A federal judge will decide if a wrongful death lawsuit filed against the city of Mason and two police officers should move forward in U.S. District Court.
Judge S. Arthur Spiegel Tuesday heard arguments in two motions filed by the city in the case of Douglas Boucher, who died in 2009 after Mason police shocked him with Tasers
Attorneys for the city filed both a motion for summary judgment in the case and to exclude the expert opinion testimony of Dr. Cyril H. Wecht concerning the alleged cause of death.
The suit alleges Officers Daniel Fry and Sean McCormick unreasonably seized and used “dangerous” and “excessive” force on Boucher, 39, who was mentally ill when he died on Dec. 13, 2009 after he was Tased seven times in the parking lot of a Speedway gas station.
The suit, filed by renowned Cincinnati civil rights lawyer Al Gerhardstein, demands a jury trial and seeks compensatory and punitive damages from the city of Mason and the two officers.
Officers Fry and McCormick were at the Speedway gas station on Reading Road the night of the incident when Boucher allegedly made a lewd comment to the 19-year-old clerk. The frightened clerk reported the incident to the officers and told them Boucher had made the same comment to her earlier that day, according to court records.
The two officers approached Boucher, a 6-foot-tall, 290-pound musician who had untreated bipolar disorder, and asked him to go outside. When Boucher tried to get in his car to leave, McCormick said he approached Boucher from behind and put a hand on his shoulder.
Boucher allegedly then spun around, clenched his fists and screamed at McCormick, who said he pulled his Taser and ordered Fry to handcuff Boucher. Fry said he cuffed Boucher’s left wrist when Boucher turned and punched the officer in the head twice.
McCormick said he then deployed the Taser on Boucher, shocking him in the chest and causing him to fall to his knees. The officers say Boucher then spotted the clerk outside, got up — dislodging the Taser probes in the process — and ran toward her while screaming.
The clerk ran, Boucher chased her, and the two officers pursued him. When Boucher refused to stop running, Fry shot him in the back with his Taser. The shock knocked Boucher face-first onto the pavement, with his hands under him and out of the officers’ sight.
The officers say they commanded an unresponsive Boucher to show them his hands. McCormick testified that he then repeatedly kicked and struck Boucher with a baton and court records indicate Fry deployed the Taser on Boucher five additional times within a 55-second period.
After a third officer arrived on the scene, McCormick and Fry double-handcuffed Boucher and turned him over to find him not breathing and his face covered in blood. Despite efforts to revive him, Boucher was pronounced dead at the hospital.
Boucher’s autopsy results showed he did not have alcohol or drugs in his system and that he died from a skull fracture from the fall, although Butler County Deputy Coroner James Swinehart said he couldn’t rule out that the seven Taser shocks contributed to his death.
However, court records filed by attorneys for the Boucher family include an opinion by Dr. Cyril H. Wecht, who alleges the Taser stuns caused a fatal cardiac arrhythmia.
Gary Becker, attorney for the city of Mason, argued Tuesday the judge should exclude the doctor’s testimony, arguing that the doctor based his findings on unscientific and unreliable methodology.
“It’s not been tested. It’s not been proved. It’s been developed solely for litigation,” he said of Wecht’s conclusion.
Becker also argued the case should be dismissed, saying the officers acted reasonably and within the bounds of the law in response to an encounter with an aggressive subject who resisted and assaulted officers.
City and state investigations into the incident cleared the officers of wrongdoing in Boucher’s death.
Jennifer Branch, the Boucher’s family attorney, argued that the officers had no reason to detain Boucher and that their use of force after he fell to the ground was inappropriate and excessive.
“He didn’t speak. He didn’t move. He didn’t do anything,” she told the judge of Boucher. “When a person is not actively resisting, the law is clear.”
The judge said he would take both motions under consideration and issue a ruling within the coming weeks.
Boucher, who was divorced, is survived by a daughter.
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