Parrish et al v. City of Mason, Ohio et al

Filing 61

OPINION AND ORDER denying 54 Defendants' Daubert Motion to Exclude Opinion Testimony of Cyril H Wecht M.D.; granting in part and denying in part 32 Motion for Summary Judgment, such that Plaintiffs' claims for excessive force, claims a gainst Defendant City of Mason, and state law claims all survive Defendants' challenges and are proper for consideration by a jury. The Court DENIES Defendant Officers qualified immunity because it was established law at the time that it is obj ectively unreasonable to use a taser against an immobilized suspect who is not resisting, and the facts of this matter could be viewed to show they applied gratuitous violence against Boucher. Finally the Court SETS this matter for a settlement conference on 4/24/2013 at 3:00 P.M., for final pretrial conference on 5/29/2013 at 3:00 P.M., and for a five-day jury trial to commence on 6/18/2013 on an on-deck basis. Signed by Judge S Arthur Spiegel on 3/21/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LEE PARRISH, et al.,

:
:
:
:
:
:
:
:
:

Plaintiffs,
v.
CITY OF MASON, et al.,
Defendants.

NO:

1:11-CV-00861

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion for
Summary Judgment (doc. 32), Plaintiffs’ Response in Opposition
(doc.

47),

Plaintiffs’

Supplemental

Defendants’ Reply (doc. 55).

Filing

(doc.

50),

and

Also before the Court is Defendants’

Daubert Motion to Exclude Opinion Testimony of Cyril H. Wecht, M.D.
(doc. 54), Plaintiffs’ Response in Opposition (doc. 57), and
Defendants’ Reply (doc.

58).

The Court held a hearing on these

matters on February 26, 2013.

For the reasons indicated herein,

the Court GRANTS IN PART AND DENIES IN PART Defendants’ dispositive
motion consistent with this Opinion, and DENIES Defendants’ Daubert
motion.
I.

Background
The Estate of Douglas Boucher brings this case for

wrongful death, violation of civil rights, and infliction of
emotional distress against Defendant police officers Sean McCormick
(“McCormick”), Dan Fry (“Fry”), and the City of Mason, Ohio,
alleging

the

officers

improperly

stopped

Douglas

Boucher

(“Boucher”), used excessive force against him, and caused Boucher’s
death.

They further contend Defendant City of Mason ratified the

officers’

actions,

failed

to

meaningfully

investigate

the

encounter, and failed to properly supervise and train the officers
with regard to the use of tasers1.

The facts have been recounted

in the parties’ briefing and at the hearing, and can essentially be
summarized as follows:
Boucher, a thirty-nine-year old who was larger than 200
pounds, walked into the convenience store of a Speedway gas station
at 2:00 A.M. on December 13, 2009, and made a lewd proposition to
the lone nineteen-year-old female store clerk.

The store clerk

told Boucher he was making her uncomfortable and he needed to
leave.
Boucher left, but over twenty hours later, at 11:00 P.M.,
he

returned.

This

time,

apparently

unbeknownst

to

Boucher,

Defendants Mason police officers McCormick and Fry were at the back
of the store.

Boucher approached the clerk and apologized for

what he had said earlier in the day, however, after having done so,
he twice repeated the lewd proposition to the clerk.

1

The clerk

A “taser” is a brand name for a CED, a “controlled energy
device,” or a ECD, an “electrical control device,” used to stun
suspects. A taser can be used in two ways. One is “drive stun
mode” where the taser is applied directly to the suspect. The
other is “probe mode” where probes are shot from the taser and
deliver electrical charge through the probes. Probe mode, the
mode used in this case, is designed to incapacitate the subject
during the cycle (docs. 47, 57).
2

retreated toward the police officers where she informed Officer Fry
that Boucher had made the same remarks the night before, and asked
the

officers

to

have

Boucher

leave.

At

this

point

Officer

McCormick walked around a coffee machine and came face-to-face with
Boucher for the first time.

