The city of Mason and two police officers involved in a wrongful death lawsuit from a 2009 Taser incident want a federal court to dismiss the claims.

A trial date has been set for Feb. 19, but first the court must determine if it will be tried at all. Claiming two police officers used excessive force on a mentally ill person, Douglas Boucher’s family is seeking compensatory and punitive damages from the city of Mason and officers Daniel Fry and Sean McCormick.

Boucher, 39, was allegedly harassing a female clerk at the Speedway gas station on Reading Road in December 2009 when Fry and McCormick happened to stop by the store. The two officers approached Boucher and asked him to go outside. The officers were attempting to handcuff Boucher when he wrestled away and hit Fry in the head with his one handcuffed hand, according to records. When he tried to go after the clerk again — she had come outside — McCormick attempted to use a Taser on him. The first shot failed, but the second one employed the shock, according to reports at the time of the incident.

Boucher fell to the ground, knocking his head on the concrete. The autopsy revealed a skull fracture as the cause of death. However, court records include an opinion by Dr. Cyril Wecht that indicate the Taser shocks caused a fatal cardiac arrhythmia. The City of Mason’s attorney, Gary Becker, has also filed a motion to exclude the doctor’s testimony.

The lawsuit claims the officers tased Boucher a total of six times in less than a minute and hit him and kicked him after he was down. Becker said in his motion that Boucher was acting aggressively prior to his falling face first on the pavement. When he refused to show the officers his hands, they suspected he might try to ambush them as he had previously when he allegedly struck Fry.

The Boucher’s attorney says the issue of resisting arrest is precisely why a jury should decide the case,.

“The parties hotly dispute whether Mr. Boucher was actively resisting. For this reason alone summary judgment is improper,” Alphonse Gerhardstein wrote. “Defendants argue that Mr. Boucher’s actions after he was ordered to stop and submit to being handcuffed justified their later use of force after he fell from the second tasing. Plaintiffs argue that at the time the excessive force was used (the five final tasings, the kick and the baton strikes)Mr. Boucher was not actively resisting.”

A hearing on the motion to dismiss is scheduled for Jan. 10.