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I published early (for me) today, because I’m being interviewed at 8:30 a.m. on Pirate Radio. If something interesting happens during the interview, I might add it to this post, or I might wait until tomorrow to report it. Or, I might do both. The first candidate forum is today, also. The quiet before the storm perhaps was not so quiet.
Charles Eimers, R.I.P.
is featured in today’s Citizen – www.keysnews.com – my interjected thoughts in italics. Editorial cartoons from Key West the Newspaper – www.thebluepaper.com.
Friday, July 18, 2014 Add to Facebook Add to Twitter
Trial date set for Eimers’ death suit
City wants court to stop evidence gathering pending ruling
BY GWEN FILOSA Citizen Staff
A federal judge has set an April trial date for the wrongful death case filed by the family of a Michigan man who died six days after several Key West police held him facedown on the beach while handcuffing him.
Eimers died on the beach. The Medical Examiner’s autopsy report said he arrived brain dead at the hosptial, where his body but not his brain was rescussitated. The autopsy said his brain died from lack oxygen.
In case the lawsuit isn’t resolved during court-ordered mediation, scheduled from Dec. 8 to Feb. 5, 2015, Judge Jose Martinez has reserved two weeks for a jury trial starting April 6, 2015, in his courtroom in the federal building, 310 Simonton St.
Meanwhile, State Attorney Catherine Vogel plans to present evidence to a grand jury Monday and Tuesday to determine whether any police officers will face criminal charges in connection with the death of Charles Eimers.
Eimers, 61, was taken off life support at Lower Keys Medical Center on Dec. 4, 2013, having remained on a ventilator since he arrived on Thanksgiving Day.
The General Motors retiree had just landed in Key West, his family said. Police noted he appeared to be living out of his car, noting his possessions in tow.
Paramedics were called to 1405 Duval St., where police restrained Eimers on South Beach, after he had led them on a slow speed chase that began during a traffic stop in the 3000 block of North Roosevelt Boulevard.
For the first time, the city is conceding that Eimers at first complied with officers’ demands to lay on his stomach on South Beach, where his silver P.T. Cruiser had come to a stop Thanksgiving morning.
“Several officers attempted to restrain Eimers and place him in handcuffs,” attorney Michael Burke wrote on behalf of the city in its latest motion. “During the process of handcuffing and restraining Eimers, he became unresponsive.”
In the bystander’s video is seen Eimers legs began kicking and he started struggling after the cops were on him physically. The video ends before Eimers stops struggling. Here’s a link to the bystanders video, provided by Key West the Newspaper – www.thebluepaper.com, which broke the case. But for the bystander’s video, there would be no case. Here is the blue paper’s link to the video.
Treavor Eimers, on behalf of his father’s estate, sued the city April 11, accusing 13 police officers of misconduct in connection with the post-arrest death.
Named in the lawsuit along with the city are Janeth Calvert, Thaddeus Calvert, Henry Del Valle, Nicholas Galbo, Gabriel Humberto Garrido, Matthew Johnson, Gary Lee Lovette, Gustavo Adolfo Medina, Pablo Rodriguez, Todd Stevens, Derek Wallis, Kathyann Wanciak and Francisco Zamora.
According to what I read in the blue paper, at some point afterward, a friend of Gary Lee Lovette came forward and gave a statement that Lovette had boasted about elbowing the bum in the back of the head, or maybe it was the back of the neck, and that Lovette hated homeless people.
Attorneys for the Eimers family want to depose each of the defendants during the discovery phase.
But the city’s hired attorney handling the Eimers family civil suit wants a judge to stop the prelitigation process called “discovery,” where both sides must hand over relevant documents and testimony to ensure that both parties go to trial having turned over all important evidence.
Since police officers have a right to “qualified immunity” that protects them from liability while they do their jobs, the discovery process is unfair, the city attorney said.
“The individual defendants, all law enforcement officers with the city of Key West, should not be forced to bear the burdens of broad reaching discovery including sitting for depositions and the costs of trial until the court determines qualified immunity,” attorney Burke wrote to the court July 9.
I keep finding myself wondering if “qualified immunity” is something a judge decides, or does a jury decide it, based on the evidence? Discovery is used to gather evidence.
A week later, on Tuesday, Judge Martinez released the pretrial schedule and a trial start date.
Attached to the city’s latest motion is a copy of the medical examiner’s final autopsy report, which concluded Eimers’ death was an accident due to an already weak heart, although the struggle with police was a contributing factor.
Key West attorney Darren Horan blasted the city’s use of the autopsy report, which he says remains in dispute, as unfair play.
