Wednesday, January 16, 2008

Postscript: City of Durham Response

The City of Durham has filed a 51-page response to the lacrosse players’ lawsuit. The basic argument: it was all Nifong’s fault, and since Nifong was a state employee, the city can’t be held liable for anything he did. The response is particularly passionate in its sections demanding dismissal of the players’ call for injunctive relief to ensure due process protections for future defendants that encounter the Durham Police Department.

The basic thesis recalls the “novel legal theories” talking point of Durham spokesperson Beverly Thompson from the day the civil suit was filed.

The central fact of this case is that the Plaintiffs cannot recover against Mr. Nifong’s employer—the State of North Carolina—because it has absolute immunity. As a result, Plaintiffs have resorted to overreaching conspiracy claims and other novel legal theories that attempt to impose legal liability on the City of Durham, Durham police officers, and City administrators for the actions of an overzealous prosecutor. All this creativity is in aid of an effort to impose on Durham taxpayers untold millions of dollars in damages for Plaintiffs who were publicly exonerated and never spent a moment in jail.

The last sentence recalls the demagoguery seen by such Durham “activists” as Sandy Ogburn and Bob Healy from the days before the city’s rejection of a settlement offer.

Of course, if Durham (or its attorneys) want to end punitive damages for civil rights violations, they have every right to lobby their city’s congressman (Democrat David Price) or their two senators (Elizabeth Dole and Richard Burr) to change federal law. But it’s a bit off-putting, in a memorandum of law, to see lawyers complaining about their opponents seeking damages for which, under federal law, they are entitled.

As to the suggestion that the suit is somehow unfair because the “plaintiffs were publicly exonerated and never spent a moment in jail,” the obvious response comes from (the pre-transformation) Jim Coleman. In a September 12 N&O article, Coleman explained,

how much the lacrosse players suffered is just one factor in determining an appropriate amount to seek. Coleman said he thinks Durham police failed to adequately explore evidence that could have exonerated the players, a charge the city denies. He said other falsely accused people have suffered more, but they often were the victims of negligence rather than an intentional effort to bring charges without evidence.

The question of intent—whether police willfully railroaded the lacrosse players—will be a key factor if the civil case goes to trial, Coleman and Largess said. If police and city officials are found to have maliciously pursued the case knowing the evidence wasn’t there, they should pay until it hurts, Coleman said. “There’s an element of punitive action involved in lawsuits like this,” he said.

On September 13, Coleman added that deterrence can be a critical action of such suits: “When the city acts in ways that are so totally outrageous and could have been prevented, I think the damages ought to be sufficient to deter that kind of behavior in the future and also to send a message to other cities and prosecutors across the state. I have no idea the damage they suffered. There’s no way for us to say $30 million is low or high.”

Investigator Nifong

Attorneys Reginald B. Gillespie, Jr. and Roger E. Warin base much of their response on the assertion that “Nifong never had any official capacity with the Durham Police.”

They write,

The Amended Complaint baldly claims that State Prosecutor Michael Nifong “served in a supervisory and/or policymaking role for the Durham Police Department.” The Complaint posits that this role was “delegated” to him by various Supervisory Defendants employed by the City of Durham. In addition to being nonsensical, this claim fails as a matter of law.

Why is such an assertion “nonsensical”? Because “under North Carolina law, the District Attorney is not imbued with authority to act on behalf of municipalities, nor are municipalities empowered to control or delegate power to District Attorneys.” The duo further noted, “Not only is it impossible for a North Carolina District Attorney to exercise municipal authority under State law, it is equally impossible for City officials to ‘delegate’ such authority to an official acting on behalf of the State.”

Indeed, they conclude, “the City of Durham was never in a position to demand ‘conformance with their policies’ from Nifong or any other officer acting under State authority.”

Gillepsie and Warin spend several pages making similar points, describing how the system is supposed to work.

I doubt anyone would disagree that the DA isn’t supposed to have the authority to supervise a police investigation. Or that the Police Department isn’t supposed to allow a DA to supervise a police investigation. Or that individual officers aren’t supposed to take orders from a DA to violate their own procedures and run a rigged photo ID session.

But, of course, this particular investigation didn’t follow the rules. Nifong did exercise the authority to supervise a police investigation. And the Police Department did allow the DA to supervise a police investigation. And individual officers did take orders from the DA to violate their own procedures and run a rigged photo ID session.

Simply asserting how the system was supposed to work, while ignoring how the system did work in this case, wouldn’t seem to get the city of Durham very far.

Grand Jury

Gillepsie and Warin concede that Ben Himan and Mark Gottlieb probably didn’t present exculpatory evidence to the grand juries that indicted the three players. They also consider it possible that the grand jury could have been influenced by the DPD-generated publicity, chiefly the demonstrably false and inflammatory statements of Cpl. David Addison.

But, they note, such facts don’t matter under federal law: “Plaintiffs’ insinuations that the grand jury proceedings were somehow tainted by defendants’ failure to present the grand jury with exculpatory evidence or by their public statements . . . are legally irrelevant.”

