Officers shall maintain a professional demeanor and shall perform their duties in a calm and firm manner acting together to assist and protect each other in maintaining law and order. -- HISD police handbook
Red lights flashed in her rearview mirror as Brandi Leigh Hyde drove down South Shepherd. When she pulled over, an officer took her driver's license and asked if she'd been drinking. Brandi said she'd had a couple of beers with dinner, but it was nearly 3 a.m. He told her to sit in the GTE Mobilnet parking lot and sober up for about 45 minutes. Not wanting to back-talk an officer, the 17-year-old flipped on her radio and got out of her car. It was a hot, humid night, May 18, 1997; she sat on the tailgate of her sandy-brown Chevy, and he asked if she wanted him to stay. No, she said, I'll be fine by myself.
Leaning against her truck, he asked where she worked and what she did. Brandi told him she waited tables at the Colorado Bar and Grill. He said he liked the strippers there and asked if she danced. She said no, and he told her that with her figure, she should -- he also said he noticed she wasn't wearing a bra. Brandi, a large-busted girl, was sitting with her arms crossed over her white T-shirt; she had been sleeping when a drunk girlfriend called asking for a ride home, and Brandi hadn't planned to get out of the car. The officer said he'd like to see her breasts.
What? Brandi asked. Shocked and suddenly scared, she didn't know what to say.
Have you ever been to jail? he asked.
No, she said.
Do you want to?
She thought if she flashed him really quickly she could go home. She didn't know if he could charge her with anything, and she didn't want to get a ticket or ruin her driving record, so behind the truck she lifted her shirt. He told her she looked so good he wanted to see the rest of her. He said to follow him through the red lights on Westheimer to Lamar High School. If you lose me, he said, I'll find you. And I'll screw your whole world up.
He knew where she lived, he knew what her truck looked like, and she was afraid if she turned down a side street or tried to run to the freeway he would radio other cops to chase her for evading arrest. "I've seen them track people," Brandi says. So she followed him to Lamar's unlit west parking lot, where he ordered her to strip. She told him she didn't want to, her roommate would be looking for her and she needed to go home. He reminded her that he was an officer and she had to do what he said. Naive as a college freshman who really believes a guy just wants to "listen to music" in his dorm room, Brandi thought he would look at her and then let her leave. She took her clothes off, put them right back on and started to go home, but the officer unzipped his pants and told her to give him a blow job. She said she didn't want to, and he asked again if she wanted to go to jail. With his hand on her shoulder he eased Brandi to her knees and thrust himself into her mouth. He couldn't get an erection; still he forced his flaccid member inside her. Over the next hour, he alternately tried (and failed) to vaginally and anally rape her, making her go down on him between each effort.
She kept saying, "No, please don't make me do this." He repeated over and over again how good she was. At one point another patrol car drove by, braked and continued on. Nervous, the officer went to his car and talked on the radio for a few minutes. Brandi tried to set off her car alarm to attract the other policeman's attention, but it didn't work. She succeeded a few minutes later, but if anyone heard, no one responded.
An athlete, Brandi thought about trying to outrun him, but he had a gun and she was afraid he'd shoot her and say she was just a drunk kid attacking him. She wanted to kick him, but he got progressively more aggressive and she didn't want to anger him further; running through her head were stories of girls who got raped, fought back and got killed.
He stuck three fat fingers inside her. As she felt his nails tear her flesh she told him it hurt and asked him to stop. Baby, he said, you feel so good. When he went down on her she closed her eyes, turned her head and tried not to throw up; she told herself it would be over soon and she could go home and forget about it. She repeated that she had to leave, her roommate would be looking for her. Just a little bit longer, he said. Just one more blow job.
He wrote down both his pager and home phone numbers and told her his name was "Red" Nicholas. He asked her to call him in the morning so they could meet and make love. You may be drunk,he said, but I'm drunk in love with you.
Brandi did call the next day -- from the sex crimes division of HPD. She paged him and left a message on his machine and he called back. This was an on-duty HISD peace officer, a man whose job is to protect children and make sure schools are safe. HISD touts the country's second-largest school force and every year proudly reports a drop in crime. CNN NewsStand actually argued that the district might be overpolicing campuses, with 177 officers patrolling 312 square miles with drug dogs, a SWAT team and a gang task force.