McCormick asked Boucher to repeat

what Boucher had stated to the clerk, but Boucher did not respond,
and backed away.

Officer McCormick then directed Boucher to leave

the store, and Boucher did.

Officer Fry radioed Dispatch at 11:15

P.M. to advise he had an “unknown investigation.”
The officers followed Boucher outside the store into the
parking lot, having decided to warn him to stay away from the store
or be found trespassing, and having suspected Boucher might be
intoxicated.

Once outside, the officers noted that Boucher’s car

was parked outside the marked lanes, and that there was significant
damage to the front end of the car.

Boucher yelled to the officers

that he was leaving, and reached for his car door.

McCormick

ordered Boucher to stop and to turn around. Boucher told McCormick
to get away from him, and McCormick warned Boucher to place
Boucher’s hands on the vehicle, or McCormick would use a taser on
him.

Boucher then complied and placed his hands on the vehicle.
McCormick

then

handed

Fry

instructed Fry to handcuff Boucher.

a

set

of

handcuffs

and

Fry secured Boucher’s left

hand in a cuff, but before Fry could secure Boucher’s right hand,
Boucher spun around and struck Fry in the face.

3

Boucher then

struck Fry a second time, and drove Fry into Boucher’s vehicle.
Fry and McCormick struggled to the ground.
McCormick

instructed

Fry

that

McCormick

Boucher, so Fry managed to roll away from Boucher.

could

tase

McCormick got

a clean shot at Boucher’s chest and deployed the taser for a full
five-second duration.
After this tasing, Boucher jumped to his feet and ran
across

three

parking

spaces

away

from

the

Officers,

yelling

(according to Plaintiffs, for help) to the clerk, who was now
outside.

Fry ordered Boucher to stop or be tased.

stop, so Fry tased Boucher in Boucher’s back.

Boucher did not

Boucher fell face-

first on his hands onto the sidewalk in front of the store.
The parties do not dispute any of the above facts, and
the Plaintiffs do not claim any excessive force on the part of the
officers to this point.

That changes now.

It is at this point

that Boucher is on the ground and not resisting that a third
officer, Officer Walker arrived, in response to Fry’s radio call to
Dispatch.
Walker parked his car within feet of Boucher, hopped out,
and saw Boucher on the ground.

Walker kneeled down to handcuff

Boucher, which Plaintiffs contend, was the exact right thing to do.
However, at this point Officers Fry and McCormick advised
Walker to back away, and to instead cover them with his firearm.
Walker did so as Fry commenced to tase Boucher five more times,

4

five seconds each, during the next fifty-six seconds.

During this

same time Officer McCormick kicked Boucher and struck Boucher two
to seven times with his baton.
Officers Fry and McCormick removed Boucher’s hands and
cuffed him.

Boucher offered no resistance.

The officers rolled

Boucher over and realized there was a large amount of blood on
Boucher’s face and on the ground. Officer Walker and State Trooper
Staples, who had arrived, began CPR.

Medics arrived shortly

thereafter, continuing CPR, and transported Boucher to West Chester
Medical Center.

Boucher was pronounced dead at West Chester

Medical Center.
Plaintiffs allege the final set of tasings, strikes, and
kicks after Officer Walker’s arrival constitute excessive force on
the part of the officers.

They further allege, supported by the

report of expert pathologist Cyril H. Wecht, M.D., that the
repeated tasing shocks administered to Boucher caused his heart to
fail. Defendants counter that Coroner Richard Burkhardt attributed
Boucher’s death to “basilar skull fracture” sustained when Boucher
hit the sidewalk.
pathologist

who

Plaintiffs respond that Defendants’ forensic

authored

Boucher’s

autopsy

report,

Dr.

James

Swineheart, could not rule out taser-induced heart failure and
indicated in his view that he did not think the basilar skull
fracture killed Boucher.
These are the basic facts under which the Court must

5

analyze both Defendants’ Daubert motion to exclude Dr. Wecht’s
opinion testimony as unreliable, and Defendants’ motion for summary
judgment.

