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No new trial in suit over death by Taser

A federal appellate court has rejected a request for a new trial in the excessive-force lawsuit by the parents of a Frederick County man who died after a sheriff’s deputy twice shot him with a stun-gun.

The family of Jarrel Gray had sought a new trial based on several issues, including an alleged error in the jury instructions given at the first trial in January 2012.

The jury found then-Cpl. Rudy Torres did not use excessive force during the 2007 incident. The trial judge denied the family’s request for a new trial in July 2012, a decision affirmed by the 4th U.S. Circuit Court of Appeals on Wednesday.

Sandra D. Lee, a lawyer for Torres, said she was pleased by the appellate court decision.

“This is a terrible, terrible case and a terrible tragedy, but it was not because the officer acted unreasonably,” said Lee, an associate at Karpinski, Colaresi & Karp P.A. in Baltimore.

Gregory L. Lattimer, a Washington D.C.-based lawyer for Gray’s parents, did not respond to a request for comment.

Torres used his Taser on Gray after the officer responded alone to a report of an outdoor fight in November 2007.

Torres initially shocked Gray after Gray ignored commands to get down and show his hands. The second shock came 30 seconds later, after Gray was already face-first on the ground, because he had not shown his hands.

Gray was unarmed, and the medical examiner’s office listed his cause of death as “sudden death associated with restraint and alcohol intoxication.”

A Frederick County grand jury in May 2008 declined to indict Torres criminally, finding he was justified in using the Taser.

Gray’s parents, Jeffrey Gray and Tanya Thomas, filed a $145 million wrongful death lawsuit against the county later that month in U.S. District Court in Baltimore.

On appeal, Gray’s parents argued that the jury should have been instructed to treat each deployment of the Taser separately, and that “force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated,” according to the 4th Circuit’s opinion.

However, the unanimous three-judge panel said jurors were instructed to determine whether Torres’ actions were reasonable and whether a reasonable police officer in Torres’ situation would have used a similar amount of force.

“This instruction properly provided the jury with the governing legal standard, leaving latitude to the parties to argue whether each deployment of the Taser was reasonable in light of that standard,” Judge Barbara Keenan wrote for the appellate panel.

The court also agreed with the trial judge that the verdict was not against the clear weight of the evidence and jurors were entitled to accept Torres’ testimony about the incident.

Gray’s parents also argued the jury’s verdict was inconsistent because it found Torres committed assault and battery, yet did not use excessive force. But the appellate court found there was no inconsistency because the jury reached its conclusions using “distinct legal concepts.”

Under Maryland law, assault or battery involves an offensive contact without the victim’s consent, the court noted. To find excessive force, on the other hand, the jury had to also consider whether Torres reasonably concluded that Gray posed an immediate threat to Torres’ safety.

“[T]here is no inconsistency between the jury’s finding that Torres’ use of the Taser was an offensive contact that occurred without Gray’s consent, but that such contact did not deprive Gray of his constitutional right to be free from the use of excessive force,” the court concluded.

The case is Gray v. Bd. of County Commissioners, US4th No. 12-1994. The unpublished opinion was issued Jan. 8.