77-year-old sues three Moorhead police officers over Taser incident (with video)

MOORHEAD - A 77-year-old man with a heart condition is suing three Moorhead police officers, claiming they used excessive force when they restrained him and twice shocked him with a Taser during a welfare check two years ago, despite his warnings that the stun gun could kill him.

James Van Raden's attorney filed the civil rights lawsuit against Sgt. Steven Larsen and Officers Matthew Wychor and Daniel Birmingham on Tuesday in U.S. District Court in Minnesota.

The incident, which was recorded on police video, happened on Aug. 23, 2011, nine days after Van Raden was arrested and charged with second-degree assault and terrorizing for allegedly threatening one of his apartment tenants with a shotgun, a claim he denied.

The charges were later dismissed.

After the Taser incident, Van Raden was civilly committed to Prairie St. John's psychiatric hospital in Fargo. He spent about three weeks involuntarily hospitalized before his release.

"You just don't know the horrific things I went through the past two years," he said.

Van Raden is demanding a jury trial and seeking unspecified damages for physical pain and injury, emotional harm and medical expenses, as well as punitive damages and attorney fees.

"I believe Mr. Van Raden's constitutional rights were violated here, and it's very clear in the documents and evidence in the police file," his attorney, Leslie Lienemann of St. Paul, said Tuesday.

The lawsuit names the three defendants both individually and as police officers.

Moorhead Police Chief David Ebinger said Tuesday he wasn't aware of the lawsuit and couldn't comment on it, but he said he's familiar with the Taser incident.

"That complaint's been thoroughly reviewed and officers exonerated of any improper conduct, and obviously I'm comfortable standing with that," he said.

Tiff with tenant

The chain of events leading to the Taser incident began Aug. 14, 2011, when Moorhead police were called to Van Raden's home at 525 Caddy Ave. near the Moorhead Country Club for a report of a disturbance.

Van Raden lives on the house's main floor and rents out the basement's apartment units - often to people with felony criminal histories, as police noted in their complaint.

One of his tenants, Jeffrey Theisen, called police at 9:22 a.m. that Sunday and reported that Van Raden had pointed a gun at him and threatened to kill him.

Theisen, a Level 3 sex offender also known as Jeffrey Paul Berg, claimed Van Raden had taken items out of his apartment because Theisen owed him $600 in back rent. He told police that as he passed by Van Raden's screen door, he asked Van Raden about his missing property and they began to argue.

Theisen claimed Van Raden became angry and grabbed a shotgun and aimed it at him, saying, "I should do everyone a favor and shoot you in the face," the complaint states.

Police surrounded the house and closed off the streets around it. They contacted Van Raden on his cellphone, and he eventually agreed to come out of the house unarmed, though he "was verbally uncooperative and swearing at officers," the complaint states.

Van Raden tells a different version of the story. He said he was sitting in his office chair with $9,900 in cash from his rental business on the table when Theisen came to his patio door and demanded money and threatened to kill him if he didn't return his property.

"I just went and put the shotgun on my table and I said, 'I don't have your stuff,' " Van Raden said.

Police arrested Van Raden and took him to the Clay County Jail. He made his first court appearance the next day. Judge Lisa Borgen set his bail at $150,000 without conditions or $75,000 with conditions, including that he surrender all of his weapons to Moorhead police while the case was pending, and that he have no contact with Theisen, which required Van Raden to take legal action to have Theisen evicted. Van Raden posted the $75,000 bond.

The criminal complaint noted Van Raden has convictions from the 1970s for attempted rape and aggravated assault. Van Raden said he "did some uncouth things" in his younger years that got him into trouble with police.

"I'm not proud of it, but it happened, and I got my (stuff) together," he said.

More recently, he pleaded guilty to a disorderly conduct charge in December 1999 and was convicted by a Clay County jury of reckless driving for an incident in July 2005.

'I thought I was dead'

Van Raden said Theisen continued to harass him when Van Raden was out on bail.

Van Raden said he went to the Clay County Courthouse and asked why nothing was being done about it and he was given a card to Rape and Abuse Crisis Center. He said he became frustrated with what he felt was the center's slow response to his concerns, and he called there again on Aug. 23.

"I said, 'What do you have to do, kill yourself before you get relief from all this (crap)?" he said.

Within an hour, Moorhead police were knocking on his door and telling Van Raden he had to go with them, he said. He asked if he was under arrest, and they said no.

"So I says, 'You get the (expletive) out of my house,' " he said.

Van Raden said he walked back to his office chair and three officers followed him.

As the video shows, Van Raden repeatedly told the officers to leave.

"You're suicidal right now and we can't leave you here," one officer said.

"I don't want to have to Tase you, James, but I will do it," another said.

"I am in my house, my (expletive) castle. Get the (expletive) out of here," Van Raden yelled, holding on to the arms of the chair.