Defendants’ latter motion is premised on the theory

that the officers were entirely justified in their stop of Boucher,
and that the law was clearly established that repeated tasings of
a suspect that actively resists arrest do not constitute excessive
force.

Under such theory, Defendants claim they are entitled to

qualified immunity.
applicable

Plaintiffs essentially respond that under the

“segmenting approach” of Dickerson v. McClellan, 101

F.3d 1151 (6th Cir. 1996), Boucher was not actively resisting when
he was on the ground, and for this reason the force applied against
him after such point was excessive.

Plaintiffs further respond

that in their view, it is a jury question whether Defendants had a
reasonable basis to initially stop Boucher, who was leaving the
scene as requested after having made inappropriate remarks, which
is not a crime.
As the parties did at the hearing, the Court will first
address the arguments as to the Daubert motion, and then proceed to
the dispositive motion.
II.

Defendants’ Daubert Motion
Defendants challenge the admissibility of the testimony

of Dr. Cyril H. Wecht, Plaintiffs’ retained expert, under Rule 702
of the Federal Rules of Evidence and Daubert, 509 U.S. 579.
702 governs the admissibility of expert testimony:

6

Rule

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based on sufficient
facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts
of the case.
Fed. R. Evid. 702.

The trial judge must act as a gatekeeper,

admitting only that expert testimony that is relevant and reliable.
Daubert, 509 U.S. at 589. With regard to scientific knowledge, the
trial court must initially determine whether the reasoning or
methodology used is scientifically valid and is properly applied to
the facts at issue in the trial.

Id.

To aid the trial court in

this gatekeeping role, the Supreme Court has listed several key
considerations: 1) whether the scientific knowledge can or has been
tested; 2) whether the given theory or technique has been published
or been the subject of peer review; 3) whether a known rate of
error exists; and 4) whether the theory enjoys general acceptance
in the particular field.

Id. at 592-94.

The Court’s focus “must

be solely on principles and methodology, not on the conclusions
that they generate.”

Id. at 595.

“[T]he test under Daubert is not

the correctness of the expert’s conclusions but the soundness of
his methodology.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43
F.3d 1311 (9th Cir. 1995).
Although Daubert centered around the admissibility of

7

scientific expert opinions, the trial court’s gatekeeping function
applies

to

all

expert

testimony,

including

that

based

on

specialized or technical, as opposed to scientific, knowledge.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999).

The

trial court’s objective “is to make certain that an expert, whether
basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.”
Kuhmo Tire, 526 U.S. at 152.

The trial judge enjoys broad

discretion in determining whether the factors listed in Daubert
reasonably measure reliability in a given case.

Id. at 153.

The

party proffering the expert testimony bears the burden of showing
its

admissibility

evidence.

under

Rule

702

by

a

preponderance

of

the

Daubert, 509 U.S. at 592 n.10.
Defendants contend that when they deposed Dr. Wecht, he

could not show any studies or experiments supporting his theory
that multiple taser shocks cumulatively caused Boucher’s death
(doc. 54).

Defendants argue the only article cited by Dr. Wecht,

written by Dr. Douglas Zipes, was based on eight specific cases,
and only opined about a possible link between taser strikes to the
chest and cardiac disruption (Id.).

