Editor’s note: This story is by Mark Davis, staff writer at the Valley News, where it was first published Saturday, April 20, 2013.
Chelsea — A judge has ruled that a Vermont State Police trooper who fired a stun gun at an unarmed Thetford man and killing him, is not entitled to legal immunity in a lawsuit filed by the man’s girlfriend.
In a blow to state police’s defense, Orange Superior Court Judge Timothy Tomasi rejected Trooper David Shaffer’s claim that, as an officer on acting duty, he was immune from liability. Police often successfully invoke immunity in lawsuits, greatly weakening plaintiffs’ chances of recovering damages.
Tomasi also ruled this week that most of the claims filed by Theresa Davidonis, Macadam Mason’s girlfriend, can proceed. The judge said there is enough evidence to suggest that Shaffer and other troopers may have illegally entered Davidonis’ property when they engaged in the fatal encounter with Mason.
The case is still in its preliminary stage: The judge’s rulings simply allow the lawsuit to proceed, and does not indicate its chances of ultimate success. But it nonetheless represents clearing a major hurdle that has tripped other plaintiffs over the years, and puts the case one step closer to a jury trial.
“These kinds of issues need to be heard by people who sit in juries,” Davidonis’s attorney, Tom Costello, said in an interview. “It’s the basis on which our society, our American way of life is governed, and that’s what this decision (says.) Just because you have a uniform or carry a weapon doesn’t mean you don’t have a responsibility to your fellow citizens.”
Assistant Vermont Attorney General Jana Brown said her office may revisit the immunity issue later in the case, when they can again ask Tomasi to throw out the lawsuit before it gets to trial.
“We will proceed with the defense in this matter,” Brown said, declining further elaboration.
State law essentially holds that police cannot be sued for on-duty conduct unless they are proven to have acted with “gross negligence or willful misconduct.” But Tomasi ruled that allegations against Shaffer, if borne out in the evidence, show his conduct may not have met that standard.
“The factual allegations set out in the (lawsuit) … are sufficient to allege claims of gross negligence or willful misconduct, at least at this stage,” Tomasi wrote.
Qualified immunity is often a difficult standard for plaintiffs to overcome when suing police, Lebanon attorney George Spaneas said in an interview. Spaneas is not involved in Davidonis’ lawsuit.
Spaneas represented the family of a mentally-ill Corinth man who was killed by a Vermont State Police tactical team after he allegedly brandished a firearm and refused to surrender. Most of the lawsuit, in which Spaneas alleged that police fired without provocation and later covered-up their misdeeds, was dismissed by a federal judge who ruled that the police were entitled to immunity.
“It’s always qualified immunity — police have extreme protections. It’s very hard to get around it,” Spaneas said.
However, he noted, the Davidonis case is in an early phase, and immunity is more difficult for plaintiffs to overcome in the latter stages of the case.
Typically, police try to invoke immunity twice: first when filing motions to dismiss, which occur early in a case, and again at “summary judgment,” on the eve of trial, after evidence has been exchanged. It’s generally thought easier for police successfully to invoke immunity at the later stage.
“I’m not surprised, necessarily, at this point,” Spaneas said of Tomasi’s decision. “It’s harder for police to win on qualified immunity on motions to dismiss, but not as hard on summary judgment.”
Davidonis could not be reached for comment yesterday.
On June 20, State Police responded to the Sawnee Bean Road home in Thetford that Davidonis shared with Mason, 39, after he called Dartmouth-Hitchcock Medical Center and threatened to kill himself and others.
The State Police said Davidonis persuaded police to leave when they arrived on the scene, but they eventually returned, for reasons that have never been fully explained.
What happened next is in dispute. State Police have said that Shaffer ordered Mason to lie on his stomach on the ground. Instead, they claim, Mason aggressively walked toward Shaffer with a closed fist.
Shaffer fired his stun gun, striking Mason in the chest, police said. Davidonis and her son, Aleks, who also witnessed the shooting, have said that Mason never threatened the troopers, but instead raised up his hands in a surrender position, with his palms facing outward. He made two steps toward Shaffer — the ground Mason was on sloped toward the trooper — and said, “Go ahead and shoot me.”
The New Hampshire Medical Examiner’s Office ruled that the stun gun strike caused Mason’s death.
Mason had suffered a brain seizure the night before, information that Davidonis says she shared with police before the fatal encounter.
“I said, ‘Don’t Taser him. You’ll kill him,’ ” Davidonis previously told the Valley News. “They looked at me and shot him right in the chest. I watched the barbs. I watched the eyes roll back in his head. I just want people to know they were told. They were warned.”
Vermont Attorney Bill Sorrell cleared Shaffer of criminal wrongdoing, saying the law allows officers to use “reasonable” force when they believe they are in immediate danger of harm.
Davidonis has sued police in state court, alleging that they trespassed on her property and inflicted emotional distress on her when they fired the Taser at Mason. Additionally, lawyers representing Mason’s mother, Rhonda Taylor, are preparing to sue on behalf of his estate.
The Attorney General’s Office asked Tomasi to throw out the lawsuit, citing a lack of evidence to support her claims.
But he ruled that almost all of the lawsuit can proceed, calling into question the legality of the police’s decision to return to the property after leaving.
“By leaving the residence, the police implicitly acknowledged that any emergency justifying their initial entry onto Plaintiff’s property had dissipated,” Tomasi wrote in a 23-page opinion issued this week. “At a minimum, these allegations raise a factual question as to whether the second entry was privileged. Thus, the circumstances and justifications surrounding the second entry require exploration through discovery. In addition, the court notes that even a privileged entry onto property may become a trespass if that privilege is subsequently abused or exceeded by the unreasonable conduct of the alleged trespasser.”
Tomasi formerly worked as a prosecutor in both the Vermont Attorney General’s Office and the U.S. Attorney’s Office. He was named to the bench by former Gov. Jim Douglas in 2010.
Mark Davis can be reached at mcdavis@vnews.com or 603-727-3304.
