Cowlitz County and a highly decorated former sheriff’s deputy on Friday settled a lawsuit raised by a Portland man who accused the deputy of arresting him based on his race in 2016.
The settlement, for $115,000, resolved allegations by Portland resident Torrey Nelson, who is black, that former Cowlitz County Sheriff’s deputy Danny O’Neill overreacted when he arrested Nelson on suspicion of driving under the influence.
In settling the case, the county and O’Neill did not admit to any racial profiling. They had earlier won a federal court ruling that showed that Nelson failed to show any direct evidence proving that O’Neill acted on the basis of race.
Nelson, 47, said he’s happy with the settlement. But he said he was looking forward to going to trial to share his side of the arrest.
“I was portrayed as a villain, a trouble maker,” Nelson said Thursday. “At the end of the day, I feel the officer portrayed me in a way that was stereotypical ... it just didn’t work ... because I didn’t fit that stereotype.”
“Being in law enforcement is a hard job,” Nelson’s attorney, D. Angus Lee, said by phone Wednesday.
“But you’re given as a law enforcement officer tremendous power and authority, and that power and authority brings with it an equal if not greater responsibility ... to work consistently and vigilantly to make sure that when people are arrested, it is only when there is probable cause, and not because of their exercise of their First Amendment rights or because of their racial or ethnic identity.”
O’Neill rejected any notion that the arrest was driven by prejudice or racial profiling, and he said it was Nelson himself who escalated the encounter into a confrontation about race.
“From my perspective, the only person who had an issue with color was the defendant, not the police,” O’Neill said by phone Wednesday. “We didn’t bring it up. He started throwing out the fact that he was black.”
O’Neill had 46 years of law enforcement experience prior to his retirement in 2017, and was named State Trooper of the Year in 1989. He twice earned the Medal of Valor while at the sheriff’s office. In 2013, O’Neill fatally shot a Kelso man after the suspect fired shots at him and a Kelso police officer. The deputy said although the situation was tragic, he had no other choice in the moment.
At about 2 a.m. on Dec. 11, 2016, Nelson was the designated driver for two friends who had been drinking. While driving through Longview on Ocean Beach Highway in a 35 mph zone, O’Neill logged Nelson’s speed as 57 mph and turned on his lights to stop Nelson’s vehicle, according to court documents.
Nelson slowed down and stopped at a gas station, according to the documents. At that point, O’Neill called for cover over his radio, concerned because the vehicle failed to stop for almost a mile despite passing several side streets and waiting at a traffic light. Nelson said he was unfamiliar with the area, did not know the speed limit, and only drove a few blocks until he found a safe place to pull over.
It was only after contacting him through the driver’s side window that O’Neill realized Nelson was black, the county’s lawyers argued. Nelson said he had two light beers over a four-hour period that night at the bar, and he finished the second one an hour and a half before he started driving.
O’Neill, smelling alcohol from the car, asked Nelson to step outside and blow in his face. He could smell alcohol on Nelson’s breath, he said, and believed O’Neill’s eyes were bloodshot and watery. Nelson refused to take a voluntary breathalyzer test.
From Nelson’s perspective, he remained calm and compliant with the deputies. But O’Neill said Nelson got in his face and accused him of lying about how fast he was going and being prejudiced based on his race. O’Neill said Nelson was never physically threatening or aggressive, just verbally belligerent.
A brief filed by county attorneys argued that “every reasonable officer” would have had probable cause to believe Nelson was intoxicated based on the the combination of circumstances, including Nelson’s watery eyes, mood changes and smell of alcohol.
But according to the Nelson’s attorney, O’Neill arrested Nelson in retaliation for his repeated claims that he was being arrested based on his race. O’Neill acknowledged that he viewed that allegation, along with Nelson’s refusal to perform sobriety tests, as evidence of his impaired condition. O’Neill also agreed Nelson’s coordination after the stop was “fair.”
At the police station after his arrest, Nelson blew a .09 breathalyzer sample, just over the .08 level for intoxication, according to the U.S. District court’s findings. (Nelson said he doesn’t recall taking the breath test at all.) He was charged with DUI, but then-District Court Judge David Koss dismissed the charges for lack of probable cause to arrest Nelson.
In the phone interview Thursday, Nelson said he was not drunk.
“No, nope, zero. Even when I was taken to jail, I was showing him that I was not intoxicated. He just wasn’t picking up on that. ... I have too much to lose in my life (to) put myself at risk, my friends at risk.”
The stop could hardly have been racially motivated, O’Neill said: “I’m a pretty good police officer, but I’m not that good; I can’t see somebody ... two blocks away in the dark.”
African Americans are arrested far more frequently than other racial groups in Washington. O’Neill said he understands “there are a lot of issues” going on between racial minorities and law enforcement nationwide. In pretrial interviews he acknowledged Nelson could reasonably have been afraid for his safety when confronted by four police officers in a rural community.
However, “I had two minutes to make a decision,” O’Neill said Wednesday. “Do I send a person down the road who I feel in my heart is intoxicated? ... (If) I release that person and they go down the road and kill your wife, child, grandparent because I let them go ... I have to live with my decisions.”
Nelson filed a civil suit through Lee in December 2017, alleging O’Neill and the county violated his First, Fourth and Fourteenth Amendment rights.
In January this year, a U.S. District Court judge in Tacoma found that Nelson had enough evidence to go to trial on the argument that his Fourteenth Amendment rights were violated based on his race. The judge said it was also debatable whether O’Neill had probable cause to arrest Nelson.
“The Plaintiff fails to point to any specific evidence that Deputy O’Neill stopped, investigated or arrested the Plaintiff based on his race,” the court found in January when considering a claim that O'Neill's conduct was "outrageous."
But in a reconsidered finding of Nelson's Fourteenth Amendment claim, the court found: "(Nelson) is an African American, and so is a member of a protected class. He failed to provide any direct evidence of intentional unlawful discrimination. However, although the evidence is very thin, the Plaintiff points to 'facts that are at least susceptible of an inference of discriminatory intent.' "
John Justice, attorney representing the county, said he felt confident the county would have won in trial, but he didn’t want to risk being “dwarfed” by attorney fees. The county’s insurer will pay the majority of the settlement, Justice said.
“This is just a settlement based on a decision to avoid the cost of trial, not to admit any wrongdoing,” Justice said. “Given that it’s a civil rights case, even a small jury verdict in favor of the plaintiff means we’d have to pay the other side’s attorney fees.”
This story has been updated to correctly state that while the U.S. District Court initially denied Nelson's claim of a racially biased arrest under the Fourteenth Amendment, it later reversed that decision.