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Attorney: Use of Force in Taser Case was Excessive

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BOB AUDETTE, Reformer Staff

Tuesday, June 2 BRATTLEBORO -- The attorney for a pair of protesters who were stunned with Tasers two years ago is asking the United States District Court to deny a motion to dismiss a lawsuit filed against the Brattleboro police officers involved in the incident and let a jury decide if excessive force was used against the two. "Any use of force in this case was unreasonable, period," said David Sleigh, of Sleigh and Williams in St. Johnsbury, during a telephone interview with the Reformer on Monday.

No reasonable officer would have failed to see that stunning the pair violated their clearly established right not to be subjected to excessive force, stated Sleigh, in his motion filed with the United States District Court on June 1.

"It is axiomatic that using force out of pique or frustration is not constitutional," wrote Sleigh. "The defendants attempt to justify the actions as necessary because the situation 'was tense and changing' and because they needed to make split second judgments, (but) absent an arrest, there was no jeopardy to person or property whatsoever. Nothing could be further from the truth."

In their motion to dismiss, the defendants contested there is no precedent which states Tasers can be used to enforce compliance when confronting passive resistors, said Sleigh.

"You don't get one free Tase just because you say there is not existing case law

," said Sleigh. "You still have to apply the well-understood law of the use of force in an arrest." The officers named in the suit are Robert Kirkpatrick, Michael Gorman, Chuck Aleck and Peter DiMarino. Jeremy Evans was originally named but eventually dismissed from the suit.

On July 23, 2007, Jonathan Crowell and Samantha Kilmurray, along with about 15 others, occupied an empty lot located at the corner of Putney Road and Black Mountain Road. The group gathered to protest what they believed to be the development of the lot into commercial use as opposed to utilizing the space in a more eco-friendly manner such as a community garden, wrote Sleigh in his motion.

Police were notified by a passing motorist about the protest.

"It's just -- I can't stand protesters," stated the motorist, according to a transcript of the call.

Police contacted Cheshire Oil President James Robertson, the landowner, and told him that they could "send an officer up there and have them removed," stated Sleigh.

Robertson responded that he did not want "... to start a war with them," but asked the police to issue "no trespass" orders to the protesters.

"The dispatcher then informed (a police officer) that Robertson would like the people removed from his property and if necessary a trespass order should be issued," wrote Sleigh.

Bryant Robertson, the son of James Robertson, told the police the protesters could remain on the land over night, but "if they're still there tomorrow then we got to do something different."

"Obviously, neither the officers nor the property owner believed the protest to be particularly urgent, threatening or severe, otherwise they would not have permitted them to stay the night," wrote Sleigh.

In addition, wrote Sleigh, on the afternoon of July 23, Kirkpatrick was told by former Brattleboro Police Chief John Martin and Brattleboro Police Captain Gene Wrinn -- now the town's chief of police -- not to be "heavy handed" with the protesters and instructed him to take no action against the protesters.

Later that day, wrote Sleigh, Gorman met with Kirkpatrick and the two unilaterally decided to act early the following morning to remove any remaining protesters without consulting the landowners or their superiors at the police department.

Gorman and Kirkpatrick returned to the vacant lot at about 7 a.m. on July 24 to find Crowell and Kilmurray had chained themselves to a 300-pound barrel filled with concrete and debris. The other protesters had left the lot.

A few minutes later, DiMarino and Aleck arrived on the scene.

Even though several unsuccessful attempts were made by the police and Brattleboro Public Works employees to disengage the protesters from the barrel, they made no attempt to further research how the device could be defeated without harming the pair, stated Sleigh.

According to Sleigh's motion, no one in the Brattleboro Police Department made any attempts to contact the Robertsons on July 24 for further instructions prior to stunning Crowell and Kilmurray.

Sleigh contended that the officers "considered beating the protesters with their night sticks and spraying them with (pepper spray). Both ideas were rejected as being brutal under the circumstances."

DiMarino suggested, and the other officers agreed, that stunning the protesters with Tasers would be a good way to get the protesters to comply, wrote Sleigh. DiMarino "sparked" the Taser and told Crowell and Kilmurray it would "hurt a lot" and that
they would be "Tased" until they cooperated, he wrote.

Kilmurray was stunned twice by Kirkpatrick and Crowell was stunned three times by DiMarino before disengaging from the barrel. The stunning caused both protesters significant pain, burn lesions on their skin and psychological trauma, he wrote.

Gorman and Aleck were named in the suit because they did not object to the use of the Tasers on Crowell and Kilmurray, nor did they attempt to stop the action from happening, stated Sleigh.

The officers also violated the town's use of force policy, he wrote, which was updated after the July 24 incident, which stated Tasers or other methods of force should only be used "when officers reasonably believe it is necessary in the defense of themselves ..."

"The protesters' presence on the land created no exigency, risk of harm or risk of loss to the landowners, the general public or themselves," wrote Sleigh. "No reasonable law enforcement officer could have concluded that Tasing passively resisting subjects who presented no risk of harm to themselves or others was reasonable or lawful."

The defendants in the case, wrote Sleigh, are asking the court to dismiss the lawsuit based upon an assertion of qualified immunity, a judicially created doctrine that recognizes the common-law immunity of public officials for their good faith actions.

Public officials are entitled to qualified immunity in instances where "their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known."

Because there are disagreements over the facts of the case, wrote Sleigh, "granting a motion for summary judgment predicated upon an assertion of qualified immunity would be premature," and a jury should be allowed to hear the case.

Bob Audette can be reached at raudette@reformer.com, or 802-254-2311, ext. 273.
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