Forward
Herb Friedman has been a fixture in the Lincoln legal scene for decades, and during that time has acted as a fierce advocate of and dedicated fighter for the downtrodden and marginalized – those who exist on the fringes of society or would otherwise not have access to exceptional legal counsel. He fought for the first amendment rights of adult movie theaters in Lincoln; represented Senator Ernie Chambers in his challenge of the use of Christian prayer to open Legislature sessions; is a member of the trial team for the Beatrice 6; and perhaps most famously, he successfully represented JoAnn Brandon in the wrongful death lawsuit following the brutal rape and murder of her son Brandon Teena.
To my LGBTQ+ family, please be aware that this article discusses rape, murder, blatant misgendering, and various other potentially triggering items. As a member of the transgender community I understand the trauma surrounding disrespect of identity and have done my best to remain true to who we know Brandon to be. While every effort has been taken to remain true to Brandon’s identity there will be times that he is misgendered in the following article, due entirely to existing court records and transcripts, and the use of quotes from these sources. I would be doing a disservice to Brandon’s memory if I were to ignore the reality of time period he lived in, and the significant struggles that presented.
As a community we should remember and understand the time period in which he lived, not only to see how brave and courageous he was in living his truth but also to celebrate how far we, as a society, have come. Brandon’s life is a harrowing story of the intersections of poverty, mental health, transphobia, homophobia, and discriminatory police and court practices. When keeping in mind the time period, Herb Friedman’s willingness to take on Brandon’s wrongful death lawsuit on behalf of his mother is even more exceptional.
Brandon’s Rape and Murder, or, The Utter Failings of Sheriff Laux
On December 24, 1993 Tom Nissen (an ex-convict with a brutal record and well-known to local law enforcement) threw a Christmas party. Attending were Brandon Teena, Lana Tisdale, Nissen, John Lotter (another ex-convict with a record even more brutal than Nissen). At some point during the night Nissen and Lotter forced Brandon into a bathroom to ‘determine whether he was a boy or girl’. Nissen punched him in the face and kicked him in the back. Immediately after the assault Brandon left the house for a local hotel to call for help; however, Lotter and Nissen followed him to the hotel, forced him back to Nissen’s house, and assaulted him again in the bathroom. They then forced him into their car and left the house. They drove down a country road, found a remote location, and savagely beat and raped Brandon. After the rape, Lotter and Nissen drove him back to Nissen’s home, took his shoes, locked him in a bedroom, and told him that if he left or called the police they would kill him.
At some point in the early morning of December 25, Brandon pried open the bedroom window and ran, barefoot with no coat in below-freezing weather, approximately one mile to Lana Tisdale’s home. Lana’s mother called the police, and Brandon was taken to the local hospital. A rape kit was performed, the Falls City Police were called, and an investigation was initiated. However, this investigation would be riddled with prejudice, discrimination, disbelief, and an overarching failure of the Richardson County Sheriff’s Office, generally, and Sheriff Laux, personally, which would lead directly to the subsequent brutal murders of Brandon, Lisa Lambert, and Philip Devine.
Between December 25, when Brandon reported the assault and rape to Sheriff Laux, and December 31, when he was murdered, Laux ignored both physical evidence and corroborating testimonies and overruled multiple recommendations and opportunities to arrest Nissen and Lotter. His interrogation of Brandon following the report of the rape was abusive and repulsive to the point that Dr. Mario Scalora, plaintiff’s expert in the wrongful death trial, described it as “…pouring vinegar in an open wound”. Laux repeatedly referred to Brandon as ‘it’, and focused a significant portion of his initial interrogation on Brandon’s gender identity, sexual orientation, and Laux’s apparent belief that Brandon somehow either enjoyed or actually participated in the rape.
Following the assault and rape Brandon stayed in the general area, under the incorrect assumption that both Lotter and Nissen had been arrested. Due directly to Sheriff Laux’s refusal to arrest Lotter and Nissen, and his failure to communicate the same to Brandon, Brandon remained in Richardson County instead of returning to Lincoln, where his mother lived.
Brandon and two other innocent people were murdered on December 31, 1993 by Lotter and Nissen. Both Lotter and Nissen were charged with first degree murder and convicted; Nissen turned on Lotter and received life in prison and Lotter still sits on death row.
Wrongful Death Cases
Civil suits were filed in both state and federal courts for wrongful death, common law torts, and civil rights violations with Brandon’s mother, JoAnn Brandon, appointed as personal representative of the estate. The federal civil rights case was ruled in favor of the defendants, stating the plaintiffs could not meet the established standard which called for Sheriff Laux to have actual knowledge of a conspiracy to interfere with civil rights.
