After the criminal trial, Brandi filed a federal court case against both Nicholas and HISD. Nicholas never responded to the suit; he's serving his five-year sentence at the Daniel Unit in Snyder, Texas. Federal Judge Nancy Atlas said Brandi "has shown remarkable strength and is to be commended for successfully moving beyond the trauma associated with the attack." She ordered Nicholas to pay Brandi $50,000; Brandi's attorneys found that figure insulting. "She could make more having consensual sex," said an associate in Davenport's office. Davenport wrote a motion for new trial asking if the sum would've been higher had Brandi been a rich River Oaks debutante -- where $50,000 wouldn't pay for her coming-out ball, much less schooling or a proper wedding. The judge dismissed the motion, saying it did nothing but make "snide remarks regarding the Court."
HISD's attorneys maintain that the district is in no way responsible for Nicholas's actions. In Brandi's deposition last summer, HISD attorney Myra Schexnayder asked, "Would you agree with me that, you know, sometimes bad things happen? A person may commit a bad act, but that doesn't necessarily mean that other people were aware of it or knowledgeable of it."
Monica Fuentes
Brandi pulled over like any law-abiding citizen would.
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No, Brandi answered.
"Would you agree with me that it's possible that Officer Nicholas could have done what he did without HISD being in a position to know of it or do anything about it?"
No, Brandi answered.
Brandi's attorneys claim that HISD violated her 14th Amendment rights. Davenport insists that HISD didn't do a good job in hiring, training and supervising Nicholas. The counterargument is that HISD did screen Nicholas and he didn't have any prior criminal history (other than a no-fault car accident and a speeding ticket in Brazoria County). The HISD police handbook says that officers, when making a traffic stop, are supposed to radio in to the dispatcher before they get out of the car. Nicholas did not do that; therefore he strayed from the rules and there was no way HISD could control or monitor him.
"Everything he did was contrary to practice and procedure," Feldman says. "If you have an employee that's going totally off the deep end, you can't expect the employer to be responsible for that." The judge dismissed the case and ordered Brandi to pay HISD's court costs.
The district has sovereign immunity and under Texas law can't be held financially liable unless the incident involves a motor vehicle. In a state court case filed last month, Davenport argues that the HISD patrol car allowed Nicholas to entrap Brandi: When he flashed his lights, she pulled over like any law-abiding citizen would. The car gave him an authoritative presence, and Davenport argues that without it, he wouldn't have been able to commit the crime.
"Try as they might to get this situation under that exception, it doesn't sit," Feldman says. "It doesn't involve the actual operation of the motor vehicle, the driving of the vehicle." Feldman says he expects that case to be dismissed, too. The district couldhave been nice and let it go, but instead it mailed Brandi a certified letter demanding $1,990.83 and stating that if she didn't pay it would be forced to "initiate the process of executing on the judgment and to seek additional fees and costs associated with the execution."
"Just because the district is viewed as having deep pockets is no excuse for frivolous lawsuits," Feldman says.
Brandi is horrified at the judge's ruling and that the district is actually trying to make her pay its court costs. Three weeks ago Davenport filed an appeal on Atlas's ruling, and requested that she and Brandi be allowed to speak at the next school board meeting. Last week HISD said it would drop its claim if Brandi would drop her appeal and her state court claim. "I said, 'Fuck you,' " Davenport says. "That's absolutely ridiculous. People don't give up their constitutional rights for $2,000.
"It's like she's being raped over and over again. I may not be able to give her back her sense of safety or sense of control of her own self -- but maybe she can buy a bigger house with bigger locks."
