3. Final Report of the Monroe County Grand Jury Spring Term 2014 - C. Eimers IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
FINAL REPORT OF THE MONROE COUNTY GRAND JURY
SPRING TERM 2014
THE INVESTIGATION INTO THE IN-CUSTODY DEATH OF CHARLES EIMERS
MEMBERS OF THE SPRING TERM 2014 GRAND JURY
Michael Cunningham, Foreperson
CATHEFINE VOGEL
State Attorney
MARK WILSON and VAL WINTER
Assistant State Attorneys
I. INTRODUCTION
It is the province and duty of the Grand Jury to investigate possible unlawful actions
by all persons,private citizens and public officials alike, and to return indictments when
warranted;it is also the Grand Jury's lawful and proper function to consider the actions
of public bodies and officials in the use of public funds, and to report or present findings
and recommendations as to practices, procedures, incompetency, inefficiency, mistakes,
and misconduct involving public offices and public monies.'
On June 19, 2014, the Florida Department of Law Enforcement(hereafter "FDLE")
submitted their investigative findings regarding the in-custody death of Charles Eimers
to the Office of the State Attorney. The State Attorney's Office thereafter convened the
grand jury to consider the facts and circumstances surrounding the in-custody death of
Charles Eimers,including whether any members of the Key West Police Department
(hereafter "KWPD") should be prosecuted for criminal wrongdoing in connection with
the incident. On July 21, 22, and 23, and again on August 14, 2014, the grand jury heard
testimony from a total of thirty-two witnesses, some of whom were previously
interviewed by the FDLE and some of whom were not. This report.represents the
culmination of the Grand Jury's inquiry.
II. THE FACTS
On Thanksgiving Day, November 28, 2013, at approximately 8:25 a.m., Officer Gary
Celcer of the KWPD conducted a traffic stop of a motor vehicle driven by Charles
Eimers, Mr. Eimers was stopped near the intersection of North Roosevelt Boulevard and
Kennedy Drive in Key West, Florida, for a traffic infraction. Officer Celcer made contact
with Mr. Eimers and asked him why he made an improper lane change. Mr. Eimers
.responded that he was "looking out for society," that he was "trying to save lives," and
that he was "working for the God Almighty." Officer Celcer then retrieved his driver's
license and instructed Mr. Eimers to wait in his car until Officer Celcer returned. Instead
of waiting, Mr. Eimers left the traffic stop in his vehicle and headed toward downtown
Key West on North Roosevelt Avenue. During his initial flight from Officer Celcer,Mr.
'Kelly v.SturSturgis.453 So. 2d 1179, 1182(Fla.5th DCA 1984).
Eimers was observed exceeding the speed limit, passing vehicles in the middle turn lane,
and running red lights. Officer Celcer radioed other units regarding Mr. Eimers' flight
and other officers thereafter joined in the pursuit of Mr. Eimers.
Mr. Eimers continued inbound on Truman Avenue into the Bahama Village area of
Key West where he was again observed traveling at a high rate of speed and
disregarding traffic control devices. Officer Henry del Valle of the KWPD followed Mr.
Eimers after turning south on Duval Street from Amelia Street. Mr. Eimers continued
south on Duval Street past its intersection with South Street, a dead end, and then pulled
his vehicle off the street and into the sand adjacent to the Southernmost Beach Cafe
where he stopped. Mr. Eimers then got out of his vehicle.
Officers del Valle and Kathyann Wanciak, the first two officers on scene, began
yelling instructions to Mr. Eimers to get on the ground after he exited his vehicle. Mr.
Eimers initially complied with the officers' instructions by kneeling on the sand and then
laying down on his stomach. Additional KWPD officers began to arrive on scene and
attempted to secure Mr. Eimers in handcuffs. Mr. Eimers allowed officers to place
handcuffs behind his back on his left wrist,but then began to resist the officers' attempts
to place his right wrist into handcuffs. During the struggle,officers restrained Mr.
