United States Court of Appeals 

For the First Circuit 

No. 15-2460 

MICHAEL MCCUE, 

Plaintiff, Appellee, 

v. 

CITY OF BANGOR, MAINE; OFFICER KIM DONNELL; OFFICER WADE 

BETTERS; OFFICER JOSHUA KUHN; OFFICER DAVID FARRAR; AND OFFICER 

CHRIS BLANCHARD, 

Defendants, Appellants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, U.S. District Judge] 

Before 

Lynch, Lipez, and Thompson, 

Circuit Judges. 

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. 

September 26, 2016 
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LYNCH, Circuit Judge. 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 
- 3 - 

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. 

I. 

"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 
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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. 

 1 There is a less helpful video from Car 15, which we have 

watched. But it does not add any facts of note to those gleaned 

from the Car 22 video, as described later. 
- 5 - 

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 
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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. 
- 7 - 

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 
- 8 - 

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 McCue's neck even after McCue twice 

shouts in distress that the officers are hurting his neck, from 

around 2:26 to 2:32 of the video. Around 2:47, McCue again shouts 

something unintelligible about his neck. 

Following the 2:20 outburst, although McCue continues to 

growl and mutter intermittently until around 5:30 of the video, he 

does not seem to kick or flail as noticeably as he did at the 2:20 

mark. It is difficult, if not impossible, to tell from the footage 

whether and how much McCue continued to resist, and how much 

pressure the officers exerted on his upper body. 

As Blanchard attended to McCue's legs, his hand became 

trapped between McCue's ankles, and Blanchard sustained a serious 

hand injury. Blanchard rapidly punched McCue's leg ten times to 

free his hand. Blanchard and Donnell then successfully restrained 

McCue's ankles with flex cuffs, after which the officers tied 

together the ankle and wrist cuffs -- in a position known as a 

five-point restraint or "hog tie" -- using a dog leash retrieved 
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from a police vehicle. At some point after McCue's wrists and 

ankles were restrained but before he was placed in a five-point 

restraint, Blanchard punched McCue in his lower back, buttocks, or 

thigh region. It is undisputed that the officers placed McCue in 

the five-point restraint to "restrain and control him in order to 

transport him to the hospital for an evaluation." Between the 

time period when the officers secured the ankles (around 5:30 of 

the video) and when they completed the hog tie (around 7:05), at 

least two large officers continued to exert pressure on McCue's 

neck and upper body, sometimes kneeling and sitting on his back. 

By the time the officers lifted McCue from the ground, at 7:08, 

his body was limp and he "could have been unconscious." 

At some point after lifting McCue off the ground and 

transporting him to a police vehicle a few yards away, the officers 

observed that McCue was unresponsive. One officer exclaims around 

7:25 of the Car 22 video that McCue "might not be conscious right 

now." Seconds later, the Car 22 video captures an officer's 

statement that McCue is in a state of "excited delirium." Then, 

an officer comments that "the last thing we need is for him to die 

from excited delirium in the back of the car." Another video -- 

the Car 15 video, shot from Betters's vehicle -- was visually 

obstructed by the parked fire truck but clearly picked up the audio 

of the officers' conversation. It also confirms these statements 

regarding excited delirium. 
- 10 - 

During or immediately after making these statements, the 

officers called for medical assistance, and two firemen from the 

parked fire truck, as well as other emergency responders, arrived 

shortly thereafter. They were unable to resuscitate McCue. One 

of the plaintiff's expert witnesses attributed the likely cause of 

death to "prolonged prone restraint under the weight of multiple 

officers, in the face of a hypermetabolic state of excited 

delirium." The witness elaborated that "McCue's inability to 

hyperventilate and compensate for metabolic acidosis in his state 

of excited delirium led to his cardiopulmonary arrest."

Most of the officers were trained at the Maine Criminal 

Justice Academy, which provided limited information about the risk 

of positional asphyxia resulting from prone restraint. Officers 

were instructed that, after arrest, suspects should be placed in 

a seated position, not in a face-down position on their stomachs, 

in the police vehicle. Blanchard, who was trained at the police 

academy in Vermont and also received military police training with 

the United States Army, had been taught that a suspect who has 

been in a five-point restraint for an extended period of time 

should be monitored for signs of asphyxia. No officer was advised 

against placing weight on the upper back or shoulders of a prone 

suspect. 
- 11 - 

II. 

