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03_Brandon estate of Brandon v. County of Richardson

At the time Brandon reported the rapes, Laux was aware that Lotter and Nissen  He was aware that Lotter had once escaped from custody had criminal records.  in the middle of the day wearing an orange prison uniform and had had to be  He knew that Lotter had been involved in a scuffle chased down by deputies.  with a Missouri Highway Patrol officer, which resulted in the officer's drawing  Laux knew that people in the community were afraid of his gun on Lotter.   Laux also knew that Nissen had been incarcerated in the Lotter.  penitentiary.

The sheriff's office was also aware that Lotter and Nissen had threatened to  Gutierres informed Laux that Lotter harm Brandon if she reported the rapes.   Before the and Nissen had threatened Brandon's life if she reported the rapes.  interview with Brandon was conducted, Gutierres told Laux that Brandon was “afraid,” “feared for her life,” and was “scared to death” because Lotter and  Tammy Schweitzer, Brandon's sister, Nissen had threatened Brandon's life.  called Laux on December 27, 1993, and informed him that Brandon was afraid that Lotter and Nissen would kill Brandon for reporting the rapes.

After the rapes, Brandon spoke to JoAnn over the telephone on several  On December 25, 1993, Brandon told JoAnn that she was afraid to occasions.  return to JoAnn's home in Lincoln because Lotter and Nissen had her address book  Brandon decided to stay with and would be able to locate her at JoAnn's home.  her friend Lambert at Lambert's house in rural Humboldt because Brandon believed that Lotter and Nissen did not know where Lambert lived.

On December 31, 1993, Brandon, Lambert, and Devine, another friend, were  That same day, Lotter and Nissen were found murdered in Lambert's house.   Lotter and Nissen arrested for the December 25 sexual assaults on Brandon. See State v. were later charged with and convicted of the three murders.  Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), and State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

On January 2, 1994, several of Brandon's family members, including Schweitzer, went to the sheriff's office to obtain information regarding  At that Brandon's death and to retrieve some of Brandon's personal effects.  time, they encountered Laux, who called Schweitzer a “bitch” and asked her “what kind of sister did [you] have?”

On April 19, 1994, JoAnn filed a claim under the Political Subdivisions Tort Claims Act. The 6 month period for the county and Laux to respond to the claim  JoAnn then withdrew the claim and brought an expired without a response.  action against the county and Laux, alleging that the county was negligent by failing to protect Brandon and that Laux's conduct during the December 25, 1993,  The county interview constituted intentional infliction of emotional distress.  filed a demurrer to JoAnn's second amended petition, which was sustained without  On appeal, this court reversed, determining that further leave to amend.  sufficient facts had been pled to qualify as an exception to the rule that law enforcement officials may not be held liable for failure to protect individual  See Brandon v. County of Richardson, citizens from harm by criminal conduct.   We determined that if true, 252 Neb. 839, 566 N.W.2d 776 (1997) (Brandon I).  the facts pled established that a special relationship was created between Brandon and the county when Brandon went to law enforcement officials and Id. We also offered to testify and aid the prosecution of Lotter and Nissen.  determined that JoAnn should have been granted leave to amend her petition with Id. respect to the intentional infliction of emotional distress claim.

JoAnn then filed a third amended petition, and trial to the court without a  At trial, portions of Laux's deposition jury commenced on September 22, 1999.   In this testimony, Laux testimony were admitted and read into evidence.  admitted that Brandon told him that Lotter and Nissen had threatened her and  At trial, Laux testified that he that he was aware that Brandon was afraid.   Laux also never offered Brandon special protection from Lotter and Nissen.  testified that his manner of questioning Brandon during the December 25, 1993,  interview was due to concerns he had as to whether Brandon was being truthful.  He questioned Brandon's credibility because she had been charged with forgery and had been deceiving people in the community as to her gender and because she  However, Laux was taking a long time to answer questions during the interview.  admitted that Brandon's gender identity disorder was not relevant to whether she had been raped.

Laux also testified that Brandon failed to return to the sheriff's office for the second December 29, 1993, interview that had been scheduled for Brandon and  A that the sheriff's office believed Brandon had gone back to Lincoln.  dispatcher at the sheriff's office testified that some time between December 25 and 31, she received a telephone call from Brandon stating that Brandon was going back to Lincoln.