Eimers with their arms and also attempted to place leg restraints on Mr. Eimers. Officer
Gary Lovette used his knee to hold Mr. Eimers' left shoulder on the ground during the
struggle and was relieved shortly thereafter by Sergeant Frank Zamora who similarly
placed his knee on Mr. Eimer's shoulder area. When Mr. Eimers right wrist was finally
handcuffed, Officer Gabriel Garrido's finger was briefly caught and then removed from
the handcuff. Although Officer Lovette had removed his Taser from his holster and was
holding it while restraining Mr. Eimers with his knees and hands, he did not discharge
his Taser. The testimony and evidence showed that no KWPD officer discharged a Taser
or other weapon during the incident.
Mr. Eimers was finally secured in handcuffs. As officers were assisting Mr. Eimers to
stand up, they observed that Mr. Eimers was unconscious and unresponsive. Officers
immediately removed the handcuffs, turned Mr. Eimers over on his back, and began
administering cardiopulmonary resuscitation (hereafter "CPR"). An ambulance was
requested on scene and officers continued with life-saving efforts until a rescue unit
arrived. Mr. Eimers was then transported to the Lower Keys Medical Center(hereafter
"LKMC")where he remained unconscious,but alive.
KWPD assigned (then) Detective Todd Stevens to respond to LKMC to determine Mr.
Eimers' condition. Detective Stevens was advised that Mr. Eimers had pre-existing non-
ishemic cardiomyopathy and was unlikely to live. Officer Gary Celcer initially remained
at the hospital with Mr. Eimers on November 28,but the KWPD did not have an officer
present with Mr. Eimers during the remainder of his stay at the hospital. Prior to
leaving the hospital that day, Detective Stevens requested hospital personnel contact
him in the event Mr. Eimers died.
Mr. Eimers' family was contacted about the incident and his condition. Mr. Eimers's
son, Treavor, came to LKMC to see his father and thereafter consulted with other family
members about his condition. 4n December 4, 2013,the Eimers family instructed LKMC
to take Mr. Eimers off Iife support and he died shortly thereafter. LKMC staff did not
believe Mr. Eimers was in police custody and, therefore,did not notify Detective Stevens
or anyone at the KWPD of his death. Instead, arrangements were made through the
family to transport him to a local funeral home.
On December 11, 2013, Detective Stevens learned that Mr. Eimers had died and
contacted the FDLE. Special Agent Kathy Smith of the FDLE thereafter made
arrangements with the Monroe County Medical Examiner's Office to transport Mr.
Eimers' body from the funeral home to the Medical Examiner`s Office for an autopsy.
We heard no evidence that Detective Stevens intentionally failed to report Mr. Eimers'
death to the Medical Examiner because, as stated earlier,he had asked hospital
personnel to contact him in the event of his death, but they did not. An autopsy was
performed on December 12,2013, and the Medical Examiner determined that Mr. Eimers
manner of death was an "'accident,""
We heard from thirteen KWPD officers who were at the scene on November 28. The
testimony of the officers was consistent that none of them discharged a weapon during
the apprehension of Mr. Eimers. This testimony was confirmed by data downloaded
from the Tasers of each officer that was on scene that day and the Medical Examiner's
testimony. The officers also testified that none of them struck Mr. Eimers in the head
during the struggle to place handcuffs on Mr. Eimers. This testimony was confirmed by
the Medical Examiner in that he found no evidence of recent contusions to the head area.
The officers also testified that no one held Mr. Eimers' face in the sand that morning,
although there was testimony that Mr. Eimers was turning his head back and forth
during the struggle. We did see a photograph of Mr. Eimers taken at the hospital which
showed sand on his face and in his nasal passages and ears, but the Medical Examiner
testified that no sand was found in Mr. Eimers' internal airways. We also had the
benefit of viewing a video from an unknown tourist which captured a portion of the
incident. The officers testimony was consistent with what we observed on the video.