On July 15, 2014, the plaintiff filed his First Amended 

Complaint in the District of Maine and named as defendants the 

City of Bangor and the five officers in their individual and 

official capacities. The complaint raised claims under § 1983 

that the defendants had lacked probable cause to seize McCue, that 

they had used excessive force against McCue throughout their 

encounter, and that they had been deliberately indifferent to 

McCue's medical needs. The complaint also alleged various state 

law tort claims: assault and battery, wrongful death, negligent or 

intentional infliction of emotional distress, and respondeat 

superior and vicarious liability. The defendants moved for summary 

judgment on the basis of qualified immunity for the § 1983 claims 

and immunity under the MTCA for the corresponding state law claims. 

On September 22, 2015, the magistrate judge issued a 

Recommended Decision granting in part and denying in part the 

defendants' motion. The recommendation concluded that the entire 

§ 1983 claim against the City of Bangor should be adjudicated in 

the City's favor. As for the individual defendants, the magistrate 

judge recommended granting summary judgment in their favor on the 

§ 1983 claims based on probable cause and deliberate indifference 

toward McCue's medical needs. The magistrate judge also 

recommended summary judgment in favor of the individual defendants 

with regard to the § 1983 claim alleging excessive force, except 
- 12 - 

as to the claim that the officers used excessive force after McCue 

had ceased resisting. Correspondingly, the magistrate judge 

recommended judgment in favor of the individual defendants on the 

state law assault claim, except as to the claim that the officers 

used excessive force after McCue had ceased resisting.2

As to excessive force, the magistrate judge found that 

there existed a "genuine issue of material fact as to whether 

Defendants used excessive force after Mr. McCue ceased resisting." 

McCue, 2015 WL 6848539, at *13. The magistrate judge emphasized 

that, "'[t]aken in the light most favorable to the party asserting 

injury,' the record could support a finding that Defendants 

continued to employ significant force after Mr. McCue ceased 

resisting and no longer posed a threat to the officers or himself." 

Id. at *9 (alteration in original) (quoting Saucier v. Katz, 533 

U.S. 194, 201 (2001), receded from on other grounds by Pearson v. 

Callahan, 555 U.S. 223 (2009)). Furthermore, the magistrate judge 

found that these disputed facts were material because, "[a]t the 

time of Mr. McCue's apprehension, the law was clearly established 

that use of a significant level of force after a subject has ceased 

 2 The magistrate judge specified that the Recommended 

Decision did "not address any other possible bases for summary 

judgment on the state law tort claims . . . or whether Plaintiff 

can proceed on an independent claim for emotional distress damages 

in this action." McCue v. City of Bangor, No. 1:14-cv-00098-GZS, 

2015 WL 6848539, at *13 n.27 (D. Me. Sept. 22, 2015). 
- 13 - 

resisting violates the Fourth Amendment." Id. at *10 (citing, 

inter alia, Jennings v. Jones, 499 F.3d 2, 20–21 (1st Cir. 2007)). 

After reviewing de novo all of the magistrate judge's 

determinations, the district court adopted the Recommended 

Decision in full. This appeal followed. The only issue before us 

is the pretrial denial of qualified immunity as to the plaintiff's 

allegation that the officers used excessive force after McCue had 

ceased resisting, as well as the corresponding denial of immunity 

under the MTCA for the state law assault claim. 

III. 

A. Federal Claim and Appellate Jurisdiction 

We generally hear appeals only from final orders and 

decisions. See Cady, 753 F.3d at 358. "An order denying a motion 

for summary judgment is generally not a final decision within the 

meaning of § 1291 and is thus generally not immediately 

appealable." Plumhoff v. Rickard, 134 S. Ct. 2012, 2018 (2014). 

But that rule does not apply in certain instances where "the 

summary judgment motion is based on a claim of qualified immunity." 

Id. at 2019. Because qualified immunity is "an immunity from suit 

rather than a mere defense to liability," id. (quoting Pearson, 

555 U.S. at 231), "pretrial orders denying qualified immunity 

generally fall within the collateral order doctrine," id. A 

pretrial denial of qualified immunity may be immediately 

appealable in some instances. Cady, 753 F.3d at 358. 
- 14 - 

In Johnson, the Supreme Court limited the circumstances 

in which we can hear such interlocutory appeals to those in which 

all "material facts are taken as undisputed and the issue on appeal 

is one of law." Mlodzinski v. Lewis, 648 F.3d 24, 27 (1st Cir. 

