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McCue v. City of Bangor

United States Court of Appeals, First Circuit

September 26, 2016

MICHAEL MCCUE, Plaintiff, Appellee,


          Frederick F. Costlow, with whom Heidi J. Hart, Frederick J. Badger, and Richardson, Whitman, Large & Badger were on brief, for appellants.

          David J. Van Dyke, with whom Lynch & Van Dyke, P.A. was on brief, for appellee.

          Before Lynch, Lipez, and Thompson, Circuit Judges.


         Michael 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."

         The 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.

         The 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.


         "We 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."[1] 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.

         On 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.

         Donnell 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.

         Based 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 professional evaluation.

         Officers 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.

         Kuhn 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 back.

         After 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 legs.

         The Car 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 ...

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