by Naja and Arnaud Girard
[SEE VIDEO DEPOSITIONS BELOW]
Attorneys in the federal wrongful death case filed by the Eimers family against KWPD officers and the City of Key West were heard for the first time before Magistrate Judge Jonathan Goodman on Plaintiffs' Motion For Sanctions. In their motion the family accuses Defendants of perjury and destruction of evidence.
The City filed a 24-page response to try to curb the damage done by an unexpected video that appears to contradict sworn statements made by several police officers involved in the in-custody death of Charles Eimers on Thanksgiving Day 2013. [See Plaintiffs' Reply here.]
Let’s try to summarize the arguments on each side:
The Eimers Family’s Point of View
According to the Eimers family [Plaintiffs] the Defendants have buried themselves so deep in lies, perjury, admissions of murder, intimidation of witnesses, destruction of evidence, all with intent to conspire and to cover-up, that they cannot possibly climb out of the hole, wash off the mud, appear in front of jurors and hope to convince them that reasonable force was applied in the arrest of the 61-year old tourist on South Beach.
Plaintiffs' attorneys contend that the cover-up has so impaired the Eimers family’s ability to prove their case that a judgment should be entered in their favor as a logical consequence of such extensive malfeasance.
Eimers’ lawyers argue that the City’s Chief of Police deliberately allowed the cover-up to run its course and did so according to the City’s custom not to ever challenge or reprimand its officers regarding use of force or the type of abuse which led to Eimers death. Even at the eleventh hour, when all the facts were set in stone, the City’s Internal Affairs investigation report, signed by the Chief of Police himself, once again proffered excuses rather than reprimands for taping over video records and not timely reporting the death to the medical examiner and also failed to look into obvious issues of perjury, intimidation and dispersal of essential witnesses.
If Plaintiffs have their way, the Judge will grant a default judgment against the City and its officers or alternatively enter a ruling which would direct the jurors to consider that all of the missing evidence would have been adverse to the Defendants. Either measure would be disastrous to the defense.
The Defendants’ Point of View
The Defendants point out the inherent problem with 'disappeared' evidence: the difficulty in showing that the records, videos, witnesses and audio recordings ever existed at all.
The Plaintiffs, they claim, have not proven, clearly and convincingly, that the evidence once existed, nor have they shown who had the duty to safeguard it and who actually took the fateful decision to destroy it. Defendants argue that even if that evidence did in truth exist, it has no bearing on the case itself. It has nothing to do with the key question: reasonable use of force.
Defendants point out that before the Judge can rule in Plaintiffs’ favor, the what, who, when, and how need to be clearly established and need to have dispositive force on the case in chief.
Those are the basic points of contention before the Court.
THE EVIDENCE IN QUESTION"
The Dash Cam Videos
Officers Lovette and Garrido swore during depositions that their dash cam video systems had been activated. Lovette even recalled reviewing his video and commenting about how some of it was missing. Now both videos are missing. The Chief of Police, Donnie Lee, explained that several dash cam videos from the Eimers incident were inadvertently erased because they had never been identified as evidence, copied, and secured as evidence in the Eimers case. Innocent mistake according to Defendants, however, according to Plaintiffs, it was a deliberate failure to protect crucial records in a potential murder investigation.
Officer Lovette’s Taser Video
Officer Lovette testified that he believed that his Taser had been recording during the arrest from the moment he pulled it out, activated it, and pushed it into Eimers’ back. But upon cross-examination by his attorney, he stated he could not be absolutely sure. The Defendants say the Taser’s recording device was activated only later, by accident, after the altercation was over when officer Lovette inadvertently turned the Taser recording device on when placing it back in its holster. The Taser recording provided by KWPD begins after Eimers was removed from the beach but, interestingly, Lovettes’ Taser is seen in the second bystander video, already holstered, while Lovette is on the beach next to Eimers administering CPR. Shouldn’t the Taser recording have begun much sooner if KWPD’s version is correct?
The CAD Report
The transcript of the police radio communications associated with the incident [the ‘”CAD Report“] indicates that the “subject [was] Tased.” Entries in CAD reports are created based on radio transmissions between officers and dispatch, however, the audio recordings of the communication channels don’t contain any such communication. Was the audio file edited, as the Eimers family contends? The City denies the audio files could have been edited but according to the Eimers family attorneys, the audio was provided to them in two separate files split precisely at the point where that statement shown on the transcript would have been.
The Conspiracy & Perjury Claims
During their sworn depositions, Officers Lovette, Galbo, and DelValle, and to some extent Garrido, described in somewhat consistent detail how Eimers never had his head in the sand and was still kicking and yelling at the time officers attempted to raise him to his feet. That story was later shattered by the second bystander video and was, Plaintiffs claim, the result of a plan by the officers: They are heard on Lovette’s Taser recording saying, "We're going to have to do supplementals [reports]. Let's get together and work that shit out."
Defendants claim that after nearly a year, officers had simply forgotten much of what had occurred, showing only that there had been poor recollection, not perjury, during their depositions. In their responses to the Motion for Sanctions, Defendants’ attorneys argue the issues raised are not so crucial to the case as to warrant a default judgment.
Plaintiffs disagree. They claim the central issue is whether Eimers was a ‘walking heart attack’ who should have had the good sense not to fight the police [KWPD version] or whether Eimers died fighting for air while being aspyxiated in the sand by multiple police officers.
Obviously if the officers’ ‘kicking and yelling’ story had not been contradicted by the unexpected second bystander video, that version would have established that Eimers was still breathing after his head had been removed from the sand, which would mean that he had not been smothered by the officers.
Below are portions of the deposition testimony taken in the civil action.
Officer Lovette’s “17 Million” Text Messages
According to the Defendants, just as Charles Eimers was being taken away in an ambulance, officer Lovette’s Taser mysteriously began recording without anyone knowing that the mic was open. What sounded like an hour and a half of garbled noise turned out to be, once enhanced, a litany of damning admissions by a police officer: It was “in custody murder,” “we might as well bury him,“ “I tased a motherfucker in custody today,“ “I dropped like a fucking bomb on his head,” "He [Eimers] has blunt force trauma to the head from me,” “We just killed someone.”
Another thing officer Lovette says he did that day was to exchange “17 million” text messages. Obviously what he said in those messages and how other officers responded could help clarify what happened to Charles Eimers. Unfortunately officer Lovette claims he longer has any of those messages.
In a post hearing order Judge Goodman ordered all parties to file briefs specifically addressing the destruction of those text messages: Was there a duty to preserve the text messages? Did the Plaintiff put Lovette and the City on notice that the text messages should be preserved? Were the text messages considered KWPD records? Yesterday, the Eimers family attorneys filed their brief, arguing that the City and Officer Lovette both had a legal duty to retain all records, even emails and text messages, from the moment they knew that a criminal investigation had been initiated or that possibly civil litigation was at hand. A response by the Defendants is due on January 30, 2015.
On January 29, 2015 the parties and their attorneys will meet in an effort to settle the case via mediation.
The risk of the Court granting the Plaintiff’s Motion for Sanctions might weigh heavily during those negotiations.
For access to all Blue Paper articles by Naja and Arnaud Girard on the in-custody death of Charles Eimers click here.
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