August 28, 2014 at 12:56 pm

Appeals court reinstates suit by Detroit cop Tasered in '06 traffic stop

A Detroit police officer who was Tasered by Farmington Hills police after running a red light in 2006 won a legal victory Thursday when a federal appeals court allowed his suit against the Oakland County suburb to go forward.

Writing in a 2-1 decision, U.S. Appeals Judge Damon Keith said there is possible evidence of police or prosecutorial misconduct in the case against David Marshall. The court found that a deal to end the criminal case in June 2006 and prevent a civil suit was never completed.

“We refuse to hold that a state criminal court’s decision to accept a release-dismissal may circumvent the defendant’s right to redress simply by stating that a case is ‘essentially over,’ ” Keith wrote in an opinion joined by Judge Jane Branstetter Stranch.

Judge Alice Batchelder dissented, arguing the case should have been decided in state court. She said there is “no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court.”

A lawyer for Farmington Hills, Kenneth G. Galica, said the city will file a petition for rehearing by the full Sixth Circuit Court of Appeals, citing the dissent. He said the city has other grounds to argue that the suit should be tossed out, including a videotape of the incident.

Marshall’s suit, which has been in the federal courts for more than six years, alleges that he was treated harshly because he failed to show “the subservience expected from an African-American motorist in Farmington Hills.”

While in uniform but off duty, Marshall was pulled over in Farmington Hills in December 2006 for running a red light. Marshall was ordered to get out of the car and remove his firearm from its holster. He requested a supervisor, and when an officer reached for Marshall’s weapon, he pushed him away.

A Farmington Hills officer returned to his patrol car, retrieved an electronic stun gun and shocked Marshall twice. Marshall was arrested, brought to the Farmington Hills police station, forced to strip to his underwear and charged with obstructing law enforcement.

Marshall also was subsequently charged with child abuse in connection with physical discipline he used against his sons about seven months before the traffic stop.

He went to trial on the child abuse charge and was acquitted. In June 2007, Marshall and the city agreed that Farmington Hills would dismiss the obstruction charges and Marshall would agree not to sue if both sides reached agreement on the exact wording of a press release about the dismissal of the charges and the terms of a release of civil liability.

Even though the sides didn’t reach agreement on a press release, a state court judge dismissed the case anyway and said Marshall was bound by the deal.

Marshall and his wife filed suit in July 2008 in U.S. District Court in Detroit. The case was dismissed in 2010, but reinstated by a federal appeals court in 2012 and sent back to the lower court, which again dismissed the case in July 2013.

“If Marshall was convinced that he would not obtain public exoneration to a reasonable satisfaction — to the point that he would risk going to trial — then he had no duty to accept the press release and was free to reject the counter-offer and withdraw from the contract,” Keith wrote.

The judge also noted that Farmington Hills police revived the child-abuse investigation of Marshall the day of the traffic stop, which Keith called a “punitive measure.”

DShepardson@detroitnews.com