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The family of a burglary suspect who died three days after he was taken into custody by the Depew Police Department and the Erie County Sheriff’s Office is having difficulty accepting Friday’s announcement that charges will not be filed in the 2012 death.

“It’s hard for them to accept the fact there won’t be a prosecution,” said Thomas J. Casey, attorney for the parents of Richard Metcalf Jr.

They have sued the county, the Sheriff’s Office and deputies at the Erie County Holding Center over their son’s death.

Metcalf, 35, died Nov. 30, 2012, in Erie County Medical Center, where he was taken several times for mental health evaluations because of what authorities termed his bizarre behavior following his Nov. 27 arrest in Depew.

Casey cited photos from the holding center showing Metcalf’s injuries and an Erie County medical examiner’s report listing blunt force trauma as one of the causes of death and homicide as the manner of death.

“They are frustrated and depressed and looking for come closure,” he said. “It’s been a long journey for them – over a year now since their son died.”

District Attorney Frank A. Sedita III said Friday that no charges will be filed.

“The New York State Police conducted an independent investigation to determine whether criminal charges were appropriate,” Sedita said. “Based upon the findings and the recommendations of the investigating agency, no criminal charges will be filed.”

The Sheriff’s Office did an initial review of the death.

“We determined, and remain confident, that our use of force was justified and proper, and that it did not cause the death of Mr. Metcalf,” Sheriff Tim Howard said at the time. “Following the medical examiner’s report, we contacted the Erie County District Attorney’s Office, and welcome an additional review, including the assistance of the New York State Police, since two different police agencies were involved.”

Sedita said he asked the state police to investigate, and they gave him a 500-page report last fall that recommended no charges be filed. He said his homicide bureau chief reviewed the report and concluded the case could not be prosecuted.

Sedita said he decided to personally review the case after receiving inquiries from an attorney for the victim’s family, the public and the media.

He said he went over the report, interviewed the state police’s chief investigator about two weeks ago and agreed with the recommendation not to file charges. The case was not presented to a grand jury.

“It doesn’t mean that a crime wasn’t committed, just that there is not enough evidence to prosecute,” Casey said.

Meanwhile, the family is pressing its lawsuit in State Supreme Court.

“We hope it will bring out some element of truth about what happened that night and bring the family some closure,” Casey said.

At the time of Metcalf’s arrest, Depew police reportedly used a stun gun on him twice as he charged at officers with a heavy metal wrench after he allegedly broke into St. Joseph’s Country Manor and Grove Catering on Columbia Avenue.

Because he was exhibiting strange and combative behavior and had an elevated heart rate, police took him to ECMC before he was taken to the holding center, sheriff’s investigators said.

He was bruised and cut when he was taken to the holding center, according to booking photos taken there.

At the holding center, Metcalf showed signs of mental illness and was combative with deputies, according to the Sheriff’s Office report.

Guards reported seeing him picking at his arms with a plastic fork, biting himself and wiping blood on the cell walls. When they tried to restrain him, they quoted him as yelling, “I’m radioactive,” and said he struck his head against the cell bars and a wall.

Deputies took him back to ECMC, but he was returned to the holding center. When he continued to act bizarrely, he was taken to ECMC again on Nov. 30, although he resisted deputies as they tried to remove him from his cell for the return trip.

On the way to ECMC, Metcalf suffered a heart attack in the ambulance, and he was taken to Buffalo General Medical Center, because it was closer. He was transferred to ECMC, where he died later that day.

An autopsy showed he had heart, gastrointestinal and liver problems.

The Erie County medical examiner listed the cause of death as “acute and subacute myocardial infarction” (a heart attack), “congenital biliary atresia (a liver disease) with cirrhosis of the liver and portal hypertension” and “multiple blunt force injuries with associated stress.”

It ruled that the death was a homicide, because it occurred while he was in custody of others.

email: jstaas@buffnews.com