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Police Face Lawsuit over Taser Incident

March 18, 2008

By Susan Smallheer Herald Staff

BRATTLEBORO — Two peaceful protesters who were stunned into submission by five Brattleboro police officers using nonlethal Taser weapons last summer have sued them for violation of their civil rights and excessive use of force when they were arrested last July.

The suit, filed recently in U.S. District Court in Brattleboro, asserts that the officers needlessly escalated a peaceful demonstration, and used their Tasers to remove Jonathan Crowell and Samantha Kilmurray, two protesters from West Dummerston, from a vacant lot.

Crowell and Kilmurray had chained themselves to a large barrel, partially filled with concrete, dirt and steel rebar. Police said they stunned the two protesters because they had no other options to remove them from the vacant lot, and the owners of the lot wanted the protesters removed.

The suit, filed by their attorney, David C. Sleigh of St. Johnsbury, asks no specific monetary damages, but asked for compensatory and punitive damages, as well as costs and lawyer's fees.

The six-count lawsuit charges the police with false imprisonment, assault and battery, "outrageous conduct," conspiracy, unlawful arrest and excess force, and failure to prevent the violation of the protesters' civil rights.

"There was no urgency to resolve the matter quickly, as the protesters were not obstructing traffic, impeding pedestrians, or interfering with any adjacent business," the suit stated.

"The protest was little more than a nuisance and there seemed to be little reason to escalate matters to involve the use of pain compliance devices. The use of force should be used only with the greatest restraint and only after discussion, negotiation and persuasion have been found to be inappropriate or ineffective," the suit stated.

The five officers named in the suit were Lt. Robert Kirkpatrick, Detective Michael Gorman, Lt. Jeremy Evans, Lt. Chuck Aleck and Officer Peter DiMarino. All are being represented by the town, Sleigh said, rather than private legal counsel.

The suit comes after the town's own independent evaluation of the protesters' arrest was condemned as "unnecessary and excessive," and the town rewrote its use-of-force policy, which included guidelines for use of the Tasers.

The town had hired Gordon Black, an out-of-town lawyer, to review its policies.

Black's report in February came out against the decision of the officers at the scene, saying they ignored the advice given them the day before by their then-chief John Martin, and needlessly escalated what had been a peaceful protest.

Black said he believed no one should be stunned who is not posing a physical threat to anyone. And Sleigh noted that was the stated policy of Col. James Baker of the Vermont State Police, that Tasers should only be used when there is the "potential of harm to the police officer, the suspect or member of the public."

Martin, whom the officers did not consult the morning of the incident and subsequent arrests, was later fired for his handling of the controversy.

But Black's report stated that Martin had urged the officers to handle the Putney Road protesters much like the frequent protesters at the nearby Entergy Nuclear headquarters, who were routinely arrested but never prosecuted by the state's attorney's office.

Crowell and Kilmurray were the last remaining protesters of a much larger protest at a vacant lot at the corner of Putney Road and Black Mountain Road. The group, which had planted flowers and small trees, were demonstrating against what they believed were plans by the Cheshire Oil Co. to build a large convenience store and truck stop on one of the last empty lots on the busy commercial strip north of the downtown area.

It is the second lawsuit against the town for the Taser incident. Martin has sued the town, claiming his rights were violated and the town did not follow its own disciplinary procedures.

Acting Brattleboro Town Manager Barbara Sondag couldn't be reached for comment Monday, but Sleigh said the town had legal coverage through the Vermont League of Cities and Towns. He said so far the town hadn't responded to the suit.

Sleigh is also representing Crowell and Kilmurray in their unlawful trespassing case.

The history of Tasers is an ironic one in Brattleboro. The Brattleboro police received the Tasers as a gift from a local credit union after the controversial shooting of a man inside a local church, as an effort to give the local police force a nonviolent tool in such emergencies. The man was carrying a knife and police said he had lunged at church members, an incident still under dispute.

Since they have received the Tasers, the police have been criticized repeatedly for their use, in particular against a juvenile patient at the Brattleboro Retreat, a private psychiatric hospital in town.

Contact Susan Smallheer at susan.smallheer@rutlandherald.com.