Defendants contend that Wecht

acknowledged the Zipes’ article recognized that multiple clinical
studies have not shown taser-induced ventricular fibrillation in
healthy volunteers, and that several epidemiological studies have

8

not shown a link between taser shocks and sudden death (Id.).
Under these circumstances, Defendants contend Wecht’s opinion is an
unsupported and subjective belief neither based on any medical or
scientific tests or experiments, nor based on any review, case
study, or other research conducted by Dr. Wecht or anyone else
(Id.).
Plaintiffs

respond

that

Defendants

quote

the

most

cautious language in the Zipes study, as well as other studies, to
arrive at their conclusion that there is no scientific evidence
that multiple tasings cause cardiac arrest and death (doc. 57).
Plaintiffs contend articles and other materials cited by Dr. Wecht,
including by agencies as the National Institute of Justice, show
that high duration charges could induce heart irregularities, and
one study showed charges induced death in three pigs (Id.).
Moreover, the studies, Plaintiffs contend, suggest that although
cardiac stimulation may be of little concern for healthy subjects,
taser shocks could present problems for those with preexisting
conditions such as heart disease or drug intoxication (Id.).
Finally,

Plaintiffs

emphasize

that

even

Defendants’

retained

expert, Dr. James Swineheart, could not rule out terminal cardiac
arrhythmia due to taser, and expressed doubt that Boucher’s skull
fracture was the cause of Boucher’s death (Id.).
Defendants’ reply reiterates their view that there is a
distinction between taser shots to the chest, as in the Zipes

9

study, and to the back, which was where Boucher received nearly all
of his shots.

Defendants contend the authorities cited by

Plaintiffs recognize that further testing should be conducted
regarding the full effects of tasers, and that Dr. Swineheart’s
testimony is mischaracterized, such that there is a lack of general
acceptance

in

the

scientific

community

regarding

Dr.

Wecht’s

theory.
Having reviewed this matter, the Court cannot conclude
that Dr. Wecht’s theory is essentially “immature” science that
should be

kept from the jury’s consideration.

Dr. Swineheart’s

deposition shows that although he was confident that Boucher’s head
injuries were severe enough to have caused Boucher’s death, he
could not exclude the possibility that the electrical shots caused
heart failure.

The Zipes study shows a link between taser shots

and cardiac arrest, and studies on pigs confirm taser shots can
indeed lead to heart failure.

As such, there is adequate

publication and peer review of Dr. Wecht’s theory to support its
admissibility.2

Moreover, the Court notes that Dr. Wecht has a

long track record of testimony as a forensic pathologist, and Dr.
Wecht has testified in a 2005 case that tasers did not contribute

2

The Court finds this matter analogous to Schott v. I-Flow,
696 F. Supp. 2d 898, 905 (S.D. Ohio 2010) in which the Court
found Plaintiffs’ argument persuasive that they were unable to
obtain epidemiological studies, as conducting any such studies
would be unethical.

10

death in an Indiana case.

The fact that Dr. Wecht has opined in

a number of taser cases, and at least in one case found tasing did
not contribute to death—-due to where the taser shots hit and
“underlying cardiovascular pathology”-- demonstrates indicia of
reliability.

A jury can properly evaluate Dr. Wecht’s opinion as

against the other expert opinions proffered in this case, to arrive
at a factual conclusion whether the tasings applied to Boucher
caused or contributed to his death.
Having thus concluded that Defendants’ Daubert motion
should be denied, the Court now addresses Defendants’ dispositive
motion.
III.
A.

Defendants’ Motion for Summary Judgment

Applicable Legal Standard
Although a grant of summary judgment is not a substitute

for trial, it is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”

Fed. R. Civ. P. 56; see also, e.g.,

Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962);
LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.
1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and
Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per
curiam).

In reviewing the instant motion, “this Court must
11

determine whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.”

Patton v. Bearden, 8

F.3d 343, 346 (6th Cir. 1993), quoting in part Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-252 (1986) (internal quotation marks
omitted).
The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and the non-movant are well settled.

First, “a party

seeking summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact [.]”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also
LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees,
980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479 (6th Cir. 1989).

The movant may do so by

merely identifying that the non-moving party lacks evidence to
support an essential element of its case. See Barnhart v. Pickrel,
Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.
1993).
Faced

with

such

a

motion,

the

non-movant,

after

completion of sufficient discovery, must submit evidence in support
of any material element of a claim or defense at issue in the

12

motion on which it would bear the burden of proof at trial, even if
the moving party has not submitted evidence to negate the existence
of that material fact.

