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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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It's simply a matter of opinion as to where on the force continuum the TASER falls. Is it before being physically slammed into the pavement and handcuffed, or after? Is it before pepper spray and a baton, or after?
One would have to see the likelihood of injury, and the severity of the injuries associated with each. Based on the real world study seen below, I'd say it is below it. Less likely to involve severe injuries for both the suspects and officers involved. Sounds like less force to me.report abuse
That's why the jury didn't award any punitive damages, because the plaintiff wasn't seeking punitive damages and the evidence wasn't sufficient enough to show malicious or willful misconduct. Perhaps if there had been incriminating audio with that video, then the jury might have awarded punitive damages as well.
Juries don't normally award punitive damages unless the actions of the defendant are so appauling that they feel the defendant needs to be punished to send a message to safegard the public peace.report abuse
Of course, on appeal, another jury may decide they see reckless disregard or intentional disregard, and award punitive damages as well. That's how it goes with the jury lottery system. Medical malpractice claims are similar in many respects. One never knows what one will get from a jury. report abuse
I continue to maintain that being shocked with a TASER is going to be a good deal less hard on a person than being physically wrestled and slammed to the ground and handcuffed. The likelihood of injury is higher without the TASER. Had they wrestled him to the ground and handcuffed him, injuring him in the process, the struggle would have been more violent. The jury would have seen for themselves what the police were trying to avoid in using the TASER. In a sense, I suspect the relative lack of struggle on his part because of the TASER improved his chances with the jury. Interesting...
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I'm comfortable with the jury's verdict because I'm sure that they saw nothing in the arrest video that would make a reasonable human conclude that Mr. Parker was "resisting" arrest, especially to any level that would necessitate this level of force that was at the very least punitively applied to him that day.
I'll really be glad if this arrest video makes it to YouTube or Googles Videos on the Internet. It's been entered into evidence, therefore it's public record now.report abuse
Is it before a punch in the head, or after. Is it instead of three cops piling on top of someone and physically subduing him, or would that be better? Is it between all other weapons and alternatives, and a firearm? Or is it pure non-lethal force, and not meant for lethal situations? Or is Amnesty International and the pacifist crowd right, and all the medical professionals and physicists that designed this thing wrong? Is it lethal force in a non-lethal box?
It's sure nice to sit in a comfy living room, or jury box, and make these decisions. Especially when you've got a video of it, and can hit "rewind" whenever you feel like it. No rewind, or easy button out there at night. No "mulligans" or "do-overs".
I smell an appeal coming, almost certainly.
I've also not heard of any testimony by medical professionals in court that the injuries to his arm and shoulder were consistent with what happened to him. Nor have I heard of anyone looking into his background regarding prior injuries and problems with his shoulder and arm.
The world is full of assumptions, and in court they all must be fetted out and examined. If in the final analysis they were wrong, so be it. They were wrong.
I've said before, and I will again. Force should not be used, "Because I could." It should always be used, "Because I had to." The minimum amount of force appearing to be necessary at the time." should be the guideline.
The cop with the TASER violated that, it should cost them. I am not convinced at this point. Arguing the arrest is "failing to submit", if accompanied by physical resistance. Should the cops wait until one of them is injured? Maybe that would be better? report abuse
And how are we to interpret that the height, weight and body builds of the three, fully armed and trained to kill police officers were not to be viewed as being at least twice the times the amount of a threat to Mr. Parker or anyone else who might be in similar circumstances as what he was confronted with that day?
What makes people think that if the cop was pointing a .40 cal pistol at this guys head that this cop wouldn't have executed the same reflex action and shot Mr. Parker instead of tasing him? That's the real crux of this action, why are people so wrapped up in this to tase or not to tase question. This is just subterfuge.
The issue that the jury decided was that the behavior of the officer's response to Mr. Parkers actions or movements constituted excessive use of force, period. The jury saw nothing in the video that would cause a rational person to conclude that the circumstances at that arrest scene warranted the use of this level of force against the person of Mr. Parker. That was the issue at hand for them to decide on. report abuse
The study by ACEP was a good study that looked at the real world use of TASERS, in a population based study. The sample size was certainly large enough to be normalizable to the total population of people who are arrested and likely to resist.
So, lets make sure we understand what it all means.
They're associated with reduced injury rates to both those resisting arrest, and the police.
In certain situations, where the alternative is readily available in an armed officer with a firearm at ready, it may be used instead of a firearm. It is certainly, when deployed properly, able to immediately incapacitate an individual.
Without the TASER, more people would be more severely injured, and more people would be killed.
All weapons should be used judiciously, and with discretion. Never gratuitously, or with malice. Whenever abuse is identified, it should be dealt with appropriately. That means a thorough investigation, not a witch hunt. That means that we don't second guess split second decisions. We base our judgements on what was known at the time. We base our judgements on a reasonable person test.
As I see it, some people will never understand the use of force. They exist in a world where it doesn't exist, or they deny it. Whenever the issue comes up, they call on someone else to deal with it. Then they question everything the people they call to the nth degree in the search for "justice". Wierd.report abuse
Curious. I thought that was the way it was supposed to be? If someone has to die. We still counting the deaths of people resisting arrest as the moral equivalent of the death of a police officer trying to arrest them? Amnesty International apparently does.
Amnesty International is not the authority on use of force or TASERs. Their criteria for inclusion was that someone died, regardless of the cause of death.
The most recent study looking at TASERS was published by the American College of Emergency Physicians, and presented at their annual meeting.
Their introduction states that these weapons are associated with reduced overall injury rates among both officers and suspects (??!). Studies in animal models and healthy human subjects are important but cannot replace studies in actual populations at risk of TASER exposure. Further, no population based injury epidemiology studies have been performed to date. The likelihood and severity of injuries after CEW use in real world conditions remains UNREPORTED.
After looking at 962 CEW uses over a two year period. The findings were:
After CEW use, 99.7% of 962 subjects had no injuries or minor to mild injuries only.
The observed significant injury rate was 0.3%, and is unlikely to be greater than 1%.
Skin punctures from probes, contusions, and lacerations account for 98.5% of mild injuries after CEW use.
These data provide the first large, independent, multicenter assessment of the safety of CEW devices under real world conditions.
These findings support the safety of CEW use by law enforcement agencies.
Fighting is dangerous, and sometimes results in death. When it does, it is preferable that those fighting to protect the constitution of the United States and the free citizens thereof, continue to live and do what they do. In the majority of cases.report abuse
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