Bike photos by Steve Magas, a race in Walnut Hills, a bike rack at Ride Cincinnati, A ghost bike dedication ceremony and a beautiful bike bell

Protecting The Rights Of Those Who Ride

Steve Magas is Ohio's Bike Lawyer. He has written about Ohio Bike Laws, bike crashes, bicycle advocacy and court cases for some 30 years. Soon we'll be adding a series of features about your favorite Ohio bike shops.

ROAD RAGE DOC GETS FIVE YEARS – TEXAS KILLER GETS ONLY TWO

COMPARING SENTENCES – THEY DON’T ALWAYS ADD UP

What a difference a state makes – or so it seems.

CALIFORNIA ROAD RAGE CASE – FIVE YEAR SENTENCE

In California, Dr. Christopher Thompson was convicted in a well reported “road rage” incident.  Testimony in the case included stories from several cyclists who were involved in road rage incidents with Dr. Thompson – the key event was not his only reported transgression!   It took a couple before the prosecution decided to go after him.

The paper trail of prior reports was helpful in getting the prosecutor, and the court, to believe that an Emergency Room physician could actually be so cold-hearted towards human life.  The testimony from those on the scene that Dr. Thompson said he “wanted to teach them a lesson” was chilling.  You can read Bob Mionske’s take on the case here.

As shown in this LA Times pic, Dr. Thompson was crying in court during the sentencing and was led out of the courtroom in handcuffs the other day after learning that the judge gave him a FIVE YEAR sentence for causing the road rage incident. You can read the whole LA Time story here.

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If only justice worked as well in every case.

TEXAS CASE – TWO CYCLISTS KILLED – TWO YEAR SENTENCE

On December 17, 2009, “justice” was handed down in the Kenneth Bain case out of Texas.  Mr. Bain had allegedly been driving home in his Lincoln Navigator from a bachelor party at 8:15 am, after ingesting both alcohol and pot, when he ran into, and killed, two cyclists.

The two cyclists, Meredith Hatch and Mike Alfaro, were members of a local cycling group and were training for an event when they were struck from behind and killed.  The photo of the huge Lincoln Navigator, from a local CBS television station’s website, shows the damage to the front of vehicle.

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Mr. Bain was sentenced on December 17.  His sentence was TWO years in prison with an additional 10 years of probation.

The families of the two cyclists, and local cycling advocates, were shocked and outraged.  You can read about it here.

How do you get such different results?  A guy in a road rage case who hurts, but does not kill, two cyclists gets five years.  A guy who ingested pot and alcohol at a party and then kills two cyclists by striking them from behind gets two years?

I wish I had an answer.  There are usually personal, legal or political factors that come into play in these cases, unfortunately.

In the the Texas case there were reports that the BAC for the driver was not over the limit and that there was some reluctance of the family of one victim to put the children on the witness stand.  There were additional reports speculating that Mr. Bain’s lawyer, a sitting Texas State Senator, or Mr. Bain’s family/money may have played a role.  Perhaps the prosecution was worried about some factual or legal issues and didn’t want to take a chance of this one getting away.  We’ll never know.

In the California case, you had clear evidence that the doc was actually INTENDING to do some harm.  There was testimony that the doc said he wanted to “teach them a lesson.”

In the Texas case, the driver was stupid, careless and maybe feeling the effects of a long night of partying, but there was no evidence of ill intent.  There was no evidence that he intended to hit the riders.  That would have led to murder charges.

That distinction – what the judge or jury believe is inside the MIND of the wrongdoer – is a typical dividing line for sentencing.  Intentional and malicious actions are usually punished more severely than careless or stupid actions.

Indeed, in Indiana a few years ago FIVE motorcyclists were killed [and many suffered life changing injuries] in 3 separate accidents on the same day, all occurring within an hour of so of each other in broad daylight.  In each case a relatively young motorist did something stupid and careless to cause the crash.  None of the motorists were drunk or high – just careless.  None of the motorcycle operators did anything wrong.  The prosecutor, in each case, refused to press criminal charges saying “We don’t prosecute negligence in Indiana.”

When alcohol or drugs are involved, though, many states crank up the sentencing, even for “careless” and non-intentional actions.  In the Texas case, while there was evidence of both, there may not have been enough evidence to show “impairment.”  Compare these two cases to the two Ohio cases discussed below…

TWO RECENT OHIO CASES – TWO VERY DIFFERENT RESULTS

In Ohio, we’ve had similar ups and downs.  In Pike County, Sarah Bender, the lady who ran over and killed Dr. Crowley during TOSRV in 2008, was convicted of a misdemeanor and sentenced to 60 days in jail.  However, in Cincinnati, Anthony Gerike is still serving his 16 year sentence for killing two popular local cyclists – Amy Gehring and Terry Walker.

These two cases also show the contrasts that develop in the legal system.  In Pike County, the defendant was a “nice” lady who was well known in her community and church.  The prosecution charged her with a felony leaving the scene, but the jury convicted on a lesser charge.

I have reviewed the 83 page police report in this case, and the dozens of photos taken by the Ohio State Highway Patrol.  Her story about what happened, of course, made no sense.  She told officers that she never saw Dr. Crowley.  That she struck Dr. Crowley and drove off was shocking, to say the least.  However, she wasn’t drunk or high or driving on a suspended license and did otherwise present as a “bad” person.

From the look of the front windshield of her car, though, her story about thinking that she might have hit “something” is more than a bit suspicious when you consider that Dr. Crowley was a big guy riding a pink Schwinn Paramount… Here’s a quote from the Columbus Dispatch about her testimony..

“…Bender testified that she thought something had hit her windshield in the rain and fog and that water was coming through, so she turned around and drove about 10 miles south back to her Scioto County home, where she parked the SUV in the garage and took another vehicle to drive to work…”  She then drove by the scene of the crash again and stopped when she saw the EMT’s & State Troopers.

Take a look at the front of that SUV and tell me if THAT makes any sense…

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Gerike, on the other hand, was drunk and high and driving on a suspended license when he killed Amy and Terry.  He was driving on the wrong side of the road.  He had taken out a mailbox before running through the group of riders.   He was portrayed, quite correctly, as a “bad guy” by prosecutors.  I helped track the Gerike case through the courts, and published regular updates.  Many cyclists attended the trial.  When he was convicted and the judge asked for input on sentencing, the local cycling community submitted dozens of letters to the court offering up opinions.  Many of us attended the sentencing hearing.

A MODEL FOR CYCLIST INVOLVEMENT

The Gerike case presents a good model for cycling clubs wishing to become involved in a criminal case.  We followed the case from Day 1, attended and reported on the hearings, communicated with the Prosecutor, spoke out in the media, and when the time was ripe for our involvement, we flooded the judge with our letters describing the impact of Gerike’s actions on the cycling community.  The letters clearly had an impact as the judge read from many letters at the sentencing hearing.

According to the Ohio Dept of Rehabilitation and Corrections website, Mr. Gerike remains incarcerated at Noble Correctional Institution.  His stated term expires on June 20, 2022.  While I believe the “ghost bikes” have been removed, the stone memorial to Amy and Terry remains, as far as I know, at the place where he killed them.

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JANUARY 2009 – TOLEDO KILLER SENTENCED TO 10 YEARS

This just in – literally.   Dateline January 15, 2010 at 2:27 pm.  In Toledo, Ohio, Jose Garcia was sentenced to TEN years for killing Flemming Williamson in East Toledo.  Mr. Williamson was riding his bicycle to a convenience store last January when he was struck by Mr. Garcia’s vehicle and left for dead. Mr. Garcia then fled the scene.  Police say, according to news reports, that Mr. Garcia was intoxicated at the time he killed Mr. Williamson.

Mr. Garcia pled no contest to aggravated vehicular homicide.  You can read about it here.

Another sad case… justice was done, but the damage and pain are lifelong….

Steve Magas

The Bike Lawyer


CYCLISTS URGE LONG SENTENCE FOR “ROAD RAGE” DOC

If you have read this blog you know I’ve been watching a California case in which an Emergency Room doctor was accused, and convicted, of a road rage incident in which he caused serious injuries to two cyclists.  The incident, described in the story below, was shocking to the cycling community.  After the conviction the judge, as is typical, accepted comments from the parties, and the community.  As you can see from the L.A. Times article below, a few hundred cyclists from all over the country responded.

Steve Magas
The Bike Lawyer
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http://www.latimes.com/news/local/la-me-cyclists8-2010jan08,0,1120092,print.story

CYCLING COMMUNITY URGES LENGTHY SENTENCE FOR PHYSICIAN CONVICTED IN BICYCLE CRASH

Cyclists from across the country — and as far away as Europe and China — are urging a Los Angeles County judge to order a lengthy prison stretch for a former Brentwood doctor convicted of deliberately injuring two cyclists in an alleged road rage assault.

In more than 270 e-mails and letters filed with the court, cycling enthusiasts condemned the actions of Christopher Thompson and argued that a tough sentence would send a strong message to hostile motorists everywhere.

Though some of the writers described themselves as friends of the victims, many said they had no connection to the case. Several of the letters came from physicians who wrote they were horrified that a medical professional sworn to “do no harm” would set out to injure bike riders.

“The Dr. Thompsons out there frighten me,” wrote Dr. Janna Summerall-Smith of Waresboro, Ga., “because I know that one may be out there on the road with me when I ride my bike.”

The outpouring underscores how Thompson’s case has galvanized a diverse community of cyclists around the world — from athletic road racers to environmentally conscious commuters to recreational riders.

The letters and e-mails were filed in court by prosecutors who have asked that Thompson, 60, be sentenced today to eight years in prison. The veteran emergency room physician was jailed in November immediately after jurors found him guilty of mayhem, assault with a deadly weapon — his car — and other charges.

Deluge of mail

The letters and e-mails are part of a deluge received by the court in the last two months, including more than 160 from friends and supporters of Thompson.

Many of the cyclists who sent messages about the case described how vulnerable they felt on two wheels when motorists get too close. Some recounted serious accidents caused by careless or sometimes vindictive drivers and complained that authorities rarely take such episodes seriously.

“Here in the U.K., the cycling community has a saying that, ‘If you want to harm or kill someone, a motor vehicle is the weapon of choice,’ ” wrote Tony Raven, of Cambridge, England.

Deputy Dist. Atty. Mary Hanlon Stone said the letters show that many cyclists feel like second-class citizens.

“It is time that motorists learn that they must share the road with people on bicycles and that the courts will view assaults on cyclists by motorists as seriously as other assaults with deadly weapons,” she wrote in court papers.

The July 4, 2008, crash highlighted simmering tensions between cyclists and motorists, particularly on Mandeville Canyon Road, the winding five-mile residential street where the crash took place.

Thompson testified that he and other local Mandeville Canyon residents were upset at how some cyclists ignored stop signs or rode alongside each other on the narrow street.

On the day of the crash, Thompson said he was driving to work when several cyclists swore at him and flipped him off as he called on them to ride single file. He said he stopped to take a photo to identify the riders and never intended to hurt anyone.

But a police officer told jurors that shortly after the crash Thompson said he slammed on his brakes in front of the riders to “teach them a lesson.”

One cyclist was flung face-first into the rear window of Thompson’s red Infiniti, breaking his front teeth and nose and cutting his face. The other cyclist slammed into the sidewalk and suffered a separated shoulder.

During the trial, prosecutors cited two prior incidents in which Thompson was accused of confronting cyclists along Mandeville Canyon Road and braking suddenly in front of them. None of those cyclists were hurt.

Thompson’s attorney, Peter Swarth, argued in court papers that his client deserved probation, not prison.

Any sentence, he wrote, should take into account Thompson’s years of dedication to healing the sick, including more than three decades serving the “underprivileged community of Montebello” at Beverly Hospital.

Health issues

Thompson has served two months in jail, is near financial ruin and his medical license will probably be revoked if he’s convicted, Swarth wrote. Thompson’s California medical license was suspended last month.

Swarth said Thompson also suffers from coronary artery disease and that incarceration could prove fatal. Since the crash, he has suffered from chronic post-traumatic stress disorder that includes disturbed dreams and sleep disorder among other symptoms, according to a report by a clinical psychologist hired by the defense.

Thompson, his lawyer wrote, has suffered public humiliation since news of the case broke and received “a deluge of threats and intimidation,” prompting the doctor and his wife to move out of state several months after the incident.

In seeking probation, the defense attorney cited other cases in which defendants avoided prison for more serious crimes.

Among them: Soon Ja Du, a Korean-born grocer, who was given probation in 1991 after she was convicted of manslaughter for the fatal shooting of Latasha Harlins, a 15-year-old African American.

Du’s sentence provoked storms of protest as well as an unsuccessful attempt to unseat the judge who sentenced her. The sentence was also blamed for inflaming already deep tensions between Korean shopkeepers and black residents of South Los Angeles in the months before the 1992 Los Angeles riots.

In his plea for leniency, Thompson’s lawyer attached numerous letters from friends and supporters of the doctor, including physicians and other health workers who spoke glowingly about Thompson’s reputation.

“He is a very wise man and caring physician,” wrote Dr. Robert Padgett, who described himself as an avid cyclist.

Michael Oana, an X-ray technologist at Ronald Reagan UCLA Medical Center, said he has known Thompson for many years.

“Dr. Thompson is not a criminal,” Oana wrote. “He acted without thinking. . . . He has paid dearly for his mistake.”

jack.leonard@latimes.com


BICYCLE INSURANCE – Where Is It?

BICYCLE INSURANCE – WHO’S GOT IT?

Is anyone writing bicycle insurance in the USA right now?  If so, I’m out of the loop.  As far as I can tell, no insurer is writing such a policy in the United States right now.

What do I mean?

If you have a car, you get car insurance.  That policy typically contains a number of different coverages.  If you hit someone in your car, you are covered.  If your car is damaged, your policy can cover it.  If you are hit by an uninsured motorist, or one without enough insurance, this policy may provide a pool of money to pay your claim.  The “Medical Payments” coverage can be used to pay your medical bills.

