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Legal View: Taser and Truck Deaths

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Funeral services were held today for an Albany man who died in police custody.  Donald “Dontay” Ivy died April 2nd after being tased during a confrontation with Albany Police.

Officials say the 39-year old Ivy was walking in the wee hours near his home along Lark Street and Second Street when three officers stopped him. At some point their interaction became physical, and Ivy was Tased. Family members said Ivy suffered from schizophrenia and had heart problems.

It was at the least third death linked to police stun guns in the Capital Region in the last few years. The Ivy incident is being investigated by police internal affairs. A separate probe has been launched by Albany County D.A. David Soares.

In September, 43-year old Daniel Satre died after being Tased multiple times near his home by officers from both Ballston Spa and the State Police. Neighbor George Goss told Newschannel 13:  "They were beatin' on him, like physically beatin' on him, and tasing him. They Tased him multiple times."

WAMC file photo

Mario Cometti is a legal partner with Tully Rinckey.  "What these taser cases fall under is under the umbrella of the appropriate use of force by police officers. You absolutely have a right to, if you are injured, sue a police force or police agency if you believe that the force that as used was excessive under the circumstances. Now, there's no universal guidelines as to what type of force is appropriate. But the general rule is, that it's supposed to be in proportion to the incident that the police are confronted with. Tasers offer police an alternative to deadly force, obviously, and so if they're confronted with a situation where either there may be potential harm to themselves, other people, or even the person themself, it certainly could be argued that a taser is appropriate."

A coroner ruled "excited delirium" caused Satre's death. In mid-March, the Saratoga County District Attorney announced that a grand jury would not indict any of the officers involved in the death.  Thousands have signed an online petition urging state Attorney General Eric Schneiderman to call for an independent investigation.

Meanwhile, it's been two months since a 4-year old boy who was struck and killed by a garbage truck at a busy Albany intersection was laid to rest ... Ashique Rahman was crossing Central Avenue at Quail Street with his mother, who was holding his hand. A private garbage truck turned left on a green light, onto Central from Quail, striking the pair, who had the right-of-way and a go from the "Walk" signal.  The truck was driven by James P. Kelly.

Credit WAMC photo by Dave Lucas

The story made national headlines and attracted the attention of attorney Eric Chaffin with Chaffin Luhana LLP.  "Typically we  have a pedestrian hit that's hit by a commercial vehicle, one of the first things we look at as attorneys is really focused in on the driver, what the driver's conduct was, were they distracted by something?"

Although an early statement from ICS Waste & Recycling, the company whose truck was involved in the incident, said a child “had jumped over a snowbank and out into the road without warning,” police had surveillance video that showed otherwise. Soares' office blasted the company's allegation. No criminal charges have been filed.

The family is represented by New York City attorney Perry Silver, which specializes in this type of case. Silver was not available for comment.

The Daily Gazette reports both ICS and Kelly are named as defendants in the suit, which seeks damages for wrongful death. The paper says a list of claims includes unsafe driving and disregarding traffic control markings or devices. The city of Albany is apparently not mentioned. What happens next?   "The plaintiff's attorney is going to be looking very closely at not only the video but other information from witnesses at the accident, the design and construct of the intersection and the history of the accidents behind the intersection."

Chaffin offers this advice for those who must navigate crosswalks. "Don't assume in any way that a car is going to stop because you have a walk signal. Quite the contrary! Obviously, I try to tell people to look both ways and proceed with caution. It's certainly a defensive mechanism because there are just so many accidents that still happen. And I think we're actually seeing more of them now from distracted drivers. We obviously don't know yet for sure that's what happened here, but it certainly suggests that."

ICS could not be reached for comment.

Dave Lucas is WAMC’s Capital Region Bureau Chief. Born and raised in Albany, he’s been involved in nearly every aspect of local radio since 1981. Before joining WAMC, Dave was a reporter and anchor at WGY in Schenectady. Prior to that he hosted talk shows on WYJB and WROW, including the 1999 series of overnight radio broadcasts tracking the JonBenet Ramsey murder case with a cast of callers and characters from all over the world via the internet. In 2012, Dave received a Communicator Award of Distinction for his WAMC news story "Fail: The NYS Flood Panel," which explores whether the damage from Hurricane Irene and Tropical Storm Lee could have been prevented or at least curbed. Dave began his radio career as a “morning personality” at WABY in Albany.
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