CINCINNATI – A federal judge 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 struck with a baton – mostly after he had fallen face-first onto concrete and stopped moving.
Doug Boucher, 39, died after the Dec. 13, 2009, incident with two officers outside a convenience store in the Cincinnati suburb of Mason.
Boucher had been stopped for allegedly making lewd comments to the stores 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 Bouchers 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 citys request to stop a pathologist from testifying that he believes the repeated use of the stun gun caused Bouchers 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.
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 Bouchers 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. Thats 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 wasnt 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.
The officers handcuffed Boucher, patted him down and turned him over, only to find that he wasnt breathing and his face was covered in blood.