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Tuesday, January 17, 2012

Bipolar Man's Death by Taser Needs Jury Trial

One to watch, maybe the U.S. test case on how tasers will be used in the future in the United States of America - no more indiscriminate use!!!!

January 17, 2012
Tim Hull, Courthouse News Service

(CN) - Police may be liable for the death of a man who was shot twice with a Taser by a police officer trying to make him stop directing traffic naked, a federal judge ruled.

Brian Cardall, 32, had a psychotic episode in the car while he and his wife, Anna, were driving near Hurricane, Utah, with their infant daughter in June 2009.

Unable to get Brian back in the car, Anna called the Hurricane City Police Department. Officer Kenneth Thompson and Police Chief Lynn Excell found Brian standing in the road, completely naked and trying to direct traffic, when they arrived at the scene.

Thompson told Brian to get down on the ground 13 times, according to deposition testimony. After Brian failed to comply, Thompson deployed his stun gun twice at Brian without warning. Excell put Brian in handcuffs as officers radioed the paramedics. While waiting for the arrival of paramedics, however, a third officer noticed that Brian had stopped breathing and lacked a pulse. Brian was pronounced dead at the hospital.

Brian's widow, children and parents raised a series of constitutional and state-law claims against Officer Thompson, Chief Excell and the city of Hurricane.

Though the defendants claimed qualified immunity, U.S. District Judge Clark Waddoups ruled said the disputed facts make the case ripe for a jury.

Most significantly, there are "conflicting eyewitness accounts" as to whether the naked, unarmed man posed enough of a threat to the officers to justify the use of the Taser.

While the officers testified that Brian had "charged" Thompson, Anna Cardall and a passing motorist gave a different story, saying that he merely "turned toward the officer" or took "one small step" his way.

"If Brian suddenly charged at Officer Thompson in a violent manner, then he may have posed a threat to the police and there would be considerable justification for the Tasing," Waddoups wrote.

"If, on the other hand, Brian simply turned towards Thompson, or was taking a few steps in various directions as he had been since the officers arrived on the scene, then he was not a threat," the Jan. 11 decision states. "Brian was a considerable distance from the road, and did not verbally threaten the police, himself, or his family. He was naked and clearly unarmed, and outnumbered by the officers on the scene, who significantly outweighed him and were about to be joined by additional backup. If the facts are viewed in the light most favorable to Anna's claim, then Brian did not pose a threat."

"Brian was Tased although he was not guilty of any serious crime or attempting to flee," the judge added. "If all factual disputes are resolved in favor of Anna, Brian was not a threat to the officers who impatiently Tased him when, in his confusion, he was slow to comply with their demands. Tenth Circuit case law, as well as authority from other jurisdictions, explicitly holds that Tasings under similar circumstances violated clearly established Fourth Amendment law."

Immunity does protect the defendants from three claims alleging that officers violated Anna's constitutional rights by holding her illegally and failing to get her husband medical treatment.

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