We heard from eight civilian witnesses who witnessed either some or all of the
incident. Five of the witnesses worked either at the Southernmost Beach Cafe or nearby
businesses. Three of the witnesses were tourists from out of state and none of these
witnesses had previously been interviewed by the FDLE. While each of the eight
civilian witnesses gave slightly varying accounts of the incident, none of the witnesses
saw any of the officer's strike Mr. Eimers on the head. Only one of the witnesses testified
that she was not sure whether police held Mr. Eimers face into the sand while all the
other civilian witnesses testified that they did not see any KWPD officer hold Mr.
Eimers'face directly into the sand.
We heard from the lead paramedic at the scene and the nurse who was present when
Mr. Eimers was admitted into the Intensive Care Unit at LKMC. The nurse was also
present when life support was removed from Mr. Eimers and when he died.
We heard from three witnesses about statements made by and the conduct of one of
the officers after the incident. These witnesses testified that a KWPD officer made
derogatory statements about Mr. Eimers and further gave erroneous accounts of the
incident. This officer testified and he was questioned about the reasons he made the
statements, including other statements which were recorded shortly after the incident
and captured on audio and video when he apparently inadvertently turned on his Taser.
We heard from Special Agent Kathy Smith, the lead investigator for the FDLE. She
testified about her efforts to obtain the officers in-car videos from the incident and the
data and videos from all the tasers. She also testified about the interviews of KWPD
personnel and civilian witnesses. We are particularly concerned about why it took
almost six months to complete her investigation. She testified that lawyers from the
Police Benevolent Association {hereafter "PBA"}, the union for the KWPD officers,
insisted on being present during the officer interviews as authorized by statute.2 When
Special Agent Smith requested interviews of the officers, the PBA representative gave
her interview dates well over one month after the date of her request and repeatedly
rescheduled officer interviews, thereby delaying an important aspect of her
investigation. She also testified that she wanted to be certain that her investigation was
thorough in light of the media attention the incident was getting.
We heard from the Monroe County Medical Examiner at the time, Dr. E.Hunt
Scheuerman. Dr. Scheuerman testified that the cause of death was "anoxic
encephalopathy due to cardiac dysrhythmia due to dilated cardiomyopathy." In other
words,Mr. Eimers died because he had a weakened and enlarged heart, which caused
an irregular heartbeat, which caused brain damage due to a lack of oxygen. He
determined that the manner of death was "accident;' and further found that a
contributing factor in Mr. Eimers death was the stress of struggling with police. Dr.
Scheuerman testified that Mr. Eimers' heart condition pre-existed the incident. He
learned from hospital records that Mr. Eimers, age 61, had previously been diagnosed
with non-ischemic cardiomyopathy and congestive heart failure. In other words, the
volume of blood pumped from Mr. Eimers heart was only a small fraction of the blood
pumped by a person with a healthy heart. Most importantly, Dr. Scheuerman testified
that Mr. Eimers'preexisting heart condition was so poor that he could have died at any
time, even in his sleep.
Dr. Scheuerman also testified that his autopsy did not reveal the use of a Taser. He
also eliminated asphyxia (from possibly being smothered in the sand) as a contributing
factor in Mr. Eimers' death because no sand was found in Mr. Eimers' internal airways.
While Dr. Scheuerman did find some minor blunt impact wounds on Mr. Eimers' hands
and arms,he testified that he found no evidence of impact to his head,neck, or torso.
Dr. Scheuerman found that Mr. Eimers had fractures to the anterior aspect of his left and
right ribs, but these fractures were consistent with the administration of CPR to a person
of Mr. Eimers' age. Finally, Dr. Scheuerman testified that, while he would have
preferred to have conducted the autopsy as soon as possible after Mr. Eimers' death, he
did not believe that the delay of approximately one week affected his findings and
conclusions.