Brandi's assault was a surprise, said former HISD police chief Bruce Marquis. No policy or procedure changed as a result of her attack and Nicholas's conviction on two charges of sexual assault. Once Nicholas resigned, the district dropped its investigation and lost interest in the situation -- until Brandi sued.
The district "does not condone" what Nicholas did, says HISD spokesperson Carmen Gomez, but HISD lawyers maintain that their client is in no way responsible. "An employer is not liable when an employee engages in misconduct that is totally a frolic of their own," says HISD attorney David Feldman. "He was engaged in an act that has nothing to do with HISD. HISD was unable to assert any type of control." Feldman says HISD had no reason to anticipate Nicholas's "criminal propensity," because he passed the district's rigorous psychological screening and background check. Yet when Nicholas was asked to sign a statement saying he understood HISD's policy on sexual harassment (which basically says that HISD employees can be fired if they sexually harass another employee, a nonemployee or a student), Nicholas handwrote a note above his signature saying, "I am signing that I have read this form. My signature does not denote agreement with the procedures to be followed in an investigation nor does it imply that I grant HISD the right to intrude into my personal life."
Unfortunately, Nicholas isn't the only HISD officer accused of sexual harassment. Three years ago an HISD officer allegedly had a romantic relationship with an eighth-grade student. She said he kissed her at Saturday school, took her to AstroWorld, stuck his hands down her pants and tried to have sex with her. After an internal investigation, an HISD detective filed charges of indecency with a child against the officer. When the grand jury didn't indict him, HISD dropped the sexual misconduct charge, saying it couldn't "prove or disprove" it.
Last year two female officers filed a complaint with the Equal Employment Opportunity Commission alleging that male HISD police officers (colleagues and superiors) said lewd things, touched them and that one man pulled out his penis and said, "You need some of this." After an internal investigation, HISD suspended one officer without pay for two months for "inappropriate conduct."
These women were armed adults in broad daylight, and they felt intimidated -- Brandi was a 17-year-old girl alone, late at night. Brandi feels certain that she's not the only teen who has been assaulted by an HISD officer; she believes that she's just the only one brave enough to tell her story.
An officer shall never use more force than necessary and reasonable under the circumstances.
TEN MONTHS PRIOR
Five days after the Fourth of July, Brandi and her 14-year-old sister were driving through the Hill Country. It was about 11 a.m., and Brandi was taking Valerie Ann to work at a Wimberley cafe. Brandi was a straight-A honors student, captain of the volleyball team and hoping to get a softball scholarship and become an obstetrician. Her taller, thinner sister wanted to model; they both looked like Marsha Brady, with matching blond hair and enormous blue eyes.
Construction was being done on the road that day, but there wasn't a sign marking the work. Driving around a curve at 50 mph, Brandi noticed the road change colors; she tried to brake, but the van fishtailed on the gravel and slammed into an embankment. The car flipped three times; Valerie's neck broke on the first flip.
After the accident, Brandi's mother blew up pictures of Valerie and papered the house with them. "It was like a shrine," Brandi says. "My whole family fell apart." She felt her mother blamed her for her sister's death. Her mother became suicidal and didn't want to celebrate Christmas or do anything without Valerie, Brandi says; her stepfather started drinking, then left.
At school, the driver's ed teacher announced to a class of Valerie's friends that the wreck had been caused by "driver error." Kids pointed at Brandi in the halls and whispered loudly about how she had killed her sister. Brandi started staying home sick and skipping school. All she wanted to do was sleep. "I felt like I was gonna break," Brandi says. "I had to get away." Over Christmas vacation, she asked her grandmother if she could live with her in Houston and finish high school at night. She had only one semester until graduation, but she couldn't stand being with other kids, she wanted to be alone.
Brandi worked as a desk clerk at the Astrodome Holiday Inn, did clerical work at her uncle's law firm and got her GED. She started taking nursing classes and waitressing at the Colorado two weeks before the assault. That Sunday night she came home from work, ordered Chinese food with her boyfriend and drank a couple of cans of Bud. Her boyfriend went out with his friends, and Brandi fell asleep on his couch watching TV. The phone rang just after 2 a.m. A friend from night school said her car had been towed from Numbers. Brandi was worried about her being out at night alone, so she went to pick her up. Brandi's boyfriend lived in the Museum District; her friend was just a few blocks over in Montrose.
