By AMANDA LEE MYERS
A Cleveland man can move forward with his excessive-force lawsuit against a Cleveland police officer who used a stun gun on him while he was shirtless, unarmed and kneeling with his arms in the air, according to an appeals court ruling Wednesday.
The ruling from a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati turned down Officer James Simone’s request to have the lawsuit thrown out, finding that Rafael Correa was not posing a threat or resisting arrest when he was stunned on May 15, 2010.
Simone had argued that he was right to use a stun gun on the 31-year-old Correa because he was responding to a report of an armed suspect threatening people and didn’t know if Correa had a gun.
After being stunned and rendered unconscious, Correa was arrested on charges of assault, disorderly conduct, and obstruction of official business, and was held in jail for four days, although police had found no weapons or drugs, or evidence that he had committed a crime, according to a federal lawsuit filed by Correa five months after his arrest.
The charges against Correa later were dismissed.
Simone, who retired from Cleveland police, has an unlisted number. His attorney, Tom Kaiser, did not respond to a message seeking comment.
In a court deposition about the incident, Simone testified that he drew his service weapon on Correa and didn’t believe Correa was going to attack him but wasn’t following commands to lie face-down on the ground. Instead, he said Correa took his backpack off and went to his knees then refused to lie down for about 45 seconds before Simone used the stun gun.
“I thought that was evasive,” Simone said. “You know, I have a gun pointed at you, I want you to comply so I don’t have to hurt you, and I don’t want to get hurt myself. I believed he was armed.”
Correa said that Simone had instructed him to take the backpack off and get to his knees, and that he followed every instruction before he was stunned.
Correa’s attorney, Nicholas DiCello, said Wednesday he thinks officers trumped up charges against Correa after they realized he had no weapon, apparently had done nothing wrong and was lying on the ground unconscious with a bleeding eye from hitting his head on the concrete.
DiCello said he thinks the case will set a court precedent that it’s unconstitutional for police to use a stun gun on a suspect who isn’t posing a threat, even if he or she is suspected of having a weapon.