Family sues MTS after they say their son was choked to death on a bus
Anthony McGaff died from asphyxiation after another passenger intervened and held him down during an altercation McGaff had with a female passenger.
Angela McGaff | James Smith
The mother and father of a 28-year-old man who was strangled to death during an April 2022 bus ride downtown say the bus driver refused to pull over or stop for more than 8 minutes while a passenger choked their son.
Angela McGaff and James Smith says the MTS bus driver failed to take any action to protect their son, Anthony McGaff. In addition, McGaff's parents say news reports after Anthony's death painted the man who choked their son as a good Samaritan, who was trying to protect a female passenger, who got into an altercation with McGaff after he took a seat on the #235 Bus that night just after 8 pm.
In a newly filed lawsuit, obtained by CBS 8, Angela McGaff and Smith now look to set the record straight about what happened that night and are seeking justice for their young son.
"I go over this over and over again in my head, but there are no results," said McGaff's father, James Smith. "There is no result other than my son is dead. There's no result. I can't rewind time."
The Bus Ride An Altercation Turns Deadly
Angela McGaff says that on April 30, 2022, her son got on the bus near F Street and 14th Street. When he took a seat a woman began recording the 28-year-old hair stylist on her phone. Anthony McGaff told her to stop recording him. She refused. He slapped the phone away.
"He was provoked. He was having his picture taken and filmed and asked the young lady not to film. He took the camera away and she pulled out another one and continued filming him," says Angela McGaff.
Anthony's father, James Smith, tells CBS 8 that the female passenger harassed her son. Smith says the bus driver did nothing to stop the altercation and no security was on the bus to ensure rider safety.
"This young lady was behaving erratically. And it probably would have gotten addressed at that moment, versus letting it linger on. That's just simply all about just not having the right security. I think my son was simply provoked. People in today's world don't like to be filmed. They don't like their pictures taken under any circumstances. So I believe it was simply he was just provoked to the point where he felt like he needed to, I guess, take action."
Anthony McGaff took action. His father says he tried to grab the second phone out of the woman's hands.
Seconds later, Angela McGaff tells CBS 8 that another passenger, 55-year-old Edward Hilbert, stepped in and placed Anthony McGaff into a chokehold.
Angela McGaff says the District Attorney's Office told her that Hilbert held that chokehold for more than eight minutes with Hilbert's full weight on Anthony.
By the time the bus pulled over, more than eight minutes after Hilbert grabbed McGaff, the 28-year-old was unresponsive and not breathing.
During that time, the bus driver did nothing to stop the altercation and did nothing to make sure that Anthony was safe, which according to the family's attorney, Conrad Salumbides from the Pirnia Law Group, was happening despite screams from other passengers.
"He just kept driving, I can't imagine what he was doing," said Salumbides. "He has rearview mirrors, he can see what's going on. He can see the altercation, and he can hear the people screaming, 'Can you breathe, Can you breathe?'"
Search For Answers Reports of a Good Samaritan
McGaff's father, James Smith, says he got the call that no father ever wants in the middle of the night, hours after his son had died.
Smith says that he and Anthony's mother immediately began searching for answers.
Police told Smith and Angela McGaff that officers arrested Hilbert the following day.
In a subsequent statement, the San Diego Police Department stated that “Hilbert physically intervened and restrained the victim for several minutes. While being restrained by Hilbert, the victim lost consciousness, went into medical distress, and ultimately died.”
Angela said she met with District Attorney's Office and prosecutors walked her through the video taken on the bus that night.
"The video of it is longer than eight minutes. Okay. Eight minutes was the time, eight minutes. You know, I set a timer and eight minutes. It's long. At what point do you stop the bus? I just don't understand how this could happen," she said.
Days after, news outlets began reporting another side of the story, that Hilbert was only trying to protect the woman from an attack.
The reports, says Angela and Smith, continue to hurt them.
"They made me feel absolutely horrible. Absolutely horrible," said McGaff. "I have to keep reminding myself that all the facts are not there. It's easy to make an opinion on something when there are no facts. People will make their opinions. It just makes me feel horrible."
Hilbert has since been charged with involuntary manslaughter and has pleaded not guilty.
Search for Accountability Family Takes Legal Action
On October 27, 2022, attorneys for the family submitted a wrongful death tort claim to MTS and other local agencies.
The claim read: "Anthony McGaff was a passenger when he was attacked by another passenger and strangled. The operator of the vehicle was negligent in his/her failure to intervene or assist in the altercation, including but not limited to stopping the vehicle, resulting in the death of Anthony McGaff."
The following day, according to records obtained by CBS 8, officials from Metropolitan Transit System rejected the claim "in its entirety."
From that moment, Angela McGaff says police and the District Attorney have not provided them with the police report, or the video taken from the camera on the bus.
When asked whether she or James are getting any information from the District Attorney, Angela McGaff told CBS 8, "Not so much anymore."
The lack of updates and the lack of information about their son's final minutes alive has placed a heavy toll on both parents.
"I have, and I still have his text messages way back from even three years ago. And I see that and I just break down. I mean, when he died, I died too," said Angela McGaff while fighting through tears. "This will be my first holiday without him. He was my only child. I have to face the fact that I will never see him again. And I will never have grandchildren. It's been an absolute nightmare the pain is immeasurable."
Anthony's father James Smith, says he feels the same.
"He was my only son. It's kind of pathetic to see a grown man cry. But that's what I've been doing a lot of, I've been trying my best not to, you know, show my emotions around my family and friends because I don't want the sympathy. I really don't. But I do have to, I do a lot of mourning in private. And sometimes it does show publicly and you simply can't help that you can't control your emotions. So I'm just trying my best to manage them," said Smith. "The entities involved simply need to be held responsible. And that's just the bottom line."
The parents say they hope to do that through the newly filed lawsuit.
Attorney Ardy Pirnia says this case is much more than a wrongful death case.
"You know, sometimes in an accident, someone can be killed instantly. And it's a wrongful death case. But in this case, because there was a chance for him to be alive for seven minutes and 59 seconds or however much longer that is shown in the video, there is a survival action here for the parents. Who was this bus driver? Was he a bad actor? Did he have any prior complaints? Have other people been injured on this bus before this incident with this specific driver? More than anything, we can't stand for this and these buses need security."
CBS 8 reached out to MTS for a statement. A spokesperson tells CBS 8, “The top priorities for MTS is the safety of its passengers and employees. As this incident is the subject of pending criminal charges and civil litigation, MTS cannot comment.”
Meanwhile, Edward Hilbert, the man charged in McGaff's death will appear in court for a preliminary exam on December 15. CBS 8 will be at the hearing.