2011). Accordingly, a "district court's pretrial rejection of a 

qualified immunity defense is not immediately appealable to the 

extent that it turns on either an issue of fact or an issue 

perceived by the trial court to be an issue of fact." Cady, 753 

F.3d at 359 (quoting Stella v. Kelley, 63 F.3d 71, 74 (1st Cir. 

1995)); see also Stella, 63 F.3d at 74 ("[A] summary judgment order 

which determines that the pretrial record sets forth a genuine 

issue of fact, as distinguished from an order that determines 

whether certain given facts demonstrate, under clearly established 

law, a violation of some federally protected right, is not 

reviewable on demand."). 

Johnson and its progeny foreclose assertion of appellate 

jurisdiction over the defendants' interlocutory appeal. The 

magistrate judge's opinion, fully affirmed by the district court, 

denied summary judgment precisely "[b]ecause the record includes 

factual disputes regarding Plaintiff's claim that Defendants used 

excessive force after Mr. McCue allegedly ceased resisting." 

McCue, 2015 WL 6848539, at *11. In particular, the record contains 

facts that, when viewed most favorably to the plaintiff, could 

support a finding that McCue stopped resisting at some point during 
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his encounter with the officers, and that the officers should have 

realized that he had stopped resisting, but that the officers 

"continued to exert significant force . . . no longer necessary to 

subdue Mr. McCue or to reduce the threat that he posed to himself 

or others." Id. at *10. And they continued to use such force 

after McCue told them that they were hurting his neck. In light 

of these remaining factual issues, we cannot assume jurisdiction 

over the defendants' interlocutory appeal. 

Maintaining that they do not dispute the facts for the 

purposes of their appeal, the defendants argue that we have 

appellate jurisdiction notwithstanding the district court's 

identification of material factual disputes. They repeatedly 

assert that they construe the facts in the light most favorable to 

the plaintiff and that even so construed, "the videotape evidence 

conclusively establishes that there is at most a timeframe of 66 

seconds for which the trial court could have concluded that Mr. 

McCue may have stopped resisting arrest and the Defendants may 

have continued to apply force." They further argue that "this 

momentary continuance of force" for up to 66 seconds did not 

violate McCue's Fourth Amendment right to be free from unreasonable 

seizure. Plaintiff disagrees and says that the record supports a 

finding that 4 minutes and 25 seconds is the true period involved.

As a matter of law, our circuit has assumed interlocutory 

appellate jurisdiction where the defendant "accepted as true all 
- 16 - 

facts and inferences proffered by plaintiffs, and [where] 

defendants argue[d] that even on plaintiffs' best case, they [we]re 

entitled to immunity." Mlodzinski, 648 F.3d at 28. Even "a 

defendant who concedes arguendo the facts found to be disputed is 

not barred by Johnson from taking an interlocutory appeal on a 

legal claim that the defendant is nevertheless entitled to 

qualified immunity on facts not controverted." Berthiaume v. 

Caron, 142 F.3d 12, 15 (1st Cir. 1998); accord Behrens v. 

Pelletier, 516 U.S. 299, 313 (1996). 

But this avenue is not available to the defendants here 

because, contrary to their protests, they have not in fact accepted 

the version of the facts most favorable to the plaintiff. In at 

least four different places in their brief, the defendants stress 

that, construing the Car 22 video in the most plaintiff-favorable 

light, there was at most 66 seconds in which they might have 

continued to apply force after McCue had stopped resisting. The 

defendants appear to have arrived at this number by misconstruing 

a statement of fact by the magistrate judge. Explaining why 

Blanchard punched McCue's lower back, buttocks, or thigh region 

after the officers had secured both his wrists and ankles, the 

magistrate judge observed that Blanchard might have done so because 

McCue "squeezed" Blanchard's injured hand "extremely hard" or, 

alternatively, in order to "facilitate bringing together Mr. 

McCue's ankles and wrists to complete the five-point restraint." 
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McCue, 2015 WL 6848539, at *4. The defendants inaccurately 

characterize this observation, asserting that the magistrate judge 

found that Blanchard could have punched McCue because "McCue was 

resisting the Defendants' efforts to put him in a five-point 

restraint." Pinpointing this moment when Blanchard punched McCue 

as the last moment in which the magistrate judge found that McCue 

had resisted, the defendants count 66 seconds from that point to 

the point when McCue is lifted off the ground. 

