PORTLAND, Maine — The city of Portland will pay Edward Lund of Windham $10,000 to settle a lawsuit that alleges a Portland police officer used excessive force that injured Lund during a 2012 arrest.
Under terms of the settlement, Lund has signed a release and indemnity agreement that describes the injury as “accidental” and notes that it is not an admission of anything.
“After a careful examination of the facts and circumstances surrounding Mr. Lund’s arrest, Mr. Lund now describes the injury as accidental and not the result of the use of excessive force,” city spokeswoman Jessica Grondin said in a statement Tuesday, noting that an internal affairs investigation by the Portland Police Department concluded that Officer Eric McCusker did not use excessive force during the Sept. 19, 2012, arrest.
But Lund’s attorney, Robert Levine, told the Bangor Daily News on Tuesday that Lund continues to maintain he was intentionally and unlawfully assaulted.
“If you ask him, he’s going to say that he was intentionally assaulted, and if you ask me, that’s what happened,” Levine said. “[I told him], ‘You and I know what happened, and we both know they wouldn’t have made this offer unless the police officer had done something wrong.”
In June 2014, Lund and Jeffrey Staples of Standish filed suit in U.S. District Court charging McCusker with using excessive force when arresting the two men in September 2012.
On the night of Sept. 19, 2012, McCusker and another officer were called to railroad tracks off Canco Road after a Central Maine Power security guard reported suspicious activity. McCusker and the other officer, along with a police dog, tracked Lund and Staples to the area and found them hiding in tall grass. The two men said they hid because they thought they were being pursued by drug dealers.
Officers found a wire cutter at the side of the tracks and arrested Lund and Staples, charging them with possession of burglar’s tools.
During the arrest, the suit alleged, McCusker handcuffed the two men on railroad tracks, threatened them, punched Staples in the jaw and jumped on Lund’s back, breaking a rib.
“The allegation was that the officer was pissed off that these guys were lying to him about why they were lying in the tall grass late at night, and he goes off on them,” Levin said Tuesday.
Staples subsequently pleaded guilty to the charge, even though police found no DNA on the tools and Staples denied the charge, Levine said, because he was sentenced to time served.
Lund pleaded not guilty to the charge, and Levine said it was later dismissed.
McCusker’s attorney, Michael Cunniff, said Tuesday that Lund’s doctors would have testified that his injury could have resulted from the way he landed on the ground — which Cunniff said occurred before police even found the two men.
Just weeks before the case was scheduled to go to trial, Staples was stopped on April 22 by Portland police and charged with operating after license suspension. Lund was in the vehicle, which was “full of copper,” both Levine and Cunniff said Tuesday.
Along with the two men acknowledging they are addicted to heroin, the incident “really compromised their case,” Levine said. “I didn’t think the jury, after this last incident, was going to believe that they weren’t copper thieves.”
Lund accepted the $10,000 offer — the statutory minimum for negligence — and signed a release noting that his injuries could be attributed to “an accident during the arrest.”
Grondin said city officials believe a jury would have concluded that Lund was not injured, even accidentally, by McCusker, but settled the case as a “reasonable compromise of a doubtful and disputed claim” and that it “avoided the necessity of protracted and expensive litigation.”
Cunniff said the case was carefully scrutinized through the pretrial process, and he was confident a jury would have concluded there was no excessive force.
McCusker remains a Portland police officer in good standing, Grondin said Tuesday.
Lund declined, through his attorney, to comment on the case.