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Subject: RE: Angels vs God
Date: Fri, 11 Apr 2014 23:08:24 -0400
CHARLES EIMERS FAMILY FILES SUIT IN FEDERAL COURT
Charles Eimers’ children have grown tired of waiting for answers from FDLE.
They asked their lawyers David Paul Horan and Darren Horan to file a suit for wrongful death against the City of Key West and 12 police officers involved in the arrest of Charles Eimers on Thanksgiving morning. The arrest resulted in a coma and death a week later when Charles Eimers was removed from life support at Lower Keys Medical Center.
The lawsuit, filed this morning in the US District Court, alleges that officers Gabriel Humberto Garrido, Gustavo Adolpho Medina, Kathyann Wanciak, Gary Lee Lovette, Mathew Johnson, Francisco Zamora, Thaddeus Calvert, Derek Wallis, Janeth Calvert, Pablo Rodriguez, and Todd Stevens used excessive force in arresting Charles Eimers. They have also sued the City of Key West for having a custom or policy that allows police offers to use of the prone restraint technique on the beach.
The complaint refers to portions of the preliminary medical examiner’s report, which dispel the possibility of a heart attack as the primary cause of death. The claim hinges on the presence of conditions likely to cause asphyxia during the arrest: The fact that Eimers was prone on his stomach and face down in deep sand, the fact that eyewitnesses reported his nose and mouth were caked with sand, that medical records are consistent with asphyxia, that “multiple officers” were putting pressure on Eimers’ back, and eyewitness reports of the possible use of a Taser or stun gun, which would have created an even greater need for heavy breathing and could have precipitated asphyxia.
The claim is brought under “Section 1983”, also know as the Civil rights Act of 1871. Section 1983 was enacted to fight against racial violence by organizations like the Klu Klux Klan, which were sometimes so intertwined with local police departments that the guilty were going unpunished, protected by government immunity. Since then the Civil Rights Act has become the means to seek redress against any violation of civil rights caused by government agents. But actually winning such a claim is not a an easy task. To succeed in suing the City itself under section 1983 the attorneys must prove that whatever happened to Charles Eimers is the result of a policy or custom of the City.
The lawsuit claims that the prone restraint method has become so controversial that it has been banned in many state-run institutions and that it is even highly restricted in many police departments where use is limited to situations where it would prevent bodily injury to a person. The complaint points out that in some parts of England the use of the method requires that one officer be dedicated to monitoring the arrestee for signs of distress. The lawyers will likely argue at length about whether the Key West Police Department’s policies regarding the use of the prone restraint method was a contributing factor in the death of Charles Eimers.
It appears that these cases alleging use of excessive force by police officers are difficult to win. A simple reason is that most people acknowledge that police officers are performing a difficult and dangerous job and tend to give them the benefit of the doubt. But there appears to be one element that can tilt the balance and give the plaintiff a much better chance at winning: In the excessive force news stories we researched on the web, it appears that the cases in which officers were caught lying and covering-up the true facts were usually the ones with bad outcomes for the police. The jurors’ trust apparently melts away and the most damning element becomes not the arrest and tragic death, but the cover-up. The Eimers’ family lawsuit emphasizes the fact that the police’s initial description of the arrest was flatly contradicted by a cell phone video shot by a bystander that was posted online two weeks later by The Blue Paper. The police claimed that Eimers got out of his car and ran down the beach near the Southernmost Beach Café, then collapsed and had no pulse when they reached him. The video, however, shows Eimers calmly getting out of his car and obeying every police order until several of the police officers jumped on his back. Eyewitnesses have described a scene of extreme violence: Tasers being used repeatedly until Eimers became limp, turned blue and fell into a coma. He would never regain consciousness.
The lack of transparency and the continuing cover-up is probably the strongest piece of artillery in the plaintiff’s camp. It’s bad enough that witnesses might have been intimidated, it’s worse that the medical personnel sent to save Charles Eimers life were lied to by the police about the circumstances of his loss of consciousness. And it might be worse yet that the police cover-up nearly resulted in the cremation of Eimers’ body before an autopsy could take place. [This was only averted because of an inquiry by The Blue Paper into the status of Mr. Eimers.] And then there is the obstructive attitude of the officers who refused to make their reports until coerced to do so under threat of termination by Donnie Lee the Chief of Police. “Can you imagine,” David Paul Horan told us at the time, “Can you imagine going to a jury with officers who admitted they refused to make their reports?” “We are often our worst enemies,” Chief Donie Lee told us shortly after we broke the story back in December.
This case is about who you believe. Do you believe the witnesses on the beach who say that Eimers was compliant when the police started to tase him and that his mouth and nose were caked up with sand or do you believe the police who say he was resisting arrest? Who the jury will believe could be drastically influenced by the series of lies, blunders, cover-up and obstruction that took place afterwards.
Similarly the FDLE investigation is quickly losing credibility. One critical witness who gave a statement to The Blue Paper months ago about admissions made by one police officer wrote us a message earlier today after we asked her whether she had finally been interviewed by investigators:
“Just called and left Kathy Smith [FDLE Special Agent Supervisor] a message. She is never available when I am it seems. Feel like I am begging to give this statement. Crazy. I wont’ give up though!”
