Firing the pistol instead of Taser brings Rochester lawsuit
Robert Franklin,* Star Tribune
May 26, 2005 STUN0526

As two Rochester policemen struggled with a drunken Christofar Atak, one of them went to pull his Taser stun gun, press it against Atak's back and fire.
But the weapon he discharged wasn't a Taser. Instead, officer Gregory Siem fired his .40-caliber handgun point-blank into Atak's back, ripping into his intestine, colon and gall bladder and, his lawyers say, causing permanent damage.
Now Atak, 34, a refugee who fled to the United States to escape violence in his native Sudan, is suing Rochester and three of its officers in federal court for $2 million.
The civil-rights suit, filed last week in U.S. District Court in Minneapolis, involves not only the officer's intentions, but also whether those intentions are relevant to what actually happened, whether his use of force was excessive, and whether the officer was properly trained.
The suit also involves whether the two weapons are so similar that they can be confused.
About 7,000 law enforcement agencies have Tasers. The Rochester case is one of at least three instances nationally in which officers claim to have mixed up the stun gun and a handgun.
In one case, the manufacturer, Taser International Inc., has been sued over the death of a California man following a loud-party complaint -- an ironic example, a Taser lawyer said, of a company being sued for product liability where the product wasn't even used.
In the Rochester case, Atak had been drinking on Sept. 2, 2002, breaking up furniture in his younger brother's apartment and waving his arms in the middle of a Rochester street when he jumped in front of a police car and yelled, "I want to die," according to depositions taken in the case.
Officers told Atak repeatedly to put his hands on the squad car and tried to handcuff him, but he resisted.
Siem had set his Taser model M26 down on a squad car or put it in his pants pocket, he testified, and accidentally grabbed his Glock .40-caliber handgun to subdue Atak.
After the shot, the officer immediately called an ambulance even as Atak fell or was pushed to the ground and continued to struggle, police said.
Atak's blood-alcohol content tested at 0.15 percent, his lawyer said.
The state Bureau of Criminal Apprehension investigated, and no charges were filed against Siem. Police Chief Roger Peterson said he apologized to Atak.
In his suit, Atak is asking for more than $1 million in damages and $1 million in punitive damages.
The suit says that Siem, then a six-year member of the department, used unjustified deadly force and wasn't properly trained and that the city and two unnamed police supervisors were negligent.
The defendants have asked U.S. District Judge David Doty to dismiss the case without a trial; a hearing is scheduled for July 9.
"Officer Siem attempted to use a reasonable amount of force to detain an individual who was actively resisting arrest," they said in a brief filed by Bloomington attorney Jon Iverson. In a "tense, uncertain and rapidly evolving" situation, "there is absolutely nothing excessive about Officer Siem's actions."
"The law is not so rigid that police officers can't make mistakes," Iverson said Wednesday. "Accidental discharges [of weapons] don't rise to the level of a constitutional violation."
The city said that the officers were properly trained and that the weapons are similar in design and size.
Not so, said Bob Bennett, a Minneapolis attorney for Atak who has won millions of dollars in lawsuits alleging police misconduct.
At 34 ounces, the handgun is nearly double the weight of the Taser; the size and feel are different, and safety features are different, Bennett said.
"I don't believe the excuse ...," he said. "No reasonable person could hold the trigger of one and think they're holding the other."
Anyway, the officer's intentions are not the legal standard, he said. "It doesn't matter what you thought you were doing. It mattered what you did was objectively unreasonable."
In the California case, the family of Everardo Torres, 24, sought $10 million from the city of Madera after he was shot to death in 2002 while he was handcuffed in a police car and kicking at its back window.
The city and police officer Marcy Noriega, who said she mistakenly used a handgun instead of a Taser against Torres, sued Taser International, alleging defective training methods. A judge agreed to consolidate the two cases in federal court.
Meanwhile, Atak has recovered enough to work as a laborer for IBM in Rochester, said William French, another of his lawyers, but the suit said he will have continuing medical expenses.
"He has a lot of problems" and still carries bullet fragments in his body, French said. "He has trouble with his digestion, trouble with his back. He has nightmares.
"He's not the same person."