McCue v. City of Bangor Maine
838 F.3d 55
1st Cir.2016Background
- Michael McCue exhibited erratic, threatening behavior (suspected bath-salts intoxication) and officers sought to place him in protective custody for psychiatric evaluation.
- Officers subdued McCue on his stomach; after being tased and handcuffed, officers restrained his ankles and wrists and placed him in a five-point "hog-tie." Video (Car 22) shows two officers applying weight to his neck/upper back while others completed restraints. McCue later became unresponsive and died; an expert attributed death to prolonged prone restraint under weight amid excited delirium.
- Plaintiff (McCue's father/personal representative) sued under 42 U.S.C. § 1983 (excessive force, lack of probable cause, deliberate indifference) and state tort claims (assault & battery, wrongful death, etc.). Defendants moved for summary judgment on qualified immunity and MTCA grounds.
- The magistrate judge and district court granted summary judgment on most federal claims but denied qualified immunity to the individual officers and denied MTCA immunity as to claims alleging excessive force after McCue ceased resisting; factual disputes remained about when resistance ceased and how long force continued.
- Defendants filed an interlocutory appeal arguing they were entitled to qualified immunity as a matter of law; the First Circuit considered whether it had jurisdiction to hear that appeal given Johnson v. Jones limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court has interlocutory jurisdiction over denial of qualified immunity | McCue: disputed material facts (when resistance ceased, duration/amount of force) preclude appellate review under Johnson | Defendants: accept plaintiff-favorable facts and argue even so the force was reasonable (at most 66 seconds of post-resistance force) | Dismissed for lack of jurisdiction because the denial turned on genuine factual disputes the defendants did not truly accept |
| Whether videotape conclusively shows only a brief (66s) period of allegedly unlawful force | McCue: video permits inference of several minutes of continued force on non-resisting subject; movements may reflect distress, not resistance | Defendants: video, even viewed favorably to plaintiff, shows at most 66 seconds of continued force after resistance ceased | Court: defendants mischaracterized facts; independent review of video supports that multi-minute dispute exists, so issue is factual and precludes appeal |
| Whether continued weight on a subdued, prone person violates clearly established Fourth Amendment law | McCue: applying significant weight to back/neck of subdued, prone person is excessive force and clearly established by other circuits | Defendants: no clearly established law at time to put them on notice | Court: law was clearly established by multiple circuit precedents; continued weight on prone, restrained person can be constitutionally excessive |
| Whether MTCA immunity applies to state assault/battery claim | McCue: state-law excessive-force/assault claim parallels federal analysis and survives at summary judgment given factual disputes | Defendants: MTCA immunity should bar claim | Court: MTCA immunity denial was proper at this stage for same reasons as federal qualified immunity denial |
Key Cases Cited
- Johnson v. Jones, 515 U.S. 304 (limits interlocutory appeals of qualified-immunity denials to pure legal questions)
- Scott v. Harris, 550 U.S. 372 (courts may view and rely on video evidence to resolve factual disputes in summary-judgment context)
- Plumhoff v. Rickard, 134 S. Ct. 2012 (qualified immunity collateral-order appeals generally appealable)
- Weigel v. Broad, 544 F.3d 1143 (10th Cir.): holding that applying pressure to upper back of restrained suspect can be excessive force
- Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir.): placing knee/shin on back/shoulder of restrained person can be excessive force; movements may reflect respiratory distress, not resistance
- Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir.): pressing weight on torso/neck of subdued, handcuffed person violates Fourth Amendment
- Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir.): creating asphyxiating conditions by placing substantial weight on back of incapacitated, bound suspect is objectively unreasonable