See Celotex, 477 U.S. at 317; Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986).

As the “requirement [of

the Rule] is that there be no genuine issue of material fact,” an
“alleged factual dispute between the parties” as to some ancillary
matter “will not defeat an otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at 247-248 (emphasis added);
see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879
F.2d

1304,

1310

(6th

Cir.

1989).

Furthermore,

“[t]he

mere

existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-movant].”
Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781,
784 (6th Cir. 1994).

Accordingly, the non-movant must present

“significant probative evidence” demonstrating that “there is [more
than] some metaphysical doubt as to the material facts” to survive
summary judgment and proceed to trial on the merits.

Moore v.

Philip Morris Cos., Inc., 8 F.3d 335, 339-340 (6th Cir. 1993); see
also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405.
Although the non-movant need not cite specific page
numbers of the record in support of its claims or defenses, “the
designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts

13

upon which the non-moving party relies.” Guarino, 980 F.2d at 405,
quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989) (internal quotation marks omitted).

In contrast, mere

conclusory allegations are patently insufficient to defeat a motion
for summary judgment.

See McDonald v. Union Camp Corp., 898 F.2d

1155, 1162 (6th Cir. 1990).
evidence,

facts,

and

The Court must view all submitted

reasonable

inferences

in

a

light

most

favorable to the non-moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc.,
369 U.S. 654 (1962). Furthermore, the district court may not weigh
evidence or assess the credibility of witnesses in deciding the
motion.

See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).
Ultimately, the movant bears the burden of demonstrating

that no material facts are in dispute. See Matsushita, 475 U.S. at
587.

The fact that the non-moving party fails to respond to the

motion does not lessen the burden on either the moving party or the
Court to demonstrate that summary judgment is appropriate.

See

Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455
(6th Cir. 1991).
B.

Discussion
Defendants attack both of Plaintiff’s constitutional

claims, for unreasonable stop in violation of Fourth Amendment
rights, and for use of excessive force, contending the officers’

14

actions were justified and reasonable (doc. 32).

Defendants

further invoke qualified immunity under the theory that under
established case law at the time, it was not unreasonable for
Defendant officers to believe their use of force against an
actively resisting suspect was justified (Id.).

Defendants

contend because such constitutional claims fail, Plaintiffs’ state
law claims should similarly be dismissed as unsupported by the
evidence (Id.).
1. Defendants are Entitled to Summary Judgment as to the
Reasonableness of the Initial Stop of Boucher
Plaintiffs contend that as Boucher cooperated with the
officers’

order

that

he

leave

the

store,

and

there

was

no

indication he was armed and dangerous, the officers lacked a
reasonable suspicion so as to stop him (doc. 47).
disagrees.

The Court

According to the officers Boucher’s behavior and

movements in the store appeared “nervous,” “fidgety,” “erratic,”
and “frantic.”

They knew he had been to the store twice, late at

night, to say inappropriate things to the lone clerk.
Boucher might be intoxicated.

Fry thought

When they exited the store,

Defendants noted Boucher’s car was parked outside the marked lanes
and that the front of the car was damaged.

Viewing the totality

of the circumstances, as the Court is required to do in evaluating
whether a Terry stop is justified, the Court finds the officers
here had a “reasonable, articulable suspicion that [a] person has

15

been, is, or is about to be engaged in criminal activity.”
States v. Hensley, 469 U.S. 221, 227 (1985).

United

The Court does not

find Plaintiff’s characterization exactly accurate that Boucher
complied with all the officers’ commands up until he put his hands
on the car.
strangely,

It appears more accurate that Boucher was acting
he

yelled

out

that

he

was

leaving,

and

he

only

cooperated to place his hands on the car under threat of tasing.
The officers had to make a quick judgment call, and in the Court’s
view,

they

were

permitted

in

this

instance

to

stop

Boucher

initially to determine whether he had been driving impaired and
whether he posed a threat of harm to the lone store clerk.

