Family of woman killed by drunk driver prevails against police agencies that covered it up

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June 2009, Volume 52, No. 5

Family of woman killed by drunk driver prevails against police agencies that covered it up 

DeLew v. Las Vegas Metro. Police Dept., U.S. Dist. Ct., D. Nev., No. 2:00-cv-00460, Apr. 14, 2009.

Losing a loved one to a collision caused by a drunk driver is an unimaginable tragedy. But when the driver is the wife of a police officer, and the investigating police agencies immediately cover up any evidence of a crime, the devastation is compounded by helplessness in trying to fight a system that is supposed to protect the public. After Erin DeLew was killed while riding her bicycle, her parents and husband, along with their counsel, spent the next 14 years seeking justice on her behalf.

Erin, 29, was riding a bicycle on a large but lightly traveled road in her neighborhood one evening in September 1994. At the same time, Janet Wagner, who had left work more than an hour before and consumed several beers while running errands in her SUV, was also driving in the neighborhood. She was going 45 m.p.h. in a 35 m.p.h. zone when she struck Erin from behind, throwing her through the air. Erin died shortly afterward of multiple internal injuries.

As neighbors began calling 911, Wagner called her husband, a police officer with the local metropolitan police (Metro). He soon arrived on the scene, along with several of his fellow police officers. Although there were two witnesses to the incident, the officers did not take a statement from either and failed to record one witness’s name or address. The officers soon realized it was a conflict for them to investigate and called the Nevada Highway Patrol (NHP) to the scene for a “parallel” investigation. By that time, however, the Metro police had already prepared a report faulting Erin for the collision, saying she had crossed in front of Wagner’s SUV and listing Wagner’s sobriety as “apparently normal.”

Contrary to standard accident procedures, the NHP troopers did not perform a field sobriety test, despite the smell of alcohol on Wagner’s breath as noted by at least one trooper. When the coroner arrived two hours after the incident, he was told that no alcohol had been involved. More than three hours after the incident, a small, incomplete sample of Wagner’s blood showed a blood alcohol level of .05.

At the scene, the troopers did not retain measurments of skid marks to determine Wagner’s speed, record the point of impact, take crush deformation measurements of the SUV, or impound the vehicle, among other evidence generally collected at the scene of a fatal crash. Additionally, they did not take a statement from Wagner until a few days later and did not record her paragraph-long statement. Thus, much of the material evidence necessary to prosecute a criminal or civil case was lost.

When the police officers informed Erin’s parents of her death that night, they said it was all her fault. Dissatisfied with the explanations, Erin’s family posted fliers asking for witnesses. Twice, those fliers were immediately torn down. They were not able to obtain official reports until months later, and their request for preservation of evidence was ignored.

Erin’s parents contacted attorney Daniel T. Foley, of Las Vegas, Nevada. Foley brought in Timothy M. Rastello, of Boulder, Colorado. Rastello has many years of experience in bringing cases against law enforcement, including a case his family brought against the police officer who killed his teenage brother while driving intoxicated. “I thought it was an outrageous case of a government abuse of power, and I knew that police departments have unlimited resources to fight these things,” says Rastello. “Unless a firm has the resources to match those, justice will never happen.”

In March 1995, the family filed a state wrongful death action against Wagner. During the ensuing depositions, the plaintiffs discovered many of the actions the police officers should have taken but did not. Their request to add Metro and NHP to the suit was denied by the court, so they filed a separate suit, alleging a cover-up by the agencies and that various individual officers interfered with their right to a trial in violation of 42 U.S.C. § 1983. The defendants removed the suit to federal court, where it was dismissed. In 1998, the Ninth Circuit Court of Appeals reversed and held that the plaintiffs had a cognizable § 1983 claim but dismissed without prejudice pending the wrongful death suit. 143 F.3d 1219 (9th Cir. 1998).

In 1999, the family reached a settlement with Wagner, who had admitted to drinking but denied being under the influence, for her $100,000 policy limit and a covenant not to execute a judgment obtained against her husband for conspiring to cover up the truth surrounding Erin’s death. “The case was compromised, and we were forced to either try the case against her and then try the case a second time with the same facts, or settle,” explains Rastello. “The family’s real grievance was that the police officers had covered up the details of their daughter’s death and irretrievably diminished the wrongful death claim.”

Counsel refiled the case against the police agencies in 2000 and spent the next two years in discovery, during which time Foley and Rastello filed seven successful motions for discovery abuse sanctions and collected testimony from 47 witnesses. Their experts included Lou Reiter, of Jasper, Georgia, who testified on standard crime scene practices; Lamont Skousen, of Phoenix, who discussed traffic accident investigation protocol; and Van Blaricom, of Seattle, an expert in standard procedures and appropriate actions by supervisors in felony DUI cases.

Despite the mound of incriminating evidence, the federal trial court granted the defendants summary judgment. It eventually vacated summary judgment for Metro as a sanction for the discovery abuses, but it released NHP.

In 2007, Metro reached a settlement with the plaintiffs for about $1.48 million. At the same time, Rastello appealed NHP’s summary judgment. The Ninth Circuit reversed the trial court’s ruling a year later. 293 Fed. Appx. 504 (9th Cir. 2008). In April, NHP finally agreed to settle for $2 million plus attorney fees of between $1.25 million and $2.75 million, to be determined by a magistrate judge, for the decade and a half counsel spent on the case.

After years of fighting, Erin’s family finally feels vindicated. “Neither police agency would acknowledge any wrongdoing or accept any responsibility,” says Rastello, noting that the settlements are a public acknowledgement of culpability. Explaining why he remained dedicated to the case for so many years, Rastello says it was simple: “When something like this happens, you really expect law enforcement to look after you and ensure justice is done. When they don’t do that, and you’re a lawyer, you can’t just stand by and do nothing.”

A document in this case is available through the Court Documents section, courtesy of Mr. Rastello.

Courtney L. Davenport, Associate Editor

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