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City denies claim filed by family of man who died in Bellingham police custody after repeatedly saying he couldn’t breathe

The man can be heard saying he can’t breathe more than 10 times in the bodycam footage

Bellingham Police Department on Friday, May 14, 2021, in Bellingham, Wash. Three Bellingham police officers took Robert. R Eldard into custody in 2018. // Photo by Kelton Burns

Editor’s note: This article contains graphic description and links to the bodycam footage of the death of a houseless person in police custody.

On Thursday, May 13, the City of Bellingham denied a claim for damages filed for the death of a man in Bellingham police custody in 2018; litigation of the case is expected to follow shortly with a lawsuit against the city.

The claim against the city called for $1 million in damages over the death of Robert R. Eldard, a houseless man taken into custody by Bellingham Police Department officers on March 15, 2018. The claim, which was filed on March 15, 2021, and denied by the city on May 13, 2021, included quotes from Eldard, who was captured in police body camera footage saying “I can’t breathe” repeatedly.

Dan Fiorito, attorney for the Eldard estate, said the purpose of legal action was to hold the City of Bellingham accountable for the actions of the police department and the officers involved. He also said it was to prevent this from happening to other people facing houselessness, mental health issues or a need of medical attention as Eldard did.

“The police unnecessarily caused Mr. Eldard's death,” Fiorito said. “If the city chooses to defend the actions of the police department and the officers involved, it will have to do so before a jury.”

Shane Brady, the litigation attorney for the city, declined to offer a statement on the case or a possible suit.

In the footage, Eldard can be heard yelling that he can’t breathe and calling for help while the officers kneel on his body. According to the claim file obtained by The Front through a public records request, Eldard’s death certificate states he “suffered sudden loss of consciousness following non-traumatic altercation with law enforcement.”

The Whatcom County Medical Examiner said the official cause of death was cardiac complications caused by acute methamphetamine use, as reported by the Bellingham Herald.

According to a press release from the Bellingham Police Department, officers were responding to a 911 call for assistance at the Drop-In Center, a houseless shelter located at 1013 W. Holly St. The officers placed Eldard into protective custody after offering to transport him to PeaceHealth St. Joseph Medical Center.

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Former Drop-in Center for Lighthouse Mission, where the arrest took place, on Friday, May 14, 2021, in Bellingham, Wash. The bodycam footage took place within this building and on the street outside. // Photo by Kelton Burns

“While Mr. Eldard was experiencing many hardships due to houselessness and mental health issues, he did not deserve the inhumane treatment he received at the hands of the police,” Fiorito said.

In the bodycam footage, Eldard appears restless and confused after the officers put him in handcuffs, questioning whether they were real police officers.

Around 48 seconds into the bodycam footage, Eldard can be heard asking “Are you real police?”

“Mr. Eldard was a non-violent individual experiencing mental health issues; he needed medical attention,” Fiorito said. “Instead, police officers arrived at the homeless shelter and handcuffed Mr. Eldard. They had no basis for an arrest or investigative detention.”

Eldard struggled as they tried to get him in the squad car. Three officers wrestled him to the ground, face down. “I can’t breathe,” Eldard repeated 11 times.

At 4:40 in the bodycam footage, one officer said, "If you are talking, you are breathing" as the three officers kneeled on Eldard’s back. 

Eldard called out for help dozens of times throughout the video. At one point, he yelled out to a passerby for help and said the police were fake and trying to kill him. The bystander appeared to stop and inquire about what was going on. 

“Do not come over here, do you understand that? Keep walking,” one of the arresting officers yelled back. 

Six minutes and 22 seconds into the video, Eldard asked the officers, “Why am I dying?”

“These officers disregarded Mr. Eldard's medical needs and his life,” Fiorito said. “After Mr. Eldard lost consciousness, the officers did not respond properly. Despite Mr. Eldard being limp on the ground, they continued to use force; they rendered no aid. Mr. Eldard died.”

“Get off my back, I can’t breathe,” Eldard said at 7:51, before he seemingly lost consciousness. 

In the bodycam video footage, he appears to have lost consciousness about eight and a half minutes after being taken into custody. Paramedics arrived 30 seconds later. The press release by the City of Bellingham says he died shortly after arriving at St. Joseph’s PeaceHealth Medical Center.

“There is no reason Mr. Eldard, a non-violent unarmed homeless man in need of medical attention, should have ended up dead,” Fiorito said. “His life had value. This travesty could easily have been avoided.”

David Doll, then Bellingham’s police chief, praised the officers for “displaying exemplary de-escalation skills and compassion” in a press release from March 16, 2018, that acknowledged Eldard’s death in custody.

“I am proud of the job I see them do every day as they work under difficult circumstances to serve all members of our community,” Doll said. 

The claim comes two months after a wrongful death lawsuit was settled for $27 million in Minneapolis for the murder of George Floyd. Floyd died as a result of excessive force by police restraining him, and the officer who restrained him was convicted of three counts of second-degree murder, third-degree murder and second-degree manslaughter.

Floyd could be heard saying “I can’t breathe” in a video of his murder, as captured by a bystander, Darnella Frazier.

The Bellingham Police Department’s policy on use of force states: “It is the policy of this department that officers may use only that amount of force that is objectively reasonable and necessary under the totality of the circumstances and is employed in the performance of a legal duty.”

It’s up to the officers to judge the reasonableness of the force used according to the policy.

Russ Hayes, a former police officer who lives in Bellingham, said knowing the exact amount of force necessary for safely restraining an individual is difficult.

“They teach you how to take someone down with the least amount of force, but when someone is fighting and struggling, it’s really hard, it’s a tough call,” Hayes said.

According to the Crisis Prevention Institute, which provides “evidence-based de-escalation and crisis prevention training and dementia care services” to clients including police departments, one of the deadliest risks of restraining someone is positional asphyxia. Positional asphyxia occurs when the person being restrained can’t get enough oxygen.

The Crisis Prevention Institute advises against restraining someone facedown, among other positions that impair a person’s breathing.

 The National Institute of Justice also warned of positional asphyxia in an educational publication that was released in 1995. This publication said the risk of positional asphyxia increases when the subject is handcuffed behind the back and positioned on their stomach, as Eldard was.

According to The New York Police Department Guidelines to Preventing Deaths in Custody, as soon as subjects are handcuffed, officers need to get them off of their stomachs. The guidelines also state that if subjects continue to struggle, officers should not sit on their backs.

In accordance with Washington state law, the city had to be notified of the claim and then had 60 days to respond, Fiorito said a lawsuit would follow if the city denied or failed to respond to the claim.


Kelton Burns

Kelton Burns is a reporter for The Front and a third-year Journalism: News/Editorial major. His work focuses on city news, usually related to City Council. He enjoys reading game reviews in his free time. You can reach him at keltonburns.thefront@gmail.com


Cliff Heberden

Cliff Heberden is a journalism student and reporter for The Front. His work focuses on local news and coverage of ongoing issues and legislation. You can reach him at chbrdn.thefront@gmail.com.


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