Brandi didn't know exactly where Numbers was, and she made a left on Westheimer instead of a right. She then turned left onto Shepherd, made a U-turn in the Whataburger parking lot and decided to go home and wait for her friend to call again with better directions. At the stoplight at the corner of Richmond, Brandi spotted the officer standing inside Stop N Go chatting with the cashier. She watched him walk to his car and had a feeling that he was coming after her. Three months shy of her 18th birthday, Brandi thought he was going to give her a ticket for breaking curfew.
After the assault, Brandi drove home sobbing. She called her boyfriend and her aunt, whose husband is a lawyer. She didn't want to call 911, since a police officer had assaulted her and she'd heard stories about inside cover-ups and cops protecting their own. Her aunt called attorney Valorie Davenport; the next morning, with her boyfriend, her family and two attorneys to protect her, Brandi spoke to the police.
She immediately picked John Leo Nicholas II out of a photo lineup of six HISD officers. The next morning an officer from HISD internal affairs read Nicholas his rights. In his statement, Nicholas swore that Brandi was the hunter and he was the fox. The HISD police handbook says that officers aren't supposed to turn on their lights unless another officer has been shot or involved in an automobile accident, but they are allowed to perform traffic stops off-campus if they feel that someone is posing an imminent threat to the community. Nicholas said he stopped Brandi because she was driving erratically and was "highly intoxicated," so he suggested she sit in the parking lot and sober up.
He claims that after 20 minutes he told her he had to make a routine check at Lamar and left. He says she followed him and tried to force him to have sex with her. "I told her I was not going to lose my job over her," he says. He insists that he told her to keep her clothes on but gave her his pager and home phone numbers, "Just in case she needed legal advice in the future." He then hugged her, kissed her on the cheek and sent her home. He says she paged him several times Tuesday, but "I blew her off because I knew she was nothing but problems."
Immediately after giving his statement Nicholas said, "I can't handle the stress, I just want to resign. I did not do anything wrong, but the stress is too much." As he handwrote a letter of resignation at 9 a.m., the HISD police department was in the process of recommending his termination.
The conduct of an officer shall always be in a way which reflects most favorably on the department.
Nicholas is a 38-year-old man who dots his i's with schoolgirl circles and cries more often than his wife. Before joining HISD's force, he was a clerk at Radio Shack; prior to that he sold Oldsmobiles. He operated band radios, shot hoops with his father-in-law, coached seventh-grade football and fixed computers for a friend's day care.
The statement he gave HPD officers a few hours into his unemployment reads like a Penthouse letter. He says Brandi jumped two curbs, ran into another and almost struck his patrol car. He says he flashed his overhead lights intending to drive around her, but she stopped. Even though he didn't smell alcohol on her, he thought she was disoriented and had possibly hit her head.
He claims she told him she wanted to be a stripper just like her roommate and then announced, "I have perfect titties. Do you want to see them?" He says he politely thanked her, turned her down and took his leave. He says he told her she could come with him to Lamar, or go home if she wanted.
In Lamar's parking lot, he says, she lifted her shirt and ran into him, ramming him with her bare breasts. She then unbuttoned her jeans, dropped them around her ankles, grabbed his hands and commanded, "Stick two fingers in my pussy." When he pulled away, he claims, she started masturbating. "She was begging me to eat her, to touch her, to feel on her," he says. "I was tempted by her, but I did not give in because I have a family and a future .She was very persistent. She continued and would not stop." He says she dived headfirst toward his crotch, unzipped his pants, and he wasn't sure if it was her mouth or her hand on him but he told her to stop whatever she was doing.
His main defense is that he's not attracted to white women. He claims he had to change his home phone number because Brandi kept calling and harassing him. He says he doesn't smoke, drink, gamble or go to parties. Brandi's accusations, he says, have humiliated him, caused him to lose faith in himself and will probably destroy his family. "In trying to help someone and to be a public servant of the community and serve the oath of office to the best of my knowledge [I] destroyed my life in 15 minutes," he says.
On Tuesday, June 6, 1997, a Harris County grand jury indicted Nicholas on two counts of sexual assault. He was arrested that day.
An officer shall not engage in any activity, entertainment, or personal business which would distract the officer or cause the officer to neglect the officer's official duties.
Power. That's what this case is about, said Assistant District Attorney Patrick Stayton, addressing the jury January 14, 1998. "Power misused and abused." Usually a young woman lost late at night would feel relieved to talk to a police officer. "But not this woman and not this officer," Stayton said. "Not this man."
