Key West The Newspaper

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 U.S. District Court, alleges that officers Gabriel Humberto Garrido, Gustavo Adolpho Medina, Kathyann Wanciak, Gary Lee Lovette, Mathew Johnson, Francisco Zamora, Thaddeus Calvert, Derek Wallis, Nicholas Galbo, 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 officers to use the prone restraint technique on the beach.

The complaint refers to portions of the medical examiner’s preliminary objective 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 known 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 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 types of 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 department’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.

Say tuned.

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To access all Blue Paper coverage of the death of Charles Eimers click here

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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.

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COMMENTS:

Sister said:

“I have to strongly disagree with the writer’s premise that “This case is about who you believe.” One can choose to believe a lie is a truth. One can choose to believe a wrong is a right. The outcome of this case needs to be based on the FACTS THAT ARE KNOWABLE with concrete evidence presented in the video of the actual event supported by multiple eyewitness accounts, medical records, autopsy reports, documented behavior of participants.  “Belief” has nothing to do with this case and if you “believe” that it does, than you may end up with the same verdict as found in the Kelly Thomas murder and so many other cases of murder by cop. An individual can have a conscience. A group cannot. This applies to both a given police force and a given jury. We need to keep our individual conscience with us at all times.”

formerbanker said:

“I have been following your outstanding coverage of this tragic event. I am appalled for several reasons starting with the fact of Mr. Eimers death at the hands of our local police department. As the video clip The Blue Paper obtained clearly shows, there is nothing “alleged” about the serious accusations against these members of the KWPD. The police union and the FDLE are doing a HUGE disservice to the community and to the family of Mr. Eimers. I am disgusted at the cover up attempts throughout this situation and there are people that MUST be held accountable for this. I’m also disgusted that the other news providers in this city are trying to keep this quiet by their LACK of coverage.

I’ve lived in Key West for 15 years and in that time there have been more than a few accusations against various members of the KWPD for excessive force and police brutality, some of them true and some not. But I do not recall an event that resulted in the death of an arrested individual. I have met a few members of the PD over the years that, in my observation were honest, conscientious officers, as they should be. Police officers, on a daily basis, have to deal with obnoxious, if not dangerous people in the line of duty. Theirs is not a job I envy, much less covet, but even that does not give them the right to use their badge as an excuse to use excessive force with those that are detained and/or arrested.

Of the 12 or so officers named in the lawsuit, I certainly hope there were a couple who were only witnesses to this event. It is incumbent on them to come forward and speak the truth. And to those that won’t come forward and do the right thing, it is my fervent hope that the State Attorney will bring charges against these people, including manslaughter or perhaps even a second degree murder charge.  Perhaps that might spark the memories, and maybe the consciences of a couple of these officers.

Thank you for your coverage of this story and please continue to keep us informed. You should win a Pulitzer Award for this.”

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For access to all Blue Paper coverage on the death of Charles Eimers click here.