http://www.burlingtonfreepress.com/apps/pbcs.dll/article?AID=2011101050318
Judge OKs lawsuit over Taser jolt
By Mike Donoghue, Free Press Staff Writer • Wednesday, January 5, 2011
A Springfield parolee may pursue part of his lawsuit against police who jolted him a second time with a Taser even after he'd been injured in a fall out of an apartment window, according to a federal court ruling in Burlington.
Roy Towsley fell out of the window after being Tased the first time in the August 2007 incident. He shattered his pelvis in the fall, yet was Tased a second time while he was lying injured on a sidewalk, his lawsuit claims.
Chief U.S. District Judge Christina Reiss said that while the first Taser jolt by then-Springfield Officer William Frank might have been justified, she said the second jolt needs more examination.
"We are very pleased with the decision that the courts are willing to take a close look at police behavior and let the jury decide whether there was excessive force used with regard to the Taser," said St. Johnsbury lawyer David Williams, who is representing Towsley.
Williams said he believes the case could become the first civil lawsuit to reach a jury over the use of Tasers in Vermont. No date has been set for the case, which is still subject to pre-trial motions, Williams said. The fall was about 16 to 18 feet, Williams estimated.
Attempts to reach Frank, who is now a part-time officer with Chester police, were unsuccessful. His Burlington lawyer, Nancy Sheahan, also did not respond to a phone message.
The lawsuit centers on Towsley's arrest on a parole violation Aug. 14, 2007. Towsley's criminal record included convictions for resisting arrest, felony escape, domestic assault and sexual assault on a minor. He'd failed to report to work Aug. 14 because he spent the night before getting high on cocaine, court papers state.
That afternoon, he went to the apartment of Mike Chizmar in Springfield to use crack cocaine and methadone, according to court records. A parole officer asked for help arresting Towsley because of his "history of being armed, attempting to flee, and the suspicion that he might be under the influence of drugs," and Frank and two other Springfield officers responded.
(2 of 2)
Frank and fellow officers each wore a microphone that transmitted audio to receivers in their police cruisers during the arrest in the one-room apartment. Officer Frank Schippert drew his firearm, while Frank pulled out his Taser on Towsley, who was in a recliner when they entered the room, according to court records.
Towsley ignored 26 commands to "turn around, or turn around and put his hands behind his back," Reiss determined.
Frank had a reasonable belief that the first Tasing of Towsley would have the wanted man fall to the floor and not force him through the window, Reiss concluded in her ruling.
The judge noted there are disputed issues of material facts in the second Tasing.
Frank maintained he used the second jolt because he saw Towsley rise up partially from the sidewalk, Reiss said.
Towsley said that was unlikely because of the serious nature of his injuries, the audible moaning on the cruiser recordings after the first Tasing, the interval between the two jolts and Frank saying, "I got him. I still got him," as opposed to, for example, "he's getting away,'" Reiss wrote.
Frank and fellow officers each wore a microphone that transmitted audio to receivers in their police cruisers during the arrest in the one-room apartment. Officer Frank Schippert drew his firearm, while Frank pulled out his Taser on Towsley, who was in a recliner when they entered the room, according to court records.
Towsley ignored 26 commands to "turn around, or turn around and put his hands behind his back," Reiss determined.
Frank had a reasonable belief that the first Tasing of Towsley would have the wanted man fall to the floor and not force him through the window, Reiss concluded in her ruling.
The judge noted there are disputed issues of material facts in the second Tasing.
Frank maintained he used the second jolt because he saw Towsley rise up partially from the sidewalk, Reiss said.
Towsley said that was unlikely because of the serious nature of his injuries, the audible moaning on the cruiser recordings after the first Tasing, the interval between the two jolts and Frank saying, "I got him. I still got him," as opposed to, for example, "he's getting away,'" Reiss wrote.
By Mike Donoghue, Free Press Staff Writer • Wednesday, January 5, 2011
A Springfield parolee may pursue part of his lawsuit against police who jolted him a second time with a Taser even after he'd been injured in a fall out of an apartment window, according to a federal court ruling in Burlington.
Roy Towsley fell out of the window after being Tased the first time in the August 2007 incident. He shattered his pelvis in the fall, yet was Tased a second time while he was lying injured on a sidewalk, his lawsuit claims.
Chief U.S. District Judge Christina Reiss said that while the first Taser jolt by then-Springfield Officer William Frank might have been justified, she said the second jolt needs more examination.
"We are very pleased with the decision that the courts are willing to take a close look at police behavior and let the jury decide whether there was excessive force used with regard to the Taser," said St. Johnsbury lawyer David Williams, who is representing Towsley.
Williams said he believes the case could become the first civil lawsuit to reach a jury over the use of Tasers in Vermont. No date has been set for the case, which is still subject to pre-trial motions, Williams said. The fall was about 16 to 18 feet, Williams estimated.
Attempts to reach Frank, who is now a part-time officer with Chester police, were unsuccessful. His Burlington lawyer, Nancy Sheahan, also did not respond to a phone message.
The lawsuit centers on Towsley's arrest on a parole violation Aug. 14, 2007. Towsley's criminal record included convictions for resisting arrest, felony escape, domestic assault and sexual assault on a minor. He'd failed to report to work Aug. 14 because he spent the night before getting high on cocaine, court papers state.
That afternoon, he went to the apartment of Mike Chizmar in Springfield to use crack cocaine and methadone, according to court records. A parole officer asked for help arresting Towsley because of his "history of being armed, attempting to flee, and the suspicion that he might be under the influence of drugs," and Frank and two other Springfield officers responded.
(2 of 2)
Frank and fellow officers each wore a microphone that transmitted audio to receivers in their police cruisers during the arrest in the one-room apartment. Officer Frank Schippert drew his firearm, while Frank pulled out his Taser on Towsley, who was in a recliner when they entered the room, according to court records.
Towsley ignored 26 commands to "turn around, or turn around and put his hands behind his back," Reiss determined.
Frank had a reasonable belief that the first Tasing of Towsley would have the wanted man fall to the floor and not force him through the window, Reiss concluded in her ruling.
The judge noted there are disputed issues of material facts in the second Tasing.
Frank maintained he used the second jolt because he saw Towsley rise up partially from the sidewalk, Reiss said.
Towsley said that was unlikely because of the serious nature of his injuries, the audible moaning on the cruiser recordings after the first Tasing, the interval between the two jolts and Frank saying, "I got him. I still got him," as opposed to, for example, "he's getting away,'" Reiss wrote.
Frank and fellow officers each wore a microphone that transmitted audio to receivers in their police cruisers during the arrest in the one-room apartment. Officer Frank Schippert drew his firearm, while Frank pulled out his Taser on Towsley, who was in a recliner when they entered the room, according to court records.
Towsley ignored 26 commands to "turn around, or turn around and put his hands behind his back," Reiss determined.
Frank had a reasonable belief that the first Tasing of Towsley would have the wanted man fall to the floor and not force him through the window, Reiss concluded in her ruling.
The judge noted there are disputed issues of material facts in the second Tasing.
Frank maintained he used the second jolt because he saw Towsley rise up partially from the sidewalk, Reiss said.
Towsley said that was unlikely because of the serious nature of his injuries, the audible moaning on the cruiser recordings after the first Tasing, the interval between the two jolts and Frank saying, "I got him. I still got him," as opposed to, for example, "he's getting away,'" Reiss wrote.
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