San­ders law­suit hinges on a moment

Coun­cil must weigh lim­its on tes­ti­mony as it con­sid­ers a set­tle­ment

Austin American-Statesman - - FRONT PAGE - By Tony Plo­het­ski AMER­I­CAN-STATES­MAN STAFF

Nathaniel San­ders II was an 18year-old with a grow­ing crim­i­nal record who, ac­cord­ing to court doc­u­ments, might have helped bur­glar­ize a jew­elry store hours be­fore an Austin po­lice of­fi­cer fa­tally shot him last year.

Leonardo Quin­tana, who had been on the force for nearly nine years, used tac­tics be­fore shoot­ing San­ders that a con­sul­tant deemed so “reck­less” that they may have been crim­i­nal. He was fired af­ter a drunken driv­ing ar­rest this year.

But in fed­eral court, ju­rors would prob­a­bly hear lit­tle — if any — of that ev­i­dence as they con­sider a law­suit filed by San­ders’ fam­ily against Quin­tana.

Soon be­fore a trial was set to start this month, U.S. District Judge Sam Sparks granted a flurry of re­quests that lim­its from the court­room cer­tain in­for­ma­tion that could ben­e­fit one side — while hurt­ing the other. He agreed with lawyers that some rev­e­la­tions, al­though al­ready made pub­lic, could un­fairly tilt the case.

As Austin City Coun­cil mem­bers de­cide Thurs­day whether to sup­port a con­tro­ver­sial $750,000

set­tle­ment, le­gal ex­perts say they must cal­cu­late the risk of go­ing to trial with a case now rest­ing al­most en­tirely on the fi­nal mo­ments of the May 11, 2009, en­counter be­tween San­ders and Quin­tana.

Al­though in­for­ma­tion about San­ders’ his­tory and the highly pub­li­cized re­sults of an out­side re­view by KeyPoint Govern­ment So­lu­tions may have played well in the court of pub­lic opin­ion, the case in fed­eral court would ul­ti­mately hinge on whether Quin­tana used ex­ces­sive force and vi­o­lated San­ders’ civil rights, ex­perts and those fa­mil­iar with the is­sues said.

Should attorneys want to in­tro­duce cer­tain mat­ters, Sparks has or­dered that they first dis­cuss it with him — out of the earshot of ju­rors.

With the de­ci­sion a day away, most City Coun­cil mem­bers still have not pub­licly said how they will vote on the con­tro­ver­sial set­tle­ment. Should they re­ject the mea­sure, it would be the first time coun­cil mem­bers have walked away from a pro­posed set­tle­ment in any type of case in re­cent years.

Mayor Lee Leff­in­g­well said Tues­day that he is “pretty sure” he will not sup­port the $750,000 set­tle­ment.

Coun­cil Mem­ber Mike Martinez said last week that he would not vote for it and thinks ev­i­dence in the case — from wit­ness state­ments to foren­sic re­ports — should be fully dis­closed in court.

“In our coun­try, one of the more pub­lic and hon­ored means of set­tling these mat­ters is a pub­lic trial,” he said in a state­ment.

Of­fi­cials for the po­lit­i­cally pow­er­ful Austin po­lice union, which en­dorsed all but one of the cur­rent seven coun­cil mem­bers, have op­posed the pro­posal, say­ing that they think a set­tle­ment would leave the im­pres­sion that Quin­tana erred in the shoot­ing.

How­ever, Nel­son Lin­der, pres­i­dent of the Austin chap­ter of the Na­tional As­so­ci­a­tion for the Ad­vance­ment of Col­ored Peo­ple, and some lo­cal min­is­ters have said they think San­ders’ fam­ily should be com­pen­sated for their loss.

Nei­ther Adam Loewy, who rep­re­sents the San­ders fam­ily, Robert Icen­hauer-Ramirez, a pri­vate at­tor­ney hired by the city to rep­re­sent Quin­tana, or city lawyers will dis­cuss ev­i­dence in the suit.

A vo­lu­mi­nous court file also gives no spe­cific road map to the cases they would present — al­though mo­tions filed by the San­ders fam­ily at­tor­ney sug­gest they have wit­nesses and ex­perts who would tes­tify that San­ders and Quin­tana never strug­gled and that San­ders’ hands were in the air when he was shot. Quin­tana’s lawyer dis­puted those claims in writ­ing.

But much of the court file fo­cuses in­stead on the type of in­for­ma­tion both sides want left at the court­room door.

Lim­it­ing ev­i­dence

The San­ders fam­ily filed its suit in fed­eral court about three weeks af­ter the shoot­ing.

Quin­tana fa­tally shot San­ders out­side the Wal­nut Creek Apart­ments on Spring­dale Road while in­ves­ti­gat­ing whether a car San­ders was in was linked to a se­ries of crimes.

Of­fi­cials have said Quin­tana fired af­ter strug­gling for a gun with San­ders, who had been asleep in the back of the Mercedes-Benz. The shoot­ing ig­nited un­rest among some spec­ta­tors, who broke out win­dows of po­lice cars.

A Travis County grand jury de­clined to in­dict Quin­tana on any charge. Po­lice Chief Art Acevedo sus­pended him for 15 days last year for not ac­ti­vat­ing his pa­trol car cam­era but did not dis­ci­pline him for his tac­tics or use of deadly force.

