By Andrew Ford Published Jan. 22, 2018 by the Asbury Park Press.
I’m gonna die.
Timothy Harden exhaled those last words while restrained by police face down, his hands cuffed behind his back and his ankles lashed together.
At least five Howell Township police officers used force against him, including kicks, the use of a baton or similar object, chemical spray and a “compliance hold,” police records show.
Less than two minutes after telling police he would die, officers discovered that 38-year-old Harden had stopped breathing. He was soon pronounced dead at Jersey Shore University Medical Center.
The circumstances surrounding his death may have gone largely unnoticed. Police didn’t initially tell Harden’s sister that force was used against Harden, his sister said. The use of force was omitted from a Monmouth County Prosecutor’s detective’s report that described how he informed the sister of the death.
But a funeral director spoke up about the battered condition of Harden’s body, Harden’s sisters said. That prompted a second, private autopsy before he was cremated. Harden’s sisters later filed a federal wrongful death lawsuit that claimed Harden’s civil rights were violated and his death was caused by excessive force used by police and others.
That lawsuit did shake loose substantially more information than the public is entitled to under state open records law. The Press obtained nearly all the records about Harden’s death that were produced by the prosecutor’s office for the lawsuit. The documents are posted at the bottom of this story.
Harden’s cause of death was disputed by the two doctors who examined his body, the Asbury Park Press found. Despite initial uncertainty about his manner of death, a county medical examiner queried investigators, then reached the conclusion that police were not at fault, attributing his death to “drug induced excited delirium.”
The other pathologist, hired by Harden’s family, found that drugs didn’t cause his death. The pathologist’s findings were included in the family’s lawsuit.
The county medical examiner declined to comment. The family’s pathologist declined to comment but said he stood by his findings.
The Press contacted three other doctors to review the public and private autopsy results.
The experts pointed to trauma including fractured thyroid cartilage, a tough part of the body that protects a person’s airway, as an indication that force was applied to Harden’s neck.
The fracture was noted in the government’s autopsy.
Harden’s death came as he volunteered at the Souper Groove music festival at the New Jersey Latvian Society center in Howell over Labor Day weekend 2015. Documents show he was acting erratically and punched a security guard, who punched him back.
He was restrained by multiple guards, at least one grabbing him by the neck, according to prosecutor’s office documents. Then Harden was restrained by arriving police officers.
Officers struggled with him for about 25 minutes, their voices captured on dash camera recordings.
Harden warned them four times: “I’m gonna die.”
Then he died.
The prosecutor’s office stood by the finding that police weren’t to blame. The case was presented to a grand jury, which found that no crime had occurred.
“Mr. Harden died because of a medical condition, it wasn’t because of the actions of the police officers,” First Assistant Prosecutor Lori Linsky said in an interview. “And that was verified by the investigation and the autopsy. So, I think that’s an important point to stress – they were actually there to provide assistance to him, to try to get him medical treatment.”
A civil trial jury will never have a chance to sort out the facts. The family’s lawsuit challenging the official narrative that police were not to blame was settled in November. Howell agreed to a payment of at least $350,000, covered by a taxpayer-sponsored insurance fund. The Press can’t verify if there were additional settlements made with private parties, including the private security firm, named in the suit.
The settlement shows the township made no admission of wrongdoing. The settlement bars Harden’s sisters from talking about the case.
But they did comment before the settlement. And public documents on the case illuminate the steps authorities took before and after Harden’s death.
Harden’s passing leaves a family in grief and no legacy for a name.
“My two daughters have no uncle,” said Harden’s sister, Theresa Taylor. “We have no brother. He was the one that was left to carry our family name. He’s not here anymore.”
The fact that five officers had to use force against Harden wasn’t disclosed in a statement issued by the prosecutor’s office 10 days after the incident in response to a reporter’s inquiry about Harden’s death.
The Press obtained five police dash camera videos of the encounter through the state’s open records law. Two more were withheld. Assistant Prosecutor Jennifer Lipp wrote that the withheld videos show officers investigating after the incident and thus are “a video version of a police report and witness statements,” and exempt from disclosure.