What if you are a true transportation cyclist and give up your car?  Who pays the claim if you run somebody over?  What if you get hit by an uninsured motorist?  What kind of insurance is available to protect you?

The short answer, in the U.S., is that it is much easier to protect yourself on the bike if you own a car!

If you do NOT own a car, there is no “Uninsured/Underinsured” policy that will protect you if you are hit by an uninsured motorist.  No one is selling this type of “Bicycle Insurance” in the U.S., as far as I am aware.

For some answers to your Bike/Insurance questions, I am reprinting below some of what I wrote in Bicycling and the Law, that epic tome that covers much of the “Bike Law” genre!  Not the sexiest topic for a Blog, I know, but one that is critically important if you ride and want to make sure you and your family are protected, financially, from the idiots out there!

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AN INSURANCE PRIMER FOR CYCLISTS

Introduction and overview

Insurance –  how boring.  How can you dedicate an entire CHAPTER to insurance?  Simple… it’s probably the most important factor in EVERY car/bike collision in the country!  No insurance usually means no recovery, no ability to pay your medical bills, no way to recover your wage loss, no money available to pay your future medical expenses and no funds to compensate you for your pain and suffering.  However, insurance policies and insurance issues frequently become extremely complicated, particularly to those uninitiated in the reading of policies and the laws of insurance.

Health, auto, homeowner’s and life insurance policies all may come into play if you are involved in an injury-causing crash while operating your bike.  More exotic products like “excess” or “umbrella” coverages can also be triggered in more catastrophic incidents.  However, once you tap into insurance coverage, obscure legal concepts such as “subrogation,” “medical payments coverage,” “uninsured/underinsured motorist” and “no fault” or “PIP” can cause you to pull your hair out!  The purpose of this chapter is to give you a brief lawyer’s eye view into the whacky world of insurance to help you understand how it all fits together!  At the end, I’ll give you a warning about a very disturbing new trend which may dramatically impact cyclists in the future!

Basic Assumptions – You are in a Crash, Hurt & Have a Claim

Let’s assume you are in a crash – a particularly ugly crash – in which you are significantly and permanently injured.  You may miss days, weeks or months of work.  You may not be able to work in the future, be forced to retire early or change the way you work and live. You incur huge medical bills and suffer intolerable pain.  You have disfiguring scars and debilitating permanent medical problems.  And it’s all the other guy’s fault… mostly.  In short, from a lawyer’s warped perspective, you have a GOOD case.  How does insurance come into play?  One more assumption for this part of our discussion – you are NOT in a “No Fault” state.  [More on “No Fault” later].

Actually, again from the lawyer’s perspective, the question really is how do you get paid [and how do I get paid?] because that’s our job.  We obtain compensation for injured victims of another’s negligence.  This compensation almost always comes from an insurance company.

What if the motorist who hit you has no insurance?  Where can you get money to pay your medical bills or living expenses?  What if the motorist that hit you has some insurance but not enough insurance to cover your claim?  What if you have great health insurance and disability insurance through your job, but all of a sudden you start receiving “subrogation” letters which seem to say that you have pay back your insurers all the money they paid to your doctors if you get a settlement!?  Can they do that?  What if you are at least partially at fault for causing the crash?  How does this affect your ability to obtain money or your negotiations with various insurers?  What steps do you have to take to protect the rights of your various insurance companies when you look to settle your claim?

All of these questions illustrate the overlap of insurance law into bicycle crash cases.  As soon as that car hit you a LOT of insurance policies were triggered.  Let’s take a look at some of the issues raised above.

Insurance Policies that come into play during a crash:

Basic Facts: Car Hits Cyclist, Cyclist is severely injured or killed

MOTORIST’S AUTO POLICY

The first, and most obvious, insurance policy that comes into play when you are hit by an errant motorist is the motorist’s insurance policy [assuming you are lucky enough to be hit by someone who HAS insurance].  The typical automobile insurance policy is designed to pay money to those injured by the motorist’s “negligence” or carelessness.  The motorist [or cyclist] must provide timely “notice” to the motorist’s insurer of the crash. Typically, the insurer then assigns an “adjustor” to handle your claim.  The injured cyclist presents a “claim” against motorist to the adjustor by providing documentation to support the claim.  The claim is then considered by the insurer.  The insurer has the right under the policy to “settle” the claim by paying a sum of money to the injured party.  This sum of money is based on the law of the particular jurisdiction relative “tort claims” or “personal injury” claims and usually covers medical bills and wage loss along with other out of pocket and monies to compensate for “pain and suffering.”    The insurer usually has separate coverage to pay any “property damage” claim arising out of the crash.  If the insurer makes an “offer” to settle, negotiations may ensue and the claim may be settled.  If a settlement cannot be reached, a lawsuit may be necessary.  That’s the claims process in a [long] paragraph.  Let’s look at some critical issues.

NOTICE TO EACH INSURER IS CRITICAL

To trigger any insurance coverage, the injured cyclist or her/his lawyer typically notifies the motorist that a claim is being presented.  The smart motorist provides that letter to his insurance agent or reports it directly to the insurer.  This notification to the insurer is critical.  Failure to timely notify the insurer may give the insurer the right to deny the claim, depending on the terms of the particular policy.  As the cyclist’s lawyer, I always notify the motorist, but also contact the motorist’s insurer myself.  Frequently, the name of the insurer is listed on the police report and each insurer has an “800” number for reporting claims.

THE ADJUSTOR – FRIEND OR FOE?

The insurer then assigns the claim to one or two people, known as “adjustors” or “claims representatives.”  Some insurers have separate adjustors for the “property damage” and “personal injury” claims, some insurers use the same adjustor for the entire package.  Some insurers have adjustors who are actually employees of the carrier.  Some insurers retain a separate company to handle the claim.

A few words about insurance adjustors.  For the most part, they are highly trained professionals who are extremely adept at protecting the insurance company’s assets by paying as little money to the injured bicyclist/claimant as possible.  They are professional cynics – that’s their job.  They handle dozens or hundreds of claims at a time.  In every one, someone wants more money than the insurer wants to pay.  They’ve heard every story on the planet.  They demand documentation to support every element of a claim.  They take nothing for granted and nothing at face value.

Adjustors are trained in property damage, accident investigation, witness interviewing, the law of torts, medical issues, insurance law, subrogation and negotiation.  They are professional negotiators.  The adjustor has probably handled hundreds, thousands of claims – you probably have only been involved in ONE.  Please remember, they know more than you and are very good at what they do!

The personalities of adjustors run the gamut from sugary-sweet to mean and ornery.  Some adjustors make life so miserable for claimants that they take less money than the case is worth just to not have to deal with them any more.  Some adjustors befriend the claimants such that the injured victim feels the adjustor has his/her best interests at heart.  For you, the victim of a negligent motorist, the most important thing to remember is that the adjustor’s job is to pay you the smallest amount of money he/she possibly can to resolve your case!  They are not your friend, but your adversary.  Treat them professionally.  If they do not treat you professionally, document it in a letter and send to a supervisor.  If the treatment is bad enough, you can report it directly to the State Insurance Commissioner.

A SECRET ABOUT DEALING WITH ADJUSTORS

Let me tell one HUGE secret about adjustors.  I learned this secret, sometimes the hard way, during negotiations with hundreds of different adjustors over the past 25 years.  I learned this secret, as well, during my days as an employee with an insurance company where with those adjustors were my colleagues and friends.  I learned this secret as the lawyer hired by the adjustor to defend the case.  The secret is this – DO NOT TICK OFF YOUR ADJUSTOR OVER STUPID STUFF.

An adjustor’s caseload is huge.  Hundreds of claim files may be on his/her shelves at any time.  The adjustor usually has no emotional attachment to a particular case.  Do not give the adjustor reason to have a very negative emotional attachment to YOUR case!

You, on the other hand, have ONE claim and may well have a very strong emotional attachment to that claim.  You don’t understand why the motorist never called to check on you in the hospital.  You are angry because the insurer only gave you one-third of what you felt your property damage claim was worth.  However, if you let that anger over small, petty things spill into the negotiations you may sour the claim forever.

The relationship with the adjustor is critical.  I always try to be professional, precise, prepared and thorough in dealing with adjustors.  I try to establish a good rapport, discussing topics other than the case.  I try to be realistic about my cases – I don’t sell a $500 claim as a $50,000 claim!  I document everything and can back up every comment I make about a case with a reference to a piece of paper.  I know how to read the medical records and know how to read between the lines of the medical chart.  I also understand the adjustor’s job, caseload and motivation and try to treat every adjustor professionally and courteously.

If you are working with an adjustor, you should never be condescending, arrogant, abusive or grossly unreasonable – even if you feel the adjustor is acting that way!  Each adjustor has his/her own personality, but if you tick off your adjustor by arguing over stupid stuff, you may have ruined any opportunity for obtaining a reasonable settlement.  I’m not saying “Don’t argue.”  Pick your battles and argue over important things.

Adjustors are tough – sometimes difficult to deal with – they have to be in order to protect the insurer’s assets.  You can argue points, present your views, engage in professional “puffery” as you would in ANY negotiations – for a car, a house or a used tuba!  But once it goes beyond professional and into personal attacks, you lose.  The adjustor controls the purse strings and if your file is “red flagged” it will be difficult to gain an edge in negotiations.  Negotiate fairly, aggressively and professionally to get best results.  Once the purse strings are drawn shut, you are stuck either taking an unreasonably low settlement or filing a lawsuit.

I negotiate hard, trying to get the best possible deal for my client. If I think the adjustor is being unreasonable, I say so – but, I always have data to back me up.  This may consist of my personal experience, a series of reported cases or some jury verdict research I have conducted.  I also use my experience of working inside an insurance company for several years to try to see what’s driving the insurer’s position.  Occasionally, I’ve had to get more experienced claims representatives involved when a particular adjustor was unusually obnoxious, but that is very rare.  .

PRESENTING YOUR CLAIM – THE PAPER TRAIL

So what do you need to present your insurance claim?  The one word answer is “paper!”  You need to obtain every single piece of paper related to your case.  The police report, witness statements, photographs of the scene and property damage documentation along with any additional analysis of the crash to show you were not at fault.  You need every single piece of paper in your medical care provider’s files relative to your injuries – every office note, test result, x-ray report – and the record should be “certified” such that the insurer knows you are providing all the records.  If your x-rays or other films show the injury, then you should order copies of the actual films.  Professional photographs of scars, bones, disfiguring bony protrusions or other deformities related to the crash as well as the scene of the crash, the vehicles and all property damage should also be obtained.

I never present the complete package of documentation of a claim until the injured person is fully healed – or healed up as well as possible.  Once that occurs I make sure I have all the documents.  I then organize the paper in a package and prepare a “demand” letter.  This lengthy letter reviews and analyzes all aspects of the case – the liability or legal issues, nature and extent of the injuries, summary of all medical care, and a spreadsheet showing all medical bills and wage loss.  At the end of the demand letter, I set forth the opening “demand”  – the amount of money which my client will accept to settle.  This is always at the very highest end of “reasonable.”

The first “offer” from the insurer is always at the very lowest end of reasonable [or downright UNreasonable], and from there the negotiations proceed much like the dickering over a used car – both sides walking around, poking at the weak spots of the other’s positions, kicking the tires, and trading offers and counteroffers until the case is either resolved or an impasse is reached.

If the motorist’s insurance policy has sufficient policy limits, the case may then resolve.  If the value of your case is greater than the policy limits the insurer should, but probably will not, tell you this and offer the policy limits.  Where do you go if the motorist’s policy is not enough?  How do you know what the policy limits are if the insurer won’t tell you?

In some jurisdictions, the insurer is required to tell you the policy limits.  In many jurisdictions, lawyers who handle personal injury claims know which companies are most likely to sell policies with lower limits.  If you have any type of “big” case involving significant injuries, fractures, burns, scars, surgery and the like, you need to consult with a lawyer.   You should NOT be trying to recover from those injuries and stay on top of a complex personal injury claim!

MOTORIST’S EMPLOYER’S AUTO POLICY

One thing to determine in every case is whether the negligent motorist was “at work” at the time of the crash.  If so, the motorist’s employer may very well have insurance coverage you can tap into to pay your claim.

How do you find out whether the motorist was working for someone else at the time of the crash?   Sometimes it appears on the police report.  Sometimes, when the insurance adjustor contacts you the “Insured” listed on the letterhead may tip you off if it says “Smith Trucking, Inc” or some other business name.  Sometimes you can infer from the circumstances of the crash.  Sometimes you can just call the driver and ASK!

The nice thing about commercial automobile policies is that they almost always have large policy limits – $500,000 or $1,000,000 are typical policy limits.  Due to the “notice” requirements mentioned above, though, you need to do this detective work quickly and put the carrier on notice right away!

A motorist who negligently injures you while acting in the course and scope of his employment generally also causes his employer to liable as well.  There has been a LOT of litigation over the limits of this rule, however, and you are well advised to consult with an attorney if any issues arise.  For example, if the driver was supposed to working but was actually on what early cases referred to as a “frolic” [i.e., stopping off at a bar for a drink], then the insurance company could avoid coverage.

CYCLIST’S AUTO POLICY

In Ohio at the moment, there are many insurers advertising on the television and offering to provide “minimum coverage.”  Ohio has one of the lowest “minimum” coverage requirements in the nation at $12,500.00.  This means that a motorist who hits you only has to have “Twelve Five” coverage to be “legal.”  Almost any significant injury requiring more than minimal medical care will have a value in excess of $12,500.00 however and I frequently find myself dealing with the cyclist’s personal automobile insurance carriers.  What coverages in YOUR automobile policy may come into play?  Well, you can get your medical bills paid or even your entire claim paid through the coverage you have purchased!