Ac­cord­ing to the San­ders fam­ily law­suit, which named the city and Quin­tana as de­fen­dants, Quin­tana “over­re­acted and with­out jus­ti­fi­ca­tion pulled out his gun and be­gan shoot­ing Nathaniel San­ders II.” The city was ac­cused in the suit of tol­er­at­ing un­con­sti­tu­tional con­duct by of­fi­cers and keep­ing those “with vi­o­lent ten­den­cies” on the force.

Last month, the city pre­vailed in a request to Sparks to dis­miss it from the suit, say­ing that there was no ev­i­dence to val­i­date such claims.

How­ever, the city is re­spon­si­ble un­der state law for rep­re­sent­ing and pay­ing dam­ages against po­lice of­fi­cers who are sued “for ac­tion taken while op­er­at­ing within the course of and scope of their job,” city lawyers said in a writ­ten re­sponse to ques­tions.

A trial in the case was set to start July 19. Sparks took it off his docket af­ter the city and San­ders’ fam­ily said they had reached a ten­ta­tive set­tle- ment.

As the trial date loomed, Quin­tana’s at­tor­ney sought to limit how much could be dis­cussed about the KeyPoint re­port, which city of­fi­cials had de­clined to re­lease un­til May. Sparks agreed to limit that tes­ti­mony — the doc­u­ment was highly crit­i­cal of Quin­tana — but his or­der re­mains un­der a pro­tec­tive seal.

In the court file, doc­u­ments show that Quin­tana’s lawyer be­gan an ef­fort two months ago to keep cer­tain state­ments from seep­ing into tes­ti­mony. That in­cluded opin­ions from an ex­pert hired by the San­ders fam­ily that San­ders and Quin­tana did not strug­gle for a gun and that San­ders did not have a gun in his hands when he was shot.

Court doc­u­ments also said four wit­nesses re­ported that San­ders had his hands in the air when he was shot.

“This opin­ion is based on to­tal spec­u­la­tion,” Icen­hauer-Ramirez said in his request about the ex­pert.

He also wrote that some opin­ions by Louis Akin, an Austin pri­vate in­ves­ti­ga­tor whose web­site says he spe­cial­izes in shoot­ing re­con­struc­tions and blood pat­tern anal­y­sis, do not meet the re­quire­ments for ad­mis­si­bil­ity of ex­pert ev­i­dence.

The San­ders fam­ily at­tor­ney has since dropped Akin as an ex­pert wit­ness.

In June, Sparks also sup­ported a request by Quin­tana’s lawyer to limit in­for­ma­tion about Quin­tana’s drunken driv­ing ar­rest in Jan­uary, which came hours af­ter he had been ques­tioned in a de­po­si­tion for the case.

“De­fen­dant Quin­tana was re­quired to give a sam­ple of his breath and urine on the day of the shoot­ing,” Icen­hauer-Ramirez wrote. “There was no al­co­hol found in his sys­tem. Any at­tempt to in­ter­ject these sub­jects into ev­i­dence would merely be an ef­fort to prej­u­dice the jury against the de­fen­dant.”

Sparks granted that request.

Most re­cently, Loewy suc­cess­fully sought to limit the amount of in­for­ma­tion that would be dis­closed about San­ders’ his­tory, in­clud­ing his al­leged gang af­fil­i­a­tion and claims that he stole watches the night of the shoot­ing.

“San­ders’ crim­i­nal record has ab­so­lutely noth­ing to do with these claims and if the record is in­tro­duced, it will cre­ate un­fair prej­u­dice in the trial,” Loewy wrote in his mo­tion.

Weigh­ing pub­lic­ity

Even with lim­its on the kind of tes­ti­mony that may be heard, many ju­rors might al­ready be aware of those highly pub­li­cized is­sues, peo­ple fa­mil­iar with the case said.

That could pose chal­lenges to both sides, they said.

They said the city could per­haps be most in­jured by pre-trial pub­lic­ity, in­clud­ing in­for­ma­tion about bias in an in­ter­nal in­ves­ti­ga­tion into the shoot­ing and the city’s will­ing­ness to ne­go­ti­ate a pro­posed set­tle­ment — then pos­si­bly re­ject it.

If the case fo­cuses on the moment of the shoot­ing, the San­ders fam­ily could suf­fer from not be­ing able to widely dis­cuss Quin­tana’s tac­tics.

Ex­perts said set­tling can some­times make the most sense.

“When you go to trial, you are los­ing con­trol of the case,” said Alex Al­bright, a se­nior lec­turer at the Uni­ver­sity of Texas Law School. “You are giv­ing it to the jury, and you don’t know where they are go­ing to come out.”

Detroit at­tor­ney Michael Rataj, who has rep­re­sented po­lice of­fi­cers ac­cused of wrong­do­ing and vic­tims of ex­ces­sive force, said ju­ries fre­quently tend to side with of­fi­cers. They un­der­stand the dangers of the job, he said, and of­ten sup­port the of­fi­cers’ de­ci­sions to use force if they felt their lives, or the life of an­other, was at risk.

“They have to make split­sec­ond de­ci­sions,” Rataj said.

Still, Pa­trick Wool­ley, an­other UT law pro­fes­sor, said if the case is set­tled, it should not be as­sumed that the city was ac­cept­ing blame.

“You can be­lieve that you have a very strong case, and it might nonethe­less make sense to set­tle,” Wool­ley said.

Ralph Bar­rera

Austin NAACP Pres­i­dent Nel­son Lin­der, left, and Austin Po­lice As­so­ci­a­tion Pres­i­dent Wayne Vin­cent talk Tues­day about a new part­ner­ship they have formed to pro­mote good will be­tween the city’s mi­nor­ity com­mu­nity and po­lice depart­ment.

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