Charlotte attorney Ken Harris says he had no idea of the magnitude of what he was embarking on when he took on Taser International in the case of Darryl Turner, the 17-year-old student who died after a Charlotte-Mecklenburg police officer shot him in the chest with a Taser.
According to Harris, Taser International created an unreasonably dangerous condition when it failed to warn the Charlotte-Mecklenburg Police Department about the dangers of deploying the stun device, particularly to the chest area of a suspect.
Last week, a federal jury in Charlotte awarded Turner’s family $10 million in damages – the largest amount ever awarded in a case against Taser. After beating 127 cases in court, it was only the second time that the Arizona-based company had lost a lawsuit.
To assist him in the case, Harris recruited California attorney John Burton, the lawyer who had litigated the only other successful case against Taser.
Harris recently sat down with Qcitymetro.com. Below is his account of what happened the day Darryl Turner died. Continue reading for a Q&A with Harris in which he discusses the case, why it was successful and whether he will be involved in litigating a case in which another Charlotte man – 21-year-old Lareko Williams – died June 20 after a CMPD officer shot him with a Taser.
According to Harris, this is what happened on March 20, 2008, the day Darryl Turner died:
Darryl was involved in an incident at a Food Lion here in Charlotte where he was working as an employee. He ate a Hot Pocket for lunch, didn’t pay for it, and got caught. He went home to talk to his mother, Tammy Fontenot, about the incident.
She said, “Look, Darryl, you need to go back to the store and own up to what you did.” So, he went back to the store, and when he got back they let him know that he was going to be terminated.
He got upset. He was a very young man, 17 years old. He threw what I guess would be best described as a temper tantrum. He took his shirt off. He had a “wife beater” on, and he started raising his voice to some of the folks inside the store, including some of his co-workers. They got concerned and, from my perspective, overreacted and called the police.
The police arrived a short time later, and officer Jerry Dawson Jr. walked into store. We have videotape evidence of him walking into the store with his Taser already drawn.
He approached Darryl and aimed the Taser at Darryl. Darryl was in the middle of still being sort of upset, but when Darryl saw the officer, Darryl immediately stopped his activity and appeared to be just wanting to walk away.
The officer deployed the Taser into Darryl’s chest, and Darryl clinched his arms and walked to the front of the store with the Taser still attached in his chest and collapsed in front of the store and passed away.
Q. How did you come to represent the Turner family?
Harris: I received a call from the family immediately after the incident occurred. That was very fortunate because I was able to immediately begin an investigation. Within a day or two of the incident, I was able to interview some of the individuals that were in the store and some of the patrons. I was able to get interviews from them about what really happened.
Initially, the story was that Darryl was aggressive to everybody, and that wasn’t the case. We had some of the customers saying, “No, Darryl wasn’t aggressive with everybody.” And at the time the Taser was deployed, Darryl was passive. So, we were hearing two different stories, and there was also a lot of initial media attention because Darryl was a young man. Immediately, the media started releasing versions of how it happened.
Q. What about those reports that marijuana was found in Darryl’s socks?
There were early media stories that marijuana was found in Darryl’s socks at the hospital, and that concerned me. The aggressiveness and the marijuana being found sort of spun a version of what people might think Darryl was like and why this incident occurred… Very early on, one of the major issues was getting the toxicology report back from the medical examiner’s office. We were able to get that information back, and despite the fact that somehow, marijuana was found in Darryl’s socks at the hospital, his toxicology report was completely negative. So, we knew that there weren’t issues related to drug use concerning the event.
Q. You say “somehow marijuana was found” in his socks. Do you question whether…
We never determined how that marijuana got into his sock. We’ve never received a full understanding related to how that marijuana appeared in his socks. After three years of investigating, I have not talked to anyone that has suggested that Darryl was either a marijuana user or that Darryl was involved in the marijuana trade. So, we still don’t know how that marijuana popped up.
Q. Do you have any theories? What do you think?
I’ve never advanced a theory. I’ve continually argued, though, that Darryl was not a user of drugs. We don’t know exactly how it got there, but from all the evidence we’ve gathered, he was not a drug user. Matter of fact, he was a health buff. He worked out constantly.
Q. In his toxicology report, did he screen negative for marijuana?
He had no toxins or drugs in his blood, according to the toxicology report.
Q. There have been reports that he wasn’t screened specifically for drugs. Is that accurate?
There were a certain group of drugs that were screened in the toxicology reports. I think there were a few omissions. The medical examiner did not determine that he had any toxins in his blood at all.
