CINCINNATI – A Cleveland man can move forward with his excessive-force lawsuit against a Cleveland police officer who used a stun gun on him while he was unarmed and kneeling with his arms in the air, an appeals court ruled Wednesday.
The ruling from a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati turned down officer James Simones request to have the lawsuit thrown out, finding that Rafael Correa was not posing a threat or resisting arrest when he was stunned on May 15, 2010.
Simone had argued he was right to use a stun gun on the 31-year-old Correa because he was responding to a report of an armed suspect threatening people and didnt know if Correa had a gun.
After being stunned and rendered unconscious, Correa was arrested on charges of assault, disorderly conduct, and obstruction of official business, and was held in jail for four days, although police had found no weapons or drugs, or evidence that he had committed a crime, according to a federal lawsuit filed by Correa five months after his arrest.
The charges were later dismissed.
Simone, who retired from Cleveland police, has an unlisted number. His attorney, Tom Kaiser, did not respond to a message seeking comment.
In a court deposition about the incident, Simone testified he didnt believe Correa was going to attack him but wasnt following commands to lie face-down on the ground.
He said Correa refused to lie down for about 45 seconds before Simone used the stun gun.
I thought that was evasive, Simone said. I believed he was armed.
Correa said he followed all of Simones instructions before he was stunned.
A video of the incident provided to The Associated Press by Correas attorney shows that only 22 seconds pass between when Simone pulls his cruiser up to Correa and when he stuns him.
Correas attorney, Nicholas DiCello, said he thinks officers trumped up charges against Correa after they realized he had no weapon and was lying on the ground unconscious with a bleeding eye from hitting his head.
DiCello thinks the case will set a precedent that its unconstitutional for police to use a stun gun on a suspect who isnt posing a threat, even if he or she is suspected of having a weapon.
If an officer has reason to believe someone is armed – and in todays day and age in Ohio that could be anyone, whether theyre at a bar or a birthday party – it would have basically been taze first and ask questions later, DiCello said.