This insistence on 66 seconds both mischaracterizes the 

magistrate judge's statements about the facts and fails to present 

those facts in the light most favorable to the plaintiff. First, 

neither reason that the magistrate judge cited to account for 

Blanchard's punch (to prevent McCue from squeezing his hand or to 

facilitate the five-point restraint) necessarily equates to 

resistance by McCue. At this point, McCue's wrists and ankles had 

already been cuffed, thus minimizing his range of movements and 

the danger that he posed to his own and others' safety. Simply 

put, there is no indication in the Recommended Decision that the 

hand squeeze should be construed as continued resistance, much 

less resistance justifying the force used. The defendants' 

inference as such, of course, also demonstrates their failure to 

accept the version of facts most favorable to the plaintiff. 

Second, our independent assessment of the Car 22 video, 

construed in the light most favorable to the plaintiff, discredits 
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the defendants' 66-seconds theory. See Scott, 550 U.S. at 380–81 

(using video evidence to discredit plaintiff's version of facts 

and to hold that factual dispute was not "genuine"). The video, 

from 2:18 to 2:22, captures McCue resisting detainment by kicking 

his legs, thrashing his torso, and shouting an expletive at the 

officers. In contrast, from 2:22 until the officers lift him off 

the ground at 7:08, McCue periodically growls and makes other 

noises but does not kick or thrash his body again. He also 

complains that the officers are hurting his neck, but we cannot 

ascertain from the video if the officers adjusted their positions 

in response. Viewed in the light most favorable to the plaintiff, 

McCue's noises and slight movements after the 2:22 mark -- and 

even his squeezing of Blanchard's hand -- "may not constitute 

resistance at all, but rather a futile attempt to breathe while 

suffering from physiological distress." Abdullahi v. City of 

Madison, 423 F.3d 763, 771 (7th Cir. 2005). In short, McCue's 

movements after 2:22 of the Car 22 video are not dispositive of 

whether he continued resisting. And from this perspective, there 

could be close to five minutes -- not 66 seconds -- during which 

the officers continued to exert force on a nonresisting McCue. 

Because the defendants have not, in fact, accepted the plaintiff's 

best version of the facts, we hold that there remains a genuine 

dispute of fact that precludes appellate jurisdiction over the 

denial of summary judgment. 
- 19 - 

Finally, this factual dispute is material to the 

question on the merits. Depending on the amount of time for which 

the officers exerted force on McCue after he had ceased resisting, 

a jury could find that the officers' actions were unconstitutional 

under law that was clearly established in September 2012, the month 

of McCue's fatal encounter with the officers. The defendants argue 

that they should win because there was no clearly established law 

on this point. They are wrong. 

We "adhere[] to a two-step approach to determine whether 

a defendant is entitled to qualified immunity." Stamps v. Town of 

Framingham, 813 F.3d 27, 34 (1st Cir. 2016). First, we ask whether 

the facts as alleged by the plaintiff make out a violation of a 

constitutional right. If so, we next ask whether that right was 

"clearly established" at the time of the alleged violation. Id. 

In determining whether the law was clearly established, we "ask 

'whether the legal contours of the right in question were 

sufficiently clear that a reasonable officer would have understood 

that what he was doing violated the right,' and then consider 

'whether in the particular factual context of the case, a 

reasonable officer would have understood that his conduct violated 

the right.'" Id. at 39 (quoting Mlodzinski, 648 F.3d at 32–33). 

Here, we focus on the "clearly established" prong of the qualified 

immunity analysis. 
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This circuit has recognized that a "First Circuit case 

presenting the same set of facts" is not necessary to hold that 

defendants "had fair warning that given the circumstances, the 

force they are alleged to have used was constitutionally 

excessive." Mlodzinski, 648 F.3d at 38; see also Hope v. Pelzer, 

536 U.S. 730, 741 (2002) ("[O]fficials can still be on notice that 

their conduct violates established law even in novel factual 

circumstances."). We have also looked to the case law of sister 

circuits in determining whether a right was clearly established. 

See, e.g., Maldonado v. Fontanes, 568 F.3d 263, 271 (1st Cir. 2009) 

("We reject the [defendant's] argument that this law was not 

clearly established because this court had not earlier addressed 

the questions of effects and seizure. Against the widespread 

acceptance of these points in the federal circuit courts, the 

[defendant's] argument fails."); see also Stamps, 813 F.3d at 41 

(consulting "long-standing precedent from other circuits" to hold 

that defendant's alleged conduct violated clearly established 

Fourth Amendment law). 