For

these reasons, the Court finds well-taken Defendants’ challenge to
Plaintiffs’ Fourth Amendment claim for improper stop, and dismisses
such claim.
2.

Plaintiffs’ Claim for
Defendants’ Challenge.

Excessive

Force

Survives

Defendants next challenge Plaintiffs’ claim that the
officers used excessive force when they repeatedly tased Boucher
(doc. 32).

Defendants argue that under controlling authority, the

use of a taser on a resisting suspect constitutes reasonable use of
force (Id., citing Caie v. West Bloomfield Township, No. 11-1378,
2012 U.S. App. LEXIS 12507 (6th Cir. June 18, 2012)).

They further

contend that based on law available at the time, the officers could
not have known their conduct violated Boucher’s rights, so that
they are entitled to qualified immunity (Id. citing Hagans v.
16

Franklin County Sheriff’s Office, 695 F.3d 505 (2012)).
At the hearing the parties appeared to agree that the
proper analytical framework in an excessive force case is a
segmenting

approach

which

requires

reevaluation

reasonableness of force as the circumstances change.
McClellan, 101 F.3d 1151 (6th Cir. 1996).

of

the

Dickerson v.

The parties focus

therefore on the only segment of Boucher’s encounter with the
officers when he was face down and not moving, which is the only
segment that Plaintiffs challenge as involving excessive force.
Under such approach the officers must have acted reasonably during
the application of force and in the few moments directly preceding
it.

Bouggess v. Mattingly, 482 F.3d 886, 889 (6th Cir. 2007).
The Court agrees that though a “segmenting” analysis is

correct, Defendants are also correct in that the officers’ actions
must be viewed within the context of the totality of events.
Because the ultimate question is whether the officers’ actions were
reasonable, the use of force “analysis must consider all of the
knowledge possessed by [the officer] at the moment he determined to
employ. . .force.

We cannot simply take a snapshot of the moment

and consider it in isolation from other information.”
426 F. Supp. 2d at 607.

Bouggess,

Moreover, in determining whether there

has been excessive force, the Court does not consider “the extent
of the injury inflicted, but rather whether an officer subjects a
detainee to gratuitous violence.” Hagans, 695 F.3d at 511, quoting

17

Miller v. Sanilac County, 606 F.3d 240, 252 (6th Cir. 2010).
The

Court

has

reviewed

the

videotape

which

shows

Boucher’s encounter with the officers inside the store, and which
shows to a much lesser extent the events outside the store.

It is

clear that this was a rapidly unfolding situation, and that Boucher
is not a sympathetic character.

However, what gives the Court

pause is that Defendants repeatedly tased Boucher in such manner
that a jury might find he was subjected to gratuitous violence from
officers that momentarily “lost it.”

It appears to be a factual

determination whether Boucher was “actively” resisting at the point
he was on the ground or whether he was even alive.

Such factual

determination is for a jury and sets this case apart from those
cited by Defendants involving active resistance.

The Court

further finds well-taken Plaintiffs’ argument that Officer Walker
arrived and approached Boucher in a less aggressive way.

Of

course Defendants knew they were dealing with a volatile and
unpredictable

individual,

having

been

assaulted

by

Boucher.

However the Court disagrees with Defendants’ contention that they
“could not have known that Boucher’s failure to comply with the
Officers’ orders was anything other than his continued resistance
to arrest” (doc. 55).
moving

party,

a

Taking all inferences in favor of the non-

reasonable

fact-finder

might

conclude

the

Defendants could have known Boucher’s failure to comply while facedown was something other than resistance, and could conclude that

18

the five tasings crossed the line of reasonableness.
At
entitled

the

hearing

to

qualified

Defendants

immunity3

further

because

the

argued
law

they

was

are

clearly

established that officers do not violate the Fourth Amendment by
using a taser to subdue a suspect that is actively resisting
arrest.