There’s only one exception regarding this issue: “Some courts have suggested,” Gillepsie and Warin write, “that an indictment might not break the causal chain in a particular case if a defendant committed perjury before the grand jury.”

In this case, of course, Mark Gottlieb—under oath, in a deposition to the State Bar—effectively confessed that he did perjure himself before the grand jury that indicted Reade Seligmann and Collin Finnerty. Gottlieb said that he told the grand jury, “As soon as Nurse Levicy was able to calm [Mangum] down [on March 14, 2006], which didn’t take long at all, she never changed her story from that point.”

That statement was demonstrably false, as shown by this chart, which showed that Mangum told three very different stories on March 14, March 16, and April 6, 2006. Gottlieb had access to all of this information when he told the grand jury, “As soon as Nurse Levicy was able to calm [Mangum] down [on March 14, 2006], which didn’t take long at all, she never changed her story from that point.”

In short, a representative of the city of Durham, acting in his official capacity as a Durham Police Officer, did appear to have perjured himself before the grand jury—thus creating exactly the scenario that Gillepsie and Warin themselves concede should allow the civil suit to proceed to trial.

Rewriting History

The filing contains some intriguing assertions. Gillepsie and Warin reason, “Even if Plaintiffs had alleged an underlying constitutional violation by Durham police officers—which they have not—they have not adequately alleged a policy or custom of the City that caused the violation.”

In the city’s own official report, former City Manager Patrick Baker and former Police Chief Steven Chalmers described the DPD’s handling of the lacrosse case as “typical.” Even their clients, in short, concede that a “custom of the City . . . caused the violation.”

In a footnote, Gillepsie and Warin caution,

Should a trial become necessary on any claim, the City will demonstrate that its officials’ and police officers’ conduct was consistent with federal and state law and was motivated by the belief that any serious crime reported by a resident of the City should be thoroughly investigated without bias in favor of or against any person on the basis of race, gender, or socioeconomic status.

At no point in their reply do Gillepsie and Warin explain how, for example, the rigged April 4 photo session “was consistent with federal and state law” or “was motivated by the belief that any serious crime reported by a resident of the City should be thoroughly investigated.”

As for their assertion that the inquiry was handled “without bias in favor of or against any person on the basis of race, gender, or socioeconomic status,” that’s almost laughable. Kristin Butler had the most effective response to such a claim, more than a year ago: “Whether or not it was true that ‘there’s been a feeling in the past that Duke students are treated differently by the court system,’ Nifong has made sure that we are today.”

Concessions of impropriety

Gillepsie and Warin note, “Evidence suggested that Mangum had been under the influence of alcohol or drugs the night of the alleged rape and during her initial interviews.”

Really? Up until now, Durham’s official line—expressed by Mark Gottlieb and SANE nurse-in-training Tara Levicy—has been that Mangum was stone-cold sober when she recalled the details of the “rape.”

The attorneys also admit that, yes, Seligmann, Finnerty, and Evans might have been targeted because they were white Duke students, or because they were lacrosse players.

Even if true, however, Gillepsie and Warin deem such a situation irrelevant: “White Duke lacrosse players are not a protected class recognized as needing protection by the government under federal civil-rights law.”

Maintain the Status Quo

Gillespie and Warin conclude by urging the court to dismiss portions of the civil suit that call for court supervision of the DPD. The “plaintiffs,” the lawyers write, “have no standing to sue for injunctive relief,” since it’s unlikely any of the lacrosse players will return to Durham anytime soon; and even if they did, it’s unlikely they would find themselves in a situation that led to Mangum’s false claim.

The attorneys also object to the reform proposals on constitutional grounds: “Sweeping requests,” they argue, “for a wholesale restructuring of Durham’s local law enforcement system and intrusive and protracted oversight raise serious federalism concerns.”

Given the unwillingness of Durham’s leaders to enact any meaningful reform of the DPD, it’s unsurprising that the city’s attorneys argued so strongly to dismiss the claims for outside supervision of the DPD. It is a little ironic, however, that in the same complaint in which Durham’s lawyers seek to uphold the law enforcement status quo, they also admit, “Many of Plaintiffs’ allegations have aspects of harms that, in other contexts, might give rise to liability.”

Tomorrow: the Gottlieb and Addison replies.

14 comments:

Anonymous said...

It is going to be real hard to claim that the DPD was not going through Nifong since most of the responses have blamed the Fong for everything. Gottlieb and Himan will likely blame Nifong (as did Clarke from the DNA lab, IIRC)

Observer said...

On the whole it is startling that so many people, including the lawyers for Durham, seem not to have a good grasp of the facts.

But this question of a "protected class" is one that needs to be addressed by the courts pretty soon. Now would be an opportune time, I believe.

-snip-
Even if true, however, Gillepsie and Warin deem such a situation irrelevant: “White Duke lacrosse players are not a protected class recognized as needing protection by the government under federal civil-rights law.”
-snip-

Seems pretty clear now that EVERYONE needs protection by the government under federal civil-rights law.

bill anderson said...

