March 18, 2010

Policeman appeals civil ruling in Taser caseDecision could affect cases elsewhere

TREVOR MAXWELL

— By

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Stephen Parker, Drunken Driver shot with Taser

Staff Writer

A South Portland police officer who lost an excessive-force lawsuit about his use of a Taser stun gun is appealing the decision in federal court.

Kevin Gerrish is asking an appeals court to rule that he did not violate Stephen Parker's constitutional rights when he used the Taser against him in 2005, according to Gerrish's lawyer, Edward Benjamin. The officer was trying to arrest Parker for drunken driving, and the surge of electricity caused Parker to fall to the ground.

A jury in U.S. District Court in Portland found in October that Gerrish used excessive force, and it awarded $111,000 to Parker for injuries to his left shoulder, arm and hand. The appeal, filed by Benjamin last week, will be heard by the First Circuit Court of Appeals in Boston.

A federal magistrate judge reviewed and upheld the jury decision last month.

Taser is the brand name for an electronic weapon that delivers a 50,000-volt shock that usually incapacitates a person long enough for police to gain control.

Many law enforcement officials in Maine see the technology as a nonlethal option that prevents injuries and deaths of suspects and officers. Critics say the guns are overused, their health effects are not completely understood, and they can be lethal under certain circumstances.

Portland Police Chief Tim Burton said his department is reviewing the Taser technology and has not decided whether to buy the weapons for its officers.

Burton has been researching the benefits and drawbacks of Tasers, including the potential for liability in civil cases. That includes keeping tabs on the South Portland case.

Donna Brazell, co-owner of Triple Nickel Tactical Supply in Windham, said her company has equipped 67 law enforcement agencies in Maine with the weapons. Triple Nickel is the sole distributor in Maine for Taser International, the Arizona-based company that dominates sales to law enforcement agencies.

Dozens of lawsuits -- most claiming personal injury and excessive force -- have been filed in connection with Tasers as their use has expanded dramatically over the past decade. Officers have won nearly all of those lawsuits, either by dismissal or jury verdict.

The decision in Parker's favor was one of the few in which a police officer was found to be at fault.

Parker's attorney, Ben Gideon, said the key piece of evidence was the videotape taken from Gerrish's police cruiser.

Parker failed field tests for sobriety done by Gerrish, and the situation became tense when two backup officers arrived. Parker exchanged words with a plainclothes officer, Jeffrey Caldwell, who moved in to put Parker in handcuffs.

Gerrish, standing a short distance away, saw Caldwell's body jerk to the right. He fired the Taser, believing that Parker was about to assault Caldwell.

Benjamin, of the Portland firm Thompson & Bowie, argued that Gerrish acted reasonably, given what he perceived. Gideon, of the firm Berman & Simmons, said the action was a clear violation of Parker's constitutional rights.

Benjamin said the appeal is based on the legal principle that police officers are allowed leeway for judgment in decisions that must be made in a split second. He said Magistrate Judge David Cohen should have dismissed the case, based on that principle of ''qualified immunity.''

Gideon said he is confident that the appeals court will uphold the decision.

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:

tmaxwell@pressherald.com

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