2016-08-12 / Front Page

Towns field $2.5 million settlement request

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 filed a lawsuit.

The towns of Kennebunk and Arundel were each served on Nov. 26, 2015, with a request for settlement under Maine’s Tort Claims Act, stemming from a Sept. 29, 2014 “wellness check” to 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.

Kennebunk Town Manager Barry Tibbetts and former Arundel Town Manager Todd Shea each declined comment at the time. However, it appears no settlement offer was ever forthcoming and, on July 6, Cote filed suit on Shulenburg’s behalf in York County Superior Court.

“The Town does not comment on a lawsuit,” Tibbetts said via email on Monday, Aug. 8, following a July 26 request for information from the Post.

“Our attorney is Michael E. Saucier of Libby O’Brien Kingsley & Champion, LLC. Our insurer [Trident Insurance] provides legal representation,” Tibbetts said.

Cote could not be reached for comment and Shulenburg declined comment on the case, although he said a report on the incident prepared by the town did not provide an accurate depiction of events, which he described as “police brutality.”

According to Tibbetts, that internal investigation “began in October 2014 [and was] submitted on January 2015 to our town counsel. A second phase of the report began on August 2015 and completed on March 2016 and submitted to our town counsel. This report was paid through our town counsel, Jensen Baird Gardener and Henry. The cost was $4,087.48 all inclusive. The firm hired to conduct the report was the Tideview Group.”

Tideview CEO Michael Pardue, who has previously written reviews of Kennebunk’s police, fire, and public works departments, has since been hired to run human resources for the town. Tibbetts did not release a copy of Pardue’s report on the Shulenburg incident.

Kennebunk Police Chief Robert MacKenzie also has previously declined comment.

“There was an incident that involved Mr. Shulenburg, but that’s about all I can go into as it is subject of an pending legal claim,” MacKenzie said, when asked, in 2014.

In December 2014, Shea told Arundel selectmen of the settlement officer, calling the incident “a case of mutual aid gone wrong.” Kennebunk selectmen met behind closed doors at that time 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 at the time whether the meeting was about Cote’s tort claim.

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 officers,” Kennebunk Finance Director Joel Downs was included in that session.

According to Cote, in a 2014 interview, 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 that officers swing by to make sure everything was all right.

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 Schulenburg’s driveway, in which police and EMTs wanted to take Schulenburg to the hospital, and Schulenburg 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, in 2014 when he was willing to talk about the case. “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 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, 2014 memo, Dr. Michael Major of Webhannet Internal Medicine Associates in Moody, says 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 weight heavily on his mind, says 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 Shulenburg finally turned to go inside he dropped his keys, he says, which fell behind the door. He closed the door to get the keys, not necessarily to shut out the police, but says 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 by down and put me in handcuffs, caused extreme bruising, broke my fingers, and strained by wrist,

“I was strapped into a gurney and was taken away to the hospital, were 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. The recent lawsuit accuses Eaton of punching Shulenburg “four times ... with malice.”

“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.”

The lawsuit accuses Eaton and Jamison of committing a Class C crime for causing Shulenburg’s “unwarranted hospitalizatiom.”

Shulenburg says that before contacting Cote, he first addressed his concerns about the Sept. 29, 2014 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 by henhouse,” said Shulenburg, adding that Tibbett’s did offer a private sit down with himself and Chief 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 begged off of taking the case, saying openly that they saw no profit, financial or personal, in taking on the police department.

Shulenburg says 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 said he wanted Sgt. Eaton disciplined and remanded to additional training. Beyond that, the original settlement offer was for such a large sum, he said, because he feared 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.”

The current lawsuit requests “compensation for emotional distress, costs, attorney fees, and punitive damages,” but does not list an amount Schulenburg fees he is due.

The 2014 tort claim asked for $2.5 million, combined, from the two towns. Shulenburg said in a July 25 interview that he has “all but lost” his business as a result of lingering aftereffects from the incident.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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