|Framingham seeks dismissal of some charges in SWAT team fatal shooting lawsuit||September 5, 2014|
|Danielle Ameden 508-626-4416||Metrowest Daily News|
FRAMINGHAM - The town is asking a federal judge to dismiss all claims - except negligence - in the lawsuit filed after a SWAT officer shot and killed a man during a police raid in 2011.
Attorneys are scheduled to present the motion for summary judgment in U.S. District Court on Oct. 27, arguing it was an accident - not a constitutional violation - when Officer Paul Duncan killed 68-year-old Eurie Stamps with an M4 rifle.
"Mr. Stamps' death was a tragic accident," Thomas Donohue, a lawyer for Duncan and the town, said Thursday. "Our sincere condolences go out to his family, however accidents, even tragic ones, are not civil rights violations."
The motion seeks dismissal of all but one of the 10 counts against Duncan and the town, stating that the defendants "concede that Officer Duncan's unintentional firearm discharge establishes a claim for negligence against the town."
Stamps was shot in his Fountain Street home as the Framingham Police SWAT team served a drug-related search warrant in January 2011. Authorities said his stepson Joseph Bushfan was a target of the early-morning raid.
While the district attorney cleared Duncan of a crime, Stamps' family argues the killing was intentional and opposes the motion for summary judgment.
The district attorney's office ruled Duncan pulled the trigger accidentally when he tripped in a dark hallway of Stamps' home.
A bullet pierced Stamps while he was obeying orders to lay on the floor on his belly with his hands up.
Attorneys for Stamps' family did not return calls Thursday, but in a memorandum filed with the court, they argue Duncan violated police training and protocols when he intentionally pointed the rifle - the safety off and his finger on the trigger - at Stamps' head.
"When Duncan pulled the trigger he intentionally killed Mr. Stamps by shooting him in the face," attorneys Joseph Musacchio and Anthony Fugate wrote.
Duncan's gun was in semi-automatic mode with the safety "off," and it fired, the officer later explained, when he lost his balance and fell while trying to secure Stamps' hands, according to the lawsuit.
Stamps' widow and son filed the lawsuit in 2012, claiming wrongful death and Fourth and Fourteenth Amendment right violations.
The shooting sparked a community outcry and prompted Steven Carl, police chief at the time, to create a citizens committee that came up with recommendations after the fatal shooting.
The police department enacted policy changes as a result, including reducing the size of the SWAT team and beefing up training requirements. Carl quietly disbanded the team before he left the force last year.
Duncan was placed on administrative leave after the shooting, but returned to the job roughly three months later.
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