Several law enforcement officers involved in investigating the rapes and  Olberding testified that Brandon surrounding events testified at trial.  appeared “frightened” and “traumatized” when she arrived for the December 25,  Olberding further stated that when Laux began questioning 1993, interview.  Brandon, Olberding left the room for a short time because he did not believe further questioning was necessary and “didn't think it was right to do that .” Olberding testified that he was aware Lotter and Nissen had threatened Brandon, that he believed Brandon was telling the truth during the December 25 interview, and that he believed on December 28 that there was probable cause to arrest  Olberding stated that Brandon was not keeping the sheriff's Lotter and Nissen. However, office advised of her whereabouts between December 25 and 31.  Olberding also testified that the sheriff's office never offered Brandon any protection from Lotter and Nissen if she stayed in Richardson County.

Deposition testimony of John Caverzagie, who was assistant chief for the  Caverzagie Falls City Police Department in 1993, was also admitted at trial.  listened to the December 25 tape-recorded interview and testified that he believed that “just about everything” Laux said during the interview was “very  Hayes, the unprofessional” and agreed that such conduct was outrageous.  investigator who was present outside the interview room while the interview was being conducted, read the transcript of the interview and testified that Laux's questioning was “intimidating” and that he could think of no legitimate reason  Hayes agreed that Laux's to question Brandon about her gender identity crisis.  conduct during parts of the interview indicated that Laux was treating Brandon “as an accused rather than the victim.”

Jack Wyant, a retired Nebraska State Patrol criminal investigator, testified  Wyant testified that in his opinion, based on as an expert witness for JoAnn.  the information that was available to law enforcement, an attempt should have been made to bring Brandon in for safekeeping if Lotter and Nissen were not  Wyant further testified that even if he felt he was not getting arrested.  truthful and accurate answers from an alleged rape victim, he could see no reason to be rude or abrasive while questioning the alleged victim.

A prosecutor who had prosecuted numerous sexual assault cases and had worked with law enforcement regarding sexual assault cases testified as an expert  In preparing her testimony, the prosecutor reviewed witness for the county.   However, the majority of the transcript of the December 25, 1993, interview.  the prosecutor's testimony dealt with her opinion regarding the manner in which the county conducted the overall rape investigation, including whether Lotter  The prosecutor was not asked for and Nissen should have been arrested sooner.  her opinion and did not render an opinion as to whether Laux's conduct during the December 25 interview was extreme and outrageous.

A portion of the prosecutor's testimony on direct examination specifically  That related to Laux's conduct during the December 25, 1993, interview.  testimony consisted of the following:

“Q How would you characterize the interview by Sheriff Laux and Teena Brandon?”

“My characterization of the interview was that it appeared to me that he A.  was seeking her story, he was trying to get an idea of her version of events.  He was trying to get detailed information from her about the chronology of events as well as what the events were.

“As I reviewed the transcript of that I found that he certainly used some  There were times when it language that I didn't find particularly appropriate.  appeared that he was using what I would consider locker room talk and that I think some would find offensive.

“But with respect to being confrontational necessarily with Teena Brandon, I didn't find that he was, quite frankly, as confrontational as many officers I've seen doing interviews with victims of sexual assault.

“I can honestly say that I have interviewed victims of sexual assault prior to trial, prior to preliminary hearings, prior to depositions and have been myself much more confrontational with them about areas where I might feel that they have been inconsistent or where they have given information that seems difficult to understand and may bear on areas where a defense attorney is going to make a big stink so to speak.

And you mentioned some of the language was not appropriate, could you “Q. give us a few examples?

Oh, one that sticks out in my mind is he is asking her about the actual “A. sexual assault itself by either Lotter or Nissen, I don't recall which one, and it may have been with both of them, where he says, okay, you're in the back, you're, and I don't recall what he says, he says you're spread and they're getting ready to poke you or something along that line.

“And I, those are seemingly not very sensitive terms to use when you're  That one stands out in my talking to somebody about an alleged sexual assault.  mind.”