Defense attorney Tom Boston filled the courtroom with first-year law students from his wife's class on criminal law and case analysis. Sitting in the hallway before Brandi took the stand, several of the law students stood in front of her and said that she didn't have a case and that she was nothing but a promiscuous little slut.
Brandi testified that because of her sister's death, she was depressed and wasn't the confident, outspoken, get-your-hands-off-me type of girl she normally was. She insisted that despite his account, she didn't enjoy any of it. "It didn't feel right at all," she said. "It felt very wrong -- I didn't want to be there -- I was just wishing it would all go away." Nicholas sat directly in front of her during the testimony. "He glared at me the whole time like he wanted to kill me," Brandi says. "I've never seen so much hate in somebody's face."
Sergeant Donald Goraum testified that Nicholas told him, "he had been accused of eating a girl and a girl eating him." The D.A. pointed out that at the time, HISD internal affairs officers said they were investigating a traffic stop -- no one had told Nicholas what Brandi had said he had done. The jury found Nicholas guilty.
During the punishment phase of the trial, family and friends testified that Nicholas is an ultrasensitive guy who never swears, plays dominoes with senior citizens and started a step club at Sharpstown Middle School. "He's a wonderful, nice little fellow," said the Reverend David Simmons.
Nicholas's wife, Shirley Morgan Nicholas, testified that her husband's worst habit is eating fried chicken. She said he's a patient, loving father to their five-year-old daughter, Bailey. But she also pointed out that he has a tendency to see bad experiences differently from the way the woman he's with does. "He says he's had eight wonderful years [of marriage], and I've looked at them; and I think, 'Are we in the same marriage?' The first three were kind of rocky but he thought it was all wonderful. All the things that I thought were kind of negative, he thought they were the greatest things in the world."
The defense attorney asked the jury to be forgiving and to see the goodness in Nicholas's heart. "Isn't he the type of guy we want in the community? Someone who volunteers and helps out?" Boston asked. "He is everything that we want every citizen to be."
It's nice that people said sweet things about Nicholas, but what he did was awful, the D.A. told the jury. "Character is not what people say about you," Stayton said. "Character is what you do when you're alone and you don't think anybody is watching." When Nicholas was alone, he raped a child.
Nicholas was sentenced to five years in prison and ten years of community supervision. His lawyer tried to appeal before the judge finished the sentencing. Nicholas's wife had worked for Children's Protective Services for eight years; after the trial she walked up to Brandi, shook her hand and said, "I'm so sorry."
Officers are expected to use good judgment and common sense when dealing with juveniles and minor infractions of the law and school policies on HISD facilities.
Following the assault, Brandi quit her job and didn't leave the house after dark. "I did everything in daylight," she says. She couldn't stand to be alone, but her relationships crumbled because she couldn't trust people and she never felt safe. Her self-esteem and respect for police -- people who were supposed to protect her -- plummeted. Whenever she saw a patrol car her stomach churned; an HPD officer pulled her over for speeding and she couldn't stop shaking and crying.
Winning the trial proved to Brandi that she was right and Nicholas was wrong. On-line, she met Steve Brown; they exchanged pictures and letters and chatted about cars and life for months before she met him, got pregnant and got married. Two years later, they have a 22-month-old daughter named Valyn, after Brandi's sister. "She looks just like her," Brandi says. Brandi moved out of the district because she doesn't want her daughter anywhere near an HISD officer.
It's been four years since the assault. Brandi lives in a three-bedroom house in Kingwood with a Siberian husky named Mufasa, a Catahoula leopard dog named Simba and a tank of dying angelfish. She quit her job last month to stay home with her daughter, but she and her husband separated two weeks ago, so she's searching for new employment. Brandi's 21, but most people who meet her think she's at least 28. "I missed the fun part of my youth," she says. "I had to grow up fast." In her three-inch loafers and plaid blazer, she speaks with grace, confidence and conviction. She often wonders how her life would be if Nicholas hadn't pulled her over; maybe she would have finished her nursing degree and would be working in a hospital -- or maybe she would be starting medical school now. She wishes she had fought back harder that night, screamed louder, insisted that he get his hands off her, punched him, kicked him or just kept driving. But she was just a kid who had been taught to obey her elders, and at the time she was scared and shocked and couldn't think of all the things she should have done.
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."
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 could have 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."
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