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April 11. 2014 1:15PM

Supreme Court: Sanbornton not liable for $20,000 in injuries to Tilton man stunned by police

CONCORD -- A Tilton man who fell to the ground and broke his elbow after a Sanbornton police officer zapped him with a stun gun cannot sue the town for damages because a municipality has statutory immunity, according to a Supreme Court ruling issued Friday.

State law protects a town from being held liable in bodily or personal injury lawsuits or for property damage, but not when a motor vehicle is involved, the Supreme Court ruled.

Atty. Charles G. Douglas III of Concord, who represented Dennis G. Huckins of Tilton in his lawsuit against Sanbornton and Officer Mark McSweeney, contended the Supreme Court decision will have serious ramifications for police officers, teachers, corrections officers and others employed by cities, towns and counties.

He explained that state employees now have more protection against lawsuits than those employed by municipalities and counties. State law, according to Douglas, says a municipality "may" indemnify an employee in cases involving intentional, accidental or negligent acts, not that it must, while a separate chapter of statutes requires the state to indemnify its employees.

"If I were a police officer or a teacher I would want the statute changed," said Douglas.

Atty. Charles P. Bauer, who represented Sanbornton and McSweeney, said the court "affirmed the Legislature's authority and intent to provide reasonable protections through statutory immunities for municipalities and their employees." The court, he said, refused to strike down a statute that had been in place since 1975.

"The decision strikes an appropriate balance between individual rights and government services," he said in an email.

"We settled cases with Charlie for 20 years," Douglas said. "He's written us many, many checks."

Douglas countered state laws never were read the way the Supreme Court interpreted them yesterday and that it now tips the balance against municipal employees, making them liable in accidental or negligent cases.

The court, however, said it had no occasion to rule on the question of negligence since Huckins did not make a negligence claim against either Sanbornton or McSweeney.

Now, he said, a Hampton bike patrol officer could run over someone or one of the horses in the Manchester Police Department's Mounted Patrol could injure someone and those individuals could only sue the officer, and not the town or city, because a bicycle or horse is not a motor vehicle.

Bauer said Judge Carol Conboy, speaking for the full court, specifically recognized that, without such immunities, cities, towns, counties, school districts, and their employees would be discouraged from diligent service due to the fear of liability.

"The decision strikes an appropriate balance between individual rights and government services," he said in an email.

The case was referred to the Supreme Court by a federal judge because Huckins, who filed the lawsuit in U.S. District Court, was arguing a state law was not constitutional.

Judge Joseph DiClerico sent the case over to the state Supreme Court for a ruling about whether state laws preventing the recovery of civil battery and damages against a town were constitutional.

He ruled that the federal case could go forward on Huckins' claim that McSweeney used excessive force when he allegedly zapped him twice with a stun gun, once while he was on the ground. McSweeney maintains he used the stun gun once, which DiClerico said would be reasonable force. The disputed issue is one for a jury to decide, the judge said.

The case stems from an incident that happened in January 2009 in Sanbornton. Huckins was driving behind a friend and his wife, all on their way to ride snowmobiles. McSweeney pulled over the friend's vehicle, which was towing the snowmobiles, because of defective taillights, according to court documents on file in federal court.

Huckins pulled over as well and got out of his truck. McSweeney observed his eyes appeared glassy. Huckins then later drove ahead to a gas station to get some fuel for the snowmobiles.

McSweeney arrived at the gas station, after ticketing Huckins' friend. He asked Huckins if he had been drinking; Huckins said no, that he doesn't drink. He said his eyes were glassy because he was a logger.

Huckins agreed to submit to sobriety tests and McSweeney asked him to follow a pen with his eyes. Huckins had trouble following instructions given by McSweeney who he describes in his lawsuit as being "rude and condescending."

Huckins ran back to his truck and McSweeney, after telling Huckins he was not free to go, struck him with a Taser. Huckins fell onto the ground after being zapped in the back, breaking his elbow.

His friend said McSweeney then zapped Huckins a second time while he was on the ground,"virtually helpless," according to the court record. Huckins' medical bills totaled $20,000, he said in his lawsuit.

Huckins was charged with resisting arrest, an offense that later was dismissed by a judge.

DiClerico dismissed Huckin's claim that McSweeney had wrongfully detained him.

The Supreme Court decision comes five months after its opinion in Dichiara vs. Sanborn Regional School District. A student sued the school district after he broke his arm during a basketball game.

In that case, the court held that RSA 507-B:2 immunized the school district because the plaintiff's claim of serious injury did not arise out of ownership, occupation, maintenance or operation of municipally-owned motor vehicles or premises.

Douglas' law firm was on the losing end of that ruling as well. He contends that because of these decisions individuals will not be able to file lawsuits involving personal injury, defamation, invasion of privacy, excessive force or assault against a town, city, or county.

Douglas said the rulings puts the officer, teacher, corrections officer or any other municipal employee at risk of losing their home, summer cottage, boat, etc. if they are sued.


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