A federal lawsuit has been filed alleging Fourth and 14th Amendment violations by the Waxahachie Police Department in its use of a Taser on a man who was suffering a diabetic episode.
Waxaha-chie attorney Rodney Ramsey and attorney Todd Phillippi, whose practice is based in Midlothian, filed the lawsuit Friday in the U.S. District Court for the Northern District of Texas, Dallas Division.
The lawsuit names the city of Waxahachie and the Waxahachie Police Department as well as individual officers Sgt. Ricky Wilson, John Doe No. 1 and John Doe No. 2.
“This is an action alleging police misconduct, excessive force and deprivation of rights, privileges or immunities secured by the Constitution … ,” the lawsuit reads. “Current policies and procedures of the Waxahachie Police Department are a threat and danger to the civil rights of the citizens of Waxahachie, Texas, and … are unconstitutional.”
Ramsey and Phillipi filed the lawsuit on behalf of Allen Nelms of Waxahachie. The 52-year-old partially disabled veteran - who also suffers from rheumatoid arthritis - was having a diabetic seizure during the early morning hours of April 28 when his girlfriend, Josie Edwards, called 911 to request paramedics.
“I respect the law and police, but on this day I was a shooting target for them when I needed help,” Nelms said in his May 3 written complaint to the police department.
The entire matter never had to get to the point of litigation, Ramsey told the Daily Light, saying the city and police department simply never responded to any queries he made on behalf of his client.
He said the decision was made to move ahead and file a lawsuit - opening the door to discovery, depositions and deadlines.
“They just haven’t responded,” Ramsey said, noting at least two written letters were sent to the city - with no reply received. “There’s been no response whatsoever.”
Friday afternoon, City Manager Paul Stevens and Police Chief Chuck Edge said they had not yet been served with notice of the lawsuit. Both said they were unable to comment because of the pending litigation.
The question remains as to how a request for medical assistance resulted in his client being Tasered at least twice, Ramsey said.
“Our concern is the way this was handled,” he said. “We wanted to see a policy change or more training. We asked them (in the letters) to work with us and we wouldn’t have to file a lawsuit.”
Ramsey said he’s already put the city and police department on notice not to tamper with anything involved with the case.
According to the lawsuit, officer John Doe No. 1 arrived at the residence, with Edwards and Nelms telling him they didn’t need police but had called for paramedics.
No. 1 called for backup, with Wilson and officer John Doe No. 2 responding, according to the lawsuit, which says they forced their way into the home and to a bedroom, where they ordered Nelms to get on the floor, despite his “pleas and his questioning their being in his house.”
The lawsuit says Nos. 1 and 2 used their Tasers on Nelms before handcuffing him, at which time they “began making jokes about Mr. Nelms’ anatomy by commenting on the size of” a body part that had fallen out of his clothing while he was “flailing around on the floor from the effects of the Tasers.”
The lawsuit also alleges Edwards was told “she should be glad they ‘didn’t use the real thing’ instead of the Tasers.”
Nelms was not arrested nor was he ever charged relating to the incident. Paramedics removed the Taser barbs from his skin, with the lawsuit indicating Nelms was not transported for any further care.
An internal affairs investigation was conducted, with Assistant Police Chief Brett Colston issuing a written reply May 9.
“A review regarding your written complaint dated May 3, 2007, was conducted,” Colston wrote in the one-paragraph response. “After careful consideration of your allegations we have found that the officers were within our departmental policies regarding the use of a less than lethal force option (TASER) on you during an event at your residence on April 28, 2007.”
Little if any information has been available to the public relating to the incident as a provision of the Open Records Act allows governmental agencies to withhold otherwise releasable materials - such as various reports, tapes and recordings - under an exception of pending litigation.
Ramsey said he did not know if he would be allowed to bring up Wilson’s prior disciplinary record for lying and failing a polygraph relating to his actions during a 2005 murder/arson investigation.
The arbitrator handling Wilson’s appeal of the disciplinary action noted in her summary, “The subsequent actions: lying to Ken Lybrand (an independent investigator) and failing a polygraph only serves to emphasize the unacceptable deception in which one would have had to be engaged to take this path.”
“I would hope none of these officers would be dishonest,” Ramsey said, saying the lawsuit will allow him to learn the identities of the rest of the officers involved that evening. He said he has been able to identify Wilson as the supervisor on scene.
“It all boils down to what a reasonable officer should have done at the time,” Ramsey said. “It’s hard to explain why an officer didn’t know there’s a Fourth Amendment protection against an officer entering a home without a warrant.”
Ramsey said he’s found the city’s lack of response about the incident as “pretty disturbing,” saying he would have thought there would be an open line of communication to allow the issues to be addressed.
“Mr. Nelms wanted someone to explain to him why this was done to him and, if something was handled wrong, to apologize to him,” Ramsey said. “Every citizen should be able to call for paramedics without feeling the police are going to show up and Taze them.
“This case can be resolved now or in the court system,” he said. “Where there’s a wrong, there’s a remedy (and) this could have been handled a whole lot differently. If it can’t be resolved informally, we’ll have to do so formally in court.”
The Waxahachie Police Department acquired Tasers in late 2004.
The weapons fire two small probes from up to 21 feet away and administer a 50,000-volt shock.
The electrical charge disables a person’s ability to control his muscles, making coordinated activity all but impossible during the five-second duration of the impulse.
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