Attorney for man Tased, shot by police questions board ruling

A Las Vegas police officer who used a Taser on a lawyer and then shot him during a traffic stop last year was justified in his actions, a panel of department personnel and civilians has concluded.

But the lawyer representing Raymond James Duensing said his client never reached for a weapon, as police have alleged, before he was shot three times while he was running from the officer. Attorney Mace Yampolsky said the officer, David Gilbert, also used excessive force.

Duensing faces several felony counts in connection with the incident.

Officer Bill Cassell said a use of force board on March 21 determined unanimously that Gilbert's actions were justified. Gilbert has been with the department's traffic bureau since 1993.

Cassell wouldn't release details on how the board arrived at its decision, saying the review is not a public process. He also wouldn't comment on whether the board made its determination based on whether Duensing reached for a weapon.

Gilbert has been back with the department since Nov. 11, after a brief paid leave. Cassell said the leave was meant to evaluate Gilbert to ensure he was fit to return to duty because shooting a suspect can be traumatic for officers.

"We have to make sure officers have been able to deal with that before we allow them to return to duty and have contact with people on the streets," Cassell said.

The use of force board is made up of four civilians with no ties to Las Vegas police and three members of the department. They include an at-large captain who does not supervise the officer, the training captain, and a peer of the same rank who does not work with the officer.

The four citizens are randomly selected from a pool of people trained to be on the use of force board.

Cassell said the board could have recommended discipline against Gilbert if he was found to have violated department policy. The discipline recommendations range from written reprimand to termination.

But the sheriff has the final say on the board's recommendations, Cassell said. He said the board also scrutinizes department policy and could recommend policy changes.

The incident occurred Oct. 29, 2009, near Cheyenne Avenue and Jones Boulevard, when Duensing was pulled over after he drove through an intersection in a right-turn only lane.

Police said Gilbert fired his weapon after Duensing was asked to get out of his rental car because a record check showed he had a warrant for his arrest. Yampolsky said the warrant was for vehicle violations on another car.

Police said Duensing was Tased after his vehicle was stopped . They said he was shot after he reached toward his front right pocket for a .45-caliber handgun. Police also said Duensing reached for a folding knife.

Yampolsky said he is stunned that his client, who three times unsuccessfully ran for Congress on the Libertarian ticket against Democratic Rep. Shelley Berkley, was shot after a traffic stop.

"He's a practicing lawyer who committed a traffic offense," Yampolsky said.

Yampolsky denies Duensing ever reached for a weapon while fleeing from police.

"According to my client, he did not," Yampolsky said.

The trial is scheduled for Aug. 24, although Yampolsky plans to file a motion to get the indictment dismissed.

He said Duensing faces multiple felonies including resisting arrest, carrying a concealed weapon for the knife that police say measures 3.75 inches partially hidden in his pocket, and a charge of carrying a firearm by an unauthorized person.

Police also allege Duensing is an illegal drug user, Yampolsky said.

Yampolsky said after Duensing was shot, police found a pipe with marijuana residue in the car's center console.

Duensing did have a .45-caliber gun in his possession, for which he had a permit, Yampolsky said.

He also said Duensing was not under the influence of marijuana when the incident occurred.

Although Duensing was not willing to comment on the incident, he did write on a political Web site in November that he feared the Taser shot could kill him because of a medical condition.

He wrote that he had heart problems and that "several people without heart conditions have been killed by this weapon."

He described removing the Taser prongs from his chest.

"The juice flowed through my arms, not my heart," he wrote.

Duensing said he believed his instincts saved his life.

Yampolsky said people who have been shot by the weapon that police consider to be nonlethal are not in the right frame of mind.

Duensing received injuries to his back and arm as a result of the shooting.

Allen Lichtenstein, general counsel of the American Civil Liberties Union of Nevada, and a frequent critic of Las Vegas police, said the use of force board should be a process open to the public.

Anytime a suspect is shot and killed by police in Southern Nevada, a coroner's inquest is convened. The jury then determines whether the shooting is justifiable, excusable or criminal.

Lichtenstein said his organization has had problems obtaining all facts from previous decisions made by the use of force board.

"The lack of transparency and lack of any kind of public accountability is troubling," Lichtenstein said. "These things are serious matters."

Contact reporter Antonio Planas at aplanas@reviewjournal.com or 702-383-4638.