Son files lawsuit against city, Bellingham police officers over father’s in-custody death
The son of a 49-year-old man who died while in Bellingham police custody in March 2018 has filed a formal lawsuit over his father’s death against the city and officers involved.
Joshua Eldard filed a civil wrongful death lawsuit May 19 in Whatcom County Superior Court against the city of Bellingham and three Bellingham police officers — Joseph Leighton, Andrew Wassell and Scott Keller.
Joseph Leighton has been an officer with Bellingham police since June 2002 and held the rank of sergeant as of late July 2020, according to public records obtained by The Bellingham Herald. Scott Keller was hired as an officer in November 2016, while Andrew Wassell was hired in July 2017. Both held the rank of officer as of late July 2020, according to the public records.
Bellingham police declined Tuesday to comment on the pending litigation and referred The Bellingham Herald back to the police department’s original press releases from 2018, according to an emailed statement provided by Bellingham Police Lt. Claudia Murphy.
“The loss of life is always tragic,” former Bellingham Police Chief David Doll said in the press release at the time.
The Herald also reached out to the Bellingham Police Guild for comment.
Prior to the lawsuit, Joshua Eldard had filed a claim March 15 with the city of Bellingham seeking $1 million in damages for the death of his father, Robert Raymond Eldard, also known as Robert Gagnon.
Generally, under Washington state law, a claim for damages has to be filed before a lawsuit can be filed against the state, a county or city, according to the Bellingham City Attorney’s Office.
According to the wrongful death lawsuit, the city has taken the position on the claim that the actions of the officers involved were within the scope of their employment.
In the wrongful death lawsuit, Joshua Eldard alleges the Bellingham police officers and the city were negligent in regards to their interactions with Robert Eldard. The lawsuit alleges the Bellingham police officers violated the duty of care they have to individuals they encounter when engaging in law enforcement activities.
The three officers involved engaged in “improper, unreasonable, unnecessary and excessive use of force” when interacting with Robert Eldard and were negligent in seeking medical attention for him after he became unconscious while in their custody, the court records state.
The lawsuit also alleges the city is negligent because it failed to have and follow proper training, policies and procedures when it comes to conducting welfare checks on people with mental illnesses and rendering aid.
Joshua Eldard says he suffered loss of companionship, emotional distress and other damages. His father, Robert Eldard, “suffered death and prior to his death suffered pain, disability, anxiety, distress, humiliation, fear, emotional trauma, mental and physical pain and suffering” and other damages, the lawsuit states.
“Mr. Eldard’s death was unnecessary. Video evidence establishes that while Mr. Eldard indicated he could not breathe, three police officers continued to detain him on the ground, handcuffed, until he lost consciousness. Instead of immediately rendering aid, the officers did not notice Mr. Eldard’s condition, and he died,” according to a previous statement provided by Dan Fiorito, the Eldard’s attorney, on behalf of Robert Eldard’s family.
“Mr. Eldard’s son Joshua does not want to see this happen to anybody ever again. The videotaped encounter is tragic. Joshua hopes that by bringing this claim forward, future police encounters resulting in death can be reduced. It is unfortunate that Mr. Eldard was homeless and struggled with addiction. However, his station in life did not excuse the actions of the Bellingham Police Department,” Fiorito’s previous statement said.
Robert Eldard’s death
In the claim and lawsuit filed against the city, it says less than eight minutes transpired from the time Robert Eldard was restrained on the ground by Bellingham Police officers to the time he lost consciousness.
Around 11:30 p.m. on March 14, 2018, Robert Eldard used the front desk phone at the Drop-In Center, a former emergency homeless shelter at 1013 W. Holly St. in Bellingham, to call 911 and request medical help, according to the lawsuit.
Robert Eldard suffered from mental illness and drug addiction and was exhibiting symptoms of paranoia, the lawsuit states.