“Defense counsel should be ashamed of themselves,” Horan wrote in a brief filed Tuesday. “There is no way to unring the bell which defense counsel has rung.”
At issue, Horan says, is that the autopsy report can now factor into the judge’s decision on whether to dismiss the case.
When I practiced law in Alabama, a Medical Examiner’s conclusion as to cause of death was, by state law, prima facie (on its face) evidence of the cause of death, subject to being rebutted by the plaintiff. It might be Horan needs to find a medical expert whose testimony counters the Medical Examiner’s conclusion as to cause of death. It might be Horan needs to depose the Medical Examiner and try to get him to admit he guessed at the cause of death and really doesn’t know what killed Charles Eimers. It might be Horan needs to depose the Medical Examiner and try to get him to admit Eimer’s brain would have died from lack of oxygen and Eimer’s heart would have stopped beating , if Eimers could not breath under the cops. It might be Horan needs to get a medical expert to testify, if Eimers could not breathe under the cops, that would have killed him and his brain.
At this stage in the lawsuit, all “well-pleaded facts are acceptable as true,” and anything reasonable is construed by the court in the light most favorable to the plaintiff,” according to case law Horan cited.
Back when I practiced law in Alabama, the court could consider the Medical Examiner’s report in a motion to dismiss and in a motion for summary judgment. However, knowing the Medical Examiner’s report was only prima facie evidence of cause of death, judges gave plaintiff counsel latitude to rebut the prima facie presumption.
The city’s latest motion provides additional details to the police’s version of what happened to Eimers.
At 8:18 a.m. Nov. 28, 2013, Officer Gary Celcer stopped Eimers on North Roosevelt Boulevard for illegally passing him in a left turn-only lane, the city’s motion says.
Eimers pulled over and handed Celcer his driver’s license, but had no registration or proof of insurance, Burke wrote.
“Eimers said something along the lines of doing the work for God and trying to save lives,” Celcer wrote in the original police report filed Nov. 28, 2013.
Hopefully, Eimers’ death will save lives by causing KW police officers to be more restrained when dealing with unarmed suspects who pose no apparent threat to said officers or to other people. Meanwhile, Eimers is dead and we know he died and turned blue underneath several Key West cops on South Beach last Thanksgiving Day.
When Celcer returned to his car with Eimers’ license, Eimers took off, prompting a police chase.
“Eimers continued westbound on Roosevelt Boulevard and begin using the center lane to pass other westbound vehicles,” Burke wrote.
Eimers finally stopped after driving onto South Beach at the entrance to the Southernmost Beach Cafe at the end of Duval Street.
Police officers have said Eimers fought them off during an arrest, while a bystander’s cell phone video shows him raising his hands in the air and falling to his knees as officers surround him.
During the arrest, officers say Eimers was combative as they tried to handcuff him and attach a leg restraint called a Hobble. In separate reports, officers described Eimers as resisting arrest while facedown on the beach by kicking and fighting off the handcuffs, which at one point trapped one of Garrido’s fingers.
Kicking and fighting handcuffs would be consistent with smothering to death.
Galbo, Zamora, Medina and Johnson said they assisted in trying to subdue Eimers as he lay on the sand.
“I assisted by holding the subject down by placing my knee on his left shoulder,” Zamora wrote in his report dated Dec. 2. “I noticed a little bit of blood behind the subject’s right ear as [he] faced away from me as he was being handcuffed.”
Where is Officer Lovette in this picture?
Zamora was the one to alert the group of officers that their suspect had lost consciousness.
“He’s out! He’s out!” Zamora yelled, according to Wanciak’s Nov. 28, 2013, report. “Get them off. Get the handcuffs off.”
Zamora said he then tried to lift the handcuffed Eimers, only to notice “he stopped moving. I immediately removed the handcuffs and flipped him over.”
When they noticed Eimers had “turned blue,” officers said they turned him over and began CPR.
Turned blue. Do people who smother turn blue?
Paramedics said they found a man with no pulse on the beach and took him to the hospital on Stock Island, where Eimers remained on life support until Dec. 4, 2013, when his family asked staff to take him off the ventilator.
No pulse means Eimers was dead when paramedics found him.
