PORTLAND – A lawyer representing the family of a Sumner man who was shot and killed by police said he has been ordered by a federal judge earlier this month to try again to make his case against the officers involved in the shooting.

Thomas Connolly, the Portland-based attorney representing the family of Daniel W. Bennett II, said Tuesday he was essentially given, a “do-over” by U.S. District Court Judge David M. Cohen.

Bennett was shot to death by Oxford County deputies inside the Upper Sumner Hill Road home of his mother and grandmother after his family called 911 seeking police help in January 2001.

Deputies said Bennett, 32, fired at them first with a 20-gauge shotgun before they fired back, killing him. An investigation by the Maine Attorney General’s Office cleared the officers involved, including Oxford County deputies Matthew Baker and Christopher Wainwright, of any criminal wrongdoing. But Bennett’s family is seeking damages from the officers involved and the county in a civil lawsuit filed in federal court.

“…the plaintiffs’ response so egregiously fails to conform to the requirements … I ordered plaintiffs’ counsel (Connolly) to file a new and conforming response … and admonished him that he will not be provided a further opportunity to correct any mistakes,” Cohen wrote of his order. Connolly has until Friday to refile his response opposing a motion that would see the case against the officers tossed out.

Also named as a defendant in the civil suit is Maine State Police Trooper Timothy Turner, who was in the home at the time of the shooting but did not fire his weapon during the confrontation with Bennett.

Both Connolly and Ronald Lupton, an attorney with the Attorney General’s Office representing Turner, said there is little that can be read into Cohen’s ruling except a final decision on whether the case goes to a jury is again delayed.

Connolly is grateful the court allowed him the opportunity for a second chance but also said the problems with his filing were more issues of format than substance. “It was compliant; it was just unusual in presentation,” Connolly said. “It’s not what they consider normal or acceptable. It basically had to be rebuilt. It was not a substantive issue – it had to do with spacing primarily most of the objectionally material was single-spaced as opposed to double spaced.”

The defendants are arguing there are no material facts in the case that are in dispute and need to be sorted out by a jury. The facts in the case show the shooting, while tragic and unfortunate, was justified, they’ve argued.

Instead of laying out the facts his clients dispute, Connolly wove them into a narrative outlining why the judge shouldn’t dismiss the civil suit against the officers. This was also an issue for the judge, Connolly said. While allowed under the rules for federal civil lawsuits, it is not the normal practice in Maine and not acceptable to Cohen.

“This is a discretionary act by the court,” Connolly said. “The court could have acted more aggressively and I am grateful and circumspect, compliant and humbled. It’s an elevation of form over substance, which they do all the time, and it’s not a criticism of the court at all – it’s what they do.”

The judge made his ruling during a conference call with the lawyers involved late on a Friday afternoon, Lupton said. He didn’t offer any rationale for the order except it was “in his discretion” to give the plaintiffs a second shot at correcting the filing.

“He was careful to use those words because the court has a great deal of discretion in how to deal with these things,” Lupton said. “He did not give any of us his reasons for exercising his discretion in that fashion. That was all he said.”

Both Connolly and Lupton agreed that some plaintiffs in the case, possibly including Bennett’s sister, and some defendants, possibly Turner and several other Oxford County deputies who were not present during the shooting, could be dismissed from the suit if it moves forward.

After Connolly refiles his response, the defense attorneys will have until March 21 to answer that new filing, Cohen ruled.