Even without particular Supreme Court and First Circuit 

cases directly on point, it was clearly established in September 

2012 that exerting significant, continued force on a person's back 

"while that [person] is in a face-down prone position after being 

subdued and/or incapacitated constitutes excessive force." Weigel 

v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008) (quoting Champion 
- 21 - 

v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004)). 

At least four circuits had announced this constitutional rule 

before the events in question here. 

For instance, the Tenth Circuit held in 2008 that an 

officer was not entitled to qualified immunity at the summary 

judgment stage where he had applied pressure to a detainee's back 

for "about three minutes" after the detainee's hands and feet had 

been restrained and another officer was "lying across his legs." 

Id. at 1152; see also id. at 1155 ("[T]he law was clearly 

established that applying pressure to [a person's] upper back, 

once he was handcuffed and his legs restrained, was 

constitutionally unreasonable due to the significant risk of 

positional asphyxiation associated with such actions."). 

In 2005, the Seventh Circuit similarly found that it 

would be improper to grant qualified immunity at summary judgment 

where an officer, for 30 to 45 seconds, had "placed his right knee 

and shin on the back of [a person's] shoulder area and applied his 

weight to keep [the person] from squirming or flailing." 

Abdullahi, 423 F.3d at 765. Despite recognizing that the detainee 

had "arch[ed] his back upwards as if he were trying to escape," 

id., the Seventh Circuit observed that this movement may not have 
- 22 - 

constituted resistance but rather "a futile attempt to breathe" 

with the officer's weight on his upper body, id. at 771.3 

In a third case, in 2003, the Ninth Circuit found that 

two officers' pressing their weight against the torso and neck of 

a mentally ill person -- "after he was 'knock[ed] . . . to the 

ground where the officers cuffed his arms behind his back as [he] 

lay on his stomach'" -- violated his Fourth Amendment right to be 

free from excessive force. Drummond ex rel. Drummond v. City of 

Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003) (alterations in 

original).4 Finally, in Champion, the Sixth Circuit observed in 

2004 that "[c]reating asphyxiating conditions by putting 

substantial or significant pressure, such as body weight, on the 

 3 The defendants rely on another Seventh Circuit case, 

Estate of Phillips v. City of Milwaukee, 123 F.3d 586 (7th Cir. 

1997), but it is not nearly as helpful to the defendants as they 

claim. There, the Seventh Circuit determined that the defendant 

officers acted reasonably when they left a person in a prone 

position for a "few minutes" with his hands and legs restrained. 

Id. at 593. The facts in Estate of Phillips are distinct from 

those before us, as the deceased in that case was never hog-tied 

and never had two officers pressing down on his upper body. 

 

4 See also Tucker v. Las Vegas Metro. Police Dep't, 470 F. 

App'x 627, 629 (9th Cir. 2012) (unpublished opinion) (citing 

Drummond to deny two officers' motion for pretrial qualified 

immunity because "[a] jury could . . . reasonably conclude that 

the officers used excessive force in tasing [the detainee] and 

applying their body pressure to restrain him after he was 

handcuffed and face down on a bed"). Although Tucker is an 

unpublished opinion without precedential value, it serves as an 

example of the application of Drummond to deny qualified immunity. 
- 23 - 

back of an incapacitated and bound suspect constitutes objectively 

unreasonable excessive force." 380 F.3d at 903. 

We acknowledge the magistrate judge's finding that the 

defendants received limited training on the risk of asphyxia 

connected to prone restraint. We also note, however, that the 

officers' repeated references to excited delirium, as captured in 

the Car 22 and 15 videos, suggest their knowledge of that condition 

and the associated risks. Further, as the abundant case law 

demonstrates, a jury could find that a reasonable officer would 

know or should have known about the dangers of exerting significant 

pressure on the back of a prone person, regardless of any lack of 

formal training. In sum, the disputed factual issue -- when McCue 

ceased resisting and for how long after that moment the officers 

continued to apply force on his back -- is material to the question 

of whether qualified immunity is proper. 

B. State Law Claim 

For the same reasons, granting immunity under the MTCA 

for the corresponding state law assault and battery claim is 

improper at the summary judgment stage. See Richards v. Town of 

Eliot, 2001 ME 132, ¶ 31, 780 A.2d 281, 292 ("The analysis of the 

state law claims of illegal arrest and excessive force is the same 

as for the federal law claims."). 
- 24 - 

IV. 

In light of the material disputed facts yet to be 

resolved, we lack appellate jurisdiction to entertain the 

defendants' interlocutory appeal at this stage. 

The appeal is dismissed.