Sunday, December 14, 1997
Section: MAIN
Page: 1A

The family of a man who died after a struggle with police and private security guards this summer has taken the first step in filing a lawsuit against the Boulder Police Department and the city of Boulder.

The family`s Colorado Springs attorney, Randy Allen, said he sent letters to the department and the city last week putting each on notice that a lawsuit could be filed for the wrongful death of 20-year-old Luis McIntire, who lived in Colorado Springs. The lawsuit could be filed as early as January, he said.

A letter of intent must be sent to government agencies before a suit is filed.

McIntire, who police say was resisting arrest after being removed from a party, stopped breathing and died Aug. 3, after several security officers and police pinned him to the ground on his stomach, bound his hands and feet together and sprayed him in the face with pepper spray.

McIntire had LSD and cocaine in his system at the time, according to the Boulder County Coroner`s office, which ruled the death an accident Sept. 9.

The notice letters mark the first step toward a civil suit and come more than two months after the Boulder County District Attorney`s Office determined there was no criminal act of wrongdoing by the officers and security personnel.

Boulder Police Chief Tom Koby and Assistant City Attorney Walter Fricke said Friday they had not received the letters.

The family will have to prove that the police used excessive force and acted willfully, Fricke said.

"That just doesn`t fly here," Fricke said. "This is not a claim that it is going to go anywhere."

Fricke said the officers used the appropriate force necessary and called for medical assistance as soon as they rolled McIntire on his side and noticed he was not breathing.

Those were the findings of Deputy District Attorney Bryan Quiram, who said there is nothing about the incident that would compel the District Attorney`s Office to file charges.

"I did not find anything that anybody did was criminal in nature," Quiram said.

Quiram completed his review of the case Oct. 10, but declined to disclose his report on Friday. A police department investigation into McIntire`s death is in its final stages, according to city spokeswoman Jennifer Bray.

Detective Carey Weinheimer, the lead investigator assigned to the case, has submitted his findings to a supervisor for review. Weinheimer was unavailable for comment.

At 12:56 a.m. Aug. 3, three private security officers escorted McIntire, from a private "rave" party held at the Olympic Bowl, near Crossroads Mall, after a woman accused him of fondling her, according to police reports.

Once reaching an exit door, McIntire, later determined to have been high on cocaine and LSD, began to struggle. While trying to restrain him, the guards and McIntire fell to the pavement outside.

At 1:01 a.m., two off-duty Boulder police officers hired to provide additional security for the party assisted the guards.

After McIntire became combative and resisted arrest, the off-duty officers squirted him with pepper spray while he was face down on the ground with his arms and legs tied behind his back, which is referred to by police as a "hog-tie." During the eight- to nine-minute struggle, he stopped breathing.

Boulder firefighters were unable to resuscitate him. He was pronounced dead at Boulder Community Hospital at 1:55 a.m.

On Sept. 9., Boulder County Coroner John Meyer ruled McIntire`s death an accident. The cause of death was a heart-attack "due to positional asphyxia associated with physical restraint and multiple drug ingestion (cocaine and LSD)," according to reports.

Pepper spray was not a contributing factor in the death, the report also stated. That same day, Koby said the case would be reviewed by the District Attorney`s Office and a countywide task force would review the ramifications of both hobbling and the use of pepper spray.

Since then, the department has altered its use of the hog-tie restraint and continues to seek alternatives, Koby said.

Instead of binding the suspect`s ankles together and tying them with a cord to handcuffed arms behind the back, officers now bind the legs together with a nylon cord and shut the end of the cord in the doors of their patrol cars, said Sgt. Kurt Matthews.

The Boulder Chapter of the American Civil Liberties Union has been in communication with Boulder police since the incident, said the chapter`s vice chairman, Judd Golden.

"The ACLU position is that pepper spray and the hog-tie for people who appear to be under the influence is ill advised," Golden said.

Despite not finding any wrongdoing by the police, Fricke understands that the family will always harbor bad feelings.

"You wish that somewhere, somehow somebody would have done something different," he said.

This page last updated 08 Jun 98

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