In the available video, the view of the interaction between Harden and police is mostly obscured by vehicles. Police reports indicate that officers took over restraining Harden after they arrived. They can be heard struggling with Harden in the videos.
“Stop resisting, put your hands behind your back,” one officer says.
Harden can be heard groaning.
“Stop kicking or you’re gonna get more s—,” an officer says. “You understand?”
Officers asked him if he had taken anything, apparently referring to drugs. An officer noted that he was “stupid strong.”
About 20 minutes into the encounter, Harden warns: “I’m gonna die.”
“Relax,” an officer says.
“I’m gonna die,” Harden shouts.
“No, you’re not,” the officer says.
“Help,” Harden yells. “Anybody – Anybody help!”
Five minutes later, he gives the final warning.
“You’re not gonna die,” an officer tells him. “You’re gonna relax.”
The two doctors who performed autopsies came to different conclusions about his cause of death. Middlesex County Medical Examiner Diane Karluk concluded he died due to drugs, dismissing police involvement.
“Although he died while being restrained, the role that the restraint may have played in his death is unclear,” she wrote in a report.
The death was accidental, she concluded.
Karluk, who performed Harden’s official autopsy, was initially unable to determine the “manner” of the death or determine if police restraint contributed to his passing.
Two months after examining Harden’s body, Karluk met with Lipp and three investigators from the prosecutor’s office.
“I explained that based on the information that I currently have, I would classify the manner of death as ‘undetermined’ because I could not exclude the restraint being contributory to death as I did not know exactly what each of the persons involved in the restraint were doing in the several minutes prior to cardiopulmonary arrest/death,” Karluk wrote in a memo about the Nov. 5, 2015 meeting. The memo was shared with the Press before the lawsuit was settled by Thomas Mallon, the attorney representing Harden’s sisters.
She asked for the investigators to gather specific statements from the officers involved, according to the memo.
“Specifically, I asked them to clarify that they were not compressing Timothy Harden’s neck or chest during that time,” She wrote. “Shortly after the meeting ended, I additionally emailed AP Lipp to ask that the officers clarify that Timothy’s nose and mouth were not being occluded (blocked) during that time period. I stated that although I had the impression that the Howell police officers were not compressing Timothy Harden’s neck or chest or limiting the airflow in his nose and mouth during the restraint, based on audio recordings available from the police as well as statements by non-law enforcement bystanders, I needed to have those things explicitly asked about.”
Two medical experts interviewed by the Press found Karluk’s communication with investigators to be a normal practice. A third expert, though, said he’d never seen such queries done.
Monmouth County Prosecutor Chris Gramiccioni said generally that a medical examiner gathers facts about a death and his office interacts with the medical examiner’s office to provide such information.
“We don’t sway their decisions,” he said.
Karluk got the statements she asked for, documents show.
A Howell police email indicates at least three of the five officers were told of the nature of the questions at least three days in advance.
“These statements or additional statements are apparently to consist of a limited amount of questions narrowly regarding where you were or what you were doing at the time the subject went unresponsive,” Capt. Leonard Connors wrote on Nov. 17, 2015.
Statements from four of the five officers were obtained by the Press from court documents. A statement by the fifth officer isn’t listed among documents the prosecutor’s office produced during the lawsuit.
The documents show Det. Daniel Bozza of the prosecutor’s office asked a similar series of questions to at least four of the officers. Each officer gave similar answers.
“At any point leading up to or when Mr. Harden became unresponsive, did you restrict Mr. Harden’s airways by any means?” Bozza asked each.
The four officers – patrolmen Nicholas Austin, Vincent Bonner, James Conaty Jr. and Daniel Murphy Jr. – answered the same way.
“No,” they told the investigator.
Bozza asked about putting body weight on Harden.
Austin and Conaty said they didn’t. Bonner said he didn’t put his body weight on Harden, but he did use his hands to apply pressure to Harden’s feet when he was flailing.