MEDICAL PAYMENTS COVERAGE – “Med Pay”

“Medical payments” coverage is usually the first coverage I look at.  This coverage pays YOUR medical bills if the policy terms are met.  The limits are usually relatively low, $10,000.00 or less, sometimes only $1,000.00.  I often use the “med pay” coverage to pay my client’s out of pocket expenses, “co-pays” and such.

What are the requirements for presenting a “med pay” claim?  Reading insurance policies is like reading one 35 page sentence, so I’ll just give you the highlights!

In my automobile policy with Progressive Insurance, it states that Progressive “…will pay the reasonable expenses incurred for necessary medical services received within three years from the date of an motor vehicle accident because of bodily injury…”  so long as the injuries were:

– Sustained by an insured person and

–  Caused by that motor vehicle accident.

Following this broad “we’re happy to pay your medical bills” language is a list of 15 “exclusions.”  Exclusions are an insurers way of saying “We’re NOT paying you” for certain types of claims.

What does this mean?  Well, clearly if you are riding bike and are actually STRUCK by the car, the coverage applies.  What if the car never hits you – the motorist cuts you off, you hit the brakes and go head over handlebars.  A very strong argument can be made that this accident is covered.

A “phantom motorist” claim may also be covered.  In this case, an unknown motorist causes a wreck and leaves the scene.  Some states have a “physical contact” requirement, meaning the car must actually hit the bike.  Some states require proof of some sort other than the victim, some “corroborating” evidence of the presence of a phantom motorist.  Here, you must not only read the policy, but know the case law and statutory law of your particular jurisdiction… sounds like a trip to the lawyer’s office is in order!

HOMEOWNER’S COVERAGE?  ARE YOU KIDDING?

What if a can of soda is thrown from a passing car causing injury?  Courts have gone both ways on this type of assault.  Some courts have found that your automobile insurance coverage applies, some have said no.

If a passenger tosses an object out the window which causes you to crash, then the passenger’s HOMEOWNER’S insurance can come into play!  [I told you this stuff gets complicated!]  However, NO insurance policy in the world covers intentional or “criminal” acts and if the act of throwing an object at a cyclist is deemed a criminal act, then there may be no coverage available.

What if you, the cyclist, are at fault?  You run a stop sign, broadside a Porsche and cause a $10,000 dent?  Here, your HOMEOWNER’S policy comes into play to cover your negligence!  Assuming you have coverage, you can tell Mr Porsche Owner to relax!

WHAT IF YOUR CLAIM IS DENIED BY THE INSURER?

The fact that your claim is “denied” by an insurer is not the end of the story.  If you have handled the claim yourself, you should consult with competent insurance/personal injury counsel to determine your rights.   Many cyclists just go away and forget about presenting a claim when they are told by an insurer that their claim is meritless.  However, a denial is not the end.

Sometimes you can go above the current adjustor’s head to a different adjustor, or a committee of adjustors.  Sometimes you can find new facts, witnesses or information and present that to the insurer to try to re-open negotiations.  Sometimes, the only way find out if the insurer was right in denying the claim is to challenge the decision in court!  If the court determines that the insurer unreasonably denied the claim and acted in “bad faith” you may be entitled to additional damages!  Sometimes all of these issues can be stacked into one lawsuit against both the motorist and your insurer.  Sometimes two separate actions are required.  Again, the particular laws and court rules of your jurisdiction would need to be consulted.  I would strongly urge you to find a good lawyer!

UNINSURED/UNDERINSURED MOTORIST COVERAGE

The main automobile insurance coverage that cyclists turn to in “big” cases is their own “uninsured/underinsured motorist” [or “UM/UIM”] coverage.  If the motorist who ran into you has NO coverage, then “uninsured” coverage comes into play.  If the motorist has some coverage, but not enough to pay the full value of your claim then the motorist is deemed to be “underinsured.”  Either way, the claim is handled the same way.

When I discuss insurance issues with cyclists I always add a piece of advice – Buy as much UM/UIM coverage as you can afford.  Do not let an insurance agent cut the cost of your insurance bill by deleting your UM/UIM coverage.  This coverage protects YOU in the event of an encounter with someone who lacks sufficient insurance or assets to pay you.

If you thought “med pay” issues were complicated, you’re going to LOVE UM/UIM issues.  In Ohio, for example, in the past 10 years or so, there have been hundreds of court of appeals decisions on UM/UIM issues.  Pro-insurance company forces try to change laws to limit recoveries.  Pro-plaintiff groups argue for expanding the law.  Let’s look at what you should do if you find yourself turning to your UM/UIM coverage.

BEWARE OF THE “UM/UIM” TRAP

First, read the policy.  Yes, parse that 35 page sentence until you know exactly what you have to do to protect your claim and your carrier’s rights.  You must also be able to spot a critical trap that can destroy your UM/UIM claim and deal with it appropriately.

This trap arises when the motorist’s insurer admits to you that your claim exceeds the motorist’s policy limits.  The insurer then offers you the policy limits and all of a sudden there’s this pile of money sitting there for you – all you have to do is sign a release and the money is yours!  What harm can possibly come from this?

RELEASES, UM/UIM AND “SUBROGATION” – A Very Sticky Thicket of Problems

Do NOT sign that release. Let me say that again.  Do NOT sign that release – not until you have consulted with counsel.

You must comply with every possible requirement under your UM/UIM policy and the statutory and case law of your particular jurisdiction relative to these claims.  Your failure to do so may close off your ability to collect any additional money under your auto policy.  Signing a release without obtaining the approval of your UM/UIM carrier is one of those events that can lead to the loss of your UM/UIM coverage!

There is a concept in the law known as “subrogation” that arises in virtually every bike/car crash claim.  “Subrogation” is the right of an insurance company to “stand in the shoes” of its insured once it pays money to the insured.  This means two things. First, if you receive money from the person that ran into you, you may have to pay back the insurer that paid your medical bills or your UM/UIM claim or your disability claim or wage loss claim.  [This is discussed later.]  Second, “subrogation” permits an insurer that paid money to you to file a lawsuit against the motorist that ran into you to try to collect back that money.

OK, but how does your signing a release screw all that up?

Once you sign a release, you claim is dead – a lawsuit can never be filed against the motorist relative to the accident by you or anyone who “stands in your shoes.”  Signing that release effectively destroys the ability of any other interested party to go after the motorist including your health insurer, UM/UIM carrier or disability insurance provider.  Because your claim against the motorist dies when you sign the release, the claims of these “subrogated” insurers also die.

By signing a release without the knowledge or consent of the subrogated insurers, you have prevented those carriers from getting their money back.  In our example, if you sign the release, and take the money, you may not be permitted to present a UM/UIM claim against your own insurer, thereby robbing you of an additional significant recovery.

Each jurisdiction has a manner for dealing with this problem.  In many jurisdictions, and under the terms of many auto policies, you are required to notify all subrogated parties when you receive an offer of money from the motorist’s insurer.  The subrogated parties then have a “reasonable” time to tell you either that it is “OK” for you accept the money and sign the release or not.

The subrogated parties are supposed to investigate the assets of the motorist during this “reasonable” time.  If they think they can sue the motorist and obtain some of their money back, the subrogated party might offer to pay you the same amount of money offered by the motorist’s insurer.  That way, you get the money, but you do not have to sign a release thereby keeping the claim against the motorist alive so the insurer can sue the motorist later should it so choose.

Complicated?  You betcha!  That’s why this “trap” snares many unsuspecting injured victims, as well as many LAWYERS who do not regularly deal with personal injury or insurance claims!

UNDERSTANDING UM/UIM POLICY LIMITS

So, just how does this insurance stuff work?  Let’s assume you took my advice and purchased automobile insurance coverage with $250,000.00 UM/UIM policy limits.  The person that ran into you also has policy limits of $250,000.00.  Let’s say your claim is worth in excess of $500,000.00.  So you get $250,000 from the guy that hit you and $250,000 from your UM/UIM carrier, right?  Wrong!

In many states, you can only use “underinsured” motorist coverage if the other guy’s coverage is LESS than yours.  Further, you can only recover the difference between your policy limits and the other policy limits.  Thus, if the motorist has $100,000.00 in coverage and you have $250,000.00, you can recover $150,000.00 from your own UM/UIM carrier – assuming your case has significant value.  In our example, though, because your coverage [$250,000.00] was EQUAL to the motorist’s coverage, you would get zero from your own policy, even though you paid for $250,000.00 of coverage and even though the $250,000.00 from the motorist is only one-half of the value of your claim!

Again, complicated stuff.  You are well advised to consult with attorneys well versed in insurance law in any such case.

Do You Carry an UMBRELLA When You Ride? – Excess or Umbrella coverage

The vast majority of bicycle insurance claims do not involve catastrophic losses.  However, every once in a while there is a bicycle/car crash that paralyzes or kills the rider or causes a loss of a limb or other injuries that can devastate the rider’s ability to live a normal life or require a lifetime of medical care.  What kind of insurance protection can you purchase to protect you in the event of such an event?

“Excess” or “Umbrella” coverage is available from many insurers.  This is a highly specialized type of insurance coverage with very large policy limits that only comes into play when all other available coverages are exhausted.  You must carry a particular level of “underlying” coverage, perhaps $250,000 or more, before you can purchase an “excess” or “umbrella” policy.  The cost of umbrella coverage is relatively low in comparison with other coverages – primarily because it is only rarely used.  When you need it though, it is invaluable.

As I write this, I have a relatively new case sitting on my desk.  A cyclist, a professional man in the prime of his earning potential, suffered a broken neck when a pick-up truck backed out of a driveway directly in front of him.  His unstable fractured neck was treated by fusing his neck at two levels – a very complex operation that leaves him at risk for future problems. Fortunately, he was not paralyzed.  His medical bills are approaching $100,000.00 and his wage loss will likely reach a similar figure, assuming he is able to return to work effectively at some point.

The pick-up truck driver only carried Ohio’s “minimum” coverage – $12,500.00.  My client carried “UM/UIM” coverage of $300,000.00 – pretty good coverage.  Using the math from the explanation above, we should be able to obtain $287,500.00 [$300,000.00 – $12,500.00] from my client’s UM/UIM carrier.  Where does he go for compensation for the rest of his claim, assuming the value is in excess of $300000.00?

Fortunately, my client carried an “umbrella” policy with policy limits of $1,000,000.00.  As I explained to him, this incident illustrates exactly and precisely why I encourage people to buy an “umbrella” policy.  Instead of looking at a lifetime poverty or bankruptcy due to six-figure medical bills, the client’s insurance choice will provide him the money to keep his life relatively “normal” in the face of his current level of disability.

Does he just “get” a million bucks?  No, not unless his claim is “worth” a million bucks.  At the appropriate time, we presented to the UM carrier a thoroughly documented claim. After some difficult negotiations we were able to resolve the claim  to the client’s satisfaction.  We negotiated an appropriate settlement based on the injuries, recovery, losses and other relevant factors and we did not need to resort to litigation.

CYCLIST’S HEALTH INSURANCE

Health insurance seems like it should not present any complicated legal issues.  You got hurt.  You submit a claim for your medical bills.  The bills get paid.  Life goes on.  However, the “subrogation” concept we discussed earlier comes into play to muck up almost every injury case!

Health insurers have become extremely adept at figuring out which of their insureds have been involved in accidents and then sending out “subrogation notices” demanding repayment of the bills it paid out of any settlement.  Many insurers have entire “Subrogation Departments” whose job it is to ferret out such potential claims.  Other insurers retain the services of companies devoted to pursuing such claims.

The problem for cyclists arises when they handle their own claims.  It seems like the subrogation notices get stuffed in the back of the drawer or not understood.  Injured cyclists negotiate what seems like a decent settlement with the motorist’s insurer and are shocked to discover they have to pay back their own insurer!  If they have negotiated a deal which did not take the “subrogation” claim into account, they may have to give up all or most of their settlement to the health insurer.

CYCLIST’S EMPLOYMENT BENEFITS

I know this will come as a shock to some, but many cyclists not only have JOBS, but actually have good jobs, with benefits like short term or long term disability insurance, accident insurance or “PTO” [paid time off].  However, as you can probably guess by now, while these benefits can help you when you are injured by a negligent motorist, the insurance companies underwriting these benefits have “subrogation” rights.  When negotiating with the motorist’s insurer, the cyclist must keep these subrogation rights in mind.

One area of potential recovery that many people overlook when they negotiate their own claims is the ability to recoup employee benefits used due to injury.  If you accumulate “leave” or time off as you work and have to use that leave as a result of your injuries, you should include this in your negotiations.  You worked for it.  You earned it.  Now, you’ve had to use it due to someone else’s  negligence and the time off is no longer available if you get pneumonia, have a heart attack or otherwise need time away from work.

CYCLIST’S STATE OR FEDERAL BENEFITS

Many people today do not have health insurance.  They are forced to rely on benefits provided by state or federal governments.  Benefits such as Medicare [federal] or Medicaid [state] provide health insurance for millions of Americans today.

Like private health insurance, the federal government has provided a special mechanism for Medicare to recoup money in situations where a motorist runs over a cyclist and the cyclist utilizes Medicare to cover medical expenses.

The “Medicare lien” has been referred to as a Super Lien by some lawyers.  The code provisions which define the lien, how it is calculated and defining the responsibilities and potential liabilities of the parties are incredibly complicated.  Long seminars for lawyers covering only Medicare lien issues are not uncommon!

What YOU need to know is that the Super Lien is dangerous.  The government can come after you for payment of its “subrogation” at any time.  You MUST notify the government within 60 days of settlement.  It can take weeks, months or YEARS for the government to get back to you.  If you ignore this lien and choose to not pay the lien, there can be civil or even criminal penalties!

“COMPARATIVE NEGLIGENCE?” – What Do You Mean It’s MY Fault?

