By Lisa Redmond
Lowell Sun
BOSTON — The Lowell Police Department is asking a federal judge to dismiss an excessive-force lawsuit filed against the department and the late Lowell Officer Charles “P.J.” Panek’s estate by a Pelham, N.H., man.
In court documents filed last week, assistant city solicitors Maria Sheehy and Eric Slagle argued that Joseph Chalifoux, 32, of Pelham, cannot show that the Lowell police demonstrated a “custom and policy of deliberate indifference to the constitutional rights of its citizens.’'
In his 2010 lawsuit, Chalifoux claims that he was unnecessarily sprayed by Lowell police Officer Charles Panek while Panek responded to an altercation outside Club Diner on Dutton Street around 1:30 a.m. on July 16. Police arrived because Chalifoux and two men had been unruly inside the diner moments before.
After the lawsuit was filed, Panek died in a boating accident on the Merrimack River on July 23. The lawsuit has been amended to name Sandra Panek as administrator of Charles Panek’s estate.
Tumposky alleges that Panek, without warning, used his chemical spray on the three men, turning “what was a very minor issue into a major incident due to his inexperience and poor training.”
Tumposky claims that Panek’s conduct violated police procedures which require, at a minimum, a verbal warning prior to dispersing chemical spray. The Boston attorney also wrote that Panek initially sprayed himself before turning the canister around and spraying “indiscriminately into the crowd which had gathered.”
Panek was “frustrated by his own incompetence” so he arrested Chalifoux for disorderly conduct, despite witnesses indicating that the other men were the aggressors and that Chalifoux was the victim, according to Tumposky.
As a result, Chalifoux, through his attorney Michael Tumposky, alleges in the lawsuit filed last week in U.S. District Court that he has suffered eye damage and vision loss due to the chemical spray, as well as emotional distress.
But Sheehy and Slagle argue in court documents that Chaulifoux cannot not show the Lowell Police Department has a municipal policy or custom of violating constitutional rights.
The complaint only alleges that the officer made the situation worse “due to his inexperience and poor training,’' Sheehy and Slagle wrote. “That a particular office may be unsatisfactorily trained will not alone suffice to fasten liability on the city.’'
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