"You do know why we're here, right?" an officer asked.

"Because you want to kill me," Van Raden replied.

An officer explained that Van Raden had made comments on the phone about hurting himself.

"You want to kill me ... and if you Tase me I'll probably die," Van Raden said.

"Well, we don't want that to happen," an officer said.

"Well, get that (expletive) gun away," Van Raden said.

Police explained to Van Raden that there was a video recorder on the Taser "to protect you and us." Van Raden pulled away when an officer grabbed his arm.

"Do not Taser me because I'll probably die from it," he said. The lawsuit says Van Raden has a heart condition that resulted in three stents and an arterial defibrillator being placed in his chest, and that he made officers aware of his heart condition.

An officer explained to Van Raden that he wasn't going to jail and wasn't under arrest, though the lawsuit notes officers didn't say where they were taking him.

As Birmingham and Wychor tried to lift Van Raden off the chair, he screamed, "You're abusing my body right now, you (expletive) bastards," and appeared to kick at Larsen holding the Taser. The lawsuit claims officers lifted Van Raden's leg and that police later falsely accused Van Raden of kicking Larsen.

The lawsuit says Larsen first shocked Van Raden without firing the Taser's prongs - known as "drive stun" mode - before ultimately firing the prongs into Van Raden's abdomen and chest.

Van Raden fell to the floor and complained of heart pain.

"My heart hurt so damn much I thought I was dead," he said.

The lawsuit says that while police knew an ambulance was waiting outside, they didn't obtain medical assistance for Van Raden and told him he'd only receive help if he got up and walked outside to the ambulance.

"The deliberate indifference of defendant officers to plaintiff's serious medical needs shocks the conscience," the lawsuit says.

Van Raden didn't threaten the safety of the officers or others because he was obviously elderly and incapable of outrunning of physically injuring the younger, stronger officers, the lawsuit states, claiming the officers weren't justified in using force against him. The suit also claims false arrest under the Fourth Amendment.

The lawsuit refers to a Moorhead city policy prohibiting the use of a shock device, such as a Taser, on elderly people, but Ebinger said the policy "certainly does not prohibit the use of a Taser on elderly persons in situations where such use would be justifiable."

As an officer dragged Van Raden by his arms to a backboard to be taken to the ambulance, Van Raden said, "You'll get your (expletive) day in court."

Civilly committed

Van Raden said the ambulance took him to Essentia Hospital, but he said he doesn't remember anything for several hours.

"And then I woke up being escorted into Prairie St. John's," he said.

A petition by Clay County Social Services Supervisor Pat Boyer to have Van Raden civilly committed was filed Aug. 29, 2011, in Clay County District Court.

Court records show Judge Steven Cahill presided over a preliminary hearing on Sept. 1 to consider whether Van Raden should be involuntarily hospitalized until his Sept. 27 judicial commitment hearing. The court found that evidence showed the threat of "serious imminent physical harm" to Van Raden or others was likely if he wasn't confined until the hearing.

"Respondent has repeatedly threatened suicide and had recently threatened a renter of his," court documents state.

Van Raden was ordered to be involuntarily hospitalized at Prairie St. John's and to be examined by a psychologist on Sept. 14. Judge Lisa Borgen ultimately dismissed the civil commitment petition on Sept. 23, and Van Raden was released.

But Van Raden's criminal case was still pending. His attorney, Brian Toay, notified the court that he planned to argue self-defense and defense of dwelling at trial. Among the exhibits he was prepared to present were Van Raden's medical records, a letter from Theisen to Van Raden and records of Theisen's numerous convictions and sex offender registration, court documents show.

That following spring, Theisen was subpoenaed to testify in court on March 27 and 28, 2012. But prosecutor Heidi Davies, the chief assistant county attorney, dismissed the charges against Van Raden without prejudice on April 4. Under Minnesota law, prosecutors must state for the record their reason for dismissing charges. Davies gave a two-word reason: "Prosecutorial discretion."

Toay said the charges were dismissed after he informed prosecutors that Theisen had threatened him during a phone call about Theisen's lawsuit against Van Raden for the allegedly stolen property.

"It certainly bolstered our argument that the guy was a loose cannon," Toay said.

Toay said he found it "mind-blowing" that Van Raden was charged for the alleged shotgun incident, noting police had no evidence other than Theisen's word.

"To be frank, it was a pretty weak case, in my opinion," he said.

Van Raden's civil attorney, Lienemann, also is representing Scott Sheeley, who is suing the city of Austin, Minn., two of its police officers and an ambulance service, claiming he was violently restrained, handcuffed and shocked with a Taser at least four times as he was having a seizure. Paramedics then gave drugs to Sheeley that sent him into respiratory arrest and cardiac arrest, resulting in permanent brain damage, according to the Oct. 3 complaint filed in federal court.