Video of ‘hot blond Tina’ raises consent questions

Just don’t expect to see the now-infamous YouTube video of an obviously intoxicated Tina Vlijter waiting to be booked into the Clark County jail.

The video was recently taken down by Langley Productions, makers of the iconic "Cops" reality TV program, after Vlijter, 32, of Las Vegas, filed a defamation lawsuit naming it, Turner Broadcasting and truTV, which carried the company’s now-canceled cable series "Inside American Jail."

Vlijter’s attorney, Easton Harris, said he is considering adding Clark County Sheriff Doug Gillespie and the Metropolitan Police Department to the lawsuit. The case was moved from state jurisdiction to federal court at the request of Robert Schumacher, the Las Vegas lawyer for the California-based production company.

Vlijter was arrested on a drunken driving charge in July 2008 after she fell asleep at the wheel of her Mercedes-Benz while stopped at a traffic light. One of her young children was in the car.

She doesn’t dispute the fact that she was extremely intoxicated from "a couple" of Long Island iced teas, and later pleaded no contest to misdemeanor DUI. A charge of child endangerment was dismissed.

On "Inside American Jail" and later on the Internet, Vlijter was shown flirting and laughing as she interacted with jail personnel, unbuttoning her shirt to reveal a lot of cleavage, and generally causing a commotion.

Vlijter said she is not the uncaring person depicted on the program.

She said the incident occurred at a low point in her life. There was a difficult divorce, family health issues and a feeling of isolation. She insists she isn’t a party animal and rarely drinks.

"Mostly I’m just thankful nobody was hurt or killed that night,” she said. "I was fine. I was fine when I picked up my daughter at day care. The next thing I know I’m waking up in jail."

Later, however, Vlijter recounted being fearful of contracting hepatitis from the jail needle used to take a blood sample. She also said, "I remember the camera, and I remember them following me around, but I didn’t know what they were there for."

Vlijter said she was unaware of the truTV program until about five months later, when a friend told her about seeing the embarrassing appearance on TV.

Vlijter said she experienced public humiliation, taunts, catcalls and cruel comments from strangers. She said she was so mortified she fled the country.

"I went to Egypt," she said. "That’s how bad I wanted to get away."

While Vlijter claims financial damages, she admits she suffered no financial harm or loss of employment because of the truTV program. She said she is unemployed, but is reluctant to explain how she supports herself and her two daughters. She said she’s not in financial duress and plans more vacations abroad.

The harm was emotional, said Vlijter, adding that she plans to seek counseling.

QUESTION OF CONSENT

Vlijter’s lawsuit turns on the issue of consent: Did she sign a waiver allowing Langley to use the tape?

There are sharply differing accounts.

"I don’t remember anything, much less signing anything," she said.

Harris said timing is important in light of Vlijter’s intoxication.

"If they had just waited one day to get her to sign the waiver, we wouldn’t be here,” Harris said, while maintaining that he knows of no waiver at all.

In a written statement, an unidentified representative of Langley Productions said Vlijter not only signed, but she did so "several hours" after her booking was taped. Company officials won’t say exactly when, though, and they haven’t produced the paperwork.

From a legal standpoint, the issue of consent can be tricky. Consent has to be "informed," meaning the signer has a clear appreciation and understanding of the facts, implications, and future consequences of an action.

It could be argued that Vlijter could not knowingly give consent if she was still drunk. In addition to intoxication, other mental impairments that could render consent invalid include high levels of stress, sleep deprivation, dementia or another mental disorder.

Langley Productions maintains that its own rules ensured Vlijter knew what was going on.

"If the subject is intoxicated, the release is not obtained until enough time has elapsed for the person in question to sober up," the company said in its written statement. "In this case, as in every case, we do in fact have a legitimate release — and I can tell you that it was obtained many hours after the subject was arrested, per our policy."

Gillespie also said he believes "there was a time delay between the footage being taken and the waiver being signed."

Even if Vlijter was aware of her actions, that leaves a related legal concern: Does a person under arrest even have a legal right to sign a waiver or contract regardless of their state of mind? After all, people in custody are by definition deprived of liberty and freedom to make their own decisions.

Langley Productions officials said they have heard that argument before.

