By Greg Hardetsy
The Orange County Register
SANTA ANA — An appellate court has rejected an attempt by a former California Highway Patrol dispatch supervisor to get out of a lawsuit concerning grisly photos of a decapitated teenager that were circulated over the Internet.
This week’s ruling, part of a civil case filed by survivors of Nicole “Nikki” Catsouras, 18, of Ladera Ranch, who died Halloween 2006 after losing control of her father’s Porsche, means that Aaron Reich likely will argue his case in a trial.
A three-justice panel of the 4th District Court of Appeal in Santa Ana ruled that Reich had failed to produce evidence proving that he emailed the photos to family and friends as a warning about drunken driving and that his actions therefore were protected by the U.S. Constitution as free speech. The panel ruled that the Catsouras family can recover appellate-court legal costs but rejected a request for sanctions against Reich.
Reich has until July 5 to appeal to the state Supreme Court but he is not likely to do so, said his attorney, Jon R. Schlueter.
The CHP, Reich and Thomas O’Donnell, also a dispatch supervisor, are being sued for negligence, invasion of privacy and intentional infliction of emotional distress for emailing the accident-scene pictures to family and friends. The images of Nikki Catsouras, slumped behind the wheel of the Porsche after she slammed into an unmanned toll booth on the 241 toll road in Lake Forest, then went viral on the Internet.
Some photos, accompanied by taunting messages, also were sent anonymously in emails to her parents, Christos and Lesli Catsouras.
Reich argued that he was protected by the First Amendment because he emailed - from his computer at home - the photographs to friends and family along with an anti-drunken driving message.
Nikki Catsouras had not been drinking, autopsy and toxicological reports show.
In its ruling, the panel wrote: “Any editorial comments that Reich may have made with respect to the photographs are not before us. In short, there is no evidence at this point that the e-mails were sent to communicate on the topic of drunk driving.”
Reich destroyed the emails with the anti-drunken driving messages and photos at the request of his supervisors, Schlueter said.
In oral arguments last week, the justices questioned whether the recipients of the emails still had them, but Reich’s attorneys said they had not investigated that.
Schlueter said Reich plans to find out if the recipients still have the emails so they can try to prove the retired officer’s claims at the lower-court trial.
Keith Bremer, an attorney for the Catsouras family, said the lawsuit appears to be on track to go to trial in Orange County Superior Court in several months.
City News Service contributed to this story.
Copyright 2011 Orange County Register