Q. Was marijuana one of the omitted drugs?
I don’t think he was screened for marijuana.
Q. Do you believe that may be grounds for an appeal by Taser International?
That’s just one of the facts in the case. I don’t think that would be adequate grounds for an appeal.
Q. Why was the issue with the marijuana withheld from the jury?
We are not in the business of determining cases based on speculation. We determine cases based on facts. There is no evidence that Darryl was under the influence of marijuana at the time that this incident occurred. That’s a fact. Anybody can speculate what he might have had in his system at that time. I can say this – marijuana wasn’t the cause of his death. There is no evidence that it contributed to his death. Darryl died because he had a Taser deployed into his chest.
Q. Have you read anywhere that marijuana might contribute to death in incidents with a Taser or that it might exacerbate…
I have not seen any literature that suggest that theory. There is a theory called “excited delirium” in which you have some individuals who are high on drugs like PCP at the time that they are Tased, and the agitated state that results from being high on PCP or another type of very serious drug could perhaps contribute to a death related to the use of a Taser. That’s one of the theories out there. But this was not an excited delirium case. If you look at the video, you will see that Darryl was calm just prior to him being Tased… I don’t think this fits the pattern.
Q. Did you sue the city?
We didn’t file a lawsuit against the city, but we actually pursued the city and the police department, and we had a pre-litigation mediation. That mediation resulted in a very widely published settlement. We settled for $625,000 in that case.
Q. And the city never admitted fault, correct? Where you satisfied with that?
Right. We agreed to the settlement. The family agreed to it, and I was very pleased with the way the city handled the case… Anytime you have an opportunity to come together prior to litigation and talk about the merits of the case and reach that type of resolution… I believe it was the largest police liability settlement in many years here in Mecklenburg County. I can’t say that the family was pleased, but they were content with the result.
Q. There have been a number of deaths by Tasers. What was the basis of your argument?
It was that Taser International had the opportunity to advance to our police department and others across the country that a deployment into the chest area could be fatal. We believe that they had the information and the knowledge available to advance that type of warning. They failed to do it, and that contributed to Darryl’s death.
Q. And what was the belief that they had this knowledge based on?
They had information and science available to them, they just didn’t advance it to the police department.
Q. Have you seen any internal memos or anything that would give credence to that belief?
We presented plenty of evidence at the trial that indicated that they had quite a bit of science related to the fact that deployment into the chest could cause a fatal result.
Q. Of the nearly 130 lawsuits brought against Taser International, this is only the second one to be successful. What set it apart?
The deployment in the chest. The lack of evidence related to excited delirium. There was no drug use. You have a very young claimant who was an individual who was a great student and a very positive person. He was very healthy. So, even early on you got the sense that there weren’t a whole lot of other contributing factors related to Darryl’s death. It almost narrowed itself down. What other causes of death could there be in the case, other than the Taser? Causation is always the real issue in any case.
Q. What was the most damaging piece of evidence?
If you are talking about evidence related to the incident itself, one was officer Dawson’s testimony about not being aware of the results of a (Taser) deployment in certain areas of the body. This was a situation where the Taser trigger was held down for 37 seconds in a deployment directly into the chest. I think that’s an admission that he wasn’t trained properly and didn’t know.
Officer Dawson just did not have an awareness that this Taser could produce this type of result. He was very surprised in the end that Darryl passed away. I don’t think he had any malicious intent. I think he felt he was using a weapon that would not produce a fatal result.
Q. What was the most damaging piece of evidence that pointed to Taser’s negligence?
Attorney John Burton would have to elaborate on the exact science that they had, but we have presented a number of scientific studies that indicated that they had an awareness that the Taser, if deployed into the chest, could cause a fatal result.
Q. Do you believe that Taser has taken adequate measures following the deaths associated with their use?
I’m not aware of any measures that they’ve taken. I continue to believe that they need to make sure that individual police officers have a good understanding of when and how the Tasers should be utilized, and they need to be doing a tremendous job at doing that… Any product needs to have adequate warnings, especially when the product could affect whether a person lives or dies… We believe that in this case, if Officer Dawson had a good understanding that that type of deployment would have been problematic or fatal that this would not have happened.
