The Bozeman Police Department is asking a federal judge to reject a call for sanctions against the force for allegedly covering up details of a police stun gun incident that left a man with serious head injuries, according to court documents.
Attorneys for Soheil "Jesse" Verdi claim someone deleted a portion of an audio recording that captured his encounter with officers during a welfare check at Verdi's apartment.
But police department attorneys said in documents filed Monday there is no evidence anything was deleted. And they said even if a portion of the recording was lost, officers had no duty to preserve it because they did not know Verdi would sue.
Verdi's attorney said Tuesday that the department's response leaves the issue largely unresolved.
Two police officers came to Verdi's Bozeman apartment in August, 2007 to check on him after a friend called 911 over concerns that Verdi wasn't answering his phone.
Verdi answered the door naked and intoxicated, then allegedly attacked police Sgt. Greg Megargel. When the second officer, Mark Ziegler, shot him in the back with the Taser, Verdi said he fell and crushed his skull against his outside deck.
He said he needed three brain surgeries, had a large metal plate put in his skull and suffers from headaches, memory loss, slurred speech and vision problems.
The lawsuit seeks unspecified damages. Verdi's attorneys in August asked U.S. District Judge Richard Anderson to pursue sanctions against the police department and city for failing to preserve the audio as evidence in the case. That could include a ruling in favor of the plaintiffs, said Verdi's attorney, Todd Shea.
Ziegler was wearing a microphone and turning it on and off during the course of the welfare check and when medical personnel were tending to Verdi. Attorneys for Verdi contend an analysis of the recording showed there was a missing segment of audio after Bozeman police turned over five segments of recordings numbered 168, 169, 171, 172 and 173.
Police department attorney Michael Lilly responded in court documents that "there is absolutely no evidence to support this claim." He said there was no file number 170 on a disc that the audio recordings were downloaded onto.
"Although none of the Defendants had any duty to make an audio recording of the tasing, Defendant Ziegler did so. Although neither Bozeman nor any of the individual Defendants had any duty to preserve the audio recording up until it became probable that Mr. Verdi would file suit, they did so," Lilly wrote.
But Shea said the department's response did not directly address whether the audio had missing segments.
"From my perspective and our expert's perspective, there is missing tape," he said. "From the police department's response, it was not clear if they are acknowledging there's a missing tape or denying it."
Shea added that the police department had not fully explained why there was a gap in the recording numbers.
Bozeman police administrators did not immediately return a call from The Associated Press Tuesday seeking comment.
Deputy Police Chief Marty Kent has testified that a complete investigation was conducted after the stun gun was used on Verdi. After Verdi filed the lawsuit two years later, Kent said he reviewed the case but did not make further investigations.