A federal judge on Friday refused to throw out a civil rights lawsuit filed in the case of an unarmed, mentally ill Mason man who died after a confrontation with police.
Judge S. Arthur Spiegel denied a request by the city of Mason to dismiss the suit filed by the family of Douglas Boucher, who died on Dec. 13, 2009 after two Mason police officers Tased him seven times, kicked and repeatedly struck him with a baton — all mostly after he had fallen face-first onto cement and stopped moving.
The suit alleges Mason Police Officers Daniel Fry and Sean McCormick unreasonably seized and used excessive force on Boucher, 39, and that the city of Mason failed to adequately train and supervise officers’ use of Tasers or conduct a meaningful investigation of the incident.
Neither officer was disciplined, and the Ohio Bureau of Criminal Investigation cleared both of wrongdoing.
The two officers apprehended Boucher after a 19-year-old clerk at the Speedway gas station on Reading Road reported to them that the 6-foot-tall, 290-pound musician allegedly made a lewd comment to her.
When officers tried to take Boucher into custody, police say he punched Fry in the head twice and then chased the store clerk. Fry shot Boucher in the back with his Taser, the shock of which knocked Boucher face-first onto the pavement.
Boucher died of a skull fracture sustained 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.
Mason had requested the case be dismissed, arguing 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.
While Spiegel dismissed the plaintiff’s claim that stopping Boucher was a violation of his Fourth Amendment rights, he denied the officers qualified immunity.
Qualified immunity shields public officials from legal liability unless they knowingly violated a person’s clearly established legal or constitutional rights.
“What gives the court pause is that (the officers) repeatedly tased Boucher in such manner that a jury might find he was subjected to gratuitous violence from officers that momentarily ‘lost it.’” Spiegel wrote.
The judge also denied a request by the city to exclude the expert witness testimony of Dr. Cyril H. Wecht, who alleges the Taser stuns caused a fatal arrhythmia. Attorneys for the city argued that the doctor had based his findings on unscientific and unreliable methodology.
A trial date has been set for June 18.
Gary F. Becker, a Cincinnati attorney representing Mason and both officers, said he was “obviously very disappointed” in Friday’s ruling and that he and his clients will need to decide whether to appeal it or go to trial in hopes of winning.
An attorney representing Boucher’s family did not immediately respond to a message seeking comment.
Boucher’s parents, who live in Marion, Ind. – where Boucher lived until he was about 30 – are seeking compensatory and punitive damages from the city and the two officers. Boucher, who was divorced, also is survived by a daughter.
The Associated Press contributed to this story
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