Murphy said he didn’t put any body weight on Harden, but also said “Only when he was combative did I put my weight on his wrist and forearm which was located on his lower back.”
Afterward, Karluk determined that the officers weren’t at fault.
“Based on the entirety of the evidence in this case, it is my opinion that this man did not suffer a compressional asphyxial death due to the manual components of the restraint performed by police officers at the time of his death,” she wrote in her autopsy report. “As the excited delirium appears to have been drug induced, the manner of death will be classified as accident.”‘
After examining Harden’s body, New York pathologist Zhongxue Hua, who the family hired, reported in October 2015 that Harden’s cause of death was: “Sudden unexpected death following physical restraint complicated by multiple blunt injuries (of head, neck, torso, and extremities), petechial hemorrhages (of eyes), and acute intoxication (of cocaine and alcohol).”
Hua later reviewed video of Harden’s encounter with police and investigative reports produced by the prosecutor’s office and concluded that Harden “died of acute respiratory failure during prolonged physical restraint.”
“Significantly, during the physical restraint, Mr. Harden suffered neck compression (with neck muscle contusions, neck bone fracture, and multiple eye petechial hemorrhages), which was further complicated by his prolonged prone/rear restraint,” Hua wrote in April 2016. “His intoxication symptoms, while the underlying reason of his being initially restrained, were not the cause of his death,” wrote in a court document.
Guzzardi said that “If the police version is accurate, then the cause and manner of death is extremely unusual. Of course, if the police version is incorrect for any number of reasons then the most likely cause of death is compression to the neck.”
Guzzardi said the chemicals and alcohol in Harden’s blood were not enough to cause his death.
He was skeptical of the county medical examiner asking for the police to make specific statements.
“The medical examiner’s request of the police – I’ve never seen it in 40 years of practice,” Guzzardi said.
A California pathologist felt the practice of a medical examiner consulting with police wasn’t unusual.
“I don’t think there’s anything nefarious, I think you’ve got people trying to do their best,” said Burr C. Hartman, who also testifies as an expert in court. “She is attempting to find the truth and she became convinced that they didn’t intentionally kill this person.”
Hartman said this was indeed a case of “excited delirium.”
“And contributory to the excited delirium is cocaine and alcohol use,” Hartman said. “The cocaine use will put somebody at risk for the cardiac arrhythmia…and on top of that you restrain that person and occlude (block) their airway, that combination of everything would be enough to trip a lethal cardiac arrhythmia. But it’s an opinion, I can’t say for sure.”
Guzzardi felt the injuries to Harden’s neck cast doubt on the official diagnosis.
“Excited delirium is a reasonable diagnosis if there was no neck trauma,” Guzzardi said.
The chemicals in Harden’s blood indicate he consumed cocaine at least a day earlier, according to Steven Karch, a cardiac pathologist based in Berkeley, California, who authored a textbook titled “Karch’s Pathology of Drug Abuse.”
“I know of no cocaine-related excited delirium that was ever reported where there was no cocaine detected,” he said.
Karch was unsure of what killed Harden but was leaning toward excited delirium, which can occur without drugs present.
“We weren’t told that police were involved,” Taylor said. “Anything like that. Nothing. It’s just that he’s not here anymore because he had an ‘altered state of mind.’ That’s it.”
As Harden’s sisters made arrangements at a funeral home, the funeral director entered the room looking “white as a ghost,” Taylor said. His ashen expression signaled to Harden’s sisters something was wrong. The funeral director pulled Harden’s sister, Melissa Barna, aside and asked if she had seen her brother’s remains. She hadn’t.
“The next thing I remember him saying is ‘You should A: get a lawyer, and B: get a private autopsy,’” Barna said.
The funeral director declined to comment when reached by the Press, but did confirm his funeral home handled arrangements for Harden.
Later, Barna saw the pictures of Harden’s body, which she shared with the Press.
“He’s bloody, he’s battered, he’s bruised, he’s beaten,” Barna said. “There’s abrasions, there’s contusions, and I’m like: ‘That can’t be him. It’s not allowed to be him.’ But it was. And that will forever stay with me.”
