FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
Frederick F. Costlow, with whom Heidi J. Hart, Frederick J.
Badger, and Richardson, Whitman, Large & Badger were on
brief, for appellants.
J. Van Dyke, with whom Lynch & Van Dyke, P.A. was on
brief, for appellee.
Lynch, Lipez, and Thompson, Circuit Judges.
McCue, the father of Phillip McCue ("McCue") and
the personal representative of McCue's estate, brought
this 42 U.S.C. § 1983 action after McCue's tragic
death resulting from his encounter with the five Bangor
police officers named as defendants. On the night of their
encounter, the officers sought to take McCue into protective
custody due to his erratic behavior believed to be caused by
ingestion of bath salts. In an attempt to restrain McCue, who
initially resisted, the officers placed McCue in a face-down,
prone position for a disputed period of minutes while two
officers exerted weight on his back and shoulders. McCue was
declared dead shortly after this intervention. An expert
witness for the plaintiff attributed the likely cause of
death to prolonged restraint in the prone position
"under the weight of multiple officers, in the face of a
hypermetabolic state of excited delirium."
plaintiff brought suit against the City of Bangor and the
five officers in their individual and official capacities.
The plaintiff asserted violations of his son's federal
constitutional rights, as well as various state law tort
claims. The district court granted the defendants'
summary judgment motion on the basis of qualified immunity on
all claims, with two exceptions: it denied the five
officers' claims of qualified immunity as to the alleged
use of excessive force after McCue ceased resisting and also
denied immunity under the Maine Tort Claims Act
("MTCA"), Me. Stat. tit. 14, §§
8101-8118, as to the assault and battery claim. The court
denied summary judgment on these issues because it found,
following a magistrate judge's recommendation, that there
remained material disputed issues of fact as to these claims.
defendants appeal, arguing that they are entitled to pretrial
qualified immunity on these remaining claims of excessive
force and assault and battery. The plaintiff counters that we
do not have jurisdiction over the defendants'
interlocutory appeal, as there are material factual issues in
dispute about the time at which McCue ceased resisting and
the degree of force the officers continued to use against him
after that point. We agree with the plaintiff that we lack
appellate jurisdiction over this interlocutory appeal under
Johnson v. Jones, 515 U.S. 304
(1995). We dismiss the appeal.
have jurisdiction over an interlocutory appeal of a denial of
summary judgment on qualified immunity only insofar as the
appeal rests on legal, rather than factual grounds."
Cady v. Walsh, 753 F.3d 348, 350
(1st Cir. 2014) (citing Johnson, 515 U.S. at 313).
We thus summarize the facts in the light most favorable to
the nonmoving party, the plaintiff. The record also contains
video footage of a portion of McCue's encounter with the
defendants through the "Car 22
video." As the Supreme Court has instructed us to
independently watch and take into account such footage in
assessing the credibility of each party's version of the
facts, Scott v. Harris, 550 U.S.
372, 378, 380-81 (2007), we intersperse our observations of
the footage where appropriate.
September 12, 2012, McCue was in the common area of an
apartment building located at 18 First Street in Bangor,
Maine. Witnesses described him as "ranting and raving,
yelling and screaming, and stomping and kicking at
doors." Fearing that the building manager, who had gone
to investigate the situation, was in danger, a resident of
the building called the Bangor Police Department. Officer
Kimberly Donnell responded to the call. Upon her arrival,
Donnell met with the caller, who led her to the second floor
of the apartment building. When Donnell reached the second
floor, McCue "screamed something and then jumped over a
banister in the third floor hallway and landed approximately
eight feet below on the stairway that led to the second
floor." McCue then put his shoulder or elbow through the
stairway wall and created a hole "a little larger than a
softball." He also threw a beer bottle in Donnell's
direction and screamed an obscenity before running past
Donnell and leaving the building.