One issue that comes up in virtually every “bike” case I handle is an argument by the adjustor that the bike rider did something wrong.  They argue the cyclist was not riding “as far right as practicable,” failed to signal a turn or committed some other infraction rendering the cyclist “negligent” or “comparatively negligent.”

“Comparative negligence” is a relatively new legal concept, coming into full flower only in the past 25-30 years.  The guts of the “comparative negligence” concept is that where both parties were negligent, a judge or jury would “weigh” the negligence of each and assign a percentage of fault to each side.  [Obviously, the percentages need to equal 100%!]  The behavior of the parties is thus “compared” and the injured party’s recovery effected in some manner.  Under the “old” law, ANY negligence by the victim meant the victim could not win the case.

In Ohio, for example, if the cyclist’s negligence is found to be 50% or less, the cyclist still wins.  However, the money awarded by the jury is reduced by the percentage of fault assigned to the cyclist.  But… and here’s the key point… if the cyclist’s negligence EXCEEDS the motorists, the cyclist LOSES completely in Ohio.  Thus a 50% negligent cyclist who is awarded $100,000 in damages, only gets $50,000.  But a 51% negligent cyclist gets NOTHING.

In a “pure” comparative negligence state, the victim always wins unless the jury assigns 100% of the blame on the victim.  Under such a rule, a cyclist who was 99% liable, but was awarded $1,000,000 in damages, would still win 1%, or $10,000!  As always, check the law of your particular state to see what rules apply.

One key point – the alleged negligence by the cyclist must actually play SOME role in causing the crash.  For example, if a car/bike accident occurs at night, the motorist may argue the cyclist had no front headlight and was thus in violation of state law and negligent.  However, if the accident was a “rear-ender” the cyclist might argue the absence of a FRONT headlight played no role in causing the motorist to strike the cyclist from behind!  Thus, the cyclist argues, there can be no reduction for comparative negligence.

WHAT THE HECK IS “NO FAULT?”

Many states have adopted “no fault” insurance in the past 30+ years.  “No fault” is a bit different than the traditional “tort” system we have discussed in this chapter, and is applied differently in each jurisdiction.  Under “no fault” rules, there is no need for a cyclist to prove a motorist was “negligent.”  In a car/bike crash, the cyclist would generally be entitled to receive payment of any medical bills and economic losses automatically.  The trade off is that the “pain and suffering” awards are done away with.

This can have the effect of dramatically limiting recoveries, particularly if the injuries are incredibly painful and debilitating, but where there is little that can be done – i.e., fractured ribs, disfiguring injuries, etc.

Most no fault states have some mechanism which permits the injured party to escape the no fault provisions.  Sometimes a particular level of medical bills must be met, or a particular type of injury diagnosed.  Again, the law is different everywhere.   Find your friendly neighborhood “bike lawyer” and enlist her/his services!

BEWARE OF A NEW INSURANCE PRACTICE THAT COULD CAUSE YOU TO STOP RIDING YOUR BIKE!!

Some health insurance companies are looking very carefully at the risks they underwrite.  In the past few years, there have been several reported cases where health insurance policies have included exclusions for certain activities, including riding a MOTORCYCLE.

The motorcycle industry and lobby has taken notice of this and challenges it whenever possible.  The American Motorcycle Association is particularly aggressive in cataloging and publicizing the horrific impact of this practice.  In one case, the health insurer refused to pay the significant medical bills of a motorcyclist who was injured by a drunk driver.  Had the motorcyclist been the operator of a car, even a drunk operator, the insurance would have paid 100%.  Despite being the victim of another motorist’s gross negligence, no payment of medical bills was forthcoming because the victim was riding a motorcycle.

I bring this up because if permitted to continue, I could easily see this concept being extended to bicycle operators.  There are those who consider bicycle riding to be “dangerous,” especially in light of the annual data published by the government indicating some 500,000 emergency room runs occur each year from “bicycling accidents” and a large number of “head injuries.”  Insurance companies must be challenged to stop these types of discriminatory policies – at the grass roots level and in the halls of government.  Today, this is just a warning – be on the look-out for those who would limit your insurance coverage because you choose to ride a bike!


NEW LIMITS ON TASER USE

If you’ve been reading this blog, you know I’ve been tracking “Taser” cases.  “Taser” is, of course, a brand, like Kleenex, which has become a noun [he used his Taser] and a verb [he tasered the robber].  These Electronic Control Devices [ECD’s] represent a tool for police to try to disarm or disable the bad guys without smacking them with a stick or shooting them.

There are “rules” of course – Use of Force rules that all law enforcement agencies are supposed to create, teach and follow.  Some cops,though, seem to use Tasers instead of other, less intrusive approaches.  It seems like we’re reading stories every day about “Tasers Gone Wild” – the use of Tasers in situations in which a 50,000 volt jolt may not be called for.

On December 28, 2009, the United States Court of Appeals for the 9th Circuit released an opinion which might change some of that.

The case, Bryan v. McPherson,  arose out of a traffic stop for a seatbelt violation.  Bryan was stopped by McPherson for not wearing a seatbelt.  While standing outside of the car, Bryan was upset.  There is a dispute over whether Bryan took a step towards McPherson, who was some 20 feet away.  McPherson, without warning, pulled out his TASER and shot Bryan.  Bryan fell, hit his face and suffered facial and other injuries.

Bryan sued the officer and the city.  The trial court dismissed some of the counts and ruled that claims against the officer could proceed.  On appeal, the 9th Circuit chose this case to make some strong statements about the use of the Taser.

First, the court very correctly recognized an important point.  Tasers are “non-lethal” weapons, but they are not “non intrusive” weapons.  The use of ANY force by an officer against a citizen MUST be justified.  [“Less than deadly force … may not be used without sufficient reason…”].

In looking at a “Taser” shot the court recognized that the shot delivers an electrical impulse that “… instantly overrides the victim’s central nervous system,paralyzing the muscles throughout the body, rendering the target limp and helpless…”  The court also recognized that “…the tasered person also experiences excruciating paint that radiates throughout the entire body…

In weighing a Taser against other non-lethal force techniques, the court found that tasers are “…a greater intrusion than other non-lethal methods of force ” the court has reviewed.  The “psychological effects, high level of pain and foreseeable risk of personal injury” support this conclusion.  The court held that unlike pepper sprays and less intrusive methods of force, “Tasers” intermediate, significant level of force that must be justified by a “strong government interest that compels the employment of such force.”

The court found that Bryan was not a threat to the officer, that he had no weapons, that he was standing 20-25 feet away from the officer, and that he was not even facing the officer when he was shot as the taser barbs hit Bryan in the side and he fell away from the officer.

The court found no justification for the use of force by the officer.  The “crime” was a minor misdemeanor – a seatbelt violation punishable by a fine.  The court found there was  no substantial governmental interest in using significant force to arrest Bryan for a minor misdemeanor.

The Court held that “…The objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public…”

On appeal, the officer came up with a new twist – the motorist was possibly mentally troubled and might be subject to detention.  Nice try, Officer McPherson, but the 9th Circuit shot that down nicely by noting that it had held in the past the use of force against suspected MENTAL patients must be less than the use of force used to subdue suspected criminals!

Another point the court noted was that there was no warning given by the officer.  He just pulled out the weapon and fired.  The court also noted that officers were required to give some thought to other, less intrusive means.  Here, Officer McPherson apparently gave no thought to the fact that other officers were on the way or that other tactics may have been effective.

The court held that the use of the Taser was excessive in light of the government interests at stake.  While Bryan’s behavior was bizarre, it was not threatening.  He was unarmed, was not fleeing and was not a felon. There was simply no need to subdue Bryan immediately.  As a result, the court concluded that Bryan’s rights under the Fourth Amendment to the U.S. Constitution.

Under the law, even if excessive force was used, the officer will be protected if the use of force was premised on a reasonable belief that the use of force was necessary.    Frequently, there must be a “case” or other incident similar to the one complained of which has already been found to be troublesome.  Here, the court found that where an officer’s conduct SO CLEARLY OFFENDS AN INDIVIDUAL’S CONSTITUTIONAL RIGHTS no prior case need be located.  The court found that “no reasonable officer confronting a situation where the need force is at its lowest —  where the target is a non-violent, stationary misdemeanant twenty feet away — would have concluded that deploying intermediate force without warning was justified.

Great case… we’ll see how that plays out in other circuits!

Steve Magas

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TASING IN THE NEWS

We continue to follow TASER cases.  This one was easy – here in Cincinnati in August a police officer tased a city councilman’s daughter.  The facts are laid out below in an article from the Enquirer.  You can read about it here or down below.

The officer was fired recently, after his “arrest” was thrown out.  The same officer was sued as the result of a 2006 Taser incident – the city paid $65,000 when he tased a woman who had called police because she had locked herself out of her own apartment!

THE ENQUIRER ARTICLE

Officer fired for Tasing incident

For the second time in three years, police officer Anthony Plummer has been fired for excessive use of force while on the job.

The firing comes after top brass in the Cincinnati Police Department said Plummer, 32, was wrong when he took out his Taser and shocked a city councilman’s daughter as she was on her knees with her hands in the air after a traffic stop in August.

Celeste Thomas, the daughter of Cecil Thomas, a former city police officer, was struck by the barbs in the back.

The termination was affective Dec. 7, The Enquirer learned on Monday.

Celeste Thomas was a passenger in her own car which her friend Demetri Washington was driving when he struck a garbage truck early in the morning on Aug. 23 in Mount Auburn.

When Plummer arrived on the scene he was told to keep Thomas in the car. Instead he drew his gun and ordered her to lie on the ground. Thomas complied only partially and was on her knees with her hands in the air asking what she had done wrong when Plummer put his service revolver back in its holster and drew his Taser and deployed it.

Officers are permitted to use Tasers if the person being arrested is deemed a threat or if it is necessary to subdue the alleged offender. In this case, officials with the police department found that Thomas was none of the above.

Thomas was subsequently arrested for having an open container in the car and for obstructing justice. A judge found her not guilty of the obstruction charge and threw out the alleged alcohol violation recently. In October, Washington was found guilty of driving under the influence and resisting arrest.

Plummer, who earned $66,506 in 2008, had his police powers suspended by Chief Thomas Streicher following the August incident.

Plummer is appealing his termination, said Kathy Harrell, the president of the police union.

An arbitrator is required to hear the case.

If history repeats, that could be a windfall for Plummer and a thorn for Streicher who had previously fired Plummer only to have him reinstated 13 months later in 2007.

A 2008 analysis of cases involving police officers and emergency dispatch workers who have lost their jobs over the past decade showed that in 16 of the 18 cases, the officers and workers were hired back after their cases went to arbitration.

Plummer was fired in 2006 after shocking then 35-year-old Daphne Godfrey. Godfrey had called police for assistance after being locked out of her Westwood apartment in May 2006. The otherwise simple police call ended with Godfrey getting shocked by Plummer’s Taser. Plummer was subsequently fired by the chief and Godfrey sued Plummer. The city settled the case and she was awarded $65,000.

An arbitrator sided with Plummer and the city was forced to give the officer his job back

Plummer was also reprimanded in 2004 for pointing his service revolver at a juvenile as he ordered him to move from the street to the sidewalk. Five months later in 2004 he was reprimanded for using foul language with two senior citizens. He was also reprimanded for that.

Thomas’ attorney Carl Lewis said Monday he will be filing a civil suit in federal court by week’s end. Lewis did not want to disclose the amount he will be seeking in damages but had this to say about the 2006 case that ended with a $65,000 settlement:

“This (the 2006 case) is minor league.” He described his possible case as major league.

“She is really humiliated by this,” Lewis said of his client. “She feels like she embarrassed her family and humiliated her community.

“But the bottom line is she never should have been Tased, she never should have been arrested and she never should have been prosecuted.”

During a hearing with police supervisors and witnesses, Harrell, the president of the police union, argued that up until the incident involving Thomas, Plummer has not had any problems with excessive force since he was reinstated in 2007.

Police investigators weren’t sympathetic.

“Officer Plummer apparently does not handle conflict effectively,” wrote Capt. Paul Broxterman in a memo to the chief of police calling for Plummer’s dismissal.

“…Officer Plummer made a conscious decision to act outside of the scope of the Cincinnati Police Department policy, procedure and training when he deployed his Taser at Ms. Thomas. Officer Plummer is resistant to training. He does not apply what he learns in the classroom to real life situations in the field. How can the department put him back on the street with a Taser, baton and firearm when he refuses to acknowledge that his thought process related to using force is flawed? To do so is a huge liability risk to the department, the city and its citizenry.”


BIKE & MOTORCYCLE HELMET LAWS

BICYCLE AND MOTORCYCLE HELMET LAWS IN THE U.S.

While I don’t always see eye-to-eye with the political views and legislative agenda of the Insurance Institute of Highway Safety, I do love their research.  According to the front page of its website IIHS is an “…independent, non-profit scientific and educational organization dedicated to reducing the losses…on the nation’s highways…”

Of course, when you read the fine print you see that the “Insurance” part of the IIHS name means that the money supporting the IIHS comes from the biggest auto insurers in the world.  While this slant may indicate that “reducing losses” means paying less on claims to those who get hurt [you don’t see the IIHS supporting bills to INCREASE pain and suffering awards], it doesn’t change the numbers – only the “spin” when the numbers are whacked around in public!

In the arena of bicycles and motorcycle, the IIHS does strong research on death/injury statistics. It then tinges those numbers with a “Pro Helmet Law” flavoring which I, personally, tend to ignore.  I simply do not feel that the government should be telling us what kind of hat to wear when we go ride our bikes and motorcycles.  The numbers don’t support it – rather, the numbers would indicate that if Kevlar suits and helmets were required for CAR drivers and passengers, they would be a LOT safer… when they pass THAT law, they can tackle the really small problem of bicycle/motorcycle injuries.

The IIHS published an excellent summary of bicycle and motorcycle laws, which is shown below.  You can also go here to read about it up close and personal.