Documents exposed by the lawsuit provide more detail about Harden’s final day alive.
Interviews conducted with witnesses describe Harden as muscular, shirtless and sweaty, according to court documents. He was exhibiting odd behavior. His dance moves at the concert included hitting his head on concrete while doing somersaults.
A festival volunteer reported that Harden asked her for drugs, though nobody reported seeing him take any and police didn’t report finding evidence of drugs in Harden’s possession or in the tent he stayed in at the festival.
Security guard Brandon Keith Cruz saw Harden darting around cars in the festival parking area, court documents say he told investigators. Harden punched Cruz in the left cheek. The guard punched Harden back, another witness told investigators. Cruz omitted his punch from his statement to investigators but described wrapping his arms around Harden’s chest, according to court documents.
Though he wasn’t named, another witness gave a description of Cruz as the security guard who restrained Harden by the neck.
“It was the same security guard that was punched in the face,” that witness told investigators.
Cruz could not be reached for comment.
He was joined by other security guards and together they held Harden down until arriving police officers took over.
Blood and mucous were in and around Harden’s mouth, an arriving officer noted in his report.
Harden had “abnormal, incredible strength for someone of his size,” Patrolman Conaty Jr. reported. Harden continued to pull away after Conaty sprayed Harden with chemical spray. Conaty’s knee strike to the right side of Harden’s face “had no effect,” the officer wrote.
Other officers helped get Harden into handcuffs. He continued to flail and kick, Conaty wrote. They put “zip cuffs” on his legs.
They put a respiratory mask on his face to stop him from spitting, he removed that by rubbing his face into the dirt, Conaty wrote.
It appeared he might break one of his own bones or dislocate a shoulder, the officer wrote. It appeared he would break the restraints he was in.
Responding medics were asked to sedate Harden and they prepared a drug.
But before they administered it, officers noticed Harden stopped breathing.
“I keep it with me, just to remind myself why I fight this battle every day,” she said before the settlement.
In an interview in July, Taylor said they want justice.
“Accountability,” Harden’s other sister, Melissa Barna, added. “There is no such thing anymore. That’s what we want. We want accountability and justice.”
The officers who interacted with Harden were cleared not only by a Monmouth County grand jury, but also the Monmouth County Prosecutor’s Office and the Howell Township Police Department.
The attorney suing on behalf of Harden’s family described how Harden’s death shows the hazards of police force and a lack of oversight.
If “there’s no accountability for their actions in a situation like Tim Harden, then it will happen again with somebody else, somewhere else,” Mallon said.
Mallon estimated he’s handled 150 cases of “police brutality,” and said, in general, the leaders responsible for overseeing internal affairs are aware of the behavior of their officers, whether the use of force is excessive or appropriate.
“I think they know what’s going on,” he said. “I think they’re covering for it. We’re speaking in generalities now, but I think there’s a lot of times where they know what’s going on. Departments where this happens, it doesn’t usually happen in a vacuum.”
Howell Police Chief Andrew Kudrick declined to be interviewed unless he could see the questions ahead of time, saying he did not want to walk into “a potential ambush.” The Press does not submit interview questions to public figures ahead of time because it’s important to have candid discussions on news events and policy.
In a statement, the chief wrote that he stood by his officers and that he saw the story about Harden’s death as a way to “malign my officers and the department.”
Also in the statement, Kudrick took issue with lawsuit settlements.
“…I am appalled that any amount of money would be settled upon after officers have been cleared by a grand jury and two internal affairs investigation of ANY wrongdoing,” the chief wrote. “…how about you turn your focus on the insurance companies who roll over on their backs and surrender settlements to attorneys who read headlines and solicit business from affected families.”
In the weeks after the use of force that ended with Harden dead, two superior officers at the Howell Police Department filled out a “meaningful review” form that asks “yes” or “no” if the incident prompted revelations, including the need for change in policy or additional training.
In Harden’s case, there were no revelations.
Each box simply was checked “no.”