For the same reasons articulated above, the Court finds

that although Defendants correctly state the law, the facts of this
matter could be viewed such that the suspect was not resisting at
the time of the repeated tasings.

The law was clearly established

that the use of a taser on an incapacitated suspect that is not
resisting is excessive force.

Roberts v. Manigold, 240 Fed. Appx.

675, 678 (6th Cir. 2007)(repeated tasing of an immobilized defendant
pinned

down

by

officer

objectively

unreasonable),

Shreve

v.

Jessamine County Fiscal Court, 453 F.3d 681 (6th Cir. 2006)(use of
force unjustified on suspect incapacitated by pepper spray), Kies
ex rel. Kies v. City of Lima, Ohio, 612 F.Supp.2d 888 (N.D. Ohio
March 2009)(passive resistance does not warrant repeated beatings
and tasings after plaintiff already brought to the ground).

The

Court therefore rejects Defendants’ argument that they are entitled
to qualified immunity.
3

“Qualified immunity protects government officials against
suit for the performance of discretionary functions so long as
the conduct in question ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’” Levin v. Childers, II 101 F.3d 44, 46 (6th
Cir. 1996) citing Veney v. Hogan, 70 F.3d 917, 920 (6th Cir.
1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800,(1982)).
19

3. Plaintiffs’ Claim for Violation of Substantive Due
Process
Plaintiffs plead in the alternative a claim for violation
of substantive due process rights under the theory that Defendants’
actions could be found by a jury to shock the conscience.
Court

finds

Defendants’

position

well

taken

that

the

The
proper

analytical framework for this case arises from the reasonableness
standard of the Fourth Amendment rather than from the rubric of
substantive due process.

Graham v. Connor, 490 U.S. 386, 395

(1989)(“Because the Fourth Amendment provides an explicit textual
source of constitutional protection against this sort of physically
intrusive

governmental

conduct,

that

amendment,

not

the

more

generalized notion of ‘subtantive due process,’ must be the guide
for analyzing these claims.”)

As such, the Court dismisses the

substantive due process claim.
4.

Claims Against Defendant City of Mason

Plaintiffs claim the City is liable for ratifying the
Officers’ Fry and McCormick’s use of force, as its review of the
use of force resulted in approval which confirms the officers were
acting according to official policy (doc. 47).

Plaintiffs also

contend Defendant City failed to meaningfully investigate the
alleged unconstitutional conduct (Id.).
The City contends it obtained two independent reviews,

20

and that in addition, it reviewed the case file, the incident
reports, the officers’ statements, and the results of third-party
investigations (doc. 55).

As such, the City contends it conducted

a “meaningful investigation,” as required under Wright v. City of
Canton, 138 F.Supp.2d 955, 966 (N.D. Ohio 2001)(Id.).
The Court finds that a reasonable jury could find a
genuine issue as to whether the City conducted a meaningful
investigation in this instance.

Plaintiffs indicate the officers

failed to complete use of force reports by the end of their shift
whenever there is a death or a taser used, as required by policy.
Plaintiffs signal inconsistencies between the officers’ written
statements

and

the

evidence

from

the

taser

download

report,

including that the officers omitted from their statements that
Officer Fry tased Boucher six times.

The statements were prepared

with the assistance of attorneys weeks after Bouchers’ death.

The

City also chose not to interview Officer Walker, the only Mason
officer who did not use force, and chose not to test the tasers
despite

such

recommendation

of

Identification and Investigations.

the

Ohio

Bureau

of

Criminal

A reasonable fact-finder might

conclude such actions show the City ratified the officers’ actions
rather than conducting a meaningful review.
Plaintiffs next contend the City is liable for failure to
train its officers from using excessive force because it failed to
adequately train and supervise the use of tasers.

21

A municipality

may

be

held

liable

where

its

failure

to

train

“amounts

to

deliberate indifference to the rights of persons with whom the
police come into contact.”

