Litigation
May 31, 2001
Court Tells County to Track Evidence
LOS ANGELES - A state appellate court has ordered the county to develop a system to preserve potential evidence in law-enforcement misconduct lawsuits.
In a case involving a man who died after Los Angeles County Sheriff's Department deputies hogtied him, the 2nd District Court of Appeal held that the filing of a government tort claim by the man's mother, Lottie Nelson, should have triggered a notice to the Sheriff's Department to hold on to all records in the case. Nelson v. Superior Court of Los Angeles, 2001 DJDAR 5273 (Cal. App. 2nd Dist. May 25, 2001).
Instead, the department recycled the audiotape of 911 calls and radio dispatches made during the man's arrest and death.
"Since the fundamental purpose of the government tort claim filing statutes is to put the government agency on notice of its need to investigate while the evidence and witnesses are available, it follows necessarily that Lottie Nelson's 'claim' constituted actual notice to the County of a 'claim filed' and of the need to preserve recordings related to that claim," the court stated.
The department routinely destroys 911 calls and radio traffic among deputies, dispatchers and paramedics after the 120-day holding period set by county ordinance, according to the opinion. State law requires the preservation of such evidence for at least 100 days in the absence of a pending lawsuit.
Lottie Nelson's attorney, Leo J. Terrell of Beverly Hills, said the county did not admit to destroying the audiotapes until several months after he requested them via discovery motions.
And a videotape of deputies hogtying Dwayne Nelson initially was turned over with a nine-second gap that showed deputies striking a handcuffed Nelson with a patrol car door as they pulled him out of the unit, Terrell said.
Terrell called the opinion "a major victory."
"Everyone who has a claim in the state of California against a governmental agency owes our law firm a debt of gratitude," he said Tuesday. "If that decision hadn't gone our way, it would have given every governmental agency the right to destroy evidence even if a notice of damages had been filed."
Lottie Nelson and Terrell also have filed a civil-rights lawsuit against the Sheriff's Department in federal court.
Civil rights attorney Stephen Yagman, found "interesting" and "heartening" the unanimous opinion, published Friday and written by state Justices Miriam Vogel, Reuben Ortega and Robert Mallano.
"My take on this is that, if those three highly conservative judges found the county of Los Angeles to be doing something wrong, what was going on must have been terribly wrong," Yagman said. "Trying to get the state court system to tell the county to do anything is like trying to get [Nazi Reich Marshal Hermann] Goering to judge [Nazi propagandist Joseph] Goebbels."
Assistant County Counsel Louis Aguilar, chief of the litigation division, denied accusations that the county acted in bad faith in destroying the tapes and said accusations that the county destroyed or altered the tapes to hide misconduct were "silly."
"These things are recycled as a matter of due course. It's not a matter of trying to hide evidence," Aguilar said. "That would do us no good in the long run or the short run."
Aguilar downplayed the significance of the case but said it could cause the county "some tremendous cataloguing problems."
"It was our view that a notice under the Government Code [Section 26202.6] had to be a separate and distinct notice that we were to preserve certain records, that a government tort claim was not enough to put the government on notice," Aguilar said.
The court refuted that argument, saying that an earlier opinion, Fowler v. Superior Court, 162 Cal.App.3d 215 (1984), which limited the definition of 'claim' to pending litigation, did not take into account the machinations of suing the government.
"The point overlooked in Fowler ... is that virtually all civil litigation involving a police department (and the city or county in which it is located) must be preceded by compliance with the claim-filing statutes," the justices wrote.
Dwayne Nelson, 41, died at the intersection of Imperial Highway and Normandie Avenue on Sept. 13, 1998, after his arrest by deputies responding to several 911 calls about a man firing a gun at passing motorists.
The deputies decided to restrain Nelson after he allegedly began kicking and banging at the windows and doors of the patrol car.
Face down on the ground with his hands and feet cuffed together behind him, Nelson stopped breathing and was taken to a hospital, where doctors pronounced him dead.
His mother filed a claim for damages on Oct. 7, 1998, asserting that the county was responsible for her son's death. She sued the county and the Sheriff's Department for wrongful-death damages on July 19, 1999.
Lottie Nelson's state lawsuit is pending in a downtown civil court.
Gina Keating
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