A wrongful death suit against father and son owners of Chubby Cheeks Liquor in Texarkana is set for trial in Miller County next year.
Members of Josh Bishop’s family claim he died because of injuries suffered during a confrontation with owners Allen Rogers and Lane Rogers and their employee Sammie Townes over shoplifting Jan. 25 2014. Bishop died Feb. 23, 2014, two days after having surgery to repair a fractured jaw.
The Rogerses and Townes deny any wrongdoing and claim physical force used was justified self-defense.
Bishop, 28, and Westley Attaway, 32, stole liquor from the store on two occasions Jan. 25, 2014, according to deposition testimony by Attaway. Attaway said he and Bishop decided to set aside their morals and beliefs about stealing because both were sad and wanted a drink to dull their pain, when they stuffed bottles of liquor in their pants and walked out of Chubby Cheeks without paying.
After sharing a bottle with some friends who lived near the store, the two friends returned and walked out with more stolen whiskey. In his deposition, Attaway claims the men were sitting on pine straw in a wooded area off Garland Street, a few blocks from Chubby Cheeks, drinking the stolen alcohol and discussing their troubles. Meanwhile, the Rogerses and Townes left the store in search of the men after viewing the theft on video surveillance. Lane Rogers was armed with a pistol and carried two pairs of handcuffs, according to depositions.
Attaway claims the Rogerses and Townes jumped from a pickup, shot bullets in the air, and assaulted the men with some sort of club after cuffing them. Photos attached as exhibits in a related federal suit show both men bloodied. Attaway required staples to treat a wound on his head while Bishop suffered broken teeth and required surgery for his jaw.
The defendants allege Attaway was “acting crazy” when they pulled up in the truck and that the younger Rogers and Townes acted to protect the elder Rogers from Attaway’s aggression. The defendants deny using an object to strike the shoplifters.
According to Bishop’s autopsy reports, he died from a fatal overdose of prescription drugs. Bishop consumed an entire bottle of oxycodone he was given for pain after the surgery in a single night and had ingested a drug in the same family as Valium. The medical examiner’s report describes Bishop’s death as an accidental overdose.
No criminal charges were filed. According to police reports, deputy prosecutors told investigators that Bishop and Attaway could be charged with misdemeanor shoplifting and that the liquor store defendants might be guilty of felony assault, battery and false imprisonment.
In November 2014, Circuit Judge Carlton Jones, who was at the time Miller County’s elected prosecuting attorney, penned a letter to Texarkana, Ark., police explaining his decision not to file charges. Jones referred to law which allows a person to use physical force if the person believes physical force is about to be used against them. Jones also referred to prior felony convictions in Bishop’s and Attaway’s pasts.
The wrongful death suit is scheduled for a jury trial before Circuit Judge Kirk Johnson Jan. 11. A federal suit filed by Chubby Cheeks’ insurance company, Assurance Co. of America, is set for trial in February.
Assurance doesn’t believe the company should be liable for any expenses related to the wrongful death suit or for any possible judgment against Chubby Cheeks. Assurance claims the liquor store defendants went looking for a fight and “got exactly what they wanted.”
Assurance argues Chubby Cheeks’ policy doesn’t cover a situation like the one at issue and that the liquor store waited too long to notify them of the incident. The federal case is set for a jury trial Feb. 22 before U.S. District Judge Susan Hickey in the Texarkana division of the Western District of Arkansas.