Vt. AG pays $40,000 to settle Taser lawsuit
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By MARK DAVIS VALLEY NEWS - Published: November 27, 2009
CHELSEA — The Vermont Attorney General's Office has paid $40,000 to settle the lawsuit brought by a Fairlee man who claims he was Tasered in 2006 by state police troopers as he was having a seizure that police mistook as an attempt to resist arrest.
Lawrence Fairbrother, 57, who has been unable to work for years because of a disorder that causes sudden, random seizures, was shocked by an electric stun-gun by police who had been called to assist him with a medical problem.
The incident resulted in criminal charges that were later dropped. Fairbrother then launched a federal lawsuit in 2007 alleging excessive force.
The state police deny that they did anything wrong, Assistant Attorney General J.J. Tyzbir said in a recent interview, but agreed to the settlement to avoid the risk of trial, where a jury could have awarded a much higher amount.
"We still believe Mr. Fairbrother was not actually in the throes of a seizure," Tyzbir said. "We believe Mr. Fairbrother was actually trying to evade the officers and was resisting them and was noncompliant. But whenever you go to trial, you risk not getting a favorable outcome. This was, frankly, a business decision."
In a recent interview, Fairbrother said the money would make his daily life a little easier. Fairbrother, who lives in a camper near Lake Morey, hopes to help pay off funeral expenses for his young grandson, who, Fairbrother said, died suddenly last summer in Florida.
"It's a hard time to find (work)," Fairbrother said. "If they have a chance to hire me with seizures and a head problem, or a guy 25 years old … ."
Court records give the following account:
On June 16, 2006, emergency personnel were called to the Fairlee home of a friend of Fairbrother's. The dispatcher told Vermont State Police troopers that Fairbrother, who had driven to the home, was having a seizure, and that he had consumed alcohol. No crime had been reported, court records show, but first responders reported Fairbrother was drunk, and asked for the police to help.
Three Vermont State Police troopers found Fairbrother flailing under a parked pickup. His medication lay on the ground and he was clawing at the dirt and pulling himself farther under the vehicle. Troopers repeatedly asked Fairbrother to come out from under the vehicle, but Fairbrother did not emerge. Eventually, troopers dragged him out.
They pulled his left arm behind his back, but when Fairbrother, still shaking, did not respond to an order to move his right arm, Trooper Hugh O'Donnell shot him between the shoulder blades with a Taser stun gun.
"What did I do?" Fairbrother asked.
"That's what we're going to find out," one of the troopers replied.
Although they did not observe Fairbrother drive to Fairlee when his blood alcohol level was above the legal limit, authorities initially charged him with driving under the influence.
In Orange District Court in 2006, Fairbrother's public defender Kelly Green argued that all evidence should be dismissed because the use of the Taser was unjustified and represented an illegal arrest.
Judge Particia Zimmerman agreed.
"In this case there was no indication of any public safety concern — the defendant was hiding under a vehicle," Zimmerman wrote in October 2006. "The officers spent little more than three minutes trying to determine the situation and then placed the defendant under restraints. He was not free to leave … and the seizure was not justified by suspicion of criminal wrongdoing. Any information about criminal wrongdoing was obtained after the defendant had been seized and in the custody of the three officers."
After losing much of their evidence, prosecutors dismissed the case. Fairbrother's public defender, Kelly Green filed the federal lawsuit months later, alleging excessive force, false imprisonment and assault and batter.
"We're really happy and I hope it does send a message that Tasers can be unsafe and can be misused," Green said of the settlement in a recent interview.
Had a jury returned even a tiny judgment, it would have allowed Fairbrother to seek reimbursement for his legal fees, which could have amounted to tens of thousands of dollars.
"I have mixed thoughts," Fairbrother said. "In the long run, it saved the taxpayer money by not going to trial. It gets it over with, and they found out they were wrong."
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