2014-12-19 / Community

Towns field $2.5 million settlement request

Tort claim stems from Sept. 29 instance of alleged ‘police brutality’
By Duke Harrington
Staff Writer

A Kennebunk man who claims to have been “pummeled” into submission by police and taken to the hospital against his will has launched a $2.5 million lawsuit against the towns of Kennebunk and Arundel.

Both towns were jointly served on Nov. 26 with a request for settlement under Maine’s Tort Claims Act stemming from a Sept. 29 “wellness check” at the home of Christopher Road resident David Shulenburg.

According to the letter, sent by Saco attorney Eric Cote, Shulenburg suffered a broken ring finger, a sprained wrist, muscle bruises and “emotional distress” when, as Cote put it, “police broke down David’s door and forcefully removed David from his house and took him against his stated will to the hospital.”

Maine’s civil procedure for tort claims gives the towns 120 days to respond to the settlement offer. If they do not, the request is considered denied and Cote is free to file suit.

“If I do file a lawsuit, in Maine there’s mandatory mediation. So, we’ll be going to mediation if we can’t settle this,” said Cote on Monday.

Kennebunk Town Manager Barry Tibbetts and Arundel Town Manager Todd Shea have both acknowledged receipt of Cote’s Nov. 26 settlement offer.

Both say the matter has been referred to their mutual insurance agency, Trident Insurance. Beyond that, however, both have declined comment, as has Kennebunk Police Chief Robert MacKenzie.

“There was an incident that involved Mr. Shulenburg, but that’s about all I can go into as it is subject of a pending legal claim,” said MacKenzie on Monday.

Shea informed Arundel selectmen of the settlement offer at their Dec. 8 meeting, calling the incident “a case of mutual aid gone wrong.”

Kennebunk selectmen met behind closed doors on Tuesday about “a pending legal issue.” Although Maine’s Freedom of Access Act says municipal officers “must indicate the precise nature of the business of the executive session,” Tibbetts refused to say in a Dec. 11 interview if the meeting was about the Shulenburg incident. Although the statutory citation given to justify the secret meeting only allows for “consultations between a body or agency and its attorney concerning ... pending or contemplated litigation [and] settlement offers,” Kennebunk Financial Director Joel Downs was included in the session.

According to Cote, police were asked to visit Shulenburg after he had a fall in his home. Shulenburg, who’s had a financial services business on Main Street in Kennebunk for the past 25 years, was on the phone with his attorney when he fell, said Cote. The attorney, concerned at the sudden disconnect and unable to get Shulenburg back on the phone, called the police department and asked officers to swing by to make sure everything was OK.

Shulenburg said Monday he didn’t think to call his attorney back, but he did call his wife to say he’d fallen and, while OK, would be late getting to the office. She also asked police to perform a wellness check, he said.

Because Kennebunk Rescue was out on a call, Detective David Jamieson and Sgt. Darrel Eaton were met at Shulenburg’s home by emergency responders from Arundel. What resulted was an hour-long standoff in Shulenburg’s driveway, in which police and EMTs wanted to take Shulenburg to the hospital, and Shulenburg wanted to be left alone to go about his day.

During “negotiations,” Shulenberg placed a call to his doctor, while the police and emergency responders got on the horn to other medical personnel.

“They said I had to go to the hospital,” said Shulenburg. “I said, ‘Well, I’m not going to the hospital. I said, ‘I’m a grown man, I’m nearly 65 years old. I’m in my own home. I’m not a danger to myself. I’ve spoken to my physician of over 15 years, and he says I’m good.’ ”

Shulenburg said reports of him staggering throughout the encounter with police can be blamed on a separate leg injury, while his supposedly slurred speech was due to an issue with his dentures. Those notes appear on the Arundel Rescue run report, according to Cote and Shulenburg. Shea has declined to provide those reports due to HIPAA (Health Insurance Portability and Accountability Act) limits on the release of personal information. McKenzie has refused to release police reports on the incident due to the tort claim.

Shulenburg’s doctor did provide a statement, read over the phone by Cote during an interview Monday. In that Nov. 21 memo, Dr. Michael Major of Webhannet Internal Medicine Associates in Moody said he urged Shulenburg to go the hospital and disagreed with his refusal to do so.

“I thought he was making a poor decision, but in my opinion, he was competent to make that decision based on my conversation with David and my knowledge of his personality,” wrote Major. “At that time I was informed that EMS had contacted their medical supervisor and David would be transported against his will.”

“I’m sorry, I’m not big on hospitals,” said Shulenburg. “I’ve had bad luck with them. My mother, who’s 106, always told me, stay away from hospitals David, they’ll kill you.”

The cost of a hospital visit, and possible CAT scan, also weighed heavily on his mind, said Shulenburg.

“Just because a civil authority comes and says I have to go to the hospital and talks to a doctor who’s never talked to me, or interviewed me, but says I have to go to the hospital, that doesn’t mean I have to go to the hospital,” he said. “They don’t understand the personal side of it. They don’t understand, if I go to the hospital, I’ve got to pay money.”

When Shulenberg finally turned to go inside he dropped his keys, he said, which fell behind the door. He closed the door to get the keys, not necessarily to shut out the police, but said it shouldn’t matter if he did.

“It’s my house. I can close my door if I want to,” he said. “But the police busted down the door, broke the locks to my door, and the two of them wrestled me down and put me in handcuffs, caused extreme bruising, broke my finger, and strained my wrist, which I still wear a cast for.

“I was strapped into a gurney and was taken away to the hospital, where I was kept under armed guard for more than three hours,” said Shulenburg. “I wasn’t injured at all until they took me to the hospital.”

Moreover, Shulenburg accuses Sgt. Eaton of “pummeling” him “over and over again with his fist” in his back and kidney area.

“I’m not a weenie,” said Shulenburg. “I’m not someone who’s unfamiliar with physicality. But that was a cowardly act, and that’s the reason I’m filing this lawsuit.”

Shulenburg said before contacting Cote, he first addressed his concerns about the Sept. 29 incident with Maine State Police and the Office of the Maine Attorney General. Both said the incident was outside their respective jurisdiction, and both referred him to the Kennebunk police chief.

“I said, ‘That’s like asking me to go talk to the fox that just robbed my henhouse,’” said Shulenburg, adding that Tibbetts did offer a private sit down with himself and MacKenzie in the selectmen’s meeting hall, on the third floor of the town office.

“I’m not a paranoid person, but the idea of meeting in a private, secluded spot with an armed policeman, to complain about the police, didn’t seem that good to me,” he said.

Shulenburg also claims that several local attorneys he contacted before hooking up with Cote declined to take the case, saying openly that they saw no profit, financial or personal, in taking on the police department.

Shulenburg said he’s not anti-police. He sat as a citizen representative on the special review panel that cleared Kennebunk police in the 2010 shooting of a 40-year-old woman, saying the department had adequate policies, procedures and training in place before that incident.

“But they don’t have any protocols in place for dealing with wellness checks,” he said. “That’s one thing I’d like to see come out of all this.”

Shulenburg also said he wants Sgt. Eaton disciplined and remanded to undergo additional training. Beyond that, the settlement offer is for such a large sum, Shulenburg said, because he fears being shunned in his small community, and losing business for taking umbrage with police.

“I’m a private man and I don’t relish this process,” he said. “I love this community I live in. But what occurred to me was an injustice and it seems so topical when we see what’s happening nationally with some of the police issues. This certainly is not as severe as dying, but it was still an egregious abuse.”

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