"We have never had a release overturned in over 20 years of doing these kinds of productions," they said.

campaign contributions

While not accusing jail personnel of doing anything wrong, Harris has questioned whether it was proper to let Langley tape in the jail or film COPS segments. He asked if the company gets special access because Langley Productions and its president, John Langley, are among Gillespie’s biggest campaign contributors.

Clark County campaign finance records show Gillespie’s 2010 re-election campaign on June 8, 2009 received the maximum allowed contributions of $10,000 each from John R. Langley and from Langley Productions Inc., for a total of $20,000. On Sept. 27 of this year Langley’s son, "Inside American Jail" Executive Producer Morgan Langley, donated another $10,000.

The overwhelming majority of Gillespie’s donors gave $100 to $500, though Strip hotel properties such as the Bellagio, MGM Grand and Mandalay Bay typically gave $10,000 each. Off-strip companies such as The Boyd Group, Station Casinos and South Pointe Hotel & Casino contributed $5,000. All told, Gillespie has reported about $500,000 in contributions to his 2010 campaign, though the final tally isn’t due until next month.

Both Langley Productions and Gillespie hotly deny there is a relationship between the contributions and access to the jail and to Las Vegas police operations.

Kenneth Fernandez, an assistant professor of political science at the University of Nevada, Las Vegas, said campaign contributions may indeed help the donor make friends and have influence, but that doesn’t mean there’s anything illegal about it.

"This is the enduring problem for democracies," Fernandez said. "Buying access is not illegal; but once you make certain connections and you see a quid pro quo, that changes. Unless you can find that smoking gun, you can’t say favors have been purchased. These are the questions that come up when you have expensive elections and a First Amendment" that covers donations as a free speech right.

As an example of a politician crossing the line, last summer’s political brouhaha involving Nevada Senate Majority Leader Steven Horsford, who in an ill-advised fundraising effort offered special access to lawmakers in exchange for specific donations.

For their part, Langley officials said any implication of a "sinister, back-room arrangement or quid pro quo is simply not the case. Sheriffs and police departments allow media access when they feel that the production entity is professional and legitimate, and they do so for their own reasons."

Gillespie said people shouldn’t read too much into the contributions.

"We allow access to the jail to private groups, the ACLU, attorneys and the media," Gillespie said. "We don’t restrict people from having access to the jail."

Langley Productions’ relationship with the Las Vegas police was in place long before Gillespie became sheriff in 2007.

Langley is credited with creating modern reality television programming with "Cops" on the Fox Network in 1989. Las Vegas officers have appeared on the program ever since.

"John Moran, Jerry Keller and Bill Young all thought (working with Langley) was appropriate," said Gillespie, naming his predecessors as sheriff, dating to 1983. "And now I think it’s appropriate."

There has been little controversy about the relationship in those 21 years. Vlijter’s lawsuit is a first in Nevada, though COPS has had a handful of unsuccessful legal challenges in other places where it films.

Langley is far from the only producer given the same access. The list includes NBC’s "Dateline" and documentary filmmakers from the Discovery Channel. Neither NBC nor Discovery gave to Gillespie’s campaign.

While Gillespie also said local news organizations can have the same access, there’s a caveat: Langley and others must give the sheriff’s office final approval of what is shown. For entertainment television such deals are common, but few journalists would cede so much control, particularly when portraying "reality" is the objective.

To that end, Harris and his client claim Langley editors ignored reality and "cherry-picked bits and pieces of film" to portray her in the worst possible light.

Vlijter said she can’t recall if jail personnel or members of the film crew inappropriately attempted to influence or encourage her misbehavior.

Gillespie said that is not allowed.

"The goal is realism," the sheriff said. "We don’t want to sensationalize anything."

Langley, meanwhile, appears ready to do battle. The company offered this blunt assessment of Vlijter’s case in its statement:

"The real story here is about the litigious, opportunistic nature of our society. The persons who appear on our shows are adults, who sign a legally binding contract (and who are typically very enthusiastic about doing so). Only later do they realize, usually with the help of fine legal advice, that the entire event can be turned into a litigious payday."

Contact Doug McMurdo at dmcmurdo@reviewjournal.com or 702-224-5512 or read more courts coverage at lvlegalnews.com.