Lawsuit: 911 calls from teen who died in van mishandled

CINCINNATI (FOX19) - Attorneys for the family of a Cincinnati teenager who suffocated to death in a minivan despite twice calling 911 for help announced a wrongful death lawsuit Monday against the city, its former city manager, two police officers and two call takers.

“The suit details deteriorating Cincinnati 911 program in the months leading up to Kyle’s death on April 10, 2018," they wrote in a news release.

"The City’s own reviews of the 9-1-1 failures did not reveal the mishandling of each of Kyle Plush’s calls for help. The goal of this lawsuit is to uncover the 9-1-1 problems that lead to Kyle’s death.”

Plush, 16, died after he became trapped inside a 2004 Honda Odyssey minivan parked at Seven Hills School in Madisonville.

He called 911 twice to plead for help, providing his location and a description of the vehicle, according to the suit.

“He screamed, pounded, begged for help. No one helped him."

Kyle died due to “asphyxiation due to chest compression” after becoming pinned by a folding seat in the vehicle, according to the Hamilton County Coroner’s Office.

The teen’s body was not found for hours. His father finally located him in the van when he went looking for his son after he didn’t return home from school.

The Plush suit reveals the results of a new forensic review of the two 911 calls Kyle made.

The review by industry experts John Melcher, former CEO of Harris County, Texas 911 Emergency Network, and Michael Lyman, Professor Emeritus of Criminal Justice at Columbia College of Missouri, revealed “critical issues in Cincinnati 911 operations that ‘increased the risk of death’ to Kyle Plush.”

City Manager Patrick Duhany responded to the lawsuit in a statement late Monday afternoon:

"The City of Cincinnati continues to express its condolences to the Plush family for the tragic loss of their son, Kyle. Every day since April 10, 2018, the City has worked to evaluate, review and enhance the ways in which we respond to emergencies. This includes adding Smart911 and RapidSOS technologies at the Emergency Communications Center, improving the ability of E911 Operators to locate callers in distress, and increasing staffing at the ECC. As a result, the ECC exceeds state and national standards for 9-1-1 call answering. We have developed and implemented these changes in a transparent and collaborative manner.

Our first responders, both sworn and civilian, have dedicated their lives to protecting the public and are committed to faithfully executing their duties.

We were notified today that the Plush family has filed a lawsuit against the City of Cincinnati. The City Solicitor’s Office will defend both the City and its employees and officials named in the suit. Given that there is active litigation, there will be no further comment from the Administration at this time."

During a news conference earlier in the day, one of the family’s attorneys, Al Gehardstein, compared the city’s investigation into Kyle’s death to theirs.

Plush called 911 twice from the van using Siri as his arms were pinned and he could not physically reach the phone in his pocket, according to the release.

In one of the calls, Kyle says, “I probably don’t have much time left. Tell my mom I love her if I die.”

Below are those calls. We caution that they may be troubling to some.

In Kyle’s first 911 call, at 3:14 p.m., he told the call taker that he was stuck inside his van parked at Seven Hills School.

During his second 911 call, at 3:35 p.m., he gave the make and the model of the vehicle and a heartbreaking message: “I probably don’t have much time left, so tell my mom that I love her if I die.”

The lawsuit alleges the city knew about previous complaints regarding the police department’s Emergency Communications Section failing to locate callers and delaying dispatch in response to emergency calls.

The city was “negligent, reckless, wanton, willful and deliberately indifferent to the health of 9-1-1 callers," the suit states.

The lawsuit accuses the 911 operator who took Kyle’s first call of withholding information on the teen’s precise location and alleges the second 911 call was treated as a “silent call,” or an improperly enabled call.

It also alleges two responding officers did not properly search the parking lot despite having access to a GPS tool that could pinpoint Kyle’s cellphone location.

“Kyle was alive when the officers abandoned the scene,” the lawsuit reads. “Kyle’s father, not the police, finally discovered his lifeless body hours later.”

In a statement, the Plush family said they had hoped the city would do the right thing and continue its investigation following two studies regarding the operation of the 911 call center.

“Our frustration is that as it stands, we can’t confirm that a tragedy like Kyle’s couldn’t happen again. That’s unacceptable. We hired attorneys and experts who have started a more thorough investigation of what went wrong the day our son was taken from us,” said in the statement.

The family also implored the city “to be honest about what happened” and said that the lawsuit will help them learn “the people, processes and technology that led to this failure” and whether the changes at the Emergency Communications Center are targeted in the right direction.

“Rarely has there been an example of such unrealistic expectations for first responders to have had the ability of 20/20 handsight,” said FOP President Dan Hils in response to the lawsuit. “The police officers involved did not receive sufficient information to surmise a life was in danger. The Cincinnati police officers involved were not negligent and shouldn’t be named in this lawsuit. The FOP and our legal team will be 100% in defense of these members.”

City Council promptly took action following Kyle’s death and pledged sweeping changes to emergency response procedures.

They held a series of public meetings during a public inquiry, hours-long sessions Kyle’s family patiently sat through as they sought answers.

PREVIOUS | Mayor: Cops, dispatchers ‘wrong’ in Kyle Plush death

During one meeting, Kyle’s family walked out of City Hall after one of their relatives said Councilman Wendell Young “crossed the line.”

Young told the family: “On the day you lost your son, it seems to me everything that could possibly go wrong went wrong. I don’t know that any level of finger-pointing or witch-hunting is going to change that.”

Then, a few minutes later, he added: "I suspect that there will be attempts to do what the law allows to be done to try to, in some way, to make up for what happened with you. But there's no amount of money that's going to make you happy. There's no amount of..."

Kyle's father, Ron Plush, called out: "This isn't about money!"

He wiped tears off his face.

