Florida Keys News
Sunday, August 31, 2014
State: Eimers' resistance drew police force
No Taser used, no 'face down' in sand, FDLE concludes

"Stop resisting, just stop it."

That's what Key West Police Officer Kathyann Wanciak said to suspect Charles Eimers at about 8:33 a.m. Thanksgiving on the beach that dead ends off Duval Street, according to the state's review of the incident made public this week.

Eimers, the 61-year-old Michigan man who died six days after a struggle with police on the sand after he blew off a traffic stop, resisted the band of police officers trying to handcuff him before he fell unconscious, according to the Florida Department of Law Enforcement's investigative summary released Thursday -- the day after a grand jury cleared all officers involved in the case of any criminal wrongdoing.

Eimers' family is suing the city for wrongful death in federal court, citing civil rights violations.

But State Attorney Catherine Vogel on Wednesday said the criminal probe is over, on recommendation of the grand jury, which in a 10-page report found police used a proper amount of force on Eimers yet scolded the department for "unprofessional" statements made afterward.

FDLE found no wrongdoing after what Special Agent Kathy Smith called a "comprehensive investigation."

All of the evidence -- physical, medical and the testimony of witnesses overall -- matches what police officers said all along, Smith concludes at the end of the 33-page summary report: Eimers' resistance to being handcuffed while lying on his stomach on the beach led to the use of police force.

"No!" Eimers said, while flailing on the sand where Duval Street dead ends into the ocean.

Moments before, Eimers told Wanciak, "I didn't do anything wrong."

By all accounts compiled by FDLE, those are among the last words Eimers said while alive and after a police takedown that Wanciak estimated lasted a couple of minutes.

Four minutes later, the dispatch records show, Eimers, was unconscious and awaiting paramedics while officers applied CPR and a defibrillator, borrowed from the nearby Southernmost Beach Cafe.

The FDLE report, made available to the grand jury during the five days it convened to review the Eimers case between July 21 and Wednesday, provides many details but nothing that contradicts what police officers said from day one:

Eimers was pulled over across from the Pizza Hut on North Roosevelt Boulevard at 8:25 a.m. Nov. 28 for passing a police officer via the left hand turn lane. While Officer Gary Celcer was running his name, Eimers drove away in the silver PT Cruiser filled with "food, drinks, laundry, mattresses, pillows, rope, mail and a briefcase," police reported.

A nine-minute chase through Old Town and Bahama Village ended on South Beach off Duval where Eimers left his vehicle and found himself cornered by police officers.

"It appeared the suspect was originally complying with the arresting officers and then started resisting," Smith wrote after interviewing Officer Thaddeus Calvert.

Calvert, along with Police Benevolent Association attorney Andrew Axelrad, met with Smith like the other dozen officers involved, to say Eimers dropped to the ground and surrendered but began "turning back and forth and balling up" once the handcuffs came out.

Five officers struggled with Eimers "who was in a prone position in the sand," Smith attributed to Sgt. Frank Zamora, who told her he "assisted the officers by placing his knee on the suspect's left shoulder."

Zamora said Eimers' face was turned to the right during the struggle.

Eimers appeared "confused" and his eyes red and glassy, William Barrow, who works at the cafe, told FDLE.

Barrow said Eimers kneeled on the sand and was flat on his stomach while an officer yelled, "Stop resisting. Stop resisting."

Eimers was moving his face back and forth, but originally had placed his head on a forearm, police testified. He was not being "smothered" in the sand, as a civilian witness had said, Key West officers said.

A few diners, including a New York reserve police officer, said Key West police were using excessive force. They believed Eimers was being stunned by a Taser.

Officer Gary Lee Lovette, who was near Eimers' head as he lay prone, unholstered his Taser, which kicked on the audio and video recording.

Public records requests made to the State Attorney's office for the recordings were not answered this week. Key West police said they don't have Lovette's recording because it was sent to FDLE, which said it would need some time to answer requests for documents.

All conversations indicate Lovette never used his Taser on Eimers, but he did threaten Eimers with it as he struggled.

Lovette is recorded on the Taser saying Eimers was very strong and was "fighting" the officers or "beating the s--- out of six of us," FDLE reported.

Lovette is also recorded saying, "Me? I dropped like a f---ing bomb on his head," and at one point said, "We just killed someone."

The medical examiner found no evidence of a head injury on Eimers. Lovette on June 3 told FDLE that he was just making "shop talk" to "decompress" with fellow officers or to make himself look like a "bad ass."

Eimers was very strong and fought the officers the entire time they were trying to handcuff him, Lovette told FDLE. The only reason Lovette didn't use the Taser on Eimers was because at one point Officer Gabriel Garrido's pinkie finger got stuck in the handcuff.

Garrido can be heard saying "Ow," on one of the police recordings.

Eimers kept trying "to lift his feet and move around," by kicking his legs up, Officer Nicholas Galbo said.

Once the handcuffs went on, Zamora tried to lift Eimers but noticed the man had passed out.

"He's out! He's out!" Zamora announced, quickly removing the handcuffs and rolling Eimers on his back. Officer Henry del Valle began CPR and paramedics were called, Smith reported.

Del Valle checked twice for a pulse but couldn't find one. He began chest compressions while Celcer, a trained paramedic, began CPR.

Six days later, at his family's request and per doctor's orders, registered nurse Angelina Kontodiakos removed the breathing tube from Eimers' throat at 3:10 p.m. Time of death: 6:52 p.m., Dec. 4, 2013.

Kontodiakos, who has worked at Lower Keys Medical Center since 2008, was the admitting nurse Thanksgiving morning and watched a patient come in with sand "in his nose and ears" breathing only through a ventilator.

Later, Kontodiakos was asked by then-Detective Todd Stevens to call him if Eimers "expired," the FDLE report states.

But Eimers wasn't "in custody," she said, and there was no officer assigned to watch him at the hospital.

Stevens, later reprimanded and sent back to uniform patrol by his bosses, didn't tell his supervisors Eimers had died until Dec. 11. The body had been sent straight from the hospital to the Dean-Lopez Funeral Home.

An autopsy was performed Dec. 12 by Dr. E. Hunt Scheuerman, who ruled Eimers' death an accident brought on by his poor health, which included congestive heart failure.

"Due to the resulting cardiac arrest and the results hypoxia (low blood oxygen), he suffered irreversible brain damage" during the police struggle, FDLE reported.

No injuries to the neck, scalp, torso or skull were found, the medical examiner's autopsy stated, although Eimers had some "minor, blunt impact wounds" on his hands and arms.

When Eimers died, Kontodiakos told Smith, she was focused on assisting Treavor Eimers, who was upset about his father.

When Stevens later asked her why she didn't call him about the death, Kontodiakos replied, "I am sorry but that was the last thing on my mind."

gfilosa@keysnews.com

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