CLEARWATER — The lawyer defending Clearwater Police officers in an excessive force lawsuit has asked the Pinellas County Circuit Court to dismiss the case. Assistant City Attorney Richard Hull also told the Beacon he will look into whether city employees altered a security tape to protect the police officers.

“I’ll find out what happened, if anything happened to the tape,” said Hull, who is assigned to fight the civil lawsuit from plaintiff Kevin McCue. Police arrested McCue at the Clearwater Beach Marina in September 2015 after he struggled with them and threatened to shoot himself and officers, Clearwater Police said.

Hull argues in his June 17 motion that officers Jeff Williams and Justin Murray, whom McCue also faults for not intervening to stop his alleged beating, should not be the target of the lawsuit.

“My motion to dismiss the state law battery claim against the officers is predicated on their status as city employees,” Hull said. “State law requires a plaintiff to bring suit against the city as opposed to bringing suit against the employee. It is the same for police officers, firefighters, or the employees in the parks and recreation department.”

Hull also argues in his motion that the officers used proper force during McCue’s arrest, and urged the court to give them qualified immunity from state law battery charges.

“The qualified immunity for an officer’s action is a defense against the federal civil rights claim for certain actions taken within the scope of their authority,” Hull said. “If there is no clearly established law that would clearly notify the officer that what he is doing or has done violates the plaintiff’s rights, the officer is entitled to immunity.” 

In addition to claiming Williams beat and kicked him, McCue contends in his lawsuit that police asked city employees to destroy portions of the video to hide an alleged beating. His lawsuit does not provide evidence to back the claim.

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Clearwater Police Chief Daniel Slaughter

“The officers never had access to edit any videotape,” Clearwater Police Chief Dan Slaughter

said in March when McCue filed his civil suit. “The police department supervisor obtained it from another city department during his review of the incident.”

Hull also doubted whether the tape would, if fully recovered, satisfy McCue’s claims of excessive force.

“If the tape doesn’t show what he wants it to show, he will say it was doctored, but I will find out,” he said.

The video of the incident, which aired on local cable news affiliates and is still available online, begins with McCue out of view in the back of the police vehicle. Williams, another officer and Clearwater paramedics can be seen standing outside the open side doors of the police SUV.

Williams leans into the back door of the SUV and can be seen attempting to pull McCue from the vehicle. A second officer, Murray, assists. They pull him out and lay him on the ground. As McCue lays on his side and back, handcuffed, Williams briefly pushes his foot on the arrestee’s chest. The rest of the 15-minute video shows paramedics tending to McCue, putting him on a stretcher and pushing the stretcher to an ambulance.

McCue’s attorney, April Goodwin, would not say whether she planned to depose city employees about the security tape.

“I have a policy on not speaking publicly about the facts of a case while it is pending,” she told the Beacon in March.

The claim against the city is for damages in excess of $15,000, which is the minimal damages one can file to keep the case out of small claims court, Hull said.

McCue’s lawsuit describes the officers’ actions as a “violent and unnecessary” assault and states McCue sustained “a torn right rotator cuff, back and neck injuries, bruises, scratches, cuts, and aggravations to his pre-existing heart and psychological conditions, as well as a new psychological condition of post-traumatic stress disorder.”

An Internal Affairs report on the incident shows Williams told superiors at the time that he believed the allegedly drunk and disorderly McCue, who was bleeding slightly on the cheek and neck, was trying to spit on him. The officer wrote in his report that he used his foot to keep McCue from raising up because he feared exposure to HIV. Williams, Murray, and Clearwater Firefighter John Savage also told internal affairs investigators that the handcuffed McCue had threatened to shoot himself and the officers.

The department admits that Williams momentarily put his foot on McCue’s chest, but denies any officers beat or otherwise injured McCue.

In fact, Williams received a one-day suspension for “use of force contrary to policy” and was required to attend a one-day course in de-escalation, an internal affairs report on the arrest shows. Williams was also removed from the department’s elite Emergency Response Team for two years.

Sovereign immunity also exists for police officers and other court officials to do their jobs without fear of litigation, legal experts argue.

Such immunity from liability for injuries is not absolute, however. An officer’s conduct cannot amount to gross negligence that becomes the cause of the injury or damage, and the officer also must act reasonably or believe he or she is acting within the scope of his or her authority, legal experts said.