Young kept talking "I believe that there's no amount of blame that's going to make the situation better. So I think at the end -"

Kyle's uncle jumped up and yelled: "You know what, stop this right here. This is the most insensitive thing I've ever heard! You guys were doing wonderful til this guy started talking. I'm tired. You've crossed the line! You have crossed the line."

Kyle’s father, uncle and two other relatives stalked out.

The exchange visibly shook council members.

Young later apologized.

The Plushes returned for more meetings that would follow over the coming months.

They publicly supported Council’s approval of $454,000 to increase 911 staff and to improve technology at the 911 center as part of a 12-month action plan.

Kyle’s father told council the family was still searching for answers and wouldn’t stop seeking those in an effort to spare other families pain.

Over the past year, FOX19 NOW has done a series of stories looking at several incidents with questionable responses by police and/or call takers.

Kyle father even read one of our stories aloud word for word during one council meeting, urging accountability and reform from the city and its police department so more lives aren’t lost.

RELATED | Councilman: Kyle Plush could be alive today if we knew about this | Man having ‘mental breakdown’ found dead after 911 call taker deflects request for police | ‘Too dangerous’ to leave cruiser? Homicide victim found hours after officer disregards backup, ends run without exiting car

Last year, documents released to FOX19 NOW showed alleged mismanagement within the emergency communication center for years amid a revolving door of managers.

Some former city employees returned to testify in the public meetings following Kyle’s death.

That included Assistant Police Chief Dave Bailey, who reiterated the communication center suffered issues for at least the last decade.

The 911 center, traditionally run by the police department, was moved to civilian control after issues erupted with the fire department, and then reverted back to police control in recent years.

It also has struggled with staffing problems, inadequate training, and cellphone call routing leaving some calls unanswered.

Current employees such as Captain Jeff Butler also gave analysis. Butler had repeatedly expressed concern the 911 center was underfunded.

He filed a federal lawsuit in September 2017 against the city, Black and Assistant City Manager Sheila Hill-Christian.

It alleged he was retaliated against “for challenging their blatant misuse of state tax funds which should have been utilized for emergency services and instead were unlawfully utilized for general Cincinnati budget purposes.”

Butler was in charge of the city’s 911 emergency communication center since January 3, 2016, but claims he was stripped of his managerial duties “with virtually no notice” on January 1, 2017.

Butler claims Black also misused federal Homeland Security grant money.

After Kyle’s death, the city took oversight of the 911 center away from the police department and returned it to civilian control.

The city also launched a new system called Smart911 designed to make it easier for first responders to find 911 callers in an emergency.

Once people register for it, their emergency information will automatically be displayed to call takers when they dial 911.

The Plush family and city leaders attended the National Emergency Number Association Conference last summer.

MORE | City launches ‘Smart 911’ to provide critical info to first responders

The Plushes also established a foundation in their son’s memory.

Kyle Plush Answer The Call Foundation" calls for improved 911 systems in Cincinnati and nationally.

The tragedy caused them to realize all 911 systems in America must be equipped with GPS mapping technology to assist emergency responders so they have the ability to quickly pinpoint callers just like Uber drivers.

Meanwhile, as part of reforms in the wake of Kyle’s death, City Council hired two firms to conduct independent investigations at an estimated cost of $186,000.

Consultants analyzed how the city’s 911 call takers and police responded to Kyle’s calls for help.

Hamilton County Prosecutor Joe Deters also conducted a separate probe into Kyle’s death.

It concluded no criminal charges would be filed.

Kyle’s family, however, was deeply troubled with the city’s independent consultants and upset with the results of those investigations.

The findings were released in November.

The reports called for an overhaul to 911 center procedures and cross-training between police, 911 call takers and other reforms.

It also found much fault with the 911 dispatchers’s handling of the call and the police internal investigation into Kyle’s death, though the investigations cleared Cincinnati police’s response.

The findings didn’t go deep enough for the Plush family.

They sought more solutions and noted the consultants didn’t even conduct new interviews of Cincinnati’s officers and dispatchers.

Ron Plush told City Council he found the independent consultant’s report “very disturbing.”

“As I sit here and talk through this, I have no reason to believe that if someone called 911 trapped in a van that this wouldn’t happen again. What has changed since that time that has prevented that? And that is what our family is focused on," he asked back in November.

His wife, Jill Plush, told Council: “This report is not enough!"

She called for “good technology”, dedicated employees and “the process, and I think that’s where the breakdown was, the process. ..When you don’t have strong leadership, everything below it crumbles.”

Council had turned to an outside investigation after they and the Plush family were less than impressed by Cincinnati Police’s probe.

It fell short of answering critical questions and City Council members and the Plush family had to pull more information out by asking a series of questions and holding more meetings.

Bodycam video from two responding Cincinnati police officers shows them during the search for the Kyle. They remained in their cruiser and did not get out to look.

Police Chief Eliot Isaac initially repeatedly said nobody was to blame for what happened. His agency’s report concluded they acted appropriately.

He defended the response by officers and 911 call takers when he addressed council on May 13 and said they were heartbroken.

He has, however, admitted there were some failures and improvements are needed.

Late last year, the chief announced Cincinnati police officers would now be required to get out of patrol cars and search by foot, among other changes, when they respond to many calls.

The head of the union that represents Cincinnati police, asked the city to close the “unending investigation” into Kyle’s death.

A Hamilton County deputy sheriff who was at Seven Hills working an off-duty traffic detail the day Kyle died searched on foot for him.

Both the teen’s 911 calls had technical problems, the city has said.

The run also came out as a woman who locked herself in a car, he said Tuesday.

He reiterated Tuesday none of the officers involved did anything wrong, procedurally or policy-wise.

“If those officers wouldn’t known what was going on. there wouldn’t have been a car window safe within a mile. They would’ve done everything they could’ve to save a life.”

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