State Will Pay $40,000 In Bradford Arrest Case

Front Page / Dec. 3, 2009 3:23pm EST

By M.D. Drysdale

When Randolph Atty. Kelly Green took on the DUI case of Lawrence Fairbrother of Bradford as a public defender, she wasn’t content with getting the charges against him dismissed.

Even after she won the criminal case, she was angry. She was angry with the tactics that State Police used when they arrested Fairbrother in 2006—tactics which included shooting him with a Tazer as he lay on the ground.

So angry was she that she then took the case to federal court as a private attorney, suing three officers of the Bradford barracks and two commanding State Police officers.

Last week, Fairbrother won a $40,000 settlement from the state of Vermont.

Her client could use the money, Green said this week. He lives in a sort of camper on Lake Morey and suffers from seizures.

It was while he was having a seizure at a friend’s home, Fairbrother and Green say, that he was dragged from underneath a car, handcuffed, and arrested, eventually charged with driving under the influence.

The Vt. Attorney General’s office authorized the settlement, but it made no apology for the police tactics.

Asst. Atty. Gen. J. J. Tyzbir, who represented the state police, said he still believes that Fairbrother was resisting police when they shot him with a Tazer stun gun. The decision to settle the case was, the attorney said, “a business decision.”

That doesn’t necessarily mean that he feared Fairbrother would receive more than $40,000 in a jury award, he emphasized. But if a jury found any State Police liability at all, it would have meant the state would have had to pay thousands in attorneys’ fees.

Indignant at Treatment

Atty. Green this week was still indignant at the treatment accorded her 60+-year-old client, and she pointed squarely to the Bradford police barracks which, she charged, “appears to have a use-of-force problem.”

Police from that barracks have been taken to court previously, she noted, citing the case of Joseph Fortunati, shot to death by State Police in a rural area of Corinth. Atty. Gen. William Sorrell issued a report that said the use of force in that case was justified, but Fortunati’s family is suing in civil court.

“I’m tired of seeing people’s rights trampled, and one way is through the use of excessive police force,” Atty. Green said.

The Bradford incident resulted in a charge of driving under the influence (DUI), and Atty. Green first represented him in that case, as a public defender. She won a verdict in Vermont District Court, which was critical of the police procedures.

“In this case, there was no indication of any public safety concern,” Judge Patricia Zimmerman wrote in 2006. “The defendant was hiding under a vehicle.”

The Tazing and handcuffing that came next, she said, “was not justified by suspicion of criminal wrongdoing.”

The ruling led to the DUI complaint being dismissed.

Version of Events

The complaint that Atty. Green filed later in federal court, and Judge Zimmerman’s findings of fact, describe the June 16, 2006 events. The standoff began, according to when Fairbrother, who has “a seizure disorder,” had a seizure while visiting friends in Fairlee. He was drinking a beer at the time.

The friends called 911 for an ambulance, while helping Fairbrother to his car to get his seizure medication.

The ambulance came accompanied by the three State Police officers. They had been told by dispatch that the FAST squad “was requesting assistance because of an intoxicated individual.” They had not been told before they arrived that a seizure was involved, but two of the troopers were aware of the possibility of seizure while they were at the scene.

They found Fairbrother “flailing and unresponsive to their questions,” Judge Zimmerman wrote. He had fallen and was “wedged under the car,” according to Atty. Green’s complaint.

Wouldn’t Comply

The policemen then pulled the man out from under the car and started to handcuff him. According to the complaint, he complained that the handcuff was hurting him and would not present his other hand when commanded to do so.

That’s when Tr. O’Donnell shot him with the Tazer and secured the other handcuff. The troopers then took a breath test, showing a .117% blood alcohol count, and arrested him for DUI.

“From the time that the officers arrived on the scene until the defendant was pulled out from under the car and put in restraints was slightly more than three minutes,” the judge wrote.

There was no evidence at that time that Fairbrother had actually been driving a car while under the influence, according to Judge Zimmerman’s decision. That fact resulted in the case being dismissed.

Atty. Green, in her suit against the police, alleged unlawful arrest by excessive force, outrageous conduct, assault and battery, and false imprisonment. She said she was convinced she would have prevailed had the case gone to court.

“It’s all on videotape,” she said. “We were prepared to use it at the trial.”

Different Version

Asst. Atty. Gen. Tyzbir, on the other hand, said testimony at a trial would have shown a different set of facts.

It’s agreed that Fairbrother had suffered a seizure, he said, but witnesses said that after that he got up and appeared normal. When the police came, he said, “we believe he crawled underneath the car, trying to avoid the police.”

“We believe testimony would have established that he was not in the throes of a seizure.”

Therefore, he said, “the use of force was justified. Mr. Fairbrother was actively evading the officers. The use of the Tazer came because he was “non-compliant,” Tyzbir said.

“We deny wrongdoing or liability,” he emphasized.

Nightmare Continues

After the breath test, the nightmare continued for Fairbrother, according to his attorney.

During the seizure and the Tazering and the arrest, she wrote in the complaint, he had soiled his pants and asked if he could change them. The request was refused, and he was driven to jail in St. Johnsbury, where he spent the night.

Atty. Gen. Tyzbir said he was given the opportunity to use the bathroom before he was transported.

The next day he was released, but had no transportation of his own. It took him all day and part of the night to walk and hitchhike from St. Johnsbury to his home, she said—still without a change of clothes.

Atty. Green said it wasn’t just the Tazering but the overall treatment of Fairbrother which led her to urge him to file the federal lawsuit.

“It’s uncivilized,” she declared. “It’s insulting and unnecessary.

“We’re just not that kind of state.”

Transcript of Allegations

Following is a transcript of some of the allegations in Lawrence Fairbrother’s lawsuit against the Vermont State Police. The state agreed to a $40,000 settlement in the case.

Asst. Atty. Gen. J. J. Tyzbir cautioned that the statement is an allegation only, and has not been judged in a court of law. Much of this text, however, is confirmed by a transcript of the video shot from the police cruiser.

"After asking about his seizure, the troopers began pulling Fairbrother out from under the car by his feet. (A) fireman assisted by lifting the car’s back end.

"Fairbrother was unresponsive as the troopers were pulling him from under the car. Sweet (a friend) tried to get Fairbrother’s attention by yelling his name …

"When the troopers finally pulled Fairbrother out from under the car, they forced him to lie face first on the driveway in order to handcuff him. Both of Fairbrother’s hands were stretched out above his head. (Trooper Michael) Dudley pulled Fairbrother’s right hand behind his back.

"When Dudley pulled Fairbrother’s right hand back, Fairbrother yelled in pain, ‘Ow, ow, ow, ow, ow, ow, ow! What are you are doing to me? Ow, Ow, Ow, Ow, Ow! My God, what are you doing to me?’

"Dudley then ordered Fairbrother to give him his left hand while (Trooper Hugh) O’Donnell threatened, "’Do you want to get Tazed?’

"O’Donnell then shot Fairbrother with a Tazer gun. Dudley then grabbed Fairbother’s left hand and put Fairbrother in handcuffs.

"Fairbrother was in pain and confused. ‘What did you do that for? What did I do? What did I do?’ he asked

"‘That’s what we’re gonna figure out,’ one of the troopers replied."

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