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Kyle Plush's family can continue suit against individual officers, call-takers involved in his death

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Posted at 4:31 PM, Dec 16, 2020
and last updated 2020-12-16 20:21:36-05

The parents of Kyle Plush, a 16-year-old who suffocated in his minivan despite making multiple 911 calls for help, will be allowed to continue their wrongful death lawsuit against police officers, call-takers and the former city manager involved in the incident. The case will go to trial, despite the the city of Cincinnati's effort to have it dismissed entirely.

The Ohio First District Court of Appeals ruled Wednesday that all five of the individual defendants — former city manager Harry Black, call-takers Amber Smith and Stephanie Magee, and officers Edsel Osborn and Brian Brazile — had demonstrated neglect, recklessness and indifference to Plush’s safety at the time of his death.

He died April 10, 2018, in a parking lot across the street from the Seven Hills School, which he attended. Plush, who was unusually small for his age, was taking items out of his minivan that afternoon when he became trapped in the third-row bench seat.

His cause of death would be termed “asphyxia caused by chest compression” by Hamilton County Coroner Lakshmi Sammarco; “positional asphyxiation” by prosecutor Joe Deters. Some mechanism in his van’s seats pressed against his chest until he suffocated and died. Because of his small size and the fact he had become trapped at the end of the school day, no one around him saw him struggling.

But before he died, Plush used the Siri virtual assistant on his out-of-reach iPhone to make two calls to 911. In both, he gasped, cried, described his vehicle and told the 911 call-takers he believed his life was in danger.

FROM 2018: How did student die in Seven Hills parking lot? Prosecutor Joe Deters launches full investigation

In both, the call-takers made critical errors.

The first call-taker, Stephanie Magee, labeled the call “unknown trouble” and dispatched two officers to the scene using CAD, a computer-aided dispatch system. She did not tell them about Plush’s stated fears for his life or information about his vehicle.

Officers Edsel Osborn and Brian Brazile drove to the scene but never left their patrol vehicle and did not perform a thorough search of nearby parking lots. In video from their vehicle, they speculate Plush’s call may have been a prank.

The second call-taker, Amber Smith, received Plush’s second call while the officers were still at the school. She activated a teletypewriter connection meant for callers who are hard of hearing; as a result, the volume of the call was drastically lowered and she did not clearly hear Plush’s voice. She ended the call and never recorded information about it in the CAD system, which froze while she was on the phone.

A recording of the call includes audio of Plush repeatedly attempting to reactivate Siri after Smith stops responding to him.

FROM 2018: As Kyle Plush pleaded for help, why didn't officers find him?

His body would not be discovered until late that evening.

Former city manager Harry Black was not directly involved in the incident but had previously voiced knowledge of the 911 call center’s numerous problems, including poor training, understaffing and unreliable technology. The court ruled he, too, can be held accountable for “wanton or reckless actions” because improvements to the system could potentially have changed Plush’s fate.

However, the court also found parents Ron and Jill Plush cannot legally hold the city of Cincinnati responsible — only the five individuals in a personal capacity, rather than an official one. Judges Pierre Bergeron and Russell Mock wrote that Kyle Plush's death had not occurred on city-owned land, but in a privately owned parking lot, and he had not actually died while on the phone with a 911 call-taker; therefore, the city cannot be held liable in this circumstance.

“We are eager to return to the trial court, conclude discovery and try this case,” said civil rights attorney Al Gerhardstein, who represents the Plush family, on Wednesday. “We want the call for justice on behalf of Kyle to be heard by all those in power including the Mayor, City Manager and all those on City Council.”

In a statement, his firm wrote that the plaintiffs hope Kyle Plush’s case will help remind Cincinnati of the urgency of improving the 911 call center, even if his family cannot hold the city responsible directly.