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No Qualified Immunity for Police Who Stunned Ohio Man for 26 Seconds

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By Mark Wilson, Esq. on March 19, 2015 2:31 PM

One town over from where your author grew up lies the City of Painesville, Ohio, where in 2010, Painesville police officers electrocuted David Lee Nall with a TASER for 26 seconds. Nall suffered a heart attack and permanent brain damage as a result. He needs assistance with daily life tasks and has trouble remembering things.

All of this led to a civil rights lawsuit against the Painesville police. They asserted qualified immunity, but a federal district judge said "no way," as did the Sixth Circuit yesterday.

Don't Tase Me, Bro

Police responded to Nall's apartment about 1:30 in the morning following complaints of loud noises. There appeared to be a party going on; some people were arguing outside. When the police knocked on the door, they couldn't hear anything inside. Nall opened the door and told the police he didn't want them there. They left.

Well, not really. They hung around the apartment building until they saw a guest, Michelle Prochaska, run down the stairs, where she reportedly told them that Nall was "crazy" and said he was "going to kill everyone in the apartment and the police." Officers went back to the apartment and discharged a TASER at Nall. Officers claimed he was resisting arrest, but Nall's wife said that he wasn't resisting; he was convulsing because he was being hit with a TASER.

The TASER's internal logs confirmed that Nall was hit twice: once for 21 seconds and a second time for 5 seconds. A Painesville Municipal Court judge dismissed charges against Nall and his wife for disorderly conduct because police lacked exigent circumstances.

Excessive Force

On summary judgment, police asserted qualified immunity, but the Sixth Circuit, like the trial court, said there was quite a bit of evidence that, contrary to police claims, Nall didn't present a substantial threat requiring the level of force they used.

The only eyewitness to the claim that Nall said he would kill everyone at the party was Prochaska, who ran down the stairs. The Sixth Circuit found it a little too convenient that she signed her affidavit a year after the events took place, and even then, one day after she was issued a summons for driving under the influence. Two days after she signed the affidavit, the DUI charges were dropped.

One of the officers testified that he intended to charge Nall with disorderly conduct, which the officer himself characterized as "a misdemeanor, fourth degree. It's nothing." That same officer also failed to turn on his recording device, in violation of department policy, for which he had been reprimanded before. All of this, the Sixth Circuit said, provided "a specific set of facts that could plausibly place the witnesses' credibility at issue in the mind of a reasonable juror."

The police attempted to characterize his refusal to let police enter a second time as "active resistance" necessitating the TASER, but the court was unimpressed. "Mr. Nall's single statement that he would not leave his apartment, or the fact that he remained in his apartment rather than exiting, does not in itself render Officer Soto's use of the [TASER] reasonable," the court said.

And if that isn't good enough, the court found that officers were instructed on how to use the TASER and knew that prolonged stunning of more than 15 seconds placed a subject at risk of breathing problems.

The Sixth Circuit also affirmed denial of summary judgment on the exigent circumstance and disorderly conduct claims, finding that there were facts in dispute and the issue should go to a jury.

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