On the sewering of the Florida Keys, past, present and future,
yesterday, I sent this email to the owner of bigpinekey.com’s Coconut Telegraph kudos and whiners blog, with copies to Dump the Pumps, Inc.’s president, Banks Prevatt, County Commissioner George Neugent, in whose voting district lies the disputed Cudjoe Regional Sewer District, Pirate Radio in Key West, US 1 Radio on Big Pine Key, Todd German, who sits on the Key West Citizen Editorial Board, and Naja Girard, President of Last Stand and co-publisher of Key West the Newspaper (www.thebluepaper.com):
Subject: Coconut Telegraph – space age compost toilet
Date: Thu, 17 Jul 2014 16:37:44 -0400
Dear Ed, contact info for the author of this below in today’s Coconut Telegraph?
“Composting Toilets and Corruption”] We own and operate Deer Run Bed and Breakfast on Big Pine Key. A few years ago, when Long Beach was a cold spot for sewers, we were told before we could get any permits, we had to become 2014 compliant. So, we hired Solaria in Marathon who designed a high performance sewer system for us, to work in conjunction with vacuum flush composting water toilets. The toilets are approved for all states, yet here we had to circumvent the local powers that be because they said they didn’t know about them, and they were not approved (wrong, of course).
We have several of these toilets installed here, and our water bills have absolutely plummeted. They use approximately a half pint of water per flush. If one did not want to invest in the entire system (which means the composters), you can still purchase and install the toilet, and have it connected to the soon-to-be-installed city sewers going in where ever you are. Although Long Beach was designated a “cold spot” for years, suddenly it became a “hot spot” and was slated for sewers (which we learned about from reading the local paper last year). The reason the County and FKAA are not talking about this toilet option, in our opinion, is because if everyone installed these toilets, the system as designed and as being, would be so overbuilt it actually would not even work properly as that much less water is needed. Further if we all used these toilets, “they” wouldn’t be making the money hand over fist that they will be. The basic toilet, without the composter system, is about $500 cost. You do not need a permit, because this is simply replacing an existing toilet in your home. And, indeed the toilet will pay for itself in roughly 1 year of water savings. They are nothing like the “dry composting” toilets of days past. These are high performance, modern, and absolutely everyone should have them. If the County and FKAA actually subsidized these composting toilets instead of the sewer system being built, to be blunt, we wouldn’t even need the sewer system, and it would be far, far better for the environment. If everyone put in composters, we wouldn’t be talking about gravity or grinders, nor shallow or deep injection wells to shoot into the substrata with treated effluent.
The County and the FKAA is doing a vast disservice to us citizens. Anyone who still thinks the sewer mandate is mainly for the environment has their head up their arse. It’s about money. This County and the FKAA has screwed so many of us residents and businesses in so many ways it’s mind-boggling.
Deer Run has been running far ahead of the pack on eco-issues since we took this place over in 2005, despite the County of Monroe and it’s monkeys (no offense to monkeys) seemingly doing everything they can to stop us. This County has been nothing but a huge pain in the neck. In fact, most of the County Commissioners and County Administrator Gastesi do not even respond to our calls or letters anymore, including our own District Commissioner. Us getting the word out on these modern composting toilets is at least one thing we here at Deer Run can do for our community. Call us, we are happy to provide you the information.
Here’s a link to today’s Friday edition of Key West the Newspaper – www.thebluepaper.com:
Nothing today about the Eimers case, but an article on the Goombay vote at the recent city commission meeting stirs the pot. Other articles might also interest you.
Also in today’s blue paper is this public announcement:
Key West Mayoral Candidates Q&A Forum Scheduled for July 29th
The Key West Golf Course Homeowners Association will be hosting a Mayoral Candidates Question and Answer Forum on Tuesday, July 29th at 6:30pm. This event is open to all citizens of Key West.
The Forum will be held at the Key West Golf Course’s clubhouse. There will be a cash bar available and the event is anticipated to last approximately 90 minutes.
Jenna Stauffer of WEYW-TV, the co-host and co-producer of “Good Morning Florida Keys with Rick and Jenna”, will act as moderator for the Forum. She will field questions from the floor. All the Candidates will answer each question. This will be a great way for the people of Key West to learn where each candidate stands on a particular issue and their views for the future of Key West.
All three candidates have been invited to participate. Candidates Sloan Bashinsky and Margaret Romero have accepted the invitation to participate. The Homeowners Association was disappointed to learn today that Mayor Cates declined the invitation, citing a conflict with “previous engagements”.
For further information please contact the Key West Golf Club HOA at firstname.lastname@example.org.
Bob Kelly, of Key West,
sent me a link regarding electric motor scooters.
Key West phasing out gas-powered motor scooters in favor of electric motor scooters would seriously reduce noise and air pollution in the city. As would phasing out politicians.
Political advertisement paid for and approved by Sloan Bashinsky, for Mayor of Key West, aka “southernmost the nut house”