2 F.S.§112.532.
We heard from Charles Joyner, the founder and president of Survival Sciences,LLC,
who is a nationally recognized expert on police use of force. Mr.Joyner's background
includes working for the Central Intelligence Agency, as well as serving for twenty-four
years as a special agent for the Federal Bureau of Investigation (hereafter "FBI"). While
at the FBI, Mr. Joyner served as an FBI master police instructor, a firearms and Taser
instructor, a defensive tactics instructor, and an FBI SWAT team commander. Mr.
Joyner has previously testified as an expert in police use of force on behalf of
prosecutors, law enforcement organizations, and criminal defense attorneys. He has no
association with the KWPD or the FDLE.
Mr. Joyner testified about the United States Supreme Court decision in Graham v.
Connor,490 U.S. 386 (1989) (see Section III below) which sets forth the constitutional
standard governing whether the force used by police in effecting an arrest is reasonable.
He testified that he reviewed the in-car video tapes of the officers involved in the pursuit
of Mr. Eimers, the video from the unknown tourist, and the Taser recording of an officer
who was present at the time of the arrest. Mr. Joynees opinion was that KWPD officers
did not act unreasonably in the manner in which they took Mr. Eimers into Custody.
Applying the factors set forth in Graham, Mr.Joyner noted that the severity of Mr.
Eimers' initial offense—a minor traffic infraction—was low. However, Mr. Eimers`
statements in response to officer questioning indicated bizarre thinking or, perhaps,
mental illness. Mr. Joyner also noted it was highly unusual for someone to flee in the
middle of a routine traffic stop and that Mr. Eimers' motive for doing so was unknown.
Mr. Joyner opined that Mr. Eimers' actions during the subsequent pursuit(speeding and
disobeying red lights and stop signs)posed an immediate threat to the safety of the
pursuing officers and the public at large.
Mr. Joyner further noted that Mr. Eimers can be observed on the tourist video
struggling with officers as they attempt to handcuff his right wrist. It was Mr.Joyner's
expert opinion that the KWPD officers did not use excessive force under all the
circumstances utilizing the Graham factors. He testified that it was his opinion that
KWPD officers could have appropriately used more force than they did to subdue Mr.
Eimers. For example, he noted it was contrary to standard law enforcement training
practices to remove handcuffs from a resisting arrestee unless directed to do so by
medical personnel. He observed that KWPD officers immediately removed handcuffs
from Mr. Eimers to facilitate their administration of CPR once they noticed he was
unresponsive without waiting for paramedics to so instruct them. Finally,Mr.Joyner
testified that, in his opinion, this was not even a close or equivocal case; that is, the force
used was clearly justified under the circumstances.
Last, we requested testimony from Chief Donald J. Lee,Jr. Chief Lee testified about
departmental policies and protocol, in general, and about in-custody death policies,in
particular. He testified that it is KWPD policy not to conduct an internal affairs
investigation until the FDLE investigation and State Attorney's review is complete.
Chief Lee testified that this policy is in place because he does not believe the KWPD
should interfere in any way with the independent investigation which the FDLE
conducts. He testified that he intends to conduct an internal affairs investigation when
the present investigation is complete.
III. OUR ASSESSMENT
First and foremost, we commend those KWPD officers who did follow proper
procedures,policies, and protocols during the incident. In particular, we commend
those officers who administered life-saving techniques to Mr. Eimers while waiting for
medical rescue units to arrive.
We find that the KWPD officers on scene during the incident exercised the proper
amount of force to apprehend and restrain Mr. Eimers. In reaching this conclusion, we
were guided by the principles set forth in Graham v.Connor,490 U.S. 386 (1986),
wherein the United States Supreme Court held as follows:
Determining whether the force used to effect a particular seizure is
"reasonable" under the Fourth Amendment requires a careful balancing of"
the nature and quality,of the intrusion on the individuals Fourth
Amendment interests " against the countervailing governmental interests
at stake. [Citations omitted.] . . . . Our Fourth Amendment jurisprudence has
long reco ed that the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion
or threat thereof to effect it. f 0tation omitted.] Because "[t he test of
reasonableness under the Fourth Amendment is not cappabT of precise
definition or mechanical application [citation omitted],however,-its proper
application requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the
suspect poses an immediate 'threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.
