Harwell ordered the walls of the building to be pulled down.

    “Witnesses at the scene attempted to explain to Harwell that the building was structurally sound and all it needed was a new roof. However, in his rush to demolish the building, Harwell needlessly prevented persons at the scene from boarding up the windows and safeguarding” property inside and outside the building, according to case information.

    Along with the Nashville Fire Department, at least 10 departments from neighboring towns worked five hours to extinguish the fire.

    The decision to demolish the building, according to the plaintiffs, violated their constitutional rights, including seizure of their property, denying them due process and their rights to equal protection.

    “Defendants actions were directly contrary to the assurance given by both police and fire officials to plaintiff Carl Johnson that his building would not be demolished. After these assurances, defendant City of Nashville made no attempt to communicate with Plaintiffs prior to the demolition,” according to the lawsuit.

    The defendants’ stance about the decision to raze the building was to “protect people and property” from any danger involved with the structure.

    – News-Leader Managing Editor John Balch contributed to this story.

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