Douglas Boucher, 39, of Mason died after a 2009 tasing incident with Mason Police. Boucher’s family has filed a a lawsuit in federal court against the city and two officers involved. Provided photo
The city of Mason and two police officers have asked the Sixth Circuit Court of Appeals to overturn a federal judge’s ruling denying them immunity in a civil lawsuit filed by the family of an unarmed, mentally ill Mason man who died after a confrontation with police.
Gary F. Becker, a Cincinnati attorney representing Mason and both officers, filed an appeal Thursday arguing the court should overturn Judge S. Arthur Spiegel’s March 22 decision to deny qualified and sovereign immunity to the city and officers.
Qualified immunity shields public officials from legal liability unless they knowingly violated a person’s clearly established legal or constitutional rights. Sovereign immunity is a legal doctrine that makes it difficult for private citizens to sue the government.
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The case centers on Douglas Boucher, who died on Dec. 13, 2009 after two Mason police officers Tased him seven times, kicked and repeatedly struck him with a baton — all mostly after he had fallen face-first onto cement and stopped moving.
The suit alleges Mason Police Officers Daniel Fry and Sean McCormick unreasonably seized and used excessive force on Boucher, 39, and that the city of Mason failed to adequately train and supervise officers’ use of Tasers or conduct a meaningful investigation of the incident.
Neither officer was disciplined, and the Ohio Bureau of Criminal Investigation cleared both of wrongdoing.
The suit demands a jury trial and seeks compensatory damages and legal costs. It also asks for punitive damages against the officers, not the city.
“Qualified immunity is specifically designed to protect the officers not only from liability, but from the prospect of having to go through the rigors of a trial,” said Becker. “The city has elected to avail themselves of that right to appeal that decision now.”
The two officers apprehended Boucher after a 19-year-old clerk at the Speedway gas station on Reading Road reported to them that the 6-foot-tall, 290-pound musician allegedly made a lewd comment to her.
When officers tried to take Boucher, who had untreated bipolar disorder, into custody, police say he punched Fry in the head twice and then chased the store clerk. Fry shot Boucher in the back with his Taser, the shock of which knocked Boucher face-first onto the pavement with his hands curled beneath his body.
Boucher died of a skull fracture sustained from the fall, although Butler County Deputy Coroner James Swinehart said he couldn’t rule out that the seven total Taser shocks contributed to his death.
Mason had requested the case be dismissed, arguing the officers acted reasonably and within the bounds of the law in response to an encounter with an aggressive subject who resisted and assaulted officers.
While Spiegel dismissed the plaintiff’s claim that stopping Boucher was a violation of his Fourth Amendment rights, he denied the officers qualified immunity, leaving it to a jury to determine if Boucher “was subjected to gratuitous violence from officers that momentarily ‘lost it,’” Spiegel wrote.
Several similar cases involving Tasers have gone before the Sixth Circuit Court of Appeals in recent years. The court ruled last fall in a case involving a Columbus man that officers may legally use a Taser on a suspect multiple times if that suspect resists arrest.
At issue in this case is if the officers should have known whether the fall incapacitated Boucher or, given his prior conduct, believed him to be uncooperative and a continuing threat, said Becker.
According to the officers’ testimony, they commanded an unresponsive Boucher to show them his hands and when he did not comply, repeatedly kicked and struck him with a baton and deployed the Taser on him five additional times within a 55-second period.
After a third officer arrived on the scene, McCormick and Fry double-handcuffed Boucher and turned him over to find him not breathing and his face covered in blood. Despite efforts to revive him, Boucher was pronounced dead at the hospital.
Jennifer Branch, the Boucher’s family attorney, has argued that the officers’ use of force after he fell to the ground was inappropriate and excessive.
“He didn’t speak. He didn’t move. He didn’t do anything,” she told the judge at a Feb. 26 hearing. “When a person is not actively resisting, the law is clear.”
A trial date had been set for June 18, but it could be several months before the appeals court issues its ruling, said Becker.
