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Mar. 27, 2007
Copyright © Las Vegas Review-Journal


LV police agree to pay

Lawsuit stemmed from '94 accident

By BRIAN HAYNES
REVIEW-JOURNAL

The Metropolitan Police Department will pay $1.48 million -- the largest legal settlement in its history -- to close a federal lawsuit alleging Las Vegas police gave special treatment to an officer's wife who hit and killed a bicyclist in 1994.

The settlement ends 13 years of legal fighting that began shortly after Erin DeLew was killed while riding her bike home from a Summerlin supermarket. The driver, Janet Wagner, had been drinking alcohol that evening but was never charged, according to court documents.

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The lawsuit contended that her husband, Las Vegas police officer David Wagner, and his fellow officers knew she had been drinking but covered it up and delayed calling the Nevada Highway Patrol, which eventually took over the investigation.

"Even though Mrs. Wagner wasn't at fault, because she had been drinking, it created this doubt," Sheriff Doug Gillespie said. "When you start to put things together, it starts to paint a picture making us look like we were trying to give her preferential treatment."

The Metropolitan Police Department Committee on Fiscal Affairs approved the settlement Monday.

The federal civil rights lawsuit arose from the Sept. 27, 1994, collision that killed DeLew on Lake Mead Boulevard west of Hills Center Drive. DeLew, 29, was in the left of three lanes when Janet Wagner's sport-utility vehicle hit her from behind about 7 p.m. DeLew died at the scene.

Las Vegas police arrived within minutes. So did David Wagner, a traffic officer who lived nearby.

The lawsuit said the officers realized Janet Wagner, 26, had been drinking but covered it up by failing to give her field-sobriety tests, allowing David Wagner to take her home to use the restroom and waiting nearly two hours to contact the Highway Patrol.

The first trooper on scene smelled a light odor of alcohol on Janet Wagner, but she denied that she had been drinking. She later told another trooper that she had one beer about two hours before she hit DeLew, according to court documents.

A blood sample taken three hours after the collision put Janet Wagner's blood-alcohol level at 0.05 percent, half of the legal limit at the time.

She told investigators she was driving about 45 mph in a 35 mph zone and did not see the bicycle until the last second, and a witness told investigators that Janet Wagner would not have been able to see DeLew until the last second because of a bend in the road.

The Highway Patrol found DeLew responsible for the crash and said she was riding her bike without lights and had made an unsafe lane change into the path of the SUV.

An internal Las Vegas police investigation cleared the officers of any policy violations. Nine of the officers named in the lawsuit have retired. Five, including David Wagner, remain on the force.

DeLew's husband, Michael DeLew, and her parents, Roy and Vickie Mayberry, filed a wrongful-death lawsuit against Janet Wagner two months after the incident. They settled in 1999 for $100,000. They sued the Police Department in 1996 in state court, then moved the lawsuit into federal court in 2000.

The police department's lawyers agreed to settle the lawsuit because losing at trial might have cost millions more dollars, Gillespie said. Police brass worried about public perception if a jury found their officers guilty of protecting one of their own, he said.

"I don't believe the officers were malicious or wanton in their actions out there," Gillespie said. "I don't think they tried to cover up the fact that Mrs. Wagner had been drinking, but when you put together the kinds of things we have been talking about, it gives the impression that they did."

The DeLew lawyer's initial settlement proposal was $4.25 million, and the department would have been responsible for about $1 million in legal fees plus possible punitive damages, department lawyer Liesl Freedman said.

The settlement will be paid from the Police Department's self-insurance trust fund, which is supported by regular contributions from the agency's budget.

Michael DeLew, a commercial real estate executive with Colliers International in Las Vegas, said he could not talk about the settlement yet, but in a 2002 deposition, he said any money he won would be irrelevant.

"I'm perfectly fine with collecting $20 a month if that's all it would be to prove the case and have the enjoyment of closing a chapter of my life and gaining back some credibility that Erin deserved," he said.


METROPOLITAN POLICE DEPARTMENT PAYS

A $1.48 million legal settlement approved Monday is the largest in the history of the Metropolitan Police Department. Some recent large settlements include the following:

• $900,000 -- Awarded in November 2002 to two men who said rogue officers had them jailed in 1997 on bogus charges after a fight with off-duty SWAT officers.

• $325,000 -- Awarded in November 2002 to the daughter of a man shot and killed by an officer during a late-night pedestrian stop in 1999.

• $325,000 -- Awarded in April 1998 to three brothers who said police used excessive force against them during a New Year’s Day melee in 1994.

• $300,000 -- Awarded in May 2004 to the family of a man who was unarmed and on his knees when he was shot and killed by a police officer in 2003.

• $200,000 -- Awarded in January 2005 to the family of a schizophrenic man who was shot and killed by police after waving a knife at the officers in 2001.

• $200,000 -- Awarded in November 2004 to the husband of a woman who was handcuffed and dragged by an officer through a casino in 2003.

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