[Citation omitted.]
The "reasonableness" of a particular use of farce must be judged from
the perspective of a reasonable officer on the scene, rather than with the
20/2D vision of hindsight. [Citation omitted.] . . . . With respect to a claim of
excessive force, the same standard of reasonableness at the moment applies:
"Not every push or shove, even if it may later seem unnecessary in the
peace of a judge's chambers," [citation omitted] violates the Fourth
Amendment. The calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular
situation.
As in other Fourth Amendment contexts, however, the
"reasonableness" inquiry in an excessive force case is an objective one: the
question is whether the officers' actions are "objectively reasonable" in light
of the facts and circumstances confronting them, without regard to their
underlying intent or motivation. [Citations omitted.] An officer's evil
intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officer's good intentions
make an objectively unreasonable use of force constitutional.
Id at 396-97.
Applying these principles to the case before us, we find that officers used a
reasonable amount of force in apprehending and restraining Mr. Eimers. For reasons
unknown to us,Mr. Eimers fled police after a routine stop for a traffic infraction. During
the subsequent pursuit through commercial and residential areas of Key West, Mr.
Eimers was observed speeding, running red lights, and disregarding stop signs, thereby
posing a substantial risk of injury to persons and property. In particular, we note that
more than half of the pursuit occurred in the narrow, congested streets of Old Town,
Key West, with its attendant pedestrian and bicycle traffic. When officers initially
arrived on scene, they were unaware whether Mr. Eimers was armed or posed
additional threats to the officers' safety and the safety of the public. While Mr. Eimers
initially complied with police instructions, we believe he actively resisted officers'
attempts to place his right wrist in handcuffs. During this time, officers used
appropriate restraint techniques and reasonable force to keep his body and legs from
moving so that handcuffs could be placed. The amount of Mr. Eimers' resistance was
further apparent from the fact that one of the officers' finger was caught in the handcuffs
during the struggle. Considering the totality of all the evidence presented, the amount
of force used by KWPD officers was appropriate for the situation, reasonable under the
circumstances, and clearly justified.
Even though we find that the amount of force used was reasonable, we
recommend that the KWPD conduct an ail-inclusive investigation into this incident. We
recommend that this investigation include a comprehensive review of the policies,
protocol, and procedures employed for situations involving in-custody deaths and in-
custody "near deaths."
We also recommend that the KWPD undertake a comprehensive and thorough
internal affairs investigation regarding the conduct of certain officers which occurred
after the incident. We are extremely concerned about unprofessional conduct and
statements that were made after the incident regarding the events of that morning. The
internal affairs investigation should result in appropriate recommendations or sanctions
for the officers involved regardless of their consequence or severity.
We also express serious concern about the some aspects of the investigation
conducted by the KWPD. First, insufficient efforts were made to promptly locate and
interview civilian witnesses who may have seen the events that morning. We believe
KWPD officers should have started looking for eyewitnesses to the incident immediately
after Mr. Eimers had been taken away in an ambulance, rather than waiting until later
that morning. Second,the KWPD clearly failed to timely communicate with LKMC
about'Mr. Eimers' condition and whether or not the KWPD considered Mr. Eimers to be
"in custody" while he was at the hospital.
We further recommend that the KWPD offer additional mandatory training on the
topics of stress management and sensitivity. The sensitivity training should have a
public and social awareness component.
We recommend that the PBA comply with FDLE requests to interview officers
within thirty days. Although we respect the rights of officers to be represented by
counsel during the interview process, a period of thirty days or less from the date of the
request until the date of the interview will expedite future investigations without
infringing on officers' rights. We believe this time frame equally serves the interests of
officers and the interests of the public.
MICHAEL C HAM
FOREPER5
August 27, 2014