- Associated Press - Friday, February 19, 2016

CLEVELAND (AP) - A federal appeals court ruled Friday the city of Cleveland should remain a defendant in a lawsuit filed by the mother of a man who died after being shot in the chest with a police stun gun.

Rodney Brown, 40, died on New Year’s Eve in 2010 after officers pulled him over for allegedly driving without his headlights on. Witnesses disputed that claim and said Brown was cooperating when an officer elbowed him in the neck while his hands were on the back of a police cruiser and then shot Brown with a stun gun after he stood up.

The officer said he used the stun gun on Brown after he resisted and walked toward him in an “aggressive manner.” Brown was then tackled after a foot chase and two officers used their stun guns to subdue him by applying them to his body. As soon as he was handcuffed, according to a police radio recording, Brown told the officers, “I can’t breathe.” Another officer can be heard responding, “Who gives a (expletive).” Brown went limp before officers put him in the back seat of a cruiser.

Officers called a dispatcher asking for paramedics, but later said they did so because it was department policy, not because Brown was in distress. He was dead by the time paramedics arrived.

A spokesman for the city of Cleveland declined to comment about the rulings by the 6th Circuit U.S. Court of Appeals on Friday.

Brown’s mother, Shirley, sued the city and 12 officers in federal court in 2011. A judge last year issued rulings that prompted appeals to the 6th Circuit by both sides. The three-judge panel on Friday denied a claim by officers that they were entitled to qualified immunity because they were acting in the scope of their employment with the city. The ruling also said it could be argued at trial that the officers lacked probable cause to stop Brown’s car; that Brown wasn’t a threat and wasn’t resisting arrest when he was shot with the stun gun; and that his civil rights were violated.

The court said Cleveland should remain part of the lawsuit because it failed to provide updated materials from the stun gun manufacturer that said officers shouldn’t shoot someone in the upper chest.

The ruling against the city is “huge,” said Al Gerhardstein, a Cincinnati-based civil rights attorney who represents Shirley Brown. “I’ve been fighting these (stun gun) policies for years. The city of Cleveland didn’t have an effective training program.”

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