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Douglas Boucher, 39, of Mason died after a 2009 tasing incident with Mason Police. Boucher’s family has filed a a lawsuit in federal court against the city, police department and two officers involved. . Provided photo

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.

• Read more details of the confrontation
• Read the judge’s ruling

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.

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Tags: Tags: al gerhardstein, city of mason, cyril wecht, daniel fry, daubert, death, denied, doug boucher, douglas boucher, excessive force, gary becker, jennifer branch, lawsuit, mason, mason police department, s. arthur spiegel, sean mccormick, taser, tasing, u.s. district court, unreasonable siezure, wrongful death

Douglas Boucher, 39, of Mason died after a 2009 tasing incident with Mason Police. Boucher’s family has filed a a lawsuit in federal court against the city, police department and two officers involved. . Provided photo

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.

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Tags: Tags: al gerhardstein, city of mason, cyril wecht, daniel fry, death, doug boucher, douglas boucher, excessive force, gary becker, jennifer branch, lawsuit, mason, mason police department, s. arthur spiegel, sean mccormick, taser, tasing, u.s. district court, unreasonable siezure, wrongful death

Jennifer Edwards-Baker reports:

Douglas Boucher, 39, of Mason died after a 2009 tasing incident with Mason Police. Boucher's family has filed a a lawsuit in federal court against the city, police department and two officers involved. . Provided photo

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.

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Tags: Tags: al gerhardstein, city of mason, death, douglas boucher, gary becker, jennifer trepal, lawsuit, mason, mason police, officer daniel fry, officer sean mccormick, police, rachel hutzel, speedway, taser, tasing, west chester