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Friday, June 14, 2024 | Back issues
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Cops Still on the Hook for Post-Taser Brain Damage

CINCINNATI (CN) - Immunity does not shield police officers from claims on behalf of an Ohio man with extensive brain damage after they Tasered him, the 6th Circuit ruled.

Painesville police dispute how things went down after responding to a complaint of noise at around 1:30 a.m., coming from a small party David and Rebecca Nall were hosting at their home on July 26, 2010.

The March 19 ruling by the federal court of appeals recounts the events in a light most favorable to the plaintiffs. It says two of the Nalls' guests had been arguing outside the apartment with a downstairs neighbor, but that Rebecca ushered everyone back inside when she saw a police cruiser slowly drive down her street.

Once at the door, the officers could not hear any noise coming from the Nalls' residence.

Rebecca assured them that everyone in the apartment would keep the noise down, but officers waited in the driveway of the building because they say loud voices were coming from the apartment.

On their way back inside to issue a citation, a woman came down the stairs. She said David Nall was "crazy," had ripped off her necklace, and had said he would kill everyone in the apartment and the police.

The officers knocked and asked David to step outside. When he refused, Officer Roberto Soto tasered him. The data file from the Taser showed that it was used for 26 seconds. A typical Taser cycle lasts five seconds, according to the ruling.

Rebecca started screaming and cursing at the officers, and both Nalls were arrested for disorderly conduct.

The decision notes that Mr. Nall had been foaming at the mouth while he was being Tasered.

As police removed the man from the apartment, soaked in his own urine and apparently unconscious though his eyes were open, he stopped breathing.

After paramedics arrived at the scene, Nall went into full cardiac arrest. At the hospital, where he remained for two weeks, his blood alcohol level measured at 0.28.

The lack of oxygen to his brain left Nall with "greatly impaired" function, according to the ruling, which says Nall can no longer remember his wedding or other significant life events. Unable even to remember what happened earlier in the day, Nall now needs to be reminded to perform basic daily activities like using the toilet.

The Nalls moved in with David's parents because David cannot be left alone.

A judge eventually tossed the disorderly-conduct charges against Nall and his wife based on the finding that the officers lacked exigent circumstances to enter their apartment.

Along with the court-appointed guardian for her husband, Rebecca Nall, now using the last name Carlucci, sued the city of Painesville and four police officers.

A federal judge in Cleveland refused to rule for the officers on the basis of qualified immunity, and a three-judge panel of the 6th Circuit affirmed on March 19.

Though the officers provided the court with an affidavit from the woman who supposedly told them about the threats David Nall was making in the apartment, the plaintiffs have pointed to the fact that this guest signed the affidavit one day after she was issued a summons for operating a vehicle under the influence of alcohol. Two days after she signed the affidavit, almost a year after the date of the Nall party, the charges against her were dropped.

The plaintiffs also dispute claims that David Nall was resisting arrest, saying the officers are misconstruing his involuntary convulsions from the Taser.

"Even if a jury were to credit the officers' assertions that Mr. Nall posed a danger to them and that he resisted at the apartment door, the force used against him could still be found to be excessive," Judge Jane Stranch wrote for a three-member panel.

A jury may also find it improper for police to use a Taser on a citizen merely for refusing to exit his home, according to the ruling.

"A holding that a simple refusal to exit one's home - and surrender the heightened Fourth Amendment protections it provides - constituted active resistance to an officer's command sufficient to justify a tasering would undermine a central purpose of the Fourth Amendment," the decision states.

While only one officer, Roberto Soto, deployed his Taser, the other officers could be held liable for failing to protect Nall from excessive force.

The officers are also not immune from claims involving their arrest of Rebecca, according to the ruling, finding their claims about her yelling unavailing..

"Because Ms. Nall had a clear basis to be concerned about her husband's physical safety and was responding to a possibly illegal entry into her home by the officers, we cannot conclude at the summary judgment state that her conduct was sufficiently reckless and unreasonable to allow an officer to reasonably believe there was probable cause to arrest her," Stranch wrote.

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