The parents of a 35-year-old Black homeless man who died after a struggle with Anaheim police are asking for $30 million as jurors will resume deliberations Tuesday in a six-week civil trial.
Christopher Eisinger got into a struggle with Anaheim police just after midnight on March 2, 2018, and died March 10, 2018.
Eric Dubin, who represents Eisinger’s father, argued in court that the officers ignored the Eisinger’s complaints that he could not breathe.
Dubin said Eisinger can be heard on video saying, “I can’t breathe, pretty sick, pretty sick, dude pull me up. Look, he’s on my face.”
The “I can’t breathe” words were the same as uttered by George Floyd when he died in a struggle with a Minnesota police officer. That case caused national and international controversy and that police officer is now on trial in a criminal case.
However, the attorney for Anaheim rejected the assertion that Eisinger had used those words.
And attorney Steven Rothans, representing the city, disputed that officers placed a knee on Eisinger’s neck or his head.
“Did anyone hear, `I can’t breathe’ ” on the videos, Rothans said. “I’ve listened to that numerous times and I couldn’t hear anyone say, `I can’t breathe. ‘ ”
Rothans said there were no injuries on Eisinger consistent with heavy body weight on his neck. And there was no evidence of burst blood vessels in the eyes from choking, Rothans argued.
Rothans said if jurors find negligence they should award only $165,000 to the mother and $80,000 to the father.
Dubin had told the jury that the family should be awarded $30 million.
Dubin, Eisinger’s father’s lawyer, told jurors, “Ignoring these pleas for help was negligence, it was cold, it was indifference to life, sickening.”
Eisinger’s voice “tapered down” as he lost consciousness, Dubin argued.
“That is a sign of someone who needs immediate medical care,” Dubin said. “It’s negligence on two counts. They let it happen and then didn’t save him when they put him in that peril…. You don’t have to go to medical school for 30 years to know this guy is choking out on tape.”
Eisinger was not resisting attempts to handcuff him, Dubin argued.
“This violent struggle is not him trying to commit more petty larceny,” Dubin said. “This is the fight to breathe. This is what your body does when you’re fighting to breathe.”
Dubin faulted officers for not fetching a breathing bag for Eisinger and that they improperly sat him up, which led to “positional asphyxia,” Dubin argued.
“They would have been better off if they left him on his back until paramedics got there,” Dubin said.
However, outside of court, Mike Lyster, chief communications officer for the City of Anaheim, later said, “There is no evidence of ‘positional asphyxia,’ according to the coroner’s report and the coroner’s courtroom testimony indicating no asphyxia, injury to neck, back or airways.” He said, “Our hearts go out to the Eisinger family,” but the city disagrees with the courtroom portrayal.
He said the officers acted responsibly. “We join so many in condemning the tragic death of George Floyd. But the facts in this case are unique.”
Dubin said officers also failed to attempt CPR. The officers were more interested in finding a methamphetamine pipe at the scene, Dubin argued.
“He’s going to die, but, guess what, I can put in the report I got the pipe,” Dubin said.
Dubin also attacked the testimony of Dr. Nicole Ellis, the forensic pathologist who performed Eisinger’s autopsy and concluded that Eisinger had an enlarged heart and suffered from 70% to 75% artery blockage.
Ellis said the cause of death was sudden cardiac arrest due to heart disease and the effects of methamphetamine abuse.
Dubin said investigators “didn’t tell her anything” about the struggle with Eisinger before the autopsy.
Ellis testified that she was told “there was some kind of struggle, but I don’t really know any specifics,” Dubin argued.
“What she said, there’s no credibility at all,” Dubin said.
An expert for the plaintiffs contradicted Ellis, Dubin said.
“It wasn’t drugs, Oh my God,” Dubin said, adding that the level of methamphetamine in Eisinger’s system was “non toxic.”
“He went unconscious under the body weight” of the officers pinning Eisinger down, Dubin said.
Dubin also noted that officers announced in a news conference that Eisinger had a metal pipe when he was confronted, but it turned out to be a “party popper” that was pink and turquoise and emitted confetti.
“The only reason their expert knew it wasn’t a metal pipe is because I told them at the deposition,” Dubin said.
“Their expert uses that as a cause for facial injuries,” suggesting Eisinger banged his face with the metal pipe while sprinting from police, Dubin said.
“I even asked him, `Are you embarrassed talking about a metal pipe in your expert report on the death when it was a pink toy?’ ” Dubin said.
Eisinger struggled with drug addictions and seemed to turn things around following a stint in rehab that his parents insisted on, but then relapsed in the weeks before his death, Dubin said.
Eisinger’s father never missed one of his son’s baseball games, Dubin said.
“We’re asking for a lot of justice — anything under $30 million is an insult,” Dubin said.
Attorney Annee Della Donna, who represents Eisinger’s mother, argued that the officers put their knees and body weight on Eisinger, killing him. She said Eisinger sustained five bone fractures to his face.
“You’re supposed to be trained if you wear that badge to know an agonal breath is not breathing,” Della Donna said. “That is the last sound you make before you die and you have to trained to render medical aid, especially when you’re the reason they’re unconscious.”
“This is another sad case of parents burying their son, killed at the hands of police,” Della Donna said.
Eisinger’s mother “changed her job so she wouldn’t miss any school plays,” Della Donna said.
“A day before his death he texts his mom” saying he was trying to turn things around and “pray for me,” Della Donna said.
Eisinger was a good student who made the honor roll and was a well-liked manager at an Albertsons grocery store, Della Donna said.
Attorney Steven Rothans, who represents the city, asked jurors to consider if Eisinger’s heart disease “played a role in his death.”
Also, did his use of methamphetamine factor into the death, Rothans said.
“Did his physical exertion and struggle and agitation with Anaheim officers play a role in his death?” Rothans asked. “Did Mr. Eisinger’s repeated acts of resistance and resistance of officers’ attempt to handcuff and restrain him play a role in his death?”
Rothans said Eisinger’s attorneys failed to produce evidence they promised in opening statements that there were eight officers with “800 pounds and knees on his neck and knees on his back.”
Rothans argued that Della Donna said the officers did not try to “save his life because of the color of his skin.” He added, “That’s despicable. We’ve been here six weeks. Did you hear any evidence that any of the police officers took the actions they did because of the color of Chris’ skin?”
Rothans said only the plaintiffs’ paid expert said sitting Eisinger up posed a health risk.
The officers all graduated from certified police academies and were trained in the Platform, Efficiency and Proficiency, or PEP, method, a “technique to refocus officers from striking and extensive use of force to capture techniques,” Rothans said.
“It was taught to Anaheim police officers just a matter of months before and they implemented it with Mr. Eisinger,” Rothans said.
Police encountered Eisinger when responding to reports of someone trying to break into cars at a mobile home park, Rothans said.
A suspect then hopped a 12-foot fence into a backyard and was trying to break into a home, Rothans said.
The first officer on scene, a sergeant, tried to question Eisinger, who took off running, Rothans said.
“Why did he jump a 12-foot fence into a backyard,” Rothans said. “And in that jump over a 12-foot fence might he have injured himself? And what was he doing trying to get into the… home at midnight?”
The officers had probable cause to detain Eisinger, Rothans said.
“The most reasonable thing for Mr. Eisinger to do was to stop and talk to” the officer, Rothans said. “Flight, unprovoked flight, is an indicia frankly of consciousness of guilt.”
Jurors began deliberations Thursday and will resume deliberations on Tuesday.