Father files lawsuit against Bangor police, Taser manufacturer over death of son in 2012

Phillip A. McCue
Courtesy of Facebook
Phillip A. McCue
By Nok-Noi Ricker, BDN Staff
Posted March 19, 2014, at 2:57 p.m.

BANGOR, Maine — A Jackson man has filed a federal lawsuit against Bangor police and others, claiming their actions resulted in the wrongful death of his son, who was under the influence of bath salts when a police officer used a Taser on him during an arrest.

Phillip A. McCue died at a local hospital five days after he was shocked with a Taser on Sept. 12, 2012, the night police responded to a noise complaint at 18 First St. and McCue took off running. Police say McCue was out of control. The autopsy report states he died as a result of complications from overdosing on the lab-made street drug.

McCue’s father, Michael McCue of Jackson, filed the eight-count civil lawsuit in U.S. District Court Tuesday against the city of Bangor, the police department and six police officers — Kim Donnell, Ryan Jones, Wade Betters (who is now a sergeant), Josh Kuhn, David Farrar and Chris Blanchard — along with Bangor police supervisors, Bangor Fire Department ambulance medics and Taser International Inc., which manufactures the electric shock device.

Michael McCue said he filed the lawsuit as a representative for his grandson, Jackson McCue, Phillip McCue’s only child.

He is asking for a total of $6.65 million from the various defendants, according to a demand package sent in December to the police department’s attorney, Frederick Badger of Bangor.

The lawsuit claims police officers had no reason to stop his son; they used excessive and deadly force in restraining him; and there was deliberate indifference after his son had a heart attack on the sidewalk while being handcuffed.

The lawsuit also claims the Taser company knows the electronic device it makes is dangerous, and therefore it is negligent and has a product liability.

The defendants have 21 days to file a response to the court summons notifying them of the civil action.

“The facts are that Phillip McCue was under the influence of bath salts, was out of control, posed a threat to himself and others,” Badger said in a Wednesday statement. “The Bangor Police Department and its officers reacted professionally, responsibly and in accordance with the law.”

A voicemail message and an email seeking comment from Taser were not returned.

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 police custody at Eastern Maine Medical Center. Bangor police determined officers acted appropriately in the case and Maine’s attorney general deemed that there was no basis for an investigation.

McCue’s father and the pathologist, cardiologist and toxicologist he hired disagree.

Michael McCue provided the Bangor Daily News with a copy of the demand package that was presented to the city in December, which includes a DVD of police cruiser video camera images taken the night McCue was arrested.

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, based on protecting the family’s privacy.

The often 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 use a Taser on him, delivering an electric shock to bring McCue under control, but it seems to have little effect. About five minutes later, McCue appears passed out as police are lifting his body, which is tied with restraints, to carry him to the police cruiser for transport. When officers realize he is unresponsive, they call over nearby paramedics.

“The ‘enhanced’ and edited video created by Michael McCue and his legal team is quite clearly intended to portray the situation in the light most favorable to their cause,” Badger said. “The Maine Attorney General’s Office reviewed the entire matter, including the original and unedited videos, and determined that the Bangor Police Department officers involved acted within the limits of the law. The lawsuit will be vigorously defended.”

‘Don’t bother me’

Phillip McCue had smoked about $50 worth of bath salts — a white, powdery stimulant and hallucinogen known on the streets of Bangor as monkey dust — with a known bath salts abuser on the night he was arrested, the Bangor police investigation report states.

Officer Kim Donnell was the first to arrive at the scene of a noise complaint on First Street and learned McCue had been upstairs yelling for about a half hour. He was swearing and “yelling at the walls” and was saying, “Don’t bother me” and “Stop butting in,” a neighbor reported.

McCue ran past Donnell, exiting the building, and a foot chase ensued. Police eventually caught McCue on Main Street, when he tripped and was tackled by Officer Josh Kuhn, who was quickly joined by Officer David Farrar and Donnell.

