The Players' Iqbal Briefs

All three sets of attorneys for the lacrosse players have now filed their response briefs on the Iqbal issue. (I discussed the University’s and the city’s briefs here and here.) Here are their main points:

1.) The Defendants Misread Iqbal

Virtually all of the defendants strongly implied that Iqbal made it much harder for the plaintiffs to survive summary judgment. The lacrosse players’ attorneys disagree. Here’s an excerpt from the brief filed by Chuck Cooper and Bill Thomas, who represent 38 unindicted players and some of their parents:

Defendants contend that a claim survives at the pleading stage only if it is more likely than any innocent alternative explanation—that is, only if it is probable. But in both Twombly and Iqbal, the Supreme Court could not have been more emphatic that it was “not impos[ing] a probability requirement at the pleading stage.”

As Cooper and Thomas note, if the Durham/Duke argument were carried to its logical conclusion, the approach would ensure dismissal of any civil suit:

If correct, the Defendants’ conceit that a claim fails if the factual allegations are “consistent with” both the claim and an hypothesized lawful explanation would mean that a claim could survive a motion to dismiss only if there were no possible innocent alternative explanation. Put another way, Defendants’ analysis of the Complaint assumes that a claim survives a motion to dismiss stage only if the allegations show that the claim is factually certain.

2.) The Defendants’ Fail by Their Own Standard

The lacrosse players’ attorneys further contend that even if Judge Beaty rejects the wording of Iqbal and decides to evaluate the summary judgment motion on the basis of which side presented the more convincing explanation, the summary judgment motion nonetheless should fail. This passage is from the brief filed by attorneys for the falsely accused players, Brendan Sullivan, Barry Scheck, and Richard Emery:

On the facts alleged, however, it is the City Defendants’ “alternative explanations,” not Plaintiffs’ claims, that are implausible: the Amended Complaint alleges facts that, taken as true, demonstrate that the City Defendants were aware of overwhelming proof that no crime had occurred, and yet still caused Plaintiffs to be arrested, indicted, and publicly vilified in the absence of any probable cause. Iqbal does not permit courts to choose between competing “alternative explanations” for well-pleaded factual allegations, only to determine if there is more than a “sheer possibility” that Defendants acted unlawfully.

The Cooper/Thomas brief and a reply brief filed by Bob Ekstrand, who represents three other unindicted players, make the similar point: that if Judge Beaty wants to get in the business of deciding which side’s claims are more “plausible,” it’s pretty clear that Durham and Duke, not the lacrosse players, fail the plausibility test.

3.) Iqbal Doesn’t Help Defendants in Cases with Lots of Available Facts

In the opening section of their brief, attorneys for the three falsely accused players make this case bluntly, as they dismissively reject the argument presented by the city, disgraced ex-DA Mike Nifong, and the DSI lab:

In supplemental briefs, the wrongdoers behind the Duke lacrosse case—one of the best-documented episodes of police and prosecutorial civil rights abuses in modern history—contend that their misconduct can never be the subject of a federal action because the pleading requirements of Rule 8(a) present an insurmountable barrier. They declare that the well-known facts of the Duke lacrosse case are “implausible,” and that the Court should simply disbelieve them and dismiss the case before discovery even begins.

This point is, perhaps, the most glaring difference between Iqbal and the lacrosse case. In Iqbal, virtually none of the material relating to decisions made by ex-AG Ashcroft and ex-FBI director Mueller was publicly available at the time the suit was filed. In the lacrosse case, on the other hand, copious facts already are in the public domain (while, of course, much more should come to light in discovery). If any case should survive an Iqbal motion, then, it’s the lacrosse case.