Currently in OHIO there is NO bicycle helmet law.  However, there is one percolating in the Legislature at this very moment.  More on that later.  For now, here’s the IIHS summary of Bicycle and Motorcycle Helmet Laws in the US.

FROM THE IIHS WEBPAGE

Twenty states and the District of Columbia have motorcycle helmet laws that require all riders to wear a helmet. Twenty-seven states have a motorcycle helmet law that only require some riders to wear a helmet. Three states (Illinois, Iowa, and New Hampshire) do not have a motorcycle helmet law.

Low-power cycle (LPC) is a generic term used by IIHS to cover motor-driven cycles, mopeds, scooters, and various other 2-wheeled cycles excluded from the motorcycle definition. While state laws vary, a cycle with an engine displacement of 50 cubic centimeters or less, brake horsepower of 2 or less, and top speeds of 30 mph or less typically is considered an LPC. Twenty-two states have motorcycle helmet laws that cover all low-power cycles. Twenty-five states and the District of Columbia have laws that cover some low-power cycles.

Twenty-one states and the District of Columbia have bicycle helmet laws that require some young bicyclists to wear a helmet. Local law may require helmet use for some or all bicyclists.

State Motorcycle helmets Does the motorcycle helmet law cover all low-power cycles? Bicycle helmets
Alabama all riders yes 15 and younger
Alaska 17 and younger1 yes no law
Arizona 17 and younger some no law
Arkansas 20 and younger yes no law
California all riders yes 17 and younger
Colorado 17 and younger and passengers 17 and younger yes no law
Connecticut 17 and younger yes 15 and younger
Delaware 18 and younger some 17 and younger
District of Columbia all riders some 15 and younger
Florida 20 and younger2 some 15 and younger
Georgia all riders some 15 and younger
Hawaii 17 and younger some 15 and younger
Idaho 17 and younger some no law
Illinois no law no law no law
Indiana 17 and younger yes no law
Iowa no law no law no law
Kansas 17 and younger some no law
Kentucky 20 and younger3 some no law
Louisiana all riders yes 11 and younger
Maine 17 and younger4 some 15 and younger
Maryland all riders some 15 and younger
Massachusetts all riders yes 1–16 (riding with children younger than 1 prohibited)
Michigan all riders some no law
Minnesota 17 and younger5 yes no law
Mississippi all riders yes no law
Missouri all riders some no law
Montana 17 and younger some no law
Nebraska all riders yes no law
Nevada all riders some no law
New Hampshire no law no law 15 and younger
New Jersey all riders yes 16 and younger
New Mexico 17 and younger some 17 and younger
New York all riders some 1–13 (riding with children younger than 1 prohibited)
North Carolina all riders yes 15 and younger
North Dakota 17 and younger6 yes no law
Ohio 17 and younger7 yes no law
Oklahoma 17 and younger some no law
Oregon all riders yes 15 and younger
Pennsylvania 20 and younger8 some 11 and younger
Rhode Island 20 and younger9 some 15 and younger
South Carolina 20 and younger yes no law
South Dakota 17 and younger yes no law
Tennessee all riders yes 15 and younger
Texas 20 and younger10 some no law
Utah 17 and younger yes no law
Vermont all riders some no law
Virginia all riders some no law
Washington all riders yes no law
West Virginia all riders some 14 and younger
Wisconsin 17 and younger11 some no law
Wyoming 17 and younger some no law

We’re living in MAC-ville Now!

Well friends, clients, followers… I was out shopping on Black Friday… my trusty Dell laptop, the one that runs the office, had “blipped” for the second time this year.  Everything was backed up, of course, and the blip was “minor” – according to the Geek Squad, it was “…either a hardware problem or a software problem…”  um… Can you spell “Duh?”

Soooooo… after debating for a few days I took the plunge on Black Friday, with a MAC sale going on.

The Magas Firm has joined the many law firms around the country running on, living in, MAC-ville!  Yes, a 13″ MacBook Pro now holds everything.  What a great machine – it’s actually smaller than the CALENDAR I used to carry around to keep all court appearances logged in correctly.

We’ve spent the past weeks getting the MacBook up and running with all files, documents, photos and the like… and getting the user… me… up to speed on the hardware/software.  Fun stuff!

So, posts here have been off a while, but will start coming fast and furious now!  So Stay Tuned!

The Magas Firm would like to THANK all of our clients, friends, family and colleagues for their patience and cooperation during our very successful start up!  The first six months have been a BLAST and we’re looking to take off in 2010!

Today, I got the BIG BIKE out – the BMW R1150RT – for a brisk run around town.  Thankfully, all heated gear worked perfectly because I haven’t had time to do the math on the 80 mph windchill yet!

Enjoy the holiday season!

Steve Magas

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Bicycle Accidents & Crashes in Ohio – What To Do!!

WHAT TO DO IF YOU ARE IN A BIKE/CAR CRASH

By Steven M. Magas, Ohio’s Bike Lawyer[1]

Is Cycling “Safe?”

Statistically, we know that riding a bike on the roadway is a VERY safe thing.  While there are 30-40,000 motorists who die on our roadways each year, the number of cyclist fatalities has dropped considerably from a high of 1000 or so in the mid-1970s to around 700 in 2008.  While motorcycle and pedestrian deaths are UP, cycling deaths are DOWN despite millions of new riders.

One reason for this decrease in cyclist deaths nationwide, I’m sure, is that the demographics of the “typical” cyclist involved in a fatal crash have totally flip-flopped since 1975.  Back in the 1970’s, MOST cycling fatalities involved kids – people under the age of 16 – which meant that riders were somewhat unpredictable.  There were a lot of “Dart Out” cases where children on bikes would suddenly appear on the roadway after darting out from a driveway.

Today, virtually all cycling deaths involved adults.   In 2008, 86% of all cycling fatalities nationwide involved people OVER the age of 16. Today’s adult riders are more likely to treat operating a bicycle on the roadway the same as driving a car.  They stay in their lane, know the rules of the road and don’t act in stupid or unpredictable ways – most of the time, anyway.

Think about it – how many kids do you see riding their bikes all over town today?  When I was a kid in the early 1970’s that’s what we did.  We left the house in the morning on our bikes and maybe came home for lunch.  We rode our bikes everywhere.  Today, there are many more people in the world and many, MANY more cars.  However, there aren’t all that many new roads.  So, all those new people and new cars are sharing pretty much the same road space that was available to us 30+ years ago.  Traffic DENSITY is way up – there are simply more cars packed in per mile than ever before.  Today, safety concerns, increased traffic and the busy schedules of today’s youth demand that mom and dad DRIVE them around to their appointments.

In addition to this phenomenon, there is an increased interest in fitness in adults today.  In the mid-1970’s the only “older” [i.e., adult] folks you saw riding bikes on a regular basis were the hard-core cyclists.  Today, more and more adults are re-discovering the joy and fun of cycling and adding a fast ride to their fitness regimen.  Trails are well-used and many adult cyclists are taking it to the streets to go fast and stay fit.  You almost NEVER see a bike trail die from lack of use!

So, What Should You Do If You Are In A Crash??

Here are a few tips that can help BEFORE you’ve been in accident.

  • Carry a cell phone. The cell phone can easily be a life saver. All cell phones will make 911 calls even if it doesn’t have active service.   You can also use today’s cell phones to document the scene by taking a LOT of pictures of the scene, the dog or car/bus/truck that got you, your injuries, the address, the dog’s owner, witnesses, etc.
  • Carry Identification & Insurance Information. It’s a good idea to copy your drivers license and then write or type your emergency contact information, health, auto and homeowner’s insurance information, blood type and any medical conditions or allergies that you have on the back. Laminate the copy and keep it on your person when you ride. Also, remember to keep it up to date if there are any changes.   Carrying your health insurance information may seem obvious, but why do you need your auto and homeowner’s info?  Well, your AUTO policy may pay some of your medical bills or even your entire claim if the motorist that hit you is underinsured or you have a lot of out of pocket medical expenses.  Your HOMEOWNER’s policy will protect you if someone says that YOU did something wrong, or negligent, and damaged their person or property!
  • Carry a pen and paper. You may need to exchange information with other people at the accident. Get names and numbers of as many witnesses as possible in case they leave the area before the police arrive.

IF YOU ARE IN A BIKE CRASH…

  • Don’t Move. Many of my clients want to jump up and check on their bikes right away.  Don’t do it.  Just lie there and do a self-assessment.  Have you lost consciousness?  Can you feel/move your arms and legs?  Are you bleeding?  Do you have pain?  Sharp pain? Shooting pain? Be able to describe how you are feeling to paramedics and EMT’s who will arrive.
  • Call 911. Always wait for the police to respond to the accident scene so that an official report will be filed. Do not let anyone talk you out of calling the police.  Many times cyclists do not realize that they have been injured until several hours after the accident. By then, it may be too late to identify the at-fault driver or properly document the crash if you let him/her drive away.  Many drivers who cause accidents will initially apologize and accept blame for the accident at the scene, but later, after they have time to consider the ramifications, will deny that they were negligent. This is particularly true in bicycle crashes.  The police accident report will include the driver’s statements as well as all other witness statements.
  • Seek medical attention. Cyclists tend to be very self sufficient and tough.  Many will try to turn down offers of medical attention.  DON’T DO IT.  Accept help this time.  Let the EMT’s treat you.  This is proof that you were, in fact, injured and the medical records generated by the medical provider will help establish the extent of your injuries.
  • Take Photos.  Take several photos from different angles and lighting of your injuries as soon as possible after the accident.  You can’t have too many photos.  Photograph the scene, the bike, the other vehicle or dog, your wounds.  The grosser and yuckier the better!  If there is a camera at the scene, have someone start taking photos right away, before things get moved around.
  • Keep a Journal. Keep a journal (injury diary) of your physical symptoms starting immediately after the accident and make entries every day.
  • Don’t fix your bike right away. Riders tend to be tinkers and self sufficient.  They want to get back to RIDING and get the bike fixed quickly.  You need to keep your bike and clothing in the condition that it was in after the accident.  Get the property damage assessed by an expert.  Get a report of the damage AND of the “value” of the bike.  Under the law of many states, your property damage recovery cannot be greater than the value of the bike.  Thus, if an insurer says your “used” bike [four year old Paramount] was only “worth” $100.00, they will try to cap your property damage claim at $100.00!  Have a competent professional shop make an independent assessment of your bicycle and gear.
  • Stay Organized. Keep every single piece of paper relating to the crash, your injuries and your recovery organized.  You will need them either in handling the claim or when you meet with an attorney.
  • Call an Experienced BIKE Lawyer. As an avid cyclist and a trial lawyer with 27+ years of experience handling serious injury and death claims, I know the risks cyclists face and understand the complexity of these claims.  A crash can turn your life upside down as you try to get your bike fixed, get your medical bills paid and keep the collectors at bay.  Once hired, a good personal injury lawyer will take care of EVERYTHING related to your claim.  I handle all communications with the obnoxious insurance company, fully investigate the crash and obtain all documents needed to maximize your recovery.  I know what types of arguments insurers usually make in bike crashes and I know how to deal with them.

I hope you never need to implement any of these tips, but it always helps to be prepared. Good Luck and Good Riding!

Steve Magas

The Bike Lawyer

3feetplease


[1] Steven Magas is an avid cyclist and “bike lawyer” with more than 27 years of experience handling personal injury and wrongful death claims.  He has handled more than 200 “bike cases” ranging from $50 traffic tickets to complex cases involving brain injury and death.  Steve’s website [ www.OhioBikeLawyer.com ] contains much “Bicycle Law” information and Steve can be reached for a FREE CONSULTATION about your case at 513-484-BIKE [2453] or at BikeLawyer@aol.com.


Bicycle Christmas Music

A group calling itself The Cycoloists has a pretty unique thing going on.  They make music… using instruments made from their bikes… yea… their bikes… It’s very cool.  You can check them out here doing a jazzed out arrangement of Good King Wenceslas.

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TASER USE vs. MISUSE – This is not a New Problem

Kids these days tend to think they invented everything from Rock n Roll to the Internet, right?  History lessons can be tough to teach when it seems like it all happened SO LONG AGO.  How can that old, old stuff be relevant today?

Taser cases have been in the news a lot recently.  Every day the papers report that police subdued a bad guy with a Taser instead of a club or a gun.  In the vast majority of cases, the police use Tasers appropriately and Tasers present a weapon choice to officers which allows them to potentially subdue the bad guys without close quarters contact and without shooting them or whacking them with a stick.  More and more, though, questions have been raised about the use of the Taser by police – whether it was appropriate or not.  I’ve chronicled a few of these cases in prior posts.

Complaints about Taser use are not new, however, and weren’t invented by today’s generation of kids or cops or reporters.

Tasers are also known as “ECD’s” or Electronic Control Devices.  “Taser” is a brand, like “Kleenex,” that has become synonymous with ECD’s.  It’s become a verb – to “taser” someone is to shoot them with an ECD.  A “taser” is also a noun, defined in Wikipedia to be “… an electroshock weapon that uses electrical current to disrupt voluntary control of muscles …”

Taser International, Inc. is the company that makes the Taser brand of ECD.  You can go to the website here. Like the Kleenex folks and the Xerox folks they take great pains to protect their brand.  They sell their Taser Brand ECD’s for “Consumers” as well as Law Enforcement, Corrections officers, private security firms and the military.

TASER is an acronym, like LASER [“Light Amplification by Stimulated Emission of Radiation” – you knew that, right?].  It reflects an homage to a book, published originally in 1911, called “Tom Swift and his Electric Rifle,” in which the main character constructs a weapon similar to today’s ECD’s.   You can read about it here. In the book the name of the main character was “Thomas A. Swift.”

