Officer loses appeal in Taser excessive - force case !

Officer loses appeal in Taser excessive - force case

The jury's verdict against South Portland policeman Kevin Gerrish was not unreasonable, judges rule.

By TREVOR MAXWELL Staff Writer November 7, 2008

A panel of federal judges in Boston has upheld a lower court ruling that a South Portland police officer used excessive force when he shot a man with a Taser stun gun in July 2005.

Officer Kevin Gerrish used the Taser while he and another officer were attempting to arrest Stephen Parker for drunken driving. Parker suffered injuries to his shoulder, arm and hand when he fell to the ground and was handcuffed. The incident was recorded by a video camera in Gerrish's cruiser.

Parker filed a federal lawsuit, and in October 2007 a jury in U.S. District Court found that Gerrish had violated Parker's constitutional rights. The jury awarded Parker $111,000 plus legal fees.

Gerrish's lawyer, Ed Benjamin of the Portland firm Thompson & Bowie, appealed the case to the First Circuit Court of Appeals in Boston. Benjamin argued that the force used was not excessive for the circumstances. He also said Gerrish should have been entitled to qualified immunity, a legal principle that allows police officers leeway in judgment during situations that require split-second decisions.

But the circuit judges sided with Parker. Judges Juan Torruella, Michael Boudin and Timothy Dyk filed their decision Wednesday.

"Considering the video recording together with the testimony, the jury could reasonably find excessive force," Torruella wrote in the decision.

Parker's lawyer, Ben Gideon of Berman & Simmons in Portland, was thrilled.

"It would have set a terrible precedent if the case had been reversed," Gideon said. "I think it is a good result, and it keeps civil rights cases alive."

Gideon also said the decision should help guide the future use of Taser technology by police departments. Taser guns have become increasingly popular in Maine and nationwide as a less-than-lethal weapon for officers, but there has been concern among civil rights groups about overuse of the guns, and injuries caused by uncontrollable falls.

Taser is the brand name for an electronic weapon that delivers a 50,000-volt shock that usually incapacitates a person long enough for police to gain control.

"This is an important precedent for other Taser cases in the First Circuit," Gideon said. "I think this is a green light for other cases of merit that relate to excessive force and Tasers in particular."

Benjamin, Gerrish's lawyer, said he respects the jury verdict and the decision of the appeals court, but he still believes Gerrish made the right call at the time. Officer Jeffrey Caldwell was trying to handcuff Parker, who was intoxicated, when Gerrish saw Caldwell's body jerk sharply to the right. Gerrish shot the Taser because he believed Parker was about to assault Caldwell.

"I think Gerrish was right to be guarding Caldwell with that Taser, and thinking if this guy makes a move to escalate this thing, he was going to use it," Benjamin said. "Parker had enough chances to cooperate."

Gideon and Benjamin expect the Maine Municipal Association Property and Casualty Pool -- of which South Portland is a member -- to cover the $111,000 plus interest owed to Parker, and about $150,000 in legal fees and interest.

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at [email protected]

[link to pressherald.mainetoday.com]