Q. How does this verdict compare in size to others against the company?
There has only been one other verdict against Taser that has been resolved in favor of the plaintiff. That is one that our co-counsel, John Burton, was able to obtain… This is the largest verdict against Taser. It was one of those cases where you had a combination of unusual facts. We had a medical examiner’s report from the very beginning that suggested that the Taser contributed to the death. You have a very young claimant who had his whole life ahead of him. He was 17 years old. He was a very good student. He was going to be someone who contributed positively to the community. And it was a situation where Taser was unwilling, from our perspective, to acknowledge that it had an awareness that this could be the result of a deployment into the chest…
Q. What was the amount of the previous verdict against Taser?
It was $7 million, but it was ultimately reduced substantially (to $200,000)
Q. Where does the Turner case stand now?
The verdict is in and Taser has indicated that they are going to appeal that and see if they can have the verdict overturned.
Q. Do you foresee the amount being substantially reduced as it was in the previous case?
I hope not. We have a unique set of circumstances here… I don’t know why you would reduce this award. These are compensatory damages that we received in this case, not punitive damages. These are damages based on what the loss has been to his family, and I don’t know why it would be overturned at this point.
One of their major arguments has been contributory negligence… I don’t know how Darryl was negligent in this case. Darryl was a victim…. But Taser has every right to make every argument that they want to make.
Q. Do you believe that Tasers can be used safely?
I think that the circumstances under which Tasers are used often don’t allow the time for the officer to make a calculated consideration, and the end result is going to be, oftentimes, a fatal result. If you are talking about a weapon where you could… decide exactly where it’s going to be deployed into someone’s body, you can make sure that every time it’s deployed, it’s deployed for a reasonable amount of time in a reasonable location on the body, then maybe you would have a weapon that is safe. I just don’t think that the circumstances out in the field allow for those types of calculations to be made. These are situations where the officer has to deploy, oftentimes, within a moment’s notice.
It’s critical that if you are going to have the weapon be used out in the field that officers be warned and trained about exactly how to deploy it. Even then, I don’t know if you can guarantee that they are always going to be used in a way that reduces non-fatal results… I don’t know. I think that, unfortunately, there are going to continue to be circumstances where the Taser is deployed and it’s going to possibly contribute to fatal results.
Tammy Fontenot, Darryl’s mother, has emphasized from the beginning that she wanted to make sure that Darryl had a legacy. That legacy may be that you have warnings that are strictly adhered to relative to the Taser, that they are deployed in fewer circumstances than they are being deployed in now, and that they are deployed only in circumstances where it’s extremely likely that they are going to produce non-fatal results.
Q. How is the family?
This is a situation where I did not see any sign in either Tammy or Darryl’s father, Devoid Turner, that this verdict really provided them with a whole bunch of relief. Every time we discuss this case, it’s like they have to relive it. Even this type of verdict didn’t produce a whole lot of joy in them. I think Tammy and Devoid are still focused on this and the litigation having some positive results for the community, and they are hoping that Darryl’s situation will save lives. They weren’t rejoicing at the verdict. They lost a son, and it still hurts today just like it did when it first happened.
Q. What message do you hope this sends to the city, police officers, and to the community in general?
We want a safer deployment of the device. If that means that warnings have to be issued nationally, so that it is used in the right way and to the benefit of the community, then that’s a result that we would desire. There have been municipalities who have decided to suspend their use of the Taser or to take some time, think about it, and do a bit more research. That’s something that is think is very positive.
Q. There was another death, a couple of days after this verdict was announced. Have you been contacted by that family?
Yes. They contacted attorney Charles Everage, who was my co-counsel in this case, and Charles has now contacted me to be involved in that case. I think the thing to remember is that every case is different. Every plaintiff is different. Each case requires an investigation and an understanding that it could turn out the same way or differently… There’s no inherent synergy between Darryl’s case and this case. You have to look at the particular facts of each case.
Q. In the second case, the man who died was allegedly beating his girlfriend, according to police. Would that make it a harder case to try?
No. …You would have to wait and hear from the medical examiner first and see, number one, what the cause of death was. Once you get a feel for what factors contributed to the individual’s death, you move from there to determine whether there were irregularities related to the device and build from there. I understand the jury may not have the same compassion for this plaintiff as they did for Darryl, but where the case starts is understanding how the death occurred.
Q. Is there anything else that you would like to say?
I think it’s great that we have a system where, when you have a situation in which someone has suffered and we believe a party has not done things that should have been done, that you can get a result like this. For that, we are happy for the family, but then again, that doesn’t erase the fact that this was a big tragedy.
Q. Other than the time you spent with him on the witness stand, have you talked with officer Dawson?
No. We’ve not had an opportunity to talk to Officer Dawson. Neither has Tammy or Devoid. Tammy has had a desire to talk to Officer Dawson, but because this was such a serious case, that hasn’t happened yet. Maybe sometime in the future that will happen.