BANGOR, Maine — U.S. Magistrate Judge John Nivison on Tuesday heard arguments about whether to dismiss a lawsuit filed against the city and five Bangor police officers by the family of a man who died in police custody at a local hospital five days after he was arrested in 2012.
Michael McCue of Jackson filed an 8-count wrongful death lawsuit in March 2014 over the death of his son, Phillip A. McCue, who died at Eastern Maine Medical Center on Sept. 17, 2012, five days after he was shocked with a Taser by Bangor police while being arrested.
The initial incident occurred on Sept. 12, 2012, while Bangor police officers were investigating a noise complaint at 18 First St. At that time, McCue was under the influence of the street drug bath salts and ran away, according to the police investigation report. McCue’s autopsy report stated he died as a result of complications from overdosing on bath salts.
The elder McCue’s lawsuit claims police had no reason to stop his son, used excessive and deadly force in restraining him, and showed deliberate indifference after his son had a heart attack on the sidewalk while being handcuffed. He is asking for $6.65 million in damages, according to the original demand package sent to the police department’s attorney.
Both Bangor police and the Maine attorney general’s office conducted investigations into the death because McCue, who had a history of mental illness and drug use, died in custody at EMMC. Bangor police determined officers acted appropriately in the case, and Maine’s attorney general deemed that there was no basis for an investigation.
Five counts of the original lawsuit were previously dismissed. The remaining counts name the city and officers Kim Donnell, Wade Betters (who is now a sergeant), Josh Kuhn, David Farrar and Chris Blanchard.
“The complaints have all been whittled down to three complaints — two against the individual officers and one against the city,” Joshua Randlett of Bangor, one of the two attorneys representing the city and police officers, told the judge.
Randlett said those complaints are the use of excessive force, deliberate indifference to a man in medical need, and lack of training for the officers by the city. He proceeded to argue against each of those claims.
“Police officers are faced with split-second judgment about the amount of force that is necessary,” during confrontations, Randlett said. “It’s a fluid dynamic. The officers’ goal was to get Mr. McCue restrained and under control. They can’t transport him out of control.”
The officers called for ambulance crews, who were standing nearby to assist immediately after they realized McCue was unconscious and they arrived “within seconds,” Randlett said, responding to the deliberate indifference charge.
He said all officers involved were trained correctly and followed the rules, which is why the city and the named officers are seeking to have the case dismissed.
David Van Dyke of Lewiston, who is representing Michael McCue, said at the Tuesday hearing that his experts have determined Phillip McCue was being hurt by officers trying to hold him down during his arrest.
“The reason the medical care was necessary is because they were crushing him to death,” Van Dyke said. Through his research, Van Dyke added, “It is universal knowledge that you do not put weight on a person who is unresponsive.”
Randlett said there is no evidence that Bangor officers put weight on McCue after they noticed he was unresponsive.
“It’s 12 seconds from the time he went unconscious to when he was picked up,” Randlett said, referencing when McCue is heard making a sound in a police cruiser video. “We know, instantly upon recognizing that there was a problem, they sought care immediately.”
When McCue filed his lawsuit, he provided an edited copy of the police cruiser dashcam recordings to the Bangor Daily News. The 54-minute video from Sept. 12, 2012, is a combination of several police cruiser camera videos that have been edited, lightened for visibility and subtitled by McCue’s legal team, who were provided with the unedited videos under the state’s Freedom of Access Act.
Bangor police denied a Freedom of Access Act request by the Bangor Daily News for an unedited copy of the video recordings, citing protection of the family’s privacy.
The grainy images and muffled audio show Phillip McCue screaming threats as up to five Bangor police officers struggle with him on the ground, attempting to subdue him. Police eventually used a Taser on him, delivering an electric shock to bring McCue under control, but it seems to have little effect on McCue in the video.
About five minutes later, after officers put McCue into a restraint, he appears passed out as police are lifting his body to carry him to the police cruiser for transport. When officers realize he is unresponsive, they call over nearby paramedics.
Nivison said he would consider the motion and make a decision. Randlett said he did not expect the final decision within the next week.