New & Noteworthy...

Protesters Sue Cops in Taser Case

By BOB AUDETTE, Reformer Staff

Friday, March 14
BRATTLEBORO -- In a complaint filed today in U.S. District Court, an attorney for two nonviolent protesters stunned with Tasers in July 2007 has filed six counts against the five Brattleboro police officers involved in the incident. Those counts range from false imprisonment to assault and battery to the use of excessive force.

The suit was filed in the Vermont district court because attorney David Sleigh, of Sleigh and Williams in St. Johnsbury, has contended the five police officers deprived Jonathan Crowell and Samantha Kilmurray of their civil rights when they stunned the pair for refusing to leave private property on July 24, 2007.

The five officers named are Lts. Robert Kirkpatrick, Chuck Aleck and Jeremy Evans, Detective Michael Gorman and Officer Peter DiMarino.

Because the policemen were performing their duties as agents of the town, said Town Manager Barbara Sondag, they will receive legal representation from attorneys assigned through the Vermont League of Cities and Towns.

Other counts in the complaint include outrageous conduct, assault and battery, failure to prevent a violation of civil rights, unlawful arrest and conspiracy.

Neither the town nor the police department were named in the suit, said Sleigh Thursday afternoon, because the police officers may have violated an order from former Police Chief John Martin to not be "heavy handed" in their response to the protest.

"They seemed to be the primary wrongdoers," said Sleigh, adding "It appears they may have been counseled by (former) Chief John Martin not to engage in this sort of behavior."

According to the suit, Kirpatrick and Evans met with Martin who told them "to be flexible" with the protesters, "as the state's attorney was not likely to prosecute the protesters anyway."

Later that day, Martin allegedly told Kirkpatrick and Gorman that the protest was not "substantially different than numerous situations with protesters at the Vermont Yankee corporate office," in which the protesters were cited for trespassing but were not charged by the state's attorney in Windham District Court, according to the suit.

Sleigh alleges the officers that responded to the scene July 24 failed to contact Martin prior to using the Tasers. Martin was fired shortly after the incident, which was based partly on his failure to respond to phone calls and pager requests for advice, according to the findings of fact supporting his firing.

On the afternoon of July 23, police were called to a piece of property owned by Cheshire Oil. A group of 15 to 20 protesters planted flowers and erected signs in response to a rumor that Cheshire Oil was planning a truck stop for the site, which sits on the corner of Putney and Black Mountain roads.

While the owners, James Robertson, of Keene, N.H., and his family, have talked about development of the 13-acre parcel into a travel center, no applications have been filed with Brattleboro's Planning Department.

After contacting the owners about the trespass, police informed the protesters they had one hour to leave the property. Later that day, police returned to the parcel only to find the protesters had not heeded their order to leave.

Police again talked to the owners of the property, who said the protesters could remain on the property through the night, adding they should be evicted the following morning.

At 7 a.m. on July 24, police visited the site to find two remaining protesters, Crowell and Kilmurray, had chained themselves to a barrel full of sand, which is meant to stymie law enforcement efforts to remove protesters. The officers informed Crowell and Kilmurray if they refused to leave the property, they would be stunned with Tasers.

While Kilmurray agreed to unchain herself from the barrel after she was shocked twice, Crowell refused to do the same, telling police "(they) were torturing him and that if they simply left him alone he would quit 'from dehydration or hunger,'" according to the complaint. Crowell was stunned a third time, at which time he agreed to unchain himself from the barrel.

Both were charged with unlawful trespassing and disorderly conduct. While the disorderly conduct charges were dropped, Kilmurray was entered into a diversion program for her charge of unlawful trespassing. Crowell is requesting a jury trial in the trespassing charges filed against him.

The suit filed in federal district court follows on the heels of an independent report commissioned by the town which concluded that the use of Tasers against the pair was not justified.

"The decision in this case to use the Tasers on otherwise peaceful protesters who were chained to an object was hastily made, and was unnecessary and excessive," wrote Gordon Black, an attorney from Bennington.

The incident on Putney Road led to a rewrite of the police force's use of force policy, authorizing the use of Tasers only when suspects are exhibiting "active aggression" and who are deemed likely to harm themselves or others. Tasers may now be used only to defend officers or a third party from what is reasonably believed to be an immediate threat of physical injury, on those actively resisting police officers, to prevent suicide or on vicious or aggressive animals that threaten the safety of officers or others.

Tasers are not to be used punitively, as a prod or escort device, to rouse an unconscious or impaired person, on those passively resisting a lawful order or on handcuffed or restrained individuals, according to the new policy.

In the complaint, Sleigh wrote that according to literature available from Taser International, the devices are intended "to incapacitate dangerous, combative or high-risk subjects who pose a risk to law enforcement officers, innocent citizens or themselves."

Tasers are meant to be used to bring "dangerous situations quickly under control before force escalates to the lethal levels," quoted Sleigh from the published literature.

The behavior of Crowell and Kilmurray was neither threatening, aggressive nor disruptive, wrote Sleigh, and the officers failed "to show appropriate patience and restraint in attempting to resolve the situation ... as had been encouraged the day before by Chief Martin."

Factors that might have justified the use of Tasers "were simply not present," he wrote. "The use of Tasers was unwise and unreasonable under the circumstances. While the use of force is occasionally unavoidable, police officers must refrain from unnecessary infliction of pain or suffering and will never engage in cruel, degrading or inhuman treatment of Plaintiffs."

Sleigh is asking District Court Judge Jerome Neidermeier to rule in favor of Crowell and Kilmurray, to award them punitive and compensatory damages and order the defendants to pay legal costs and attorney's fees.

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