City deflects ACLU demand for $500,000 to settle Hardy case

The American Civil Liberties Union sent a letter to City of Nome on Sept. 24 seeking justice for Clarice “Bun” Hardy: $500,000 to Hardy or ACLU would go to court on Hardy’s behalf. The ACLU gave the City an Oct. 11 deadline to accept the offer.
Hardy claims that her report of a rape in March 2017 was not investigated by the Nome Police Department and valuable corroborating evidence of the crime was lost.
After receiving the letter seeking damages for Hardy, City of Nome staff turned the situation over to its insurance, Police Professional Liability through Alaska Municipal League Joint Insurance Assn., and contacted Brooks Chandler, city attorney to act as go-between.
On Oct. 11, the insurance company attorneys dispatched a letter to ACLU’s attorneys on behalf of the City, declining the out of court payment of $500,000 to Hardy.
The ACLU came out with a press release titled “ACLU of Alaska prepares to file suit on behalf of Alaska Native women failed by Nome” on October 14. The release said the City of Nome had sent a “callous deflection” in response to the letter seeking justice for Hardy.
“Because of the city’s blatant disregard for sexual assault victims, like Ms. Hardy, the ACLU of Alaska is forced to prepare a civil suit. The decades-long, systemic indifference to the safety to Alaska Native women in Nome must end,” the letter continues.
Hardy said she reported a rape in March 2017 to Nome Police Dept., but police did not respond or follow up on the assault on her. Further, then-NPD Chief John Papasodora did not forward the case to Alaska State Troopers as he had informed her he would, according to Hardy’s claim.  As a result, the claim states, irreplaceable corroborative evidence was lost.
Hardy’s report was “ignored to the point where an adequate investigation of her case became impossible,” the ACLU Alaska said in a letter to the City on Sept. 24. “This abject failure to act, by people she trusted to keep her safe, has caused Ms. Hardy severe psychological harm and emotional distress, leaving her unable to work or even to feel safe in the City of Nome.”
The ACLU sought the $500,000 on behalf of Hardy, ACLU said, to resolve her claims without court intervention for compensatory and punitive damages, as fair compensation for severe emotional impact, that NPD’s actions, and inactions caused her, as well as her inability to seek or hold remunerative employment as a result.
The insurance company would be the ones to handle the situation, John K. Handeland, interim city manager told the Nome Common Council at a special meeting Sept. 30. “They will be the ones that are responsible for directing either the representation of the City, should this come to a court action, or to make any decision to consider other action to potentially mitigate the liability, if there is any,” he said. The Council met in closed executive sessions concerning the matter.
A letter to ACLU dated Oct. 11, over the signature of Clinton M. Campion, attorney, said “ The City of Nome will not resolve any legal claims Ms. Hardy believes she has in the manner proposed in your Sept. 24 letter. The City of Nome is sensitive to Ms. Hardy’s situation, but disputes liability for the emotional distress and trauma you described in your letter.
“The City is immune from damages because any failure to investigate Ms. Hardy’s allegations is at most a failure to exercise or perform a discretionary function or duty of its agents, officers, or employees,” the letter continued.
The City of Nome and Nome Police Dept. rejected claims that it disregarded and failed to investigate claims of sexual assault because of deliberate indifference to the civil rights of Alaska Native women, saying that the NPD administers services in a nondiscriminatory manner, without regard to gender, race or any other classification.
“For purposes of this response, the City of Nome is going to address only potential claims from Ms. Hardy and not other potential claimants who are not represented by ACLU of Alaska,” the letter said.
The issue of rape kits not going to the state crime lab over the past decade was not connected to Hardy’s case, the letter maintained, saying in November 2017 an inventory revealed that 48 police departments across the state have not submitted 3,484 sexual assault kits going back to the 1980, citing the following reasons: Identity of the suspect was known; the suspect claimed the sexual acts were consensual; DNA results would not aid in the investigation or prosecution; The case had already been adjudicated; There was a lack of understanding or training about DNA and the Combined DNA Index System (CODIS) and that there were inadequate criminal justice resources.
Recent developments in forensic science have led law enforcement agencies across the nation to testing all sexual assault kits to connect suspects in multiple cases; the state has received federal and state funds to test the backlog of kits, according to the letter from the liability insurance company.
“Submission of previously untested sexual assault kits by the Nome Police Dept. to the State Crime Detection Lab is a positive step for public safety in City of Nome and surrounding communities, but it does not provide a basis to conclude that the Nome Police Dept. has systematically violated the civil rights of Alaska Native women,” the letter continues.
Next, the attorneys on behalf of the City dispute the claim that a Snapchat video would have provided corroborating evidence of Hardy’s claims. A Snapchat video of the encounter between Ms. Hardy and the alleged offender — who was named by last name in the letter but he has not been charged— may have existed on Snapchat in March 2017, the letter states.
“If such a video ever existed, City of Nome disputes the contention that it would have been possible for the Nome Police Dept. to recover the video of the alleged assault,” the letter said, and cited a Law Enforcement Guide for Snapchat on the website. The City disputed a claim that a video would have shown a sexual assault.
“You have not alleged that [the alleged offender] engaged in sexual acts with Ms. Hardy by force,” the letter stated to ACLU. “Rather, you have alleged that Ms. Hardy was incapacitated or unaware that a sexual act had been committed [Alaska Statute cited]. In order for a sexual assault to have occurred, [the alleged offender] must have known that Ms. Hardy was incapacitated and/or unaware that a sexual act was being committed at the time the sexual acts took place.”
The letter alludes to witnesses who can testify that it would not have been possible for the alleged offender to have been aware that Ms. Hardy was incapacitated and/or unaware that a sexual act had taken place.
“The City of Nome contends that the currently available evidence of the interaction between [the alleged offender] and Ms. Hardy does not support a determination that [the alleged offender] sexually assaulted Ms. Hardy,” according to the letter.
The insurance company was gathering additional evidence on behalf of City of Nome and welcomed the ACLU to discuss the matter in more detail.
At the end of the Council’s regular meeting Monday evening, Oct. 14, the Council voted to go into executive session to discuss the recent letter and developments of the issue.
The Council did not take action following the executive session.

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