According to the  “Company Trivia” page of Taser International’s website, “TASER is a registered trademark. The name stems from an acronym created by the original inventor of TASER technology, John H. “Jack” Cover, former chief scientist of North American Aerospace’s Apollo Moon Landing Program. Jack’s favorite book character is Tom Swift of the Tom Swift Series, authored by Victor Appleton in 1910-1941. One of the books, TOM SWIFT AND HIS ELECTRIC RIFLE, inspired Jack to create the acronym TASER.”

The early Taser products were sold to police departments.  I was fortunate enough to be involved in one of the early “Taser” cases – Russo v. City of Cincinnati.

The facts of this case were, in a word, incredible.  I have reprinted the 6th Circuit decision below.  The short story is that in 1987 Tom Bubenhofer was a paranoid schizophrenic who refused to return to the hospital after being allowed out on a 3 hour pass.  Police were called. Tom locked himself in his Clifton apartment near the University of Cincinnati.  Police kicked the door down, “Tasered” him and then began shooting when the Taser was ineffective.  When they kicked in the door, Tom was standing there with kitchen knives in his hand.  As a paranoid schizophrenic he thought they were out to get him – and they were.

Tom shook off the first few Taser shots and ran through a crossfire of bullets, falling down a flight of stairs.  There, police Tasered him again and again, trying to get him to “drop the knife” and give up.  Police testimony was that Tom refused and after several minutes, he tried to come at them up the stairs.  This prompted a volley of gunfire at Tom, driving him back down the steps.  Police said Tom tried to come at them up the stairs again and this time the volley of gunfire killed him.  There was conflicting testimony from a number of witnesses as to what happened and why.

One thing was certain – 23 shots were fired – 22 hit Tom. Tom was also hit with 8 Taser shots.

Suit was filed against the officers and the City.  The trial court dismissed and the 6th Circuit reversed, in part.  The case returned to the trial court where it was settled out of court for a confidential sum.

I was fortunate and privileged to work with Tom’s family.  It was the first civil rights case I had ever handled and one of my first federal court experiences.  Because the drama played out over the course of 15-20 minutes, the press was present at the scene before it was over.  The sound of the final volley of shots are caught on videotape.

Cincinnati Police had a “Barricaded Persons” policy in effect at that time.  An independent review determined without question that this policy was not followed.  There was no need to break the door down when a known paranoid schizophrenic was barricaded inside.  There were 3 officers on the small landing outside Tom’s apartment and one more looking in from a window.

For years I received regular calls on the Russo case from lawyers around the country.  They thought the number of bullets fired was typo!  This case was one of the first cases to look at the use of a Taser in a dramatic setting.  The court determined that the Taser use in this case was appropriate – an appropriate non-lethal use of force.  I don’t disagree.  The problem is that the only reason ANY force had to be used was because Tom’s 4th Amendment rights were violated when police broke down his door and confirmed, in HIS mind, that they WERE out to get him.  Had they followed the Barricaded Persons procedure, Tom might still be alive today.

The Russo case has made a comeback.  Today’s news brings claims almost daily that a Taser weapon was misused by police.  In my case, Patrick v. Lawless, a cyclist is claiming that he was stopped, Tasered, beat with a baton, arrested, jailed and charged with a variety of crimes – all without probable cause.  That case is percolating through the system now.  Some of the issues I argued in Russo, some 17 years ago, will come up again today.

The Russo case is set forth in full below.

Steve Magas

==========================

RUSSO V. CITY OF CINCINNATI

Holding: Officers use a Taser on a knife-wielding, mentally impaired, and suicidal person. When that is ineffective, they shoot him twice and he later died. The court said, “Although in hindsight his choice proved tragic, we cannot say that [the] use of non-lethal force to subdue a potentially homicidal individual transgressed clearly established law. … Although … subsequent firings of the Taser present a closer question than [the] initial use of the Taser, we note again that his actions were intended to avoid having to resort to lethal force. … We conclude, therefore, that [the defendant] was entitled to qualified immunity in his use of the Taser and, accordingly, reverse the district court’s denial of summary judgment.” Russo v. Cincinnati, 953 F.2d 1036 (6th Cir. 1992).

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Karen S. Russo, et al.,

Plaintiffs-Appellees, Cross-Appellants,

v.

City of Cincinnati, et al.,

Defendants, Cross-Appellees,

Richard Sizemore,

Defendant-Appellant.

Nos. 90-3432/3936

953 F.2d 1036

1992 U.S. App. Lexis 437

August 8, 1991, Argued

January 15, 1992, Decided

January 15, 1992, Filed

Corrected January 27, 1992.

From the United States District Court for the Southern District of Ohio.

JONES and SUHRHEINRICH, Circuit Judges; and WELLFORD, Senior Circuit Judge. [*1039]

JONES, Circuit Judge, delivered the opinion of the court, in which WELLFORD, Senior Circuit Judge, joined as to parts I and II. WELLFORD, Senior Circuit Judge (pp. 22-25), also delivered a separate concurring opinion as to part III. SUHRHEINRICH, Circuit Judge (pp. 26-28), delivered a separate opinion, concurring in part and dissenting in part.

JONES, Circuit Judge.

On January 6, 1988, plaintiffs-appellees, the estate and family of Thomas Bubenhofer, filed a complaint seeking relief under 42 U.S.C. § 1983 (1988) against defendants-appellants, Police Sergeant Richard Sizemore, Police Officer Robert Burch Scholl, Police Specialist Sandra Lemker, and the City of Cincinnati for the shooting death of Thomas Bubenhofer. The plaintiffs alleged three theories of recovery: (1) that the officers’ warrantless entry into Bubenhofer’s apartment violated his constitutional rights; (2) that the officers’ use of force was excessive; and (3) that the City of Cincinnati’s (“City’s”) failure to train adequately its officers proximately caused these deprivations of Bubenhofer’s rights.

On April 16, 1990, the district court granted summary judgment for the City on the failure to train claim and for Lemker and Scholl on the excessive force claim. The court also granted summary judgment on the unlawful search claim but denied summary judgment as to Sizemore on the excessive force claim. In the present action, Sizemore appeals the district court’s denial of summary judgment on the claim of excessive force, and plaintiffs appeal the grant of summary judgment as to all other defendants and claims. For the reasons that follow, we affirm in part and reverse in part.

I.

On February 6, 1987, Cincinnati police officers shot thirty-seven-year-old Thomas Bubenhofer. Bubenhofer died the next morning as a direct result of the shooting.

Prior to the shooting, Bubenhofer had been under the occasional care of physicians at the Rollman Psychiatric Institute (“RPI”) and was diagnosed a paranoid schizophrenic. On February 6, 1987, RPI granted Bubenhofer a two-hour leave pass. Bubenhofer was picked up from RPI by his sister Karen Russo at approximately 11:45 a.m., who took him to his apartment at 323 Terrace Avenue in Cincinnati, Ohio. Soon thereafter, Bubenhofer stated he did not wish to return to RPI and left the apartment. Russo reported his actions to RPI, which immediately notified the Cincinnati Police Department. The Department, in turn, broadcast over police radio that Bubenhofer was a walk-away from RPI who was “suicidal, homicidal, and a hazard to police.” J. A. at 712.

At approximately 7:30 that evening, Russo and her brother, Don Bubenhofer, returned to Thomas Bubenhofer’s apartment. Dennis Bauer, the building manager, unlocked the apartment door for Russo and Don Bubenhofer, who saw a figure under the bedcovers in the bedroom they assumed was Thomas. The three then left the apartment and called the Cincinnati Police for assistance in returning Thomas Bubenhofer to RPI.

Officer Scholl arrived at the apartment at 7:52 p.m., followed soon thereafter by Officers Lemker and Sizemore. All three officers had heard the police broadcast on [*1040] Bubenhofer and were therefore aware that Bubenhofer was potentially dangerous. After being told by Russo that Bubenhofer was alone in his apartment and did not have a gun, the three officers entered the apartment building, followed by Russo, Bauer, and Don Bubenhofer. Sizemore carried a Taser, and all three officers were armed with service revolvers. n1 Placing themselves on the landing outside of Thomas Bubenhofer’s apartment door, the officers notified Bubenhofer of their presence and asked him to open the door. He replied that he wanted to be left alone and threatened to kill anyone who entered the apartment.

Officer Alan March arrived at 7:57 p.m. and took up a position outside the  building near a window looking into Bubenhofer’s illuminated apartment. March reported by radio that the apartment door was blocked by a couch, and that Bubenhofer was holding the lock bolt with a pair of pliers to prevent the opening of the door with a key. March also reported that Bubenhofer had two butcher knives on a table nearby. At the request of one of the officers, Bauer attempted to open the door with a pass key, but was unsuccessful. The officers attempted to have March distract Bubenhofer from the door so that they could open it. This also proved fruitless. At one point, a conversation involving provoking language took place between the officers and Thomas Bubenhofer.

Suddenly, Bubenhofer opened the door to his apartment and stood in the doorway. He held a knife in each hand with the blades pointed at the officers. Officers Lemker and Scholl drew their revolvers and told Bubenhofer to drop the knives. Bubenhofer stood silently in front of them for a number of seconds, then quickly closed the door.

After Don Bubenhofer objected to the officers’ show of force, he, Russo, and Bauer were ordered to leave the building. Without the officers’ knowledge, Bauer concealed himself on a landing immediately inside the entrance door to the building and a few steps lower than the landing outside Bubenhofer’s apartment.

Following the removal of Russo and Don Bubenhofer, Thomas Bubenhofer continued to make threats against the officers. Defendants also contend that Bubenhofer at this point threatened to take his own life, a claim that both Russo and Bauer dispute. Moments later, the apartment went dark and Bubenhofer fell silent.

At this point, Sizemore decided to force the apartment door, which swung open approximately four to six inches. Within moments, Thomas Bubenhofer fully opened the door. According to Sizemore, Bubenhofer stood just inside the doorway, holding a knife in each hand in essentially the same position as in his first encounter with the officers. Bauer, however, testified that from his vantage point below the landing, Bubenhofer appeared to be in a crouched position, resting on the backs of his heels.

Upon seeing Bubenhofer, Sizemore fired a Taser dart. The dart struck Bubenhofer’s midsection, and he began to shake and falter. Bubenhofer then appeared to shake off the effects of the Taser, whereupon Sizemore fired a second dart. Again Bubenhofer appeared stunned. Once again, however, Bubenhofer overcame the effect of the Taser and rushed toward Sizemore, both knives pointed at him. Officers Lemker and Scholl immediately fired their revolvers several times at Bubenhofer, who lurched into Sizemore and then fell down six or seven steps to a small landing by the front door of the building. At this point, Bubenhofer was lying at the bottom of the stairwell holding one knife, and the officers stood on the landing above him.

The officers repeatedly asked Bubenhofer to drop the knife. They also told him [*1041] they had help for him, and that they would send him to a hospital.

According to defendants, Bubenhofer managed to get up, whereupon Sizemore fired another Taser dart, hitting Bubenhofer in the face. Although it seemed to have some initial effect, Bubenhofer again appeared to shake off its effects, at which point Sizemore fired a fourth dart at Bubenhofer. The officers claim  that Bubenhofer then charged up the steps at them, knife in hand. Lemker and Scholl fired their revolvers several times. Bubenhofer fell back down the steps. He remained conscious and still had a knife in one hand.

Again the officers sought to persuade Bubenhofer to drop the knife. At one point, Bubenhofer put down the knife, then picked it back up. The officers claim that soon thereafter, Bubenhofer again stood up and began to come up the stairs, knife in hand, at which point all three officers fired at Bubenhofer. Bubenhofer fell back down to the bottom of the stairs. Plaintiffs deny that Bubenhofer ever stood up or charged towards the officers, relying upon the testimony of Robert Kean, a neighbor who witnessed some of the incident, apparently from his house looking through a window onto the stairway.

After the third round of shots, Bubenhofer lay still, at which point a rescue unit entered. Thomas Bubenhofer was taken to a nearby hospital, where he died at 1:25 a.m. He had been shot a total of twenty-two times.

On September 25, 1987, the Cincinnati Office of Municipal Investigation filed a report stating that Sizemore did not follow proper police procedure in that (1) he should have considered Bubenhofer a “barricaded person” within the meaning of section 12.175 of the Cincinnati Police Division Procedure Manual (“C.P.D.P.M.”) and accordingly requested the assistance of a S.W.A.T. team, and (2) that Sizemore’s use of the Taser did not comport with section 12.546 of the C.P.D.P.M., which states in relevant part: “Officers should obtain sufficient back-up prior to using the Taser to control the suspect. Personnel should be deployed in such a manner that would enable them to use other appropriate means to subdue the suspect if the Taser is ineffective.” J.A. at 381. The report concluded that “any reasonable person would conclude that Tom Bubenhofer should have been considered a barricaded person and if forced into a confrontation would respond violently.” Id.

The report also concluded that the use of the revolvers by the officers was justified by the need for self-defense. Finally, the report concluded that, based on interviews with the officers, “recruit training regarding the mentally ill appears inadequate, in-service training is virtually non-existent and although the police division procedure manual is specific regarding the operational aspects such as dealing with barricaded person, there are no procedures or methods for interviewing mentally ill individuals.” Id. at 384.

The district court granted summary judgment for all three officers On plaintiffs’ claim that breaking into Bubenhofer’s apartment violated the Fourth Amendment’s proscription against unreasonable searches, concluding that exigent circumstances existed justifying the officers’ actions. The court granted summary judgment to Lemker and Scholl on the excessive force claim, finding their use of firearms justified. The court granted summary judgment to the City on plaintiffs’ failure-to-train claim, finding that plaintiffs were unable to show “deliberate indifference” to officer training. Finally, the court denied summary judgment to Sizemore on the claim that his use of the Taser constituted excessive force.

II.

We review a district court’s grant of summary judgment de novo.  Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir. 1990), cert. denied, 112 L. Ed. 2d 310, 111 S. Ct. 345 (1990). We also adopt the standard set forth in  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (cited with approval in Curry v. Vanguard Ins. Co., 923 F.2d 484, 485 (6th Cir. 1991)), which held that, in a motion for summary [*1042] judgment, “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The standard of review in any given case, however, turns in part on the underlying substantive dispute, as “the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.” Id.

