Jennifer Edwards-Baker reports:
The family of a man who died in 2009 after Mason police shocked him with Tasers has filed a lawsuit in federal court against the city, police department and two officers.
The suit alleges Officers Daniel Fry and Sean McCormick used “dangerous” and “excessive” force by essentially torturing Douglas Boucher, 39, who was mentally ill when he died on Dec. 13, 2009, after he was Tased in the parking lot of a Speedway gas station. He fell and struck his head on the pavement.
Filed by renowned Cincinnati civil rights lawyer Al Gerhardstein, the suit demands a jury trial and seeks compensative damages and legal costs.
It also asks for punitive damages against the officers, not the city.
“They tortured him when he was on the ground and obviously incapacitated,” Gerhardstein said Tuesday. “They gave him a command, he did not comply and rather than check and see if he had a medical problem, they kicked him and used a (baton) on him. They also Tased him five times in a a row before they realized he was incapable of responding to commands, and that’s what torture is.”
Gerhardstein also alleges in the suit the officers failed to “spark test” their Tasers before they used them so the current that ran through Boucher’s body may have been higher than the manufacturer specifies.
He said he obtained the download off of the devises and it shows the officers’ Tasers hadn’t been sparked tested for 10 days.
Boucher’s autopsy results showed he died from a skull fracture from the fall.
The report did not blame the use of Tasers for the cause of death.
City and state investigations into the incident cleared the officers of wrongdoing in Boucher’s death.
Former Warren County Prosecutor Rachel Hutzel determined that the state investigation and evidence in his death indicated the officers did not commit a criminal act during the Dec. 13 incident.
Neither officer faced internal discipline because they were found to have followed the police force’s policy and procedures, Mason spokeswoman Jennifer Trepal has said.
Calls to Mason’s city manager and police chief were not immediately returned Tuesday.
In in a court filing, a lawyer for the city, Gary Becker, denies all allegations the officers violated Boucher’s constitutional rights and asks that the suit, which was filed on Dec. 9, be dismissed.
The inicident unfolded back in 2009 when Fry and McCormick had just left roll call after starting their night shift. They were at Speedway off U.S. 42 and Tylersville Road getting fountain drinks when they were approached by a female clerk who appeared frightened and complained that Boucher had made lewd comments to her, according to a state investigative report.
Boucher appeared panicked and jittery and kept apologizing as McCormick asked him to leave the store.
Boucher, who was diagnosed with bipolar disorder, was hit with a Taser four times, including twice as he lay listlessly on the ground while McCormick kicked him in the shoulder and struck him twice with a baton because he would not remove his hands from under his body.
Not until the officers double-handcuffed Boucher and turned him over did they realize that his face was covered in blood and he had quit breathing.
McCormick explained his actions this way, according to a statement he gave investigators: “Despite the use of my kick, the Taser and my (baton), I still did not have compliance from Boucher with my commands that he show his hands, especially since he (had) used his left handcuffed hand as a weapon,” he said.
The confrontation with Boucher was violent and unpredictable, according to officers statements.
McCormick ordered him to stop and put his hands on his car, but Boucher kept fumbling with the door handle. Boucher then spun around with his hands clenched when McCormick put his hand on Boucher’s back.
“Boucher looked extremely frantic and aggressive,” McCormick wrote in his statement.
McCormick said he ordered Boucher to put his hands on the car or be shot with the stun gun. Boucher didn’t change his stance, but relented when Fry moved up beside him near the car.
As Fry got one handcuff on, Boucher spun around, punched Fry in the face with his free fist then bashed him over the head with the cuffed hand. The two fell to the ground and McCormick shot Boucher with the Taser as Fry rolled away.
Boucher ripped out the Taser prongs, jumped to his feet and ran back toward the front of the station, screaming, “I’m going to get you!” at the female clerk, who had leaned out the door to see what was happening.
She ran, Boucher chased her, and the two officers pursued him.
When Boucher refused to stop running, Fry shot him with a Taser again.
“I observed the suspect lock up his body in mid-stride and fall face first hard into the sidewalk. … Boucher’s arms were curled into his body and he stayed face down,” McCormick said in his written account.
Boucher was shot with the Taser twice more, kicked and hit with the baton before police discovered he was unresponsive and started CPR.
The state investigative report, written by Agent Todd Brown with the Ohio Bureau of Criminal Identification, said that Boucher’s ex-wife told him Boucher had been talking strangely just hours before the incident and that he had been diagnosed as bipolar five years before.
“(She) stated he seemed incoherent and made comments about how he finally figured it out and that he understood the universe,” Brown wrote. “She says he spoke of a cat’s brain and complained that his leg hurt.”
This is the latest incident involving Taser stun guns. The controversial electroshock devices administer 50,000 volts that usually temporarily immobilize a person’s muscles so officers can gain control of the subject. They have a range of 35 feet.
Critics argue that Tasers, while considered non-lethal weapons, too often have a deadly outcome.
At least two other people have died in Greater Cincinnati and Northern Kentucky in recent years after being shocked by Tasers in recent years, most recently Everette Howard, 18.
The North College Hill high School graduate attending college preparatory classes at the University of Cincinnati, died in in the early morning hours of Aug. 6 after a campus police officer Tased him when they responded to a report of fights outside a dorm.
It is unclear if Howard was involved in the fight or simply observed it. UC police officials have said Howard approached officers with balled fists and ignored repeated commands to stop advancing.
Aftet he was Tased, Howard went into cardiac arrest while being attended to by medics. He was rushed to University Hospital but died.
His cause of death is still pending a ruling from the Hamilton County Coroner’s Office.
Coroner’s officials said Tuesday they are awaiting a decision from a heart specialist.
An initial review indicated police followed proper procedures, but the university asked BCII to take another look at the circumstances.
BCII is awaiting cause of death from the Hamilton County Coroner’s Office.
Until they receive it, state investigators cannot issue a written report on their findings, said Greg Hand, UC spokesman.
A BCII spokeswoman did not immediately return a call for comment Tuesday.
The incident prompted UC police to stop using Tasers.
Six months after the incident, Tasers are still not being used, Hand said.
Instead, officers deploy pepper spray and batons before escalating to deadly use of force, their guns, he said.