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By TREVOR MAXWELL
MaineToday Media, Inc. Saturday, October 27, 2007

MaineToday Media, Inc.

A South Portland police officer used excessive force when he shot a drunk driver with a Taser stun gun in 2005, a federal jury decided Friday.

The decision in U.S. District Court in Portland awarded compensation of $111,000 plus legal fees to the plaintiff, Stephen Parker. The award covers medical costs, lost wages and pain and suffering, said Parker's lawyer, Ben Gideon.

"This jury sent a message that was very clear," said Gideon, of Berman & Simmons in Portland. "Constitutional rights are alive and well in Maine and will be protected by Maine juries."

The decision against officer Kevin Gerrish could have an impact on the use of Tasers in Maine, and the training officers receive on how and when to use the devices.

South Portland Detective Sgt. Steven Webster was disappointed and frustrated by the decision. He said the evidence supported the actions of his colleague. Also, Webster is concerned that officers will become reluctant to use Tasers, which he supports as a relatively safe, non-lethal option for police.

"Where they have been deployed, they have kept people from getting hurt - the officers and the people being arrested," Webster said, standing outside the courtroom after the verdict.

"We don't know what would have happened if Mr. Parker wasn't tased. What if it goes to a knock-down, drag-out fight and he gets his head split open? Would we then be in here for that?"

Gerrish's lawyer, Edward Benjamin, will consider an appeal. Benjamin said the jury might have misinterpreted instructions by U.S. Magistrate Judge David Cohen. Of several police excessive force cases handled by Benjamin, this is the first in which an officer was found liable.

Gerrish pulled over a pickup driven by Parker on the evening of July 20, 2005. The officer administered several field tests for drunk driving, which Parker failed. Two backup officers arrived, and the situation became tense.

On a police videotape of the arrest, Parker is seen exchanging words with plainclothes officer Jeffrey Caldwell, and making obscene gestures in his direction. Caldwell moved in to place handcuffs on Parker, while Gerrish stepped back.

Caldwell put one cuff on. Then Gerrish saw Caldwell's body jerk to the right. Saying that he believed Parker was resisting and was about to assault Caldwell, Gerrish fired the Taser. The 50,000-volt device stunned Parker, who fell immediately to the ground. Parker said he suffered permanent damage to his left shoulder, arm and hand.

The central question for the jury was whether the use of force was reasonable and necessary. Ultimately, the jury decided it was not, and that Gerrish violated Parker's constitutional rights. The jury did not, however, award punitive damages. Those could have been added if the jury believed Gerrish acted in reckless disregard of Parker's rights.

Suffolk University Law professor Karen Blum said a large community of defense lawyers and law enforcement officials keep tabs on significant use of force cases nationwide, including this one. All together, the cases help guide the best practices and training for police officers who carry Tasers.

"People are definitely watching," Blum said.

"The Taser is the hot thing now. I'm sure you will have something else coming down the pike," she said. "As long as you have officers and people who are going to act up, there will be excessive force cases."

Nearly all the plaintiffs who have won awards against police in Taser cases have been disabled, elderly, pregnant - or they were shot with the stun guns after being handcuffed or otherwise subdued, Blum said.

That makes Friday's verdict somewhat unique, because Gerrish used the weapon against a person who was not yet in custody and was deemed by the officers to be a physical threat. Parker, who is 5 feet, 8 inches tall, weighs 220 pounds and has a muscular build, also was intoxicated at the time of the arrest. Parker, a merchant mariner, conceded that he should not have been driving that night. But he denied resisting officer Caldwell, and said he posed no threat.

"I felt a great weight coming off my shoulders," Parker said of the verdict, returned after four hours of deliberation. "This has been going on for two and a half years. You feel like you are guilty before you even have your day in court." Gideon said the key piece of evidence was the videotape of the traffic stop, recorded from the police cruiser.

"They were able to see everything that happened, and use their own common sense," Gideon said of the jury. "At the end of the day, they could rely on their own eyes."

South Portland Police Chief Ed Googins said Gerrish acted to protect a fellow officer, and had no intention of depriving Parker of his rights. An internal review of the incident found that Gerrish was justified in using force. Googins said his officers make tough decisions within a split second, and in this case, the decision was scrutinized over a period of days and months.

"Obviously we respect the jury's decision here. This whole process is near and dear to us," Googins said. "It is something that we are going to have to look at, to see if it means whether we are going to have to change anything here." Googins said the verdict should not be interpreted as a condemnation of Tasers in general. He is a staunch supporter of the Taser technology, and has said it saves the lives of officers and suspects.

The focus of this trial was on excessive force, not the method in which it was delivered, Googins said.

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