Woman, 23, accuses Lee deputy trainee of using Taser on her for no reason

Corey Perrine/Staff
Sheriff Mike Scott walks past pictures of arrested individuals after addressing members of the media Monday, Oct. 29, 2012 at the Lee County Sheriff's Headquarters in Fort Myers, Fla. It was announced that Operation SPIDERWEB was a success after arresting 40 individuals seeking children, ages 11 to 15, via social media, to perform sexual acts. The operation lasted 7 days. Ages of the arrested ranged from 18 to 51 years old. Occupations of those arrested ranged from pool technician to military personnel.

Photo by COREY PERRINE // Buy this photo

Corey Perrine/Staff Sheriff Mike Scott walks past pictures of arrested individuals after addressing members of the media Monday, Oct. 29, 2012 at the Lee County Sheriff's Headquarters in Fort Myers, Fla. It was announced that Operation SPIDERWEB was a success after arresting 40 individuals seeking children, ages 11 to 15, via social media, to perform sexual acts. The operation lasted 7 days. Ages of the arrested ranged from 18 to 51 years old. Occupations of those arrested ranged from pool technician to military personnel.

A 23-year-old Fort Myers woman "Tased" twice last year by a Lee County deputy trainee has filed a civil rights lawsuit against Sheriff Mike Scott and the trainee, who was reprimanded for improperly using "non-deadly force."

Sarah Graham's lawsuit, filed last week in U.S. District Court in Fort Myers, alleges that Lee County deputy trainee Brian Gardner committed battery, was negligent and used excessive force without justification when he shot his Taser at her after she purchased a soda at a Circle K early one morning in May.

Graham, who fell face-first to the ground, convulsing and shaking, seeks damages for her pain and suffering, emotional trauma and distress, humiliation, loss of wages and medical expenses.

Gardner was reprimanded after an internal affairs investigation found he violated office policy by using "non-deadly force" and he was transferred from field training to the Corrections Bureau, according to news reports at the time. He still works as a corrections officer at the jail, a sheriff's spokesman said.

Court records show the lawsuit was filed seven months after Graham's lawyer, William Powell of Cape Coral, sent a demand letter to the sheriff, warning that he would file a lawsuit unless they settled for $200,000, the maximum under the law. The demand letter gave the defendants six months to review the claim.

"We're pursuing this because Sarah suffered a very traumatic experience being Tasered twice by a police officer for asserting her First Amendment right to not cooperate with what's called a consensual stop," Powell said, adding that the trainee misinterpreted it as an investigative stop. "Because of that and because the trainee wasn't properly supervised and/or trained, he ended up Tasering Sarah twice."

"She was backing up, not being a danger to anyone and then he Tasered her again on the ground," Powell said. "After all this was done to her, she was never arrested, never detained and never searched. They just left."

The lawsuit, which seeks compensation under the federal Civil Rights Act, was filed in Lee Circuit Court on Jan. 4, but Gardner and Scott transferred it to federal court last week.

Court records show Graham has no criminal record.

The attorneys for the sheriff couldn't be reached despite repeated attempts. A Lee sheriff's spokesman said the sheriff's policy is not to comment on pending litigation.

The complaint provides the following account:

Early on May 4, Graham left work and went with a friend to a Circle K at 3038 Cleveland Ave. in Fort Myers.

As Graham was buying a soda, a patrol car drove in and the deputies called out to her friend, asking her to come to the vehicle. Then-Deputy Ryan MacKinnon, who was driving and training Gardner, asked her to approach, asking for her name and identification.

Although she questioned why, she gave him her ID. McKinnon began doing a computer check on her as she walked over to the passenger side. Gardner was standing outside the car and asked to search her.

"She refused the search and stated that she knew her rights," the lawsuit says. " … She questioned why he wanted to search her and did not consent to a search."

But Gardner pointed his Taser at her, refusing to explain why he wanted to search her. As she walked to the front of the patrol car, he fired his Taser at her.

"The use of the Taser caused (Graham) to fall upon the concrete face first on top of her hands," the lawsuit says. "As she was convulsing and shaking, defendant Deputy Brian Gardner was yelling other commands at her and Tasered her again."

The Taser firings lasted for five seconds, then six seconds.

"The Tasering caused (her) to lose control of her bladder and urinate all over her work uniform," the lawsuit says, noting that some of the Taser barbs lodged in her breasts and stomach and had to be removed by medical personnel.

The lawsuit alleges she wasn't told she was a suspect of a criminal investigation, did nothing to provoke Gardner, who had no probable cause or suspicion, and his use of the Taser constituted excessive force.

"There was no reasonable belief that she posed an immediate threat of safety to the officers or others and she was not resisting any arrest or attempting to evade arrest … because no arrest was planned or made," the lawsuit says.

The lawsuit contends MacKinnon was supervising and overseeing Gardner, and Scott was responsible for policies and supervising the training of deputies. It alleges Scott was responsible for training both deputies, but failed to adequately instruct them to prevent unreasonable force. It contends Scott placed Gardner on road service when he wasn't adequately trained, then failed to retrain, suspend or terminate him.

The lawsuit seeks damages for vicarious liability, battery and false imprisonment, and under the federal Civil Rights Act for violations of the Fourth and 14th amendments, unreasonable search and seizure and deprivation of due process.

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Comments » 2

BonitaGuy writes:

Great! He can't keep his taser on his belt, so they assign him to guard prisoners! Sounds like another lawsuit waiting to happen. Hopefully, nobody gets strapped in a chair and tasered to death before something is done!
FIRE the cowboy!!!

wardpo writes:

If this account is true, the deputy should be behind bars not in front of them. Who hired this cuckoo clock.

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