ACLU accuses City to stall progress in lawsuit Hardy vs. City of Nome
By Diana Haecker
Clarice Leota “Bun” Hardy filed a civil lawsuit in federal court in February 2020 against the City of Nome, former NPD police chief John Papasodora and Lt. Nicholas Harvey, alleging that the department and the two named officers failed to investigate a sexual assault she reported.
Hardy claims that she was sexually assaulted in mid-March 2017 in her apartment and while she had no recollection of the assault, it was captured on video and posted on Snapchat. Working at the time at NPD as a dispatcher, she reported the incident to her colleague Lt. Nicholas Harvey. Her claim went was not investigated by NPD but at 14 months after the assault happened, by the Alaska State Troopers after Hardy , but no criminal charges were brought forward, although the alleged perpetrator was known.
The lawsuit brought on behalf of Hardy by the ACLU of Alaska, seeks that the City of Nome “cease any discriminatory practices in the provision of law enforcement services and to take steps to ensure that all reports of sexual assault are investigated thoroughly without regard to the victim’s race or gender,” and to adequately train all of its appropriate law enforcement personnel to conduct sexual assault investigations in an effective and thorough manner. It also seeks compensatory and punitive damages, and back and front pay for Hardy.
In the latest development, the ACLU filed a motion to compel the City of Nome to produce records and information relevant to the case. In legal terms, the process is called discovery, when parties to the lawsuit are supposed to produce information of importance to the case in preparation to go to trial.
Hardy’s court document states that despite her “repeated efforts to resolve the numerous unfounded objections raised by the City in its responses, the City has failed at every turn to engage with Plaintiff in a meaningful way.” The court document lists deadlines that were not kept, scheduled phone conferences that were unilaterally cancelled and letters that were not responded to.
Hardy, through her counsel, sought information from the City relating to audits conducted by the City of NPD’s sexual assault investigation practices, emails sent between co-defendants Nicholas Harvey and John Papasodora; information to determine why Lt. Harvey failed to investigate her case; communications between the City and NPD regarding sexual assault allegations by other women, comparative information about how NPD investigated non-sexual assaults and details about the training of defendants.
The City’s lawyer, Clinton Campion with the Anchorage lawfirm Sedor, Wendlandt, Evans, Filippi responded that Hardy is overbroad in her requests and that the City has not failed at every turn to engage with plaintiff. In the response to the ACLU motion to compel, the City’s lawyer said that that the City acknowledges that Lt. Harvey did not conduct a sexual assault investigation, that then-Chief Papasodora, when made aware of Harvey’s not investigation the incident, did also not initiate, conduct or direct a sexual assault investigation. Hardy then reported the claim to the Alaska State Troopers, which then investigated but once brought to the Nome District Attorney, no criminal charges were filed.
“Plaintiff was not entitled to a sexual assault investigation by the Nome Police Department that was conducted to her satisfaction,” reads the document. Furthermore, the response says that the City denies that there is a lack of sexual assault investigations as the result of Hardy’s gender or race and denies that the NPD had a widespread practice of not investigated report of sexual assault, or that NPD failed to train its officers. “The City of Nome asserts that the Nome Police Department had the discretion to determine which reported crimes it would investigate and had the discretion to determine how those reported crimes were investigate,” the City’s response reads.
Hardy’s motion to compel includes the information that an audit ordered by former police chief Bob Estes concluded that 76 out of 182 reports of sexual assault between 2015 and 2018 were inadequately investigated and that over 90 percent of those cases were filed by Alaska Native women. The city’s response was that Estes did report to the City preliminary results, but “there is no report reflecting this audit which could be disclosed.” It also states that the city did not commission or complete an audit of NPD regarding its handling of sexual assault.
Hardy accuses the City of discrimination against women and Alaska Natives. “In order to decide this claim, the Court may need to compare how the City responded to sexual assault complaints made by Alaska Native women with how the City responded to one or more other categories of criminal complaints,” Hardy’s motion to compel argues.
The City rebuffed Hardy’s request for all emails between Harvey and Papasodora for reasons that she is not entitled to review email discussions of personnel matters, other investigations not relevant to her case. Lawyers for the City said they have disclosed all emails between Harvey and Papasodora that reference Bun Hardy and that production of a decade of email communications between Papasodora and Harvey would create an undue burden on the City of Nome “to review and redact confidential matters which are not relevant to Plaintiff’s claims.”
The city brought the same argument when Hardy sought the disclosure of all communications between NPD and the City regarding sexual assault investigations.
The court document says that the City has produced over 3,000 pages of documents and that many delays in the response were due to the COVID-19 related issues.
The motion to compel the discovery and the City’s response are before a judge now to decide. The ACLU maintains that “all of the discovery sought is relevant and reasonably calculated to lead to the discovery of relevant evidence, and necessary for Plaintiff to develop and prosecute her claims.”
In contrast, the City’s attorney claims that the city has worked diligently to produce a substantial number of records. “The City has worked in good faith to provide what it believes it is required to produce under its discovery obligations.”