Editor's note: This story was posted Nov. 17, 2016.
MADISON -- A man tasered by Prescott police while inside his house filed an unlawful entry and excessive force civil lawsuit in federal court against the city and two police officers.
According to the suit filed Monday, Nov. 7:
Officers Mark Schultz and Jesse Neely responded in January 2014 to a possible domestic disturbance call phoned in by a neighbor of Michael A. Durham.
Neely allegedly knocked on the front door and rang the bell without a response while Schultz entered the attached garage through the raised garage door. Schultz knocked and entered the house and then let Neely inside through the front door.
Without turning on the lights in the darkened residence, Schultz and Neely allegedly announced "Prescott police," drew their firearms and used flashlights to look for occupants, seeing no sign of a domestic disturbance.
They encountered someone on the stairs to the second floor and asked him to show them his hands. Durham, who hadn't called the police and didn't know a neighbor had, allegedly refused to show his hands.
Schultz said Durham lunged at him and he tasered Durham. Durham then apparently ran up the stairs but was tackled, tasered again and taken into custody.
Durham, 40, went to trial in Pierce County Circuit Court on charges of disorderly conduct and resisting an officer. At trial, Durham testified that he had an argument with his girlfriend that night and was leaving the house when he saw small red lights in the stairway he believed were coming from weapons.
A jury acquitted Durham of disorderly conduct but convicted him of obstructing an officer. Durham’s conviction was overturned by the District III Court of Appeals on grounds that the officers unlawfully entered his Oak Street residence.
The appeals court reversed Pierce County Judge Joseph Boles’ pre-trial ruling that the officers did not need a search warrant because they acted under the community caretaker exception. The exception allows entry without a search warrant when police have a credible belief that there is an immediate need to protect someone inside.
But since neither Schultz or Neely called out to ask if everyone was okay or asked if anyone needed help when they entered the house, there was no indication they were acting under the caretaker exemption, the appeals court ruled.
The suit also alleged that Schultz and Neely were responsible for the bodily pain and humiliation Durham suffered as a result of their unlawful entry and use of excessive force.
Prescott City Administrator Jayne Brand had not seen the suit and had no comment on its allegations but said Schultz and Neely remain on the city’s police force.
Durham’s attorney, John Bradley, declined to comment on the suit. PrescottPolice Chief Gary Krutke did not return calls requesting comment.
The suit seeks unspecified damages for the fear, mental suffering and other injuries resulting from the alleged violation of Durham’s constitutional protection against unlawful search and seizure.