I must admit that there is much ironic humor in all of this -- except that the situation is so dangerously bad. Here we have the police lying, committing crimes, aiding and abetting a false and malicious prosecution, AND THEN CLAIMING THEY WERE JUST DOING THEIR JOBS?

This is amazing, and no doubt there will be plenty of enablers who will provide the amen chorus.

Law 72 said...

Ah yes the old Nurenberg defense. I WAS JUST FOLLOWING ORDERS.

Anonymous said...

This morning while having a breakfast in a Columbia, South Carolina, restaurant someone said about this case concerning the Duke lacrosse players, "Well, where there's smoke there's fire." The mantra of the DukeGroup88 has so poisoned the reality of this case as to be a continued fraud on the body politic. The comments spoken this morning at breakfast were the comments of an ignorant, bigoted person not willing to find out the truth of the matter nor understand it. These young men will never get their dignity or reputations back nor will they, it would seem, find the public acceptance of responsibilty of anyone who was a part of or who participated in this near lynching. Duke, Durham, and this person should be ashamed of themselves. There have been too many horrific political lynchings to date to suffer another. Someone should be made to take responsibility in Duke and Durham.

Anonymous said...

It seems to me that from the beginning of this bizarre set of events, 'coventional wisdom' from the legal community has been worthless.

To believe any of the defendants have become competent, adept, shrewd or even slightly intelligent is simply too much of a stretch.

They did what they did because they were stupid (arrogant, evil, whatever) and they are still stupid.

That legal observers do not truly grasp the extent of the egregious behavior will simply cause surprise again as the lawsuits proceed. Just as they were surprised when the AG said "innocent" or when Nifong was disbarred or found in criminal contempt.

In court, the lies don't work and stupid won't prevail.

Just thinking.

traveler said...

“White Duke lacrosse players are not a protected class recognized as needing protection by the government under federal civil-rights law.”
--------------------------

I find that sentence chilling for some reason. Would this ‘protected class’ designation apply to the one black lacrosse player I wonder? Perhaps this is why the Gang of 88 keep their racial hate narrative alive, to stay a ‘protected class’, so far it has worked.

Anonymous said...

WTF....!!!! White Duke Lacrosse Players not part of 'protected class'?? Durham is insane...

Under the law, people of all races have civil rights and cannot be discriminated against due to their race or color. People usually take this to apply only to African- Americans, but the law applies to Hispanics, Asians, and white people as well. Even a Caucasian American has the right to sue if he/she is discriminated against unlawfully and has had their civil rights violated.

Jim in San Diego said...

The idea that white people are not protected by the civil rights laws is laughable. These are real lawyers making these claims?

Jim Peterson

Ralph Phelan said...

“White Duke lacrosse players are not a protected class recognized as needing protection by the government under federal civil-rights law.”

The Federal DOJ appears to agree with the above.

Anonymous said...

The Federal DOJ is concerned with 'non-crimes'only...

Don't you know they only look for 'non-crimes' to prosecute..

They are hacks anyway....

John said...

The Motion to Dismiss filed on Durham's behalf is very well done.

Re supervisory liability for Nifong's actions, North Carolina law will apparently determine if the creation of the ad hoc relationship between a State prosecutor and a City can overcome the clear separation of authority between them. This may be tough.

Re Constitutional harms, the 4th Circuit is a tough place to argue that the reputational harm and monetary loss resulting from the acts committed by the police rise to the level of a Constitutional harm.

The issue is fairly joined.

Anonymous said...

~ snip ~ [Quote from the reply, see Baldo on LieStoppers at 1-16-08, 3:23 pm)

". . .the City will demonstrate that its officials’ and police officers’ conduct was consistent with federal and state law and was motivated by the belief that any serious crime reported by a resident of the City should be thoroughly investigated without bias . . ."
~ end quote ~

With EMPHASIS ADDED, it reads:

". . .the City will demonstrate that its officials’ and police officers’ conduct was consistent with federal and state law and was MOTIVATED by the belief that any SERIOUS crime reported BY A RESIDENT OF THE CITY should be THOROUGHLY investigated without bias . . ."


Questions:

1. Do only "residents" of Durham receive "thorough[] investigat[ions] but not people who live outside of Durham (i.e., non-resident)?

2. Does the City's response mean that reports of "non-serious" crimes reported by residents (& non-residents) are NOT "thoroughly investigated"?

3. Would someone please explain exactly when Durham performed this "thorough[] investigat[ion]" because from the facts thus far, the DPD never did a proper investigation (which is why they're in this mess).

New quote

". . .upon arriving at the house, Sergeant Gottlieb and Investigator Himan spoke to the players who lived there. . . . The players confirmed that Mangum had been at the house the PRIOR EVENING but denied that any assault occurred." [emphasis added]

Doesn't "prior evening" imply the night before (Wednesday) the warrant was served (Thursday), even though the party was on Monday night?

haskell said...

Res Ipsa Loquitor

Duke's Official Strippers