A disabled Nogales man is suing the City of Nogales and its police department for civil rights violations, claiming officers wrongly Tased and arrested him by mistaking a seizure for criminal activity.
According to a lawsuit filed in July at U.S. District Court, Diego A. Lerma, then 39, suffered a seizure on July 12, 2011while at the Subway sandwich shop on Mariposa Road. The suit says Lerma was diagnosed with intractable seizure disorder as a child has been declared medically and physically disabled.
Following a period of seizure activity at the Subway, Lerma reportedly entered a “post-ictal phase” of a seizure where he was able to walk, but was not fully aware of his surroundings. He wandered out of the Subway and into the nearby La Cindarella department store, “passing through the store without threatening, alarming or causing anyone concern for their safety,” says the suit, filed on Lerma’s behalf by Phoenix-based attorney J. Tyrrell Taber on July 12.
As Lerma stood in a warehouse area at the back of the store, an employee called the police. When officers arrived, the employee reportedly told them that Lerma seemed to be ill and had a bad look in his eyes.
“The police officers approached Diego, called out to him and decided it was reasonable and appropriate to use a Taser gun on Diego,” the suit says, alleging that the action constituted an unconstitutional use of excessive force.
“Diego was under investigation for a non-violent misdemeanor, was unarmed, had his hands in plain view, and did not appear to pose any threat to the police or others. At no time did Diego actively resist arrest,” the suit says. It also alleges that the officers never warned him that they would use a Taser against him.
In addition, the suit alleges that the officers were improperly trained to recognize Lerma’s medical condition, and therefore wrongfully arrested him “because they mistakenly perceived the effects of his disability as criminal activity.”
Following the Tasing, paramedics were reportedly called to the scene and transported Lerma to Holy Cross Hospital, where he was treated for a fractured elbow, as well as “injuries to the left hand, forearm and wrist, and multiple abrasions and bruises.
“The police officers involved acted deliberately, recklessly and with the intent of inflicting pain, suffering, humiliation, and bodily injury,” the suit alleges, adding that Lerma has suffered permanent injury and emotional suffering as a result of the incident. It asks for a jury to grant unspecified damages.
The suit does not specify the officer who used the Taser on Lerma, but it names officers Robert Fierros, Jose Pimienta, G. Ortega and R. De La Ossa as defendants.
Court records show that following the incident, Lerma was charged in Nogales Municipal Court with disorderly conduct, criminal trespassing and criminal damage, but that Judge Mayra Galindo dismissed the charges on July 28, 2011.
City Attorney Jose Luis Machado said he was aware of the lawsuit but had not read it, and therefore couldn’t comment.
Other lawsuits
This is not the first federal lawsuit filed against the city and NPD over its officers’ use of a Taser.
Hilda Bojorquez, then 60, sued after NPD Officer Bernardo Villela Tased her in the back at Holy Cross Hospital on Nov. 5, 2008 after she got in a tug-of-war with hospital staff over her daughter’s medical records.
A judge ruled in favor of the city in that case, but did not completely exonerate the officer. In his ruling issued Feb. 14, 2012, Judge Raner Collins wrote that while Villela had used excessive force, “this is not one of those cases in which the officer’s conduct was so plainly unnecessary and disproportionate that no reasonable officer could have thought that the force used was legal.”
In 2011, Nogales Police Officer Pedro Molera sued his former supervisor Sergio Bon, as well as the city, former Chief Jeffrey Kirkham, Assistant Chief Roy Bermudez, Captain Eddie Zuniga and Lt. Carlos Jimenez, after Bon Tased him in the crotch on Feb. 8, 2010.
That suit is still pending in federal court. Bon, an 18-year-veteran of the force, was put on leave three days after the Tasing and later resigned.
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