Saying the dispute should be left for a jury to decide, a federal judge Wednesday refused to free former Hummelstown police Officer Lisa Mearkle from a lawsuit filed by the family of a man she shot and killed two years ago.



There are too many outstanding questions regarding whether Mearkle was justified in using deadly force when she shot David Kassick twice, U.S. Middle District Judge John E. Jones III wrote in refusing to dismiss the Kassick family's claims.



Even a video of the February 2015 shooting that was filmed by a camera in Mearkle's Taser is ambivalent, Jones concluded.





Jones' refusal to toss out the Kassick family's suit puts the case on track for a civil trial. That means a second jury could rule on Mearkle's actions more than a year after a Dauphin County jury acquitted her of a third-degree murder charge for Kassick's death. Mearkle has since resigned from the Hummelstown force.



Wednesday's ruling marks the second time Jones has refused pleas by Mearkle and borough officials to dismiss the Kassick suit. This time, he refused to grant all their requests to throw out the case on summary judgment.



"Genuine disputes of material fact abound," Jones wrote. "The record evidence is mixed as to the circumstances bearing on the reasonableness of Officer Mearkle's actions, chiefly how best to interpret (Kassick's) movements, his level of cooperation, and whether and how clearly he was instructed to comply with Officer Mearkle's commands."



Mearkle has claimed she used a Taser on Kassick and then shot him when he refused to obey her commands to show his hands and instead kept reaching into his jacket. She said she feared for her safety.



The fatal encounter occurred after Kassick fled a traffic stop. He was lying on the snow-covered ground when Mearkle shot him. The Kassicks want a jury to view the Taser video during a civil trial.



"The video is far from clear," Jones wrote. Kassick's "actions are obscured as he is often on his stomach and facing away from the camera. Rather than conclusively showing that (Kassick) reached into his jacket in a manner that suggests he was reaching for a weapon, a reasonable jury could accept (the Kassick family's) interpretation that (Kassick) was rolling and convulsing out of pain due to the electrical current inflicted by the Taser."



The judge found there is also an "important discrepancy" regarding the commands Mearkle issued to Kassick. He cited the Kassick family's claims that Mearkle "screamed a series of highly confusing commands." Jones noted that the video shows that once Kassick did tell Mearkle, "I am showing you my hands."



"The dispute between whether (Kassick) was attempting to comply with the commands and whether the orders issued by Officer Mearkle caused him to become confused represents another serious factual discrepancy that is suitable for a jury's consideration," Jones wrote.



His refusal to free Hummelstown from the suit means the Kassicks can keep pursuing their claims that Mearkle wasn't properly trained -- including in the use of non-lethal force -- or supervised.



Jones also cited a claim that borough officials "inexplicably" provided no counseling to Mearkle after she was severely injured while arresting a combative and intoxicated man in 2013. In that case, as in the Kassick incident, Mearkle's Taser didn't subdue the suspect, Jones noted. She then struck the man repeatedly with her baton.



Mearkle and the suspect were both seriously injured. Mearkle had to undergo surgery and it was six months before she could return to duty, Jones noted. He found there are questions regarding how that traumatic experience, and the lack of subsequent counseling, might have influenced Mearkle's actions against Kassick.



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