City of Canton, Ohio v. Harris, 489

U.S. 378, 388 (1989).
Defendants respond there is not evidence that Officers
Fry and McCormick were inadequately trained or supervised, that
their

training

was

inadequate,

or

that

there

was

deliberate

indifference to train or supervise by the police department (doc.
55).

Defendants further indicate, in their view, there is not

evidence that inadequate training caused Boucher to suffer any
injury (Id.).
Plaintiffs indicate that in October 2009 the manufacturer
of the tasers issued a bulletin warning that sudden cardiac arrest
can occur when a suspect is tased in the chest area and warned that
to reduce risk of cardiac arrest officers should not aim for center
mass (doc. 47).

Although Defendants contend the City integrated

recommendations from such bulletin at the roll call training for
all shifts of officers prior to December 13, 2009, Plaintiffs
proffer Defendant McCormick’s testimony that McCormick aimed at
Boucher’s center mass in the chest area (Id.).

Due to this

evidence, a jury might find that the City failed to adequately
implement the warnings regarding aiming taser shots at the center
mass of a suspect.

As such, the Court does not find summary

judgment appropriate as to Plaintiffs’ claim for failure to train

22

or supervise.

5.

State Law Claims

Finally, Defendants contend they are entitled to summary
judgment as to Plaintiffs’ state law claims for wrongful death and
intentional infliction of emotional distress (docs. 32, 55).
Court disagrees.

The

Plaintiffs’ expert opinion is that the multiple

taser shocks used against Boucher precipitated a fatal cardiac
arrythmia.
force

For the same reasons supporting Plaintiffs’ excessive

claim,

that

the

multiple

tasings

might

be

viewed

as

gratuitous or reckless, the Court finds sufficient evidence for a
jury’s consideration of Plaintiffs’s state law claims.

The Court

denies Defendants summary judgment as to such claims.
IV.

Conclusion
This is a sad and difficult case in which an unsympathetic

suspect was properly stopped but violently resisted the police
investigation.

The Court finds neither a basis for Plaintiffs’

challenge to the initial stop, nor for Plaintiffs’ substantive due
process claim.

However, the Court concludes that a jury might find

the repeated tasings inflicted on Boucher after he was on the ground
may have crossed the line of reasonableness.

For this reason

Plaintiffs’ excessive force claim survives Defendants’ challenge.
Moreover, there is adequate record evidence to call into question
Defendant City of Mason’s ratification of the officers’ actions, its
23

investigation

of

the

event,

and

its

training

and

supervision

regarding the use of tasers. As such, the Court rejects Defendants’
challenge of such claims against Defendant City of Mason.
the

Court’s

review

of

the

excessive

force

claims

is

Finally,
equally

applicable as to Plaintiffs’ state law claims; Plaintiffs’ claim for
wrongful death is supported by the admissible testimony of its
expert, Dr. Cyril Wecht.
Accordingly, the Court DENIES Defendants’ Daubert Motion
to Exclude Opinion Testimony of Cyril H. Wecht, M.D. (doc. 54), and
GRANTS IN PART and DENIES IN PART Defendants’ Motion for Summary
Judgment (doc. 32), such that Plaintiffs’ claims for excessive
force, claims against Defendant City of Mason, and state law claims
all survive Defendants’ challenges and are proper for consideration
by a jury.

The Court DENIES Defendant Officers qualified immunity

because it was established law at the time that it is objectively
unreasonable to use a taser against an immobilized suspect who is
not resisting, and the facts of this matter could be viewed to show
they applied gratuitous violence against Boucher. Finally the Court
SETS this matter for a settlement conference on April 24, 2013 at
3:00 P.M., for final pretrial conference on May 29, 2013 at 3:00
P.M., and for a five-day jury trial to commence on June 18, 2013 on
an on-deck basis.
SO ORDERED.
Dated: March 21, 2013

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
24