4.) Iqbal’s Contextual Requirement Helps the Lacrosse Players

Briefs for both sides pointed to the Supreme Court’s context guidance in Iqbal: the law “oblige[s] a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible . . . [This] context-specific task … requires the reviewing court to draw on its judicial experience and common sense.” As the players’ attorneys point out, however, it’s unclear how either the city or (for the unindicted players) Duke think that the context of 2006-2007 events in Durham could possibly help them. Here’s a passage from the Cooper/Thomas brief:

The context of Plaintiffs’ Complaint should likewise be considered here, just as Defendants urge, but it does not help them because it is radically different from Iqbal. The Duke rape hoax is the most infamous investigation of a non-existent crime in American history. It convulsed the State of North Carolina and dominated the national news media for a year. The misconduct was so pervasive and so toxic that the Attorney General of North Carolina took the case away from the Durham Defendants . . . In this context, it is the Defendants’ mind-numbing repetition that they were all “just doing their jobs” that is totally implausible as an alternative explanation for the wrongs pleaded in the Complaint.

It’s hard to disagree with that conclusion.

5.) Two Post-Iqbal Cases Help the Lacrosse Players

While Iqbal is a very new case, it has already come up in a few lower-court decisions—and two, in particular, seem to help the lacrosse players.

Attorneys for the falsely accused players cite a Maryland (4^th circuit) case, Swagler v. Harford County:

Since Iqbal, one district court has already recognized that the Fourth Circuit’s standard of review for civil rights complaints remains the same: “where . . . the defendant seeks to dismiss the plaintiff’s civil rights complaint, this Court must be especially solicitous of the wrongs alleged and must not dismiss the claim unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged.”. (Maryland)

And all three sets of attorneys cite the recent decision to allow a suit to go forward filed by formerly alleged dirty bomber Jose Padilla against John Yoo. From the falsely accused players’ brief:

The [Durham] Supervisory Defendants are independently liable for civil rights violations because they “‘set[] in motion a series of acts by others which the[y] . . . kn[ew] or reasonably should [have known] would cause others to inflict the constitutional injury.’” Spell v. McDaniel, 591 F. Supp. 1090, 1110 (E.D.N.C. 1984) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). This principle was recently reaffirmed in the Padilla case, discussed above, which was decided after Iqbal and held that accused terrorist Jose Padilla had sufficiently stated claims against former Deputy Attorney General John Yoo.

6.) If the Defendants’ Pleadings Are True, Then the Constitution Doesn’t Exist in Durham

One element of the Duke-Durham response—that the lacrosse case was essentially business as usual in the XX City—provides an almost irresistible counter. Here’s an excerpt from the brief filed by the 38 unidicted players:

Durham insists that malice has not been adequately pleaded because the allegations against its Investigators are merely “routine investigatory activity.” This defense cannot be taken seriously: falsifying evidence, intimidating and tampering with witnesses, suppressing exculpatory evidence, and vilifying suspects in the media and by disseminating “wanted” posters are hardly routine government acts—and they are certainly not legitimate government acts. And of course the allegations should be examined in the context of Attorney General Cooper’s excoriation of Durham’s investigation. That Durham’s misconduct was outrageous does not make it implausible. What is implausible is Durham’s alternative, innocent explanation that its agents were simply doing their jobs in good faith.

Duke’s claim that ex-SANE nurse-in-training Tara Levicy’s repeated “evolutions” of her story represented nothing more than how all Duke employees would seek to cooperate with a legitimate law enforcement investigation is similarly shredded in the responses.

7.) Nifong

Finally, there’s the case of the bizarre brief filed by attorney James Craven on behalf of disgraced ex-DA Mike Nifong, a brief that essentially made no legal arguments but instead lashed out primarily at the falsely accused players. Because Nifong didn’t even try to make a good-faith legal argument, his brief is almost painfully easy to rebut. From the Sullivan/Scheck/Emery brief:

In his supplemental brief, Defendant Nifong makes no serious argument that the Amended Complaint fails to plead facts showing more than a “sheer possibility” he acted unlawfully. Nor could he. The North Carolina State Bar (in disbarring Nifong), the North Carolina Attorney General (in declaring Plaintiffs’ actual innocence), and the Superior Court for Durham County (in finding Nifong guilty of criminal contempt) all found more than a “sheer possibility” that Nifong engaged in wrongdoing. Perhaps most telling is Nifong’s suggestion that the Amended Complaint might be too long.

As we know, ex-DA Nifong never did like to read case-related material, so perhaps that complaint is understandable.