Updated: Friday, 22 Mar 2013, 3:19 PM CDT
Published : Friday, 22 Mar 2013, 1:11 PM CDT
CINCINNATI (AP) — A federal judge on Friday refused to throw out a civil rights lawsuit in the case of an unarmed, mentally ill Ohio man who died during a confrontation with police after being shocked with a stun gun seven times, kicked and repeatedly struck with a baton — all mostly after he had fallen face-first onto cement and stopped moving.
Doug Boucher, 39, died after the Dec. 13, 2009, confrontation with two officers outside a convenience store in the Cincinnati suburb of Mason. Boucher had been stopped for allegedly making lewd comments to the store's 19-year-old female clerk.
Attorneys for the city of Mason had argued that the officers' actions were reasonable and justified, and that the lawsuit, filed by Boucher's parents, should be dropped.
In his ruling, U.S. District Judge S. Arthur Spiegel allowed allegations of excessive force, wrongful death and intentional infliction of emotional distress to stand.
He also denied the city's request to stop a forensic pathologist from testifying that he believes the repeated use of the stun gun caused Boucher's heart to fail.
"What gives the court pause is that (the officers) repeatedly tased Boucher in such manner that a jury might find he was subjected to gratuitous violence from officers that momentarily 'lost it.'" Spiegel wrote.
He set a trial date for June 18.
Gary Becker, the Cincinnati attorney representing Mason and both officers, said he was "obviously very disappointed" and strongly disagrees with the decision.
"What we'll do at this point I don't know because I haven't talked to my clients," he said. "There are a lot of things to talk about — whether we appeal now or go to trial and hopefully get a jury to give us a better outcome. We're confident that they will once they understand what occurred here."
Shortly after Boucher's death, Mason police said only that he had died after being shocked by a stun gun. Documents obtained by The Associated Press in December revealed how many times the device had been used and that Boucher was lying immobile and face-down on the ground for five of them.
Officers Daniel Fry and Sean McCormick said in depositions that Boucher left the convenience store at their request after the clerk complained about him. When McCormick approached Boucher from behind and put a hand on his shoulder, they said that Boucher clenched his fists and began screaming.
Fry said he got one handcuff on Boucher's wrist before he spun around and punched the officer in the head twice. A wrestling match ensued before McCormick yelled for Fry to move and shocked Boucher in the chest with his stun gun, causing him to fall to his knees.
The officers said Boucher then spotted the clerk outside, got up and ran toward her.
That's when Fry shocked Boucher in the back, causing him to fall hard, face-first into the pavement, landing with his hands underneath him and out of the officers' view, according to the depositions.
Although Boucher wasn't moving, McCormick testified he kicked him and hit him with his baton, and ordered Fry to stun him twice more. Although Fry testified he only remembered stunning Boucher three times, information downloaded from the device showed he used it six times in a 75-second span.
A third officer, Bradley Walker, testified that when he arrived at the scene, he saw McCormick hit a motionless Boucher with the baton about five times and saw Fry use his stun gun on him.
The officers handcuffed Boucher, patted him down and turned him over, only to find that he wasn't breathing and his face was covered in blood. Boucher was dead minutes later despite attempts to revive him.
Butler County Deputy Coroner James Swinehart found that Boucher did not have alcohol or drugs in his system and died from the fall, although he said he couldn't rule out that the stun gun use as a factor.
Dr. Cyril Wecht, a forensic pathologist representing Boucher's family, believes the stuns were what caused Boucher's death, and Spiegel's ruling means that he can tell that to a jury.
Neither officer was disciplined and the Ohio Bureau of Criminal Investigation cleared both of wrongdoing.
Jennifer Branch, the Boucher family attorney, has said that the officers should have allowed Boucher to get in his car and leave because making a lewd comment is not a criminal offense, and that their escalating use of force was inappropriate.
Becker said the officers had no way of knowing Boucher was incapacitated.
"These officers had been viciously attacked by this guy and to their knowledge, that was going to happen again if they approached him without making sure he was under control," he said.
Boucher's parents, who live in Marion, Ind. — where Boucher lived until he was about 30 — are seeking unspecified damages. His family said he was bipolar and not in treatment.
Boucher, who was divorced, also is survived by a daughter.
Follow Amanda Lee Myers on Twitter at https://twitter.com/AmandaLeeAP
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