To successfully state a claim under 42 U.S.C. § 1983, a plaintiff must identify a right secured by the United States Constitution and the deprivation of that right by a person acting under color of state law.  West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). The plaintiffs here assert two claims against the police officers as individuals: (1) that the breaking down of Bubenhofer’s door without a warrant constituted an unlawful search in violation of the Fourth Amendment; and (2) that the officers’ “tasering” and shooting of Bubenhofer constituted an excessive use of force. In response, all three officers assert qualified immunity.

Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), established that police officers enjoy qualified immunity from suits brought under § 1983. In Harlow v. Fitzgerald, 457 U.S. 800, 816-18, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), the Court eschewed a subjective qualified immunity. standard and held instead that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986), extended the rule articulated in Harlow to hold that police officers are entitled to qualified immunity unless, “on an objective basis, it is obvious that no reasonably competent officer would have concluded that [the conduct was lawful]; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.”

The Court’s most recent major pronouncement on the law of qualified immunity as it relates to police officers stands in Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). The Anderson Court faced a plaintiff who had successfully argued at the appellate level that the “clearly established law” violated in his case was the Fourth Amendment’s proscription of illegal searches and seizures. In reversing the appellate court’s determination, the Court stated two important principles of law.

First, noting that the operation of the qualified immunity standard “depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified[,]” the Court held that, in order for a plaintiff to make a successful claim, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 639-40. Although it need not be the case that “the very action in question has previously been held unlawful, . . . in the light of pre-existing law the unlawfulness must be apparent.” Id. at 640 (cited with approval in Danese v. Asman, 875 F.2d 1239, 1242 (6th Cir. 1989), cert. denied, 494 U.S. 1027, [*1050] 110 S. Ct. 1473, 108 L. Ed. 2d 610 (1990)).

Second, while reaffirming that a subjective inquiry has no place in the qualified immunity analysis, the Court clarified that the reasonableness of the officer’s action must be evaluated in light of the information that the defendant officer possessed at the time of the act, thus often requiring an “examination of the information possessed by the. . . officials.” Id. at 641.

In light of Anderson, we have addressed the standard for determining whether the law in a given area is clearly established to a degree sufficient to rebut a claim for qualified immunity, and have held that,

in the ordinary instance, to find a clearly established constitutional right, a district [*1043] court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law. For the decisions of other courts to provide such “clearly established law,” these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.

Ohio Civil Serv. Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988).

When a claim to qualified immunity is raised within the context of a motion for summary judgment, the non-movant must allege facts sufficient to indicate that the act in question violated clearly established law at the time the act was committed. See Dominque v. Telb, 831 F.2d 673, 677 (6th Cir. 1987) (holding that plaintiff is obliged to present facts that, if true, would constitute violation of clearly established law). Thus, the plaintiff must effectively pass two hurdles when facing a defendant on summary judgment who claims qualified immunity. First, the allegations must “state a claim of violation of clearly established law.” Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). Second, the plaintiff must present “evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.” Id. At the summary judgment stage, whether the legal violation alleged was clearly established at the time of the incident, as well as whether a genuine issue of material fact exists as to whether the alleged violation occurred, are questions of law for the court.  Dominque, 831 F.2d at 677.

A. Search and seizure claim.

In granting summary judgment to all three officers on the claim that forcing open Bubenhofer’s apartment door constituted an unreasonable search in violation of the Fourth Amendment, the district court found that “on an objective basis and as a matter of law these officers could have reasonably believed that a search of the apartment was lawful, to prevent suicide and return [Bubenhofer] to RPI.” J. A. at 25.

Under prevailing Supreme Court precedent, police officers must either have probable cause or exigent circumstances must exist before a warrantless, forcible entry into a private residence may be made for search or felony arrest purposes.  Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). We have recently clarified that “the exigent circumstances  exception relies on the premise that the existence of an emergency situation, demanding urgent police action, may excuse the failure to procure a search warrant.” U.S. v. Radka, 904 F.2d 357, 361 (6th Cir. 1990). This court reviews de novo the district court’s legal conclusions with respect to the issue of exigency. Id.

At the time of Sizemore’s entry, it is uncontested that Sizemore understood: (1) that Bubenhofer was mentally disturbed; (2) that Bubenhofer had two large knives in his possession; (3) that the police radio transmission had described Bubenhofer as “suicidal”; and (4) that immediately before Sizemore forced open the door, Bubenhofer had turned out the lights and fallen silent. Taken together, we find that these uncontroverted facts may have led Sizemore to believe that Bubenhofer was in danger of committing suicide, thus convincing him that immediate entry into the apartment was necessary.

Plaintiffs counter that Sizemore’s actions were nevertheless unreasonable, particularly in light of a department policy that officers request S.W.A.T. assistance when confronted with “barricaded” person such as Bubenhofer. Whether Sizemore acted unreasonably is, we believe, a close question. Where qualified immunity is asserted, however, the reasonableness of an officer’s actions is only one part of the inquiry. To prevail, plaintiffs must also show that, under clearly established law, exigent circumstances did not exist such as to justify the officers’ forcible entry into Bubenhofer’s [*1044] apartment, and that Sizemore reasonably should have known this. Plaintiffs fail to cite a single case indicating that an officer’s attempt to rescue what that officer believes to be a suicidal person does not constitute exigent circumstances, nor are we aware of such precedent. Although the fact that Sizemore may have violated established police procedure certainly makes our task more difficult, the Supreme Court has indicated that the violation of established procedure alone is insufficient to overcome a qualified immunity claim.  Davis v. Scherer, 468 U.S. 183, 194, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984) (holding that officials sued for constitutional violations do not lose qualified immunity simply because their actions violate statutory or administrative procedure).

We conclude, therefore, that the district court properly granted summary judgment against plaintiffs on the illegal search and seizure claim.

B. Excessive force claims.

The use of excessive or unreasonable force by police officers in the exercise of their authority gives rise to a § 1983 cause of action.  Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). In Graham v. Connor, 490 U.S. 386, 388, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), the Supreme Court held that excessive force claims are to be analyzed under the Fourth Amendment’s reasonableness standard rather than under the Due Process Clause of the Fourteenth Amendment. The Court further clarified that the reasonableness inquiry in an excessive force action is an objective one, which should disregard the underlying intent or motivation of the defendant. To determine whether exigent circumstances exist, a court should look to the “facts and circumstances of each articular case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Id. at 396; see also Lewis v. City of Irvine, 899 F.2d 451 (6th Cir. 1990) (embracing the analysis in Graham); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988) (“Our court has repeatedly found that a totally  gratuitous blow with a policeman’s nightstick may cross the constitutional line . . .”). Plaintiffs advance three distinct excessive force claims. We review the claims seriatim.

1. The initial use of the Taser.

At the time of Sizemore’s initial use of the Taser, Bubenhofer stood facing the officers a few feet within his apartment doorway with a knife in each hand. Sizemore knew that Bubenhofer was potentially homicidal and suicidal.

Plaintiffs rely on the testimony of Bauer to contend that Bubenhofer in no way threatened the officers prior to the initial discharge of the Taser, and to suggest that Bubenhofer may have even been sitting on the backs of his heels at this point. Furthermore, plaintiffs point out that Sizemore’s use of the Taser violated official policy, because section 12.546 of the C.P.D.P.M. states in relevant part that “officers should obtain sufficient back-up prior to using the Taser to control the suspect. Personnel should be deployed in such a manner that would enable them to use other appropriate means to subdue the suspect if the Taser is, ineffective.”

Our review of the uncontested facts, however, leads us to conclude that, although plaintiffs’ allegations may raise a genuine issue of material fact as to whether the use of the Taser was reasonable, plaintiffs have failed to show that clearly established law at the time of the incident declared such actions unconstitutional, or that an officer in Sizemore’s position would reasonably have known that his conduct transgressed constitutional law. Sizemore was aware that Bubenhofer was armed with knives, that he had made a number of threatening statements to the officers, and that RPI considered him potentially homicidal. The uncontested record indicates that Sizemore deployed the Taser in an effort to obviate the need for lethal force. Although in hindsight his choice proved tragic, we cannot say that Sizemore’s use [*1045] of non-lethal force to subdue a potentially homicidal individual transgressed clearly established law. We therefore conclude that the district court erred in refusing to grant summary judgment to Sizemore with respect to plaintiffs’ claim that the initial use of the Taser constituted excessive force.

2. The subsequent use of the Taser.

The district court found, and all the parties agree, that Sizemore fired the Taser at Bubenhofer while he lay at the bottom of the stairwell, that the dart struck Bubenhofer in the face, and that at this point Bubenhofer posed no immediate threat to the officers. The district court reasoned that “it should have been clear [to Sizemore] after its first use under an objectively reasonable standard that the use of the Taser gun effectively escalated the incident instead of preventing a suicide or inducing Thomas Bubenhofer to surrender.” J.A. at 28-29. The court thus held that, “applying the objective reasonableness test, the Court cannot conclude that the further use of the Taser by Sizemore . . . was objectively reasonable. . . . Thus, this Court cannot declare that Sizemore is immune from suit in this regard as a matter of law.” Id. at 32.

We suspect that the district court may have misapprehended the qualified immunity inquiry. As discussed above, the issue is not simply whether Sizemore acted in a reasonable manner, but also whether his actions violated clearly  established law, and whether an officer in Sizemore’s position would reasonably have known that his conduct was illegal. Although Sizemore’s subsequent firings of the Taser present a closer question than his initial use of the Taser, we note again that his actions were intended to avoid having to resort to lethal force. While Sizemore’s later uses of the Taser, after its initial ineffectiveness, might appear questionable, we cannot conclude that they constituted a show of excessive force. We conclude, therefore, that Sizemore was entitled to qualified immunity in his use of the Taser and, accordingly, reverse the district court’s denial of summary judgment.

3. The use of deadly force.

We have recently had occasion to reaffirm that, under this court’s clearly established precedent, a person has “a right not to be shot unless he [is] perceived to pose a threat to the pursuing officers or others.” Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988) (citing with approval Garner v. Memphis Police Dep’t, 710 F.2d 240, 246 (6th Cir. 1983), aff’d and rem’d sub nom. Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985)).

Bubenhofer was shot a total of twenty-two times by officers Lemker, Scholl, and Sizemore, even though he was armed only with knives. In addition, plaintiffs raise a genuine issue of fact as to whether, in the second and third round of discharges of the officers’ revolvers, the officers may have shot Bubenhofer even though he posed no serious threat of physical harm. Finally, the record suggests that some ten to twelve minutes elapsed between the second and third series of shots, during which time Bubenhofer apparently dropped his knife. Given the current state of the record, we believe that a reasonable jury might conclude that the officers’ repeated use of their revolvers violated this court’s clearly established precedent on the use of deadly force. Therefore we find that summary judgment at this juncture was unwarranted.

Accordingly, we reverse the district court’s grant of summary judgment as to all three officers with respect to the shooting of Bubenhofer.

III.

As a final matter, plaintiffs allege that the City’s failure to train adequately its police officers in the proper exercise of force on mentally disturbed individuals constitutes deliberate indifference to the rights of such persons.

The most recent pronouncement by the Supreme Court in the area of municipal liability in the § 1983 context is City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). In City of Canton, the plaintiff, who had been [*1046] brought to the local police station by officers and thereafter slumped to the floor on two occasions, brought a § 1983 action against the city for failure to train its officers in recognizing when a person in their custody is in need of medical assistance. Pursuant to municipal regulations, shift commanders at the station were authorized to determine, in their sole discretion, whether a detainee required medical care. Shift commanders were provided with only first-aid training. Id. at 382. The Court held that

the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. . . . Only where a failure  to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality — a ‘policy’ as defined by our prior cases — can a city be liable for such a failure under § 1983.

Id. at 388-89.

In explicating its conception of “deliberate indifference,” the Court added:

The issue in a case like this one . . . is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent ‘city policy.’ It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. Id. at 390.

To establish liability under City of Canton, “the plaintiff must prove . . . that the training program at issue is inadequate to the tasks that officers must perform; that the inadequacy is the result of the city’s deliberate indifference; and that the inadequacy is ‘closely related to’ or ‘actually caused’ the plaintiff’s injury.” Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989) (citing City of Canton). Finally, we note that the City, unlike the individual officers in this case, is not entitled to any level of immunity; if the plaintiffs offered evidence that the training was inadequate within the meaning of City of Canton, then summary judgment was inappropriately granted.

The district court denied plaintiffs’ claim against the city for failure to train police officers on the basis of the following evidence:

The City of Cincinnati offers extensive training to its officers in the area of Human and Public Relations. It also offers a 6-7 hour training seminar to its officers entitled Disturbed-Distressed Persons. In addition, the Cincinnati Police Division Procedure Manual (CPDPM) provides guidance to officers in the handling of mentally-ill individuals and potential suicides. The record indicates that the Defendant officers had participated in the above offered training sessions.

J. A. at 34.

Plaintiffs contend that a genuine issue of material fact remains as to whether the offered training is adequate as a matter of law. First, plaintiffs point out that, although the officers conceded that they were frequently called upon to deal with mentally and emotionally disturbed and disabled individuals, none were able to give specific responses as to the content of their training. Plaintiffs also point to the Office of Municipal Investigation report of the Bubenhofer incident, which concluded:

Based on the testimonies [sic] of Sizemore, Lemker and Scholl, recruit training regarding the mentally ill appears inadequate, in-service training is virtually non-existent and although the police division procedure manual is specific regarding the operational aspects such as dealing with barricaded persons, there are no procedures or methods for interviewing mentally ill individuals or techniques for recognizing the mentally ill. Id. at 384.