“He was thrashing wildly and yelling, ‘I’m going to kill you,’” Kuhn’s report states. “Even with the three of us holding him down he was still able to lift us off the ground and appeared not to feel any pain. It was very clear that Phillip was under the influence of some substance.”

Donnell used her Taser on McCue at 9:04 p.m., according to the device’s use log.

She shot probes into his lower back the video shows, and at about that time McCue can be heard proclaiming in a clear, but anguished voice, “I’m sorry.”

Seven seconds later, however, McCue began to swear and can be seen in the video violently kicking his legs. While thrashing, McCue pinned Blanchard’s hand against the curb, according to the police report of the incident. The officer can be seen punching McCue 10 times in the calf attempting to get McCue to release his hand. Blanchard was later treated at the hospital for a hand injury, according to the police report.

Two other officers arrived, and it took about two more minutes before McCue’s legs were secured and another minute before his hands were cuffed.

McCue issued several garbled statements while he was pinned by the officers. His father said those statements were calls for help.

When the video reaches 14 minutes, an “ah” sound escapes McCue and at 14:48 on the video McCue is lifted by the five officers and taken to the side of the police cruiser for his trip to EMMC for a mental evaluation.

Nineteen seconds later, at 15:07 into the video, one of the officers can be heard asking if McCue is unresponsive.

“I think he’s passed out. Can you ask for an ambulance,” an officer can be heard saying at 15:16 into the video.

“No pulse,” at 15:41.

“He’s ODing,” at 15:50.

“I think he’s ODing on us right now,” at 16:16.

Excited delirium is mentioned twice by police.

A couple of paramedics from the fire truck that pulled up earlier to block traffic can be seen immediately exiting their vehicle to attend to McCue, who is out of camera view. At 18:25 of the enhanced video, the subtitles “CPR sounds” flash across the screen and a distinct rhythmic sound can be heard.

The ambulance leaves 21:50 into the video, heading for EMMC.

McCue was revived but remained in a coma and alone at the hospital until his father and stepmother learned two days later that he might have been arrested and started looking for him.

“He was in the hospital for two and a half days and nobody [in his family] knew he was there,” his stepmother, Patty McCue, said shortly after his death. “The nurses felt this poor kid was homeless and didn’t have any family.”

Phillip McCue never regained consciousness before he died.

Autopsy report

Phillip McCue’s autopsy report states he experienced cardiac arrest when captured and died in police custody at the hospital five days later, on Sept. 17, 2012, as a result of complications from overdosing on synthetic bath salts.

McCue had smoked a form of bath salts known as Alpha-PVP that resulted in the death of another bath salts user in Bangor the same week, Lt. Tom Reagan said in his portion of the investigation report.

Officers who gathered at the hospital can be heard at the end of the video talking about the previous death.

His autopsy report states McCue went to Acadia Hospital on Sept. 3, 2012, seeking bath salts treatment and that he suffered from up to 10 medical ailments that are often associated with bath salts addiction.

Toxicology tests show McCue had more than a dozen separate drugs, including bath salts, benzodiazepines, cocaine, opiates and others in his system.

“Dr. Ferenc wrote the cause of death as ‘complications of Alpha PVP,’” Dr. Margaret Greenwald, the state’s medical examiner, said when the autopsy report was released. “That would include the excited delirium, and most of the other listed findings which occurred because he took the drug.”

Michael McCue said his son died because of the way he was treated by police and emergency responders.

“Right from the beginning, we were concerned because of the EMT report that says they found Phillip on the ground with handcuffs on,” he said, shortly after his son’s death. “When the EMTs arrived, he was dead. They had to ask [police] to remove the handcuffs. They began resuscitation and within two minutes they had him breathing again.”

Michael McCue said if police had started CPR, instead of waiting for the paramedics, his son may have survived.

“They waited for the EMTs to get there,” he said. “Why?”

http://bangordailynews.com/2014/03/19/news/bangor/father-files-lawsuit-against-bangor-police-taser-manufacturer-over-death-of-son-in-2012/ printed on September 20, 2014