At approximately the same time as the federal suit, a claim was filed against Richardson County and Sheriff Laux alleging negligence, wrongful death, and intentional infliction of emotional distress. The district court ruled for the defendants, and the case was brought to the Nebraska Supreme Court through appeal. The Supreme Court held that a relationship had been established between Brandon and law enforcement officials which required the protection of Brandon when he agreed to testify and aid in the prosecution of Lotter and Nissen, the sheriff’s office was aware of dangers posed to Brandon due to threats on his life, corroborating physical evidence was found, and the deputy sheriff wanted to arrest both Lotter and Nissen but was not permitted to do so. The state also created specific elements for a tort claim of Intentional Infliction of Emotional Distress, which includes (1) facts showing there had been intentional or reckless conduct, (2) the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, (3) regarded as atrocious and utterly intolerable in civilized society, and (4) the conduct caused emotional distress so severe that no reasonable person should be expected to endure it. The state further established that “the estate may recover in a survival action mental anguish resulting from the anticipation and fear of impending death”.
It was after this first ruling that Friedman Law and Herb Friedman were retained as lead counsel. An amended petition was filed. Thereafter, extensive discovery took place including the depositions of all law enforcement officers. Experts were retained. The tape of the sheriff’s interview with Brandon was produced. Negotiations failed.
A bench trial was set to take place in Falls City, Nebraska in September 1999. Lana Tisdale, her mother, and her sister all testified to the events surrounding Brandon’s rape. Every member of the Richardson County Sheriff’s Office provided testimony in support of Brandon, and claimed that Sheriff Laux’s behavior was unprofessional and below the standard of care expected of law enforcement.
Findings from this trial include (1) Richardson County was negligent in its failure to arrest Lotter and Nissen, and that negligence led to Brandon’s subsequent murder, (2) Law enforcement should have been aware of Brandon’s location, provided him transport to Lincoln, offered protective custody, and arranged for an interview with social services, (3) Laux was not guilty of intentional infliction of emotional distress and the count was dismissed, (4) awarded economic damages of $6,223.20 (funeral bill) and non-economic damages of $80,000, (5) the $80,000 non-economic award should be reduced 85% because of the conduct of Lotter and Nissen, and 1% due to contributory negligence of Brandon.
At the end of the day, JoAnn was awarded $17,360.97 in wrongful death damages. The state held that Brandon was, at least in part, responsible for his own death and that the state was not responsible to pay damages for which Lotter and Nissen were liable.
Herb found this decision offensive and appealed again to the Nebraska Supreme Court. The Supreme Court reversed the district court’s decision and, in a landmark opinion, ruled the following: (1) plaintiff had successful pleaded tort of Intentional Infliction of Emotion Distress, (2) what is rude or abusive may be deemed outrageous when the defendant knows that the plaintiff is particularly susceptible to emotional distress, and (3) extreme or outrageous character of conduct may arise from a position of power. The court wrote “Based on the undisputed fact in this case, we determine as a matter of law that Laux’s conduct was extreme and outrageous, beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community as a matter of law.”
The Supreme Court affirmed the $80,000 non-economic damages but reversed the 85% allocation for Lotter and Nissen and the 1% contributory negligence for Brandon. They remanded the case to the district court to determine whether Brandon suffered emotional distress that no reasonable person should be expected to endure, and to determine the amount of damages for wrongful death.
On October 11, 2001, the district court awarded an additional $5,000.00 for the wrongful death action; $7,000.00 and for intentional infliction of emotional distress; and pursuant to the ruling of the Supreme Court reinstated the $80,000.00 for “mental suffering” plus $6,223.20 for funeral expenses. Concluding that to find a human life was worth less than the cost of burial was an outrage in and of itself, plaintiff once again appealed to the Nebraska Supreme Court; however, the Supreme Court affirmed these amounts.
Conclusion
Brandon lived in a place and time that refused to acknowledge his existence, let alone understand, affirm and celebrate him. His life was cut short in a brutal manner, and his last week of life was spent being defamed, verbally assaulted, and abused by those who were sworn to protect him. He was forced to recount a rape to a man who repeatedly ask him questions about his gender identity and sexual orientation which were unrelated to the rape, who asked him questions like “Why do you run around with girls instead of guys being you are a girl yourself? Why do you make girls think you are a guy?” and “Do you run around once in a while with a sock in your pants to make you look like a boy?”
It is profoundly evident that Laux’s inaction between December 25 and December 31, 1993 was a direct cause of Brandon’s murder, all because he did not believe that Brandon deserved justice; that he thought Brandon was a freak, an ‘it’, and not a person.
Herb Friedman, however, saw the inhumanity and injustice that Brandon was forced to endure, and recognized that Brandon’s experience was one that needed acknowledgement and justice. Herb’s multi-year fight with the courts is the proof in the pudding of his life-long pursuance of justice for the underdog, for the marginalized, for those who can’t find justice on their own.