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Mike Kanin is the Publisher of the Austin Monitor. As such, he doesn't report on much--aside from the workings of the Monitor--any more. In his previous life as a freelance journalist, Kanin has written for the Washington City Paper, the Washington Post's Express, the Boston Herald, Boston's Weekly Dig, the Austin Chronicle, and the Texas Observer.
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Sanders family sues city over rejected settlement
The family of Nathaniel Sanders II on Wednesday filed a new and novel lawsuit against former police officer Leonardo Quintana and the City of Austin. In it, attorneys for the Sanders family allege that the defendants committed a breach of contract and fraud when they reneged on an agreement to settle the case for $750,000. The suit was filed in state district court.
Although the city had no official comment, Mayor Lee Leffingwell and Robert Icenhauer-Ramirez, attorney for Officer Quintana, both denied that there had been an agreement to settle the case, with the attorney calling the suit “utterly baseless.”
The suit singles out Assistant City Manager Michael McDonald, Police Chief Art Acevedo, Leffingwell and Mayor Pro Tem Mike Martinez for special criticism although they were not named as parties.
Sanders was shot and killed by Quintana in May of 2009. The original lawsuit, filed by the family in federal court, accused Quintana of violating Sanders’ civil rights. The city was subsequently dismissed from that case but has continued to pay for Quintana’s defense.
The City Council voted 4-3 against settling the lawsuit on July 29, due in part to the fact that when the proposed settlement was made public on July 8, Adam Loewy, the attorney for the Sanders family, said he was pleased that officials were taking responsibility for “this unjustified shooting.” That claim, according to several Council members, made the settlement process far more difficult. It also caused the Austin Police Association to actively lobby against it.
The petition offers a window into the collapse of the agreement from the perspective of the Sanders family and their attorney, Loewy. There, Loewy and his partner Carl R. Barry detail about a month’s worth of alleged back-and-forth that ultimately ended in the Council decision to reject the agreement.
The suit suggests that on June 24, “the Austin City Council met with their lawyers regarding a possible settlement of the federal law suit.” It says, “at this meeting, City Council members expressly instructed their lawyers to negotiate a settlement of the federal law suit up to an amount of $750,000.”
Four days later, the document reports that the city and the Sanders family began negotiations over the settlement. “During the mediation,” it reads, “the City of Austin representatives expressly apologized to the Plaintiffs for the shooting death of their 18 year old son Sanders and for the biased and crooked investigation conducted by the Austin Police Department.”
Discussions continued over the next 10 days, according to the lawsuit. “During this time period the Austin City Council members and their attorneys were regularly communicating with each other via email, telephone, and face-to-face meetings regarding a final settlement of the federal lawsuit,” it reads.
An agreement was reached on July 8. The suit alleges that “Quintana’s attorney, Robert Icenhauer-Ramirez left a voicemail for attorney Adam Loewy confirming that a final and binding settlement of the lawsuit had been reached and later stated that both he and Quintana were “’glad it is finally over…’” It also mentions that McDonald “signed (an) agreement confirming that the City of Austin and Quintana agreed to settle the federal lawsuit for $750,000.”
Loewy told In Fact Daily that he could share none of these documents because of ongoing litigation.
“On July 9, 2010,” the suit continues, “the City of Austin leaked news of the federal lawsuit settlement to the media. After, the all hell broke loose.” It then reports that “(Austin Police Association) President Wayne Vincent and APA representatives visited City Councilmember’s (sic) offices over one-hundred-fifty (150) times in a 3-week span and sent hundreds of emails to them.
“More egregiously,” it reads, “certain City of Austin representatives (including City Councilman Mike Martinez, Mayor Lee Leffingwell, and Police Chief Art Acevedo) publicly attacked the settlement and made defamatory statements about the Plaintiffs on television, radio, and in the newspaper.”
The suit then calls city officials out for “shameful and despicable” behavior. “They unquestionably authorized their lawyers to enter into a settlement agreement on their behalf for $750,000 and then—due to political pressure that had nothing to do with the actual lawsuit—breached the settlement. In Texas, however, a deal is a deal. And the Plaintiffs and the Defendants had a deal to settle the federal lawsuit for $750,000.”
Attempts to reach Martinez and Acevedo were unsuccessful. Except for Leffingwell, Council members declined comment.
City spokesperson Samantha Park said, “We are not commenting on the Sanders settlement or the new lawsuit.”
Icenhauer-Ramirez told In Fact Daily that he would call the new suit “utterly baseless.” He added that he had yet to hear of a case like it, noting “but I’ve only practiced for 32 years.”
He added, “I don’t think it’s (the lawsuit) going to be a very lengthy process because it literally is absurd. The allegations are just patently false and anybody who’s ever practiced law would recognize them to be absurd.”
“It was always super clear that (settlement) was contingent on City Council approval.”
Leffingwell agreed. “Given the new litigation, I would simply reiterate that the Council always has the right to vote to approve, deny or modify proposed agreements of this kind,” he told In Fact Daily. “As I’ve said before, my vote in July was based on my desire to see a full, fair and final determination made about the events leading up to the tragic death of Nathaniel Sanders II, and I continue to believe that the best venue for that is in a courtroom, in front of a jury.”
When told of the cause of action, former Austin City Attorney Jerry Harris said, “I’ve never heard of a suit being brought under this set of circumstances.” Another former chief of the city’s Law Department, Andy Martin, said the plaintiff’s attorney had come up with “a very creative legal argument…It will be interesting to see what the judge says.”
After the Council rejected the settlement, federal Judge Sam Sparks announced that all members of the City Council must be involved in future settlement negotiations. “Since the federal judges in the Austin Division of the Western District of Texas cannot rely on the city of Austin to support the recommendations of its lawyers, the judges will no longer accept settlement announcements involving the city of Austin within 25 days prior to any trial date,” Sparks said. That case is set for November, 2011. But that trial date is not related to the new suit.
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