A Drop-In Center employee took the phone from Robert Eldard and told dispatch that Robert Eldard didn’t need medical attention, but needed to be escorted out of the homeless shelter, the court records show. Bellingham police were asked to do a welfare check on the man, according to previous reporting in The Herald.
The three Bellingham police officers arrived at the scene between 11:41 p.m. and 11:43 p.m., while an ambulance and fire engine arrived at 11:44 p.m., the lawsuit states. One of the police officers allegedly told emergency medical personnel that they were not needed and they left by 11:46 p.m., the records show.
The officers then went inside the Drop-In Center to conduct the welfare check on Robert Eldard.
Officers used de-escalation and verbal skills to get Robert Eldard into protective custody so he could be taken to St. Joseph hospital for a medical and mental health evaluation, according to a police press release at the time. He was placed into handcuffs for his safety and the safety of the officers, according to Bellingham police.
When the three Bellingham police officers took Robert Eldard outside, he began to yell for help and started to doubt that they were real law enforcement officers, according to police body camera footage released of the incident.
The lawsuit alleges that Bellingham police didn’t have any legal basis for placing Robert Eldard in handcuffs or to detain him, and that they didn’t have his consent to keep him in their custody after he began to doubt whether they were real law enforcement officers.
The video shows Robert Eldard begin to struggle with the three police officers, who then take him to the ground while he yells for help. Over the course of the next seven minutes, Robert Eldard tells the officers that he can’t breathe 11 times. He also tells officers to turn him on his side seven times, according to the video footage.
During the interaction, the police officers tell Robert Eldard to relax multiple times and to stop fighting with them, the footage shows.
At one point, shortly after Robert Eldard had been placed on the ground, he says “I’m trying to tell you something, turn me a little on my side so I can breathe,” the footage shows.
An officer responds with “We’re listening,” while another states “If you’re talking, you’re breathing OK?”, the footage shows.
Throughout the video, Robert Eldard repeats that he’s innocent and doubts whether the law enforcement officers are real. At one point, he yells that the officers are trying to kill him, the footage shows.
While the officers try to reassure Robert Eldard and tell him to relax, he continues to yell for help and later asks “Why am I dying?”, according to the footage.
Around 11:52 p.m., emergency medical personnel arrived at the scene for the second time that evening, the lawsuit states.
Robert Eldard was outside the center and lost consciousness and became unresponsive while the officers were holding him on the ground, according to the lawsuit and video footage of the incident.
The lawsuit alleges emergency medical personnel on scene were not able to attend to Robert Eldard because the three police officers were searching the man and removing his belongings while he was unconscious. The officers then allegedly discuss how it “would be ‘tricky’ to continue to restrain” Robert Eldard while he was on the gurney medical personnel brought over before they realize the man was unresponsive, according to the court records.
The court records state that law enforcement and medical communities are aware that holding a person in a prone restraint can be deadly, and that the United States Department of Justice warned law enforcement of the dangers of asphyxiation while in such a position as early as 1995.
“The defendant officers improperly, unreasonably, an[d] unnecessarily escalated the welfare check conducted on Mr. Eldard by placing him in handcuffs and restraining him face down on the ground for several minutes and refusing him medical attention when he was unconscious,” the lawsuit states. “Under the totality of the circumstances, the conduct by these officers was well below the standard of care, negligent, unreasonable, unnecessary, reckless and wanton.”
Robert Eldard’s death certificate stated he died at 12:30 a.m. on March 15, according to the lawsuit. The Washington State Department of Health listed a contributing cause of death as “agitation and psychosis in the context of law enforcement intervention,” the court records state. Cardiac dysrhythmia and acute methamphetamine usage were listed as other causes, the court records show.
The Whatcom County Medical Examiner said cardiac complications caused by acute methamphetamine use led to Robert Eldard’s death. His death was ruled accidental, according to previous reporting in The Herald.
The city has not yet responded to the wrongful death lawsuit, court records show.
