Nebraska AG fighting order for State Patrol to give information in civil lawsuit
By LORI PILGER – Lincoln Journal Star, Neb. (TNS)
Mini Highlands
Print Zutavern kneels with a mini Highland bull. Zutavern, a sixth-generation rancher, died in 2020 after living with bipolar disorder for seven years. His family breeds and raises miniature cattle. His wife Kate keeps his memory alive through the minis and the Facebook page she operates for the Print Zutavern Mental Health Initiatives Fund.
The Nebraska State Patrol is fighting a federal judge’s order forcing the state agency to comply with depositions about training for officers responding to mentally ill people in crisis.
And more than a single civil case could be on the line.
Attorney, journalist and civic groups have expressed concern about the state’s position that sovereign immunity protects the state agency from having to provide information in civil cases like this one.
The legal wrangling came in a civil lawsuit over Print Zutavern’s killing in 2020 in central Nebraska by State Trooper Brandon Wilkie during a law enforcement operation aimed at getting Zutavern to a mental health facility.
Zutavern, who had sought help at a mental health hospital during a crisis, was turned away, then was shot at the end of a lengthy standoff with law enforcement.
Bryan Mick, the personal representative of Zutavern’s estate, sued Wilkie and others who responded to the incident Feb. 24, 2020, in Custer County.
Two days earlier, a deputy stopped Zutavern on suspicion of driving while intoxicated and came to believe he was having a manic episode. Deputy Lawrence Stump drove him home in his cruiser.
Shortly after, Zutavern’s wife called 911 saying her husband had “exploded in rage.” She left the house, and a family friend agreed to stay with Zutavern and take him to an inpatient psychiatric facility the next day, according to court records.
Print Zutavern
Print Zutavern, a sixth-generation rancher in Custer County, died in 2020 after living with bipolar disorder for seven years. His family breeds and raises miniature cattle. His wife Kate keeps his memory alive through the minis and the Facebook page she operates for the Print Zutavern Mental Health Initiatives Fund.
But early the next morning, the friend called the sheriff’s office saying Zutavern wanted to go to the hospital immediately. Zutavern ended up stealing his neighbor’s truck and driving himself to Richard Young Behavioral Health in Kearney, where he was turned away.
The next day, his father called deputies saying Zutavern’s manic episode had worsened. He had shot two calves and was making suicidal statements and sending photos of himself with a shotgun to his head.
A standoff followed.
When it was approaching its twelfth hour, law enforcement rammed the utility vehicle Zutavern was inside, and Zutavern got out and started walking toward Wilkie and another trooper.
Wilkie shot Zutavern three times, and the 28-year-old died of his injuries.
A grand jury later cleared the law enforcement officers of any criminal wrongdoing.
Then, the civil case was filed in 2022.
In an order in 2022, Senior U.S. District Judge John Gerrard dismissed a number of the troopers who had been sued, saying that though what happened to Zutavern was undoubtedly tragic, the complaint hadn’t sufficiently established a civil rights claim against them.
But Gerrard allowed the case to go forward against Wilkie, Custer County, Sheriff Dan Osmond and two of his deputies, Lawrence Stump and Barrett Gibbons.
As the case moved forward, Zutavern’s attorneys filed a notice to the State Patrol to produce for testimony those most knowledgeable in the training their officers get on responding to people in mental health crisis, resolving events with barricaded subjects and the use of force, among other things.
The State Patrol, which isn’t a party to the lawsuit, argued that sovereign immunity shields it from third-party discovery requests like the subpoena at issue.
The patrol’s attorney contended that the subpoena, if enforced, would force the state agency to do something it otherwise would not do.
U.S. Magistrate Judge Jacqueline DeLuca rejected the argument, saying: “A subpoena, by its very nature, compels a party to do something it would not otherwise do.”
She said the Eighth Circuit Court of Appeals expressly has permitted such requests on state entities.
When Senior U.S. District Judge John Gerrard agreed, the State Patrol’s attorneys appealed to the Eighth Circuit.
In a brief filed in October, Nebraska Solicitor General Eric Hamilton asked the court to reverse the district court, saying complying with that subpoena likely would consume “more than 100 hours of taxpayer-funded time from five state law enforcement officers and their attorneys.”
“That is an imposition on Nebraska’s treasury as well as a constraint on the state’s autonomy,” he wrote.
The American Association for Justice, Public Justice, Nebraska Association of Trial Attorneys and Nebraska Defense Counsel Association, as well as Media of Nebraska and Common Cause, all sought to file friend of the court briefs in the appeal.
Attorney Benjamin Siminou, writing on behalf of the attorney groups, asked the court to reject the State Patrol’s invitation to “plow new ground by extending sovereign immunity to give states immunity from federal subpoenas.”
To grant the state immunity from federal subpoenas would wreak havoc on public interests, frustrating justice in many civil cases by depriving litigants of material evidence and blocking public transparency into government, he said.
Attorney Daniel Gutman, on behalf of Media of Nebraska and Common Cause, pointed to the inscription above the main entrance of the Nebraska State Capitol that says, “Salvation of the State is Watchfulness in the Citizen.”
“For that inscription to have meaning, government must be open and accessible to the public. NSP’s sweeping interpretation of sovereign immunity threatens this principle by foreclosing a critical source of information and evidence: nonparty discovery,” Gutman wrote.
Oral arguments could come as early as February.
Lovable mini cattle raised in Custer County a legacy to a husband, dad and son
Print Zutavern, a sixth-generation rancher, began raising mini Highlands alongside his Angus cattle as something different to supplement the family’s income.
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