called for backup, and Officer Wade Betters responded to her
request. The two followed McCue in a police car and attempted
to speak to him upon making contact with him at a nearby fire
station. McCue began pacing and continued yelling, so the
officers issued a disorderly conduct warning, as well as a
warning to stay out of the roadway. After asking Officer Ryan
Jones (who is not a defendant in this suit) to monitor McCue,
Donnell and Betters returned to 18 First Street to obtain
more information. There, they learned that McCue was a bath
salts user and that he might have used bath salts that
evening. Upon leaving the building, the officers again
encountered McCue, who had fled from Jones. McCue yelled,
hurled profanities at Donnell and Betters, gestured to them,
and challenged them to chase him.
on McCue's behavior and pursuant to the Bangor Police
Department's policy, entitled "Response to Mental
Illness and Involuntary Commitment, " Betters decided
that McCue should be taken into protective custody for a
professional evaluation. Under the relevant policy, an
officer is required to take an individual into protective
custody when the "officer has reasonable grounds to
believe that [the individual] seems mentally ill and presents
a threat of immediate and substantial physical harm to
himself or third persons." The policy defines
"threat of imminent and substantial physical harm"
to encompass a "reasonably foreseeable risk of harm to
someone -- including the person experiencing a mental health
crisis -- of serious self-injury, violent behavior or placing
others in reasonable fear of serious physical harm, and/or
impairment to such an extent that a person is unable to avoid
harm or protect themselves from harm." If an officer
determines that an individual must be taken into protective
custody, the officer must bring that person to a hospital for
Christopher Blanchard, David Farrar, and Joshua Kuhn, all
defendants, heard Betters report that McCue should be taken
into protective custody. Farrar and Kuhn located McCue
running in the roadway. They left their cruiser to speak with
him, but McCue "either responded unintelligibly or
snarled at the officers" before running off again. In
the process, McCue darted into the road, on Main Street, in
front of Jones's vehicle. Betters and Kuhn, driving
separate vehicles, unsuccessfully attempted to box McCue in
and prevent him from running into traffic again. Farrar and
Kuhn subsequently pursued McCue on foot and apprehended him
when he tripped and fell on Main Street. McCue was on the
ground on his stomach when Farrar and Kuhn reached him. A
Bangor Fire Department fire engine pulled across Main Street
and parked there to block off traffic. In the fire engine
were three paramedics and one emergency medical technician.
Other emergency personnel from the Bangor Fire Department
were also standing nearby.
initially placed his chest on McCue's shoulder and asked
McCue to give up his hands, but McCue refused. Even after
Kuhn placed his finger on a pressure point under McCue's
nose to gain pain compliance and even after Farrar struck
McCue a few times on his arms, McCue refused to comply and
kept his hands underneath his body. McCue swore at the
officers and threatened to kill them. Only after Donnell
arrived on the scene and tased McCue did McCue give his hands
up. That enabled the officers to handcuff his arms behind his
securing McCue's arms, the officers turned their efforts
toward securing his legs. By this point, both Blanchard and
Betters had arrived on the scene. Donnell placed herself on
McCue's legs because McCue continued to kick, resist,
growl, swear, and make "unintelligible
exclamations" at the officers. The Car 22 video from
Blanchard's vehicle captures this behavior. The parties
agree that the Car 22 video footage begins at some point
after McCue was first held to the ground. Indeed, when Car 22
arrived on the scene, three officers were already attempting
to restrain McCue, with Donnell already holding down his
22 video, from 2:18 to 2:22, captures McCue kicking his legs,
flailing his upper body, and shouting an expletive at the
officers. After that point, between two and five officers
continued to hold McCue down. Upon viewing the video, the
magistrate judge observed that "[t]wo officers [Kuhn and
Farrar] applied what could be viewed as significant weight to
Mr. McCue's shoulders and neck for a period of time,
perhaps as much as four to five minutes, while other officers
attempted to secure his feet." On our own viewing of the
video, we agree with the magistrate judge's observation.
Specifically, after McCue's outburst around 2:20, the Car
22 video depicts one officer placing his knee on McCue's
neck while another sits on his back. The officer's knee
remains on ...