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Family Awarded $1.3 Million in Hogtying Death

Lawsuit: Jury finds that L.A. County deputies were negligent in the arrest of a man, 41, who died in custody.


A jury awarded $1.3 million in damages Monday to the parents of a man who died in custody after ruling that four Los Angeles County sheriff's deputies were negligent when they hogtied him.

Those deputies had earlier received commendations from the department for their actions, which were videotaped by a sergeant who was supervising the arrest. One juror said the videotape was the key evidence in the trial.

Dwayne Nelson, 41, died on Sept. 13, 1998, after he was arrested on suspicion of being under the influence of cocaine and firing a gun in the Athens area. Jurors in Los Angeles County Superior Court awarded $2 million to the parents, but cut that amount to reflect Nelson's partial responsibility for his own death, which they fixed at 35%.

Deputies testified that Nelson was acting erratically and was kicking the windows of a patrol car. He died on the pavement in the parking lot of a fast food shop near Imperial Highway and Normandie Avenue, shortly after deputies tied his hands and feet behind his back.

His parents filed a wrongful death lawsuit against the county and the law enforcement agency, claiming that the deputies did not correctly hogtie him. The suit contended that Nelson was cooperative with police and that there was no need to restrain him, said Leo Terrell, the attorney for Nelson's mother, Lottie Nelson of Memphis. Terrell said that none of the officers were threatened, and that they failed to put Nelson on his side, effectively preventing him from breathing.

The four deputies involved--Curt Messerschmidt, David Florence, David Porter and Jeff Siroonian--were not disciplined for the incident.

"These deputies did everything to save [Nelson's] life," said Principal Deputy County Counsel Dennis Gonzales after the verdict.

Sheriff's Capt. Ray Leyva said the restraint procedure is meant to be used only when deputies fear for their safety, or the well-being of the person in custody. "We still think it's an effective tool. We have a pretty good policy."

The jury deliberated for five days in the courtroom of Judge David L. Minning.

"There was a lot of tension," said juror Pablo Cortes of El Sereno. "We all felt the officers were negligent but disagreed about the cause [of death]."

Cortes said the videotape was overwhelming evidence. "We watched it over and over again," he said. "This was an emotional case."

Nelson's father, Wallace Nelson of Chicago, said he remains puzzled by his son's death.

"Once he was in custody, you'd think he was safe. I can never understand how it could happen like that," he said.

David Dotson, a police expert, testified that the deputies didn't perform the hogtie correctly, failing to turn Nelson on his side, and took their time doing CPR.

Three medical experts testified that Nelson's death was caused by an existing heart condition, combined with his cocaine use, Gonzales said.

Gonzales said that the county has yet to determine if there will be an appeal and that the department still employs hogtying, which is known as TARP (Total Appendage Restraint Procedure).

Hogtying is still used by law enforcement, although some agencies, including the Los Angeles County Sheriff's Department and the Los Angeles Police Department, have restricted the procedure in recent years.

They have done so in response to a spate of deaths across the country in the early 1990s that raised questions about risks associated with the practice.

The LAPD, for example, still allows officers to restrain suspects' hands and feet, but requires ties to be loose enough to allow the suspect to walk and sit, said Cmdr. George Gascon.

Similarly, the Sheriff's Department in the 1990s drew up new rules requiring that suspects restrained in this manner be videotaped and monitored by paramedics. The rules were designed to ensure suspects' safety, said Lt. Ralph Webb, and the Sheriff's Department maintains that the risks associated with the practice have now been minimized.

But at the same time those risks are disputed by police.

Some sheriff's officials cite conflicting medical evidence about the risk of death from asphyxia, suggesting that other factors, such as drug overdose, may be involved.

Despite controversy, though, lawsuits against the Sheriff's Department involving hogtying are relatively rare, Webb said. Wrongful death suits stemming from shooting incidents far outnumber them, he said.

Lawyers for Nelson's divorced parents said the videotape was their strongest piece of evidence.

"The video prevented the county from spinning a story," said Terrell. "Without the tape, we would have lost."

The county never offered to settle the case, Terrell said. "This is a case that should not have gone to trial," he said. "We sent them numerous letters to settled, and they offered us zero."

Wallace Nelson said he appreciated the jury's verdict.

"Money really doesn't save anything," he said. "I'd rather have my child."

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