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Jury to Hear Claims of Police Pig Pile Gone Bad

(CN) - Massachusetts police may be liable for allegedly tackling and suffocating a man who tried to flee a sobriety checkpoint on foot, a federal judge ruled.

In November 2009, the Massachusetts state police and officers from the North Andover and Essex County departments set up a sobriety checkpoint manned by 33 officers on Route 114.

While driving down Route 114 toward North Andover with his pitbull, Ruckus, that evening, Kenneth Howe lit up a marijuana blunt. He quickly attempted to put out the blunt and put on his seatbelt when he saw the checkpoint.

Trooper Jodi Gerardi, who had noticed Howe's "furtive movements," ordered Howe out of his pickup as soon as she smelled marijuana. It is disputed whether Howe hit Gerardi as he got out of his truck or vice versa, but both parties agree that he attempted to flee on foot.

Howe was quickly apprehended and forced to the ground by 10 to 15 officers who rushed to assist Gerardi.

Three troopers held down the handcuffed suspect while his legs were shackled. Some witnesses say Trooper Sean McGarry hit Howe a number of times with his hands and baton, and Officer Richard DesForge put Howe in a chokehold.

A photographer for the Lawrence Eagle-Tribune, Carl Russo, happened to be on the scene and chronicled the arrest with 43 time-stamped photographs. The photos show Howe pinned to the ground for 11 minutes before the officers picked him up and put him in a police cruiser.

It is disputed whether Howe was conscious when he was placed in the vehicle, but he was unconscious when he arrived at the Massachusetts state police barracks. Howe had no pulse by the time the ambulance arrived, and he was pronounced dead at midnight.

Attributing cause of death to "blunt impact of the head and torso with compression of the chest," the medical examiner ruled the case a homicide.

Howe's wife, on behalf of herself, her three children and Howe's estate, sued the town of North Andover and 17 police officers for wrongful death.

U.S. District Judge Nathaniel Gorton ruled last week that a jury should sort out most of the claims. He denied Mrs. Howe's and the majority of defendants' motions for summary judgment.

"Plaintiffs suggest that this was more than a 'pig pile' gone wrong," Gorton wrote.

However, "while plaintiffs depict Mr. Howe as a motionless body crushed under the collective force of the arresting officers, the defendants paint a much different picture," Gorton noted.

The officers claimed that Howe thrashed around and attempted to conceal pills in his clenched fists. "If a jury were to credit their account, it would be entitled to find in their favor," the judge found.

In denying most defendants' motions, however, Gorton said that "a reasonable jury could find that the actions of the restraining officers and the witnessing officers were so objectively unreasonable and plainly misguided that qualified immunity should not be interposed to shield them from liability."

"Mr. Howe, who stood five-feet eight-inches tall and weighed approximately 165 pounds, was forcibly restrained in the prone position by approximately eight larger officers for more than ten minutes," he wrote. "They allegedly continued to pile on him after he complained that he could not breathe."

"Defendants may be correct that this was precisely the kind of dangerous and rapidly evolving situation which qualified immunity was designed to cover but, in light of the many unsettled issues of material fact, that decision is properly reserved for the jury," he added.

Gorton dismissed the claims against officers who did not touch Howe or were too far from the commotion to discern what was happening.

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