This witness has been trying to tell FDLE about some incriminating evidence in the Eimers case for close to three and one-half months.
It seems that at this point and before all of the witnesses have either left town, been compromised or have simply forgotten important details, the Eimers family attorneys have decided it’s time to take over and conduct their own investigation, using the civil court ‘s subpoena powers.
To access all Blue Paper coverage of the death of Charles Eimers click here
Note: Attorneys for the family have confirmed that Officer Henry DelValle was inadvertently omitted from the list of individual defendants. DelValle is one of the officers who appears in the cell phone video with his gun drawn while commanding Eimers to lay down in the sand.
Here’s a link to the next most recent blue paper article, which contains the video of Charles Eimers voluntarily submitting to the police on Smathers Beach, and some of what happened just thereafter, which video contracted and blew apart officers’ account of how it went down:
By Arnaud Girard
The family of Charles Eimers, the 61-year-old Michigan man who died Dec. 4 at a local hospital while in police custody, sued the city of Key West in federal court Friday claiming excessive force killed the unarmed man, and that officers conspired to cover up the death.
Officers “killed Charles Eimers in a horrifying way,” states the suit, filed by Treavor Eimers, as a representative of his father’s estate, comprising sons Tyson and Joshua Eimers and daughter Erica.
The civil action names 12 police officers connected to the case — Gabriel Garrido, Gustavo Medina, Kathyann Wanciak, Gary Lee Lovette, Matthew Johnson, Francisco Zamora, Thaddeus Calvert, Derek Wallis, Nicholas Galbo, Janeth Calvert, Pablo Rodriguez and Todd Stevens.
A state investigation into the death remains pending without any indication of when the Florida Department of Law Enforcement (FDLE) will release its report, which has kept the medical examiner’s final autopsy report confidential.
The Eimers family didn’t want to wait any longer, their attorney said.
“They wanted to take some kind of affirmative steps to make them feel like they’re doing something,” said attorney Darren Horan, whose Key West firm Horan, Wallace and Higgins, is working for the family.
Many unanswered questions remain, Horan said, including a specific timeline of Eimers’ drive from Roosevelt Boulevard to South Beach.
“We don’t know what started the whole thing,” Horan said. “That will come out in discovery. We can start putting the case together.”
Three other law firms, all in Weston, signed off on the 46-page wrongful death suit, which demands a jury trial and seeks medical and funeral expenses, the loss of earnings of Eimers with interest and compensation for “lost parental companionship, instruction and guidance, and for mental pain and suffering,” said Horan.
The Nov. 28, 2013, Thanksgiving Day incident arose from a traffic stop, according to police reports.
The police officer who first stopped Eimers for an alleged illegal lane change said he looked homeless since his belongings were stacked up in his car.
Eimers, however, was a retired General Motors worker who had just arrived in Key West, where he planned to enjoy a few months of relaxation, the lawsuit states.
During the stop, Eimers took off in his P.T. Cruiser, police reported. Followed by patrol cars, he didn’t stop until he had reached the end of Duval Street, stopping on South Beach.
The lawsuit accuses officers of using a Taser stun gun on Eimers, and later filing reports that the man was resisting arrest.
A video taken by a passerby shows Eimers complying with officers after he got out of his car. He raises his hands into the air and drops to his knees. The video was arranged by God’s angels.
The lawsuit depicts the officers as unnecessarily holding Eimers facedown, in “prone restraint,” on South Beach while he was handcuffed and held in a leg restraint until he turned blue.
“In killing Charles Eimers, the officers forced his head into the sand and every movement brought more sand into his nose and mouth,” the suit states of the arrest.
Eimers died six days later at the Lower Keys Medical Center.He died after having been hooked up to a ventilator at the Stock Island hospital.
Paramedics wrote in an initial report that Eimers had no pulse when they reached him on South Beach.
But the body didn’t reach the county medical examiner until seven days later, Dec. 11. Due to a detective’s failure to keep tabs on the in-custody suspect, the body was taken to a funeral home instead of the medical examiner.
“By sheer good fortune, the local funeral home had not yet cremated Mr. Eimers’ body,” the suit states. Good fortune arranged by God’s angels.
That delay in getting the body to an autopsy table was part of a “calculated plan to allow the destruction by cremation of key evidence of defendants’ excessive force, reckless conduct and bad faith,” the suit states.
Officer Todd Stevens was reprimanded Dec. 12 by Chief Donie Lee and Capt. Scott Smith for not following orders to keep a death watch over Eimers.
“His actions, or lack thereof, were completely unacceptable and embarrassing to the department,” Lee said in January.
City Attorney Shawn Smith said Friday he could not comment on pending litigation.
“Mr. Eimers’ death was tragic and to speculate on how it came to be without a full understanding of the relevant facts is a disservice to all involved,” Smith said. “Our condolences certainly go out to the Eimers family, and we hope that they find peace in the memories that they shared.”
Political advertisement paid for and approved by Sloan Bashinsky, for Mayor of Key West