Finally, plaintiffs offer the testimony of George L. Kirkham, Ph.D., an expert in [*1047] police procedures. His review of the training offered by the City to police officers led him to conclude that

none of the involved police personnel understood the appropriate procedures for reacting to mentally ill individuals, . . . a failing which must inevitably be linked to deficient training. Notwithstanding the apparent fact that Sergeant Sizemore as well as Officers Lemker and Scholl had nominally received such training from the available case records, the conclusion is ineluctable that it was not of such a nature as would assure a proper understanding and appropriate response to a situation of this sort.

Id. at 425. We hold that plaintiffs have offered sufficient evidence to suggest that the training program for police officers offered by the City with respect to the use of force on mentally disturbed persons is constitutionally inadequate, that this inadequacy results from the City’s deliberate indifference to the rights of such persons, and that this inadequacy may have directly resulted in Bubenhofer’s death.

The City would have us disregard the “conclusory” statements of Kirkham, and argue in the alternative that, regardless of Kirkham’s testimony, the simple fact that the officers had received some training in a course entitled “Disturbed-Distressed Persons” and that the Department had a policy of handling barricaded persons requires us to find that the training was adequate as a matter of law. To this we cannot agree.

As an initial matter, we do not believe the opinions of experts are to be given no weight by this court, as the City apparently urges. Especially in the context of a failure to train claim, expert testimony may prove the sole avenue available to plaintiffs to call into question the adequacy of a municipality’s training procedures. To disregard expert testimony in such cases would, we believe, carry with it the danger of effectively insulating a municipality from liability for injuries resulting directly from its indifference to the rights of citizens. Reliance on expert testimony is particularly appropriate where, as here, the conclusions rest directly upon the expert’s review of materials provided by the City itself.

Similarly, we find the fact that the City offered a seven-hour course entitled “Disturbed-Distress Persons” insufficient in and of itself to shield the City from liability. Just as in City of Canton, where the officers were trained in an area that nominally addressed the needs of the relevant class of persons, but where the content and adequacy of that training was in dispute, we find that the City has not established that there exists no genuine issue of material fact as to the adequacy of the City’s training. Although plaintiffs concede that the officers received the amount of training cited by the district court, they dispute that the content of the training was adequate. The City comes forth with no evidence to refute Kirkham’s conclusion that the content of the training offered was inadequate. To uphold summary judgment to the City on this issue would, we believe, necessarily rest on the rule that a municipality may shield itself from liability for failure to train its police officers in a  given area simply by offering a course nominally covering the subject, regardless of how substandard the content and quality of that training is. We do not believe that this is, or should be, the state of the law.

Finally, we disagree that the mere fact that the City had a policy of dealing with barricaded persons constitutes conclusive proof that it was not deliberately indifferent to the rights of individuals in Bubenhofer’s position. We find instructive this court’s holding in Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir.  1989) cert. denied, 495 U.S. 932, 110 S. Ct. 2173, 109 L. Ed. 2d 502 (1990), where we found “more than sufficient evidence” of a policy of deliberate indifference to the rights of paraplegic prisoners where the plaintiff and at least fourteen other disabled prisoners received poor care while imprisoned.  Id. at 1248. In Leach, we found that a municipality could be held liable for the deliberate indifference of its sheriff, despite the fact that the sheriff was required by statute to provide adequate care to all prisoners: [*1048]

Given the district court’s finding of deliberate indifference by the Sheriff in that at least 14 other paraplegics had received similar deplorable treatment, it is fair to say that the need for more adequate supervision was so obvious and the likelihood that the inadequacy would result in the violation of constitutional rights was so great that the County as an, entity can be held liable here for the extent of [plaintiff’s] . . . damages. Id.

In the case at bar, plaintiffs have offered sufficient evidence to raise a genuine issue of material fact as to whether the training offered by the City to its police officers on the use of force in handling mentally and emotionally disturbed individuals falls to the level of “deliberate indifference” under City of Canton. We therefore reverse the district court’s grant of summary judgment to the City on plaintiffs’ failure to train claim.

IV.

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to Officer Sizemore on the search and seizure claim, but REVERSE the denial of summary judgment to Sizemore on use of the Taser, REVERSE the grant of summary judgment to Officers Lemker, Scholl, and Sizemore on the use of lethal force, REVERSE the grant of summary judgment to the City on the failure to train claim, and REMAND for further proceedings consistent with this opinion.

Note to main opinion:

1 The term “taser” refers to an electronic device used to subdue violent or aggressive persons. It is classified as a firearm by the federal government. The Taser is a battery-charged unit approximately the size and appearance of a flashlight. It holds two cartridges, each containing a hooked barb, or dart, attached to the cartridge by a long, electricity-conducting wire. Each dart can be fired independently by depressing the corresponding lever located on the frame of the Taser. By continuing to press on the lever, a high voltage electrical current is transmitted through the wire to the target.

Concurring Opinion

WELLFORD, Senior Circuit Judge, concurring:

I am fully in accord with Judge Jones with respect to parts I and II of his opinion.

While concurring as to part III, I feel it appropriate to emphasize the narrow area of liability of the municipality on a claim of a failure to train adequately its police officers in dealing with unstable or mentally incompetent persons under the circumstances of this case. We have decided that the individual police officer defendants have qualified immunity with respect to the warrantless entry. The City incontestably also has a “barricaded person”  policy that applies in this type of situation. It is, therefore, clear on this record that the City may not be held liable on the warrantless entry claim because we have concluded that the exigent circumstances warranted the entry in this particular case. The officers harbored an objective and reasonable belief of potential suicide or serious harm being self-inflicted by Bubenhofer. The City may not, therefore, be liable on the seizure or entry claim based on a failure to train.

Nor can the City be liable for the defendant officers’ use of the taser weapon. It is clear that the taser was designed to be used in this type of circumstance: to stun and to disable temporarily rather than to inflict more serious or more permanent injury. We have found it objectively reasonable to have used the taser under the circumstances confronting the officers. The City cannot be held liable, therefore, on the claim relating to the initial or subsequent use of the taser.

There remains the claim, dealt with in part III of the majority opinion, that the City allegedly failed to train its police force adequately in the proper use of force on mentally disturbed individuals. The remaining area of liability is confined to the actions of the officers, if inadequately trained within the meaning of applicable law, after Bubenhofer was drawn out of the apartment, weapon or weapons in hand, confronting the police officers on the scene. We have held that as a matter of summary judgment the officers were not entitled to qualified immunity in the repeated use of their pistols at short range upon Bubenhofer.

It seems to me that we can hold the City likewise not entitled to summary judgment in connection with this portion only of plaintiffs’ claims. This essentially involves the issue whether the City has trained its police officers properly in the use of deadly force within the meaning of Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). Here, the officers confronted an apparently violent individual, drawn out of his apartment involuntarily, [*1049] who threatened them with apparent immediate and serious bodily harm. The only factor making this case different from the numerous excessive force cases since Garner (see, e.g., Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir. 1988), is that the subject of the police action here was known to be mentally disturbed.

The Court in City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989), limited the application of the “failure-to-train” theory of recovery to cases “‘where the failure to train amounts to a deliberate indifference to the rights of persons with whom the [officers] come in contact.’” Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990) (quoting Harris, 489 U.S. at 388). It is only when this failure to train amounts to a “deliberate indifference” that such a failure can be said to be a “policy or custom,” as defined by prior cases, that is actionable against a municipality under § 1983. Harris, 489 U.S. at 389.

Inadequate training may amount to a municipal policy only if “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [municipality] can reasonably be said to have been deliberately indifferent to the need.” Id. at 388-89 (emphasis added). In order to hold the City liable, the factfinder would have to find that the inadequacy of training was so likely to result in the constitutional injury to mentally  ill persons, that the City’s policymakers could be deemed to be callous and indifferent to the need for training in that area. I would add as a caveat in this type of case that it is not enough that an officer may be unsatisfactorily or insufficiently trained, because an inadequate training program may not necessarily be a proximate cause of the officer’s deficiency in handling a particular emergency or confrontation. In any event, plaintiff must carry the heavy burden of proving the City’s alleged policy of deliberate indifference and that the deficiency, if any, was a proximate cause of the death.

Dr. Kirkham, plaintiffs’ expert, testified that the police officers did not know the appropriate procedures for this type of situation, and that this failing must have been “linked to” inadequate training. In my view, to maintain plaintiffs’ claim against the City, plaintiffs must make a stronger showing than this. The Office of Municipal Investigation report, concluding that the training was inadequate based on the testimony of the officer-defendants, also concluded that training was virtually non-existent. The City, however, showed that it held a 6-7 hour seminar on how to deal with disturbed persons and engaged in extensive training in the area of human and public relations.

I agree with the majority opinion that this conflicting evidence presents an issue of material fact that requires the reversal of the district court’s grant of summary judgment to the City but only in one aspect of plaintiffs’ excessive force claim.

I would add that I am not sure that, under the circumstances of this violent confrontation, the factor of mental illness is a consideration. Whether one in Bubenhofer’s position were deranged, drunk, under the influence of drugs, or merely angry and upset for unknown reasons may not be material. The question is whether the City adequately trained these officers to use potentially deadly force in confronting this general type of situation. I find this issue, like the others, close and difficult under the circumstances, but I opt to give plaintiff the benefit of doubt in this regard.

I concur in reversing the grant of summary judgment to the City in the limited respect indicated. I concur otherwise, without reservation, in parts I and II.

Dissenting Opinion

SUHRHEINRICH, Circuit Judge, Concurring in part and dissenting in part. I concur in the court’s opinion as to Parts I and II. However, I dissent from Part III, dealing with municipal liability for inadequate training.

The majority opinion correctly recognizes that claims of inadequate training brought under 42 U.S.C. § 1983 are governed by City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). Harris set forth three elements that must be proven to hold a municipality liable for inadequate training: (1) the training must, in fact, be inadequate; (2) the inadequacy must result from the municipality’s deliberate indifference; and (3) the deliberate indifference must be closely related to or cause the constitutional violation complained of.  Id. at 388-90; accord Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).

In determining whether the training program was adequate, the focus must be on the program itself, not on whether a particular officer was adequately  trained. Harris, 489 U.S. at 390-91. In support of its finding of sufficient evidence of inadequate training the majority improperly relies upon such officer-specific evidence. The majority relies on the appellants’ submission that Officers Sizemore, Lemker, and Scholl “were [not] able to give specific responses as to the content of their training.” This is precisely the sort of evidence that the Supreme Court regards as “say[ing] little about the training program or the legal basis for holding the city liable.” Id. at 319.

Similarly, the expert testimony of Dr. Kirkham is of no evidentiary value in the instant case. Dr. Kirkham makes no specific findings regarding the program itself. Instead, he engages in the wild speculation that because the officers did not understand the appropriate procedures, the training program must be inadequate. This conjecture involves a leap that the Supreme Court has specifically forbidden. Id. at 390-91 (mere fact that a particular officer is inadequately trained is not sufficient as it might be that a sound program is occassionally negligently administered). Dr. Kirkham’s conclusion is based solely on the conduct and circumstances of the particular officers involved in the instant case. To be evidence upon which a finding of inadequacy may be based, the conclusion must be based on specifically perceived shortcomings of the training program itself. [d1]

Finally, the appellants rely on the City of Cincinnati Office of Municipal Investigation (“OMI”) report. This report concluded, based on interviews with officers Sizemore, Lemker, and Scholl, that the training program was inadequate. The Interviews, however, revealed only that the officers were unable to recall the specifics of the training program. The report does not reveal any attempt to adduce the content of the training program. The OMI report thus suffers from the same deficiency as Dr. Kirkham’s testimony, it focuses on the officers rather than the program.

The appellants claim that the training program was inadequate. A report that fails to determine the content of that program or the manner in which it was administered is no evidence of the adequacy of the program.

Even if the appellants’ evidence were sufficient, the record does not even contain a hint that the asserted inadequacy resulted from the city’s deliberate indifference. Claims of inadequate training test fundamental considerations of judicial restraint. First, when a federal court reviews municipal or state executive conduct or policy, as here, it must be very careful not to violate principles of federalism. Second, the federal judiciary must remain ever-mindful of its limited competence regarding executive functions, such as the formulation and administration of training programs.

In order to safeguard our system of federalism and limit the judiciary to  the ambit of its competence, the Supreme Court imposed the exacting deliberate indifference requirement. To constitute deliberate indifference, the training program’s inadequacy must “reflect a ‘deliberate’ or ‘conscious’ choice by a municipality. . . .” Harris, 489 U.S. at 389. The fact that the city had a training program and policies dealing with the circumstances here at issue demonstrates, though perhaps [*1051] not conclusively, that the city was not deliberately indifferent to the rights of the mentally ill. Having come forward with this evidence, it is incumbent upon the plaintiffs to point to specific facts that give rise to a genuine issue of fact as to deliberate indifference. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The plaintiffs have failed to do so. Certainly, the evidence previously discussed, which relates only to the conduct of the officers, is not probative of the city’s fault. The record also fails to disclose any evidence whatsoever of the city’s attitude toward the challenged training program.

The majority’s reliance on Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989), is misguided. In Leach the court found that the sheriff, with whom the county reposed supervisory responsibility, was deliberately indifferent because he failed to act despite the occurrence of at least fourteen instances of identical “deplorable treatment.” The Supreme Court has recognized that inaction in the face of such often repeated violations can be said to be deliberate indifference. See Harris, 489 U.S. at 390 n. 10. In the instant case, there is no evidence of often repeated violations of the rights of furloughed psychiatric patients by police officers. Nor has the plaintiff introduced even a scintilla of other evidence that the city made a conscious or deliberate choice to be indifferent regarding its training program.

I must, therefore, respectfully dissent from the reversal of summary judgment on the inadequate training claim.

Note to dissenting opinion:

d1 I do not mean to suggest that expert testimony is never to be given weight. However, such testimony must first disclose a proper legal basis, which Dr. Kirkham’s testimony does not. In this regard, I am in agreement with the concurring opinion.