Monday, July 20, 2009

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 (4th 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.


Debrah said...

Among the list of glaring reasons outlined in this post explaining why Iqbal does not apply, perhaps the one which tops the list is the fact that the public was well-aware of the events taking place during the Lacrosse Hoax.

In the Spring of 2006 and beyond, this case was not only one of national interest, but of international interest.

The DPD, Nifong, Duke University, and much of the Durham community had their game going.

And it was clearly a deliberate attempt to hype and sustain false charges.

Flimsy comparisons using Iqbal cannot ameliorate what everyone knows to be unadulterated facts.

Bill Anderson said...

The main thing to keep in mind is that the police "investigation" was no investigation at all. It was a thinly-disguised attempt to railroad innocent people by grasping at straws and trying to pound square pegs into round holes.

I always was amazed at how the police managed to try to piece together this and that into an attempt to demonstrate their claim. As investigations go, it was the opposite of how real investigations into rape and assault are done, and the Durham authorities know it.

The game was to keep this charade going long enough to see if they could get it in front of a Durham jury that had been conditioned for more than a year to think that Nifong had a legitimate case. From the NAACP to the members of the Duke faculty, the various leftist organizations around Durham did their best to square the circle and demand guilty verdicts.

(Yes, the NAACP tries to say that it was not implying guilt, but one look at its website and the public statements from Irving Joyner and Al McSurely immediately rule out that lie. And while I am not privy to private conversations, I can only imagine what these people were doing in private and behind-the-scenes activity to ensure a guilty verdict.)

One thing we do know for sure is that this entire episode was a sham, and all of the principals knew it. They just could not publicly admit what they knew in private, and that was that they had painted themselves into corners and did not want to have to walk on wet paint. Thus, they brought on these lawsuits by their own dishonest behavior.

A Duke Dad said...

How to be a Lawyer:

1 - If the facts favor your client, then argue the facts.

2 - If the Law favors your client, then argue the Law.

3 - If neither favor your client, then give 'em hell. (Wild theories, red herrings, drag it out forever & hope the other side gets tired of it all.)

Only two groups make out well from trials - Lawyers and (honest) Expert Witnesses.

For the parties and their families, it's hell.

Debrah said...

A former Duke professor, Henry Louis Gates, is in the news.

And take a look at the first words out of his mouth.

Gates should thank his lucky stars for where he is today.

He's now department head of African American Studies at Harvard, having left Duke in a huff back in the 90's because the school was lagging in its support of the brand of nonsense that he pushes.

Wow, has Duke changed since Skippy---his childhood nickname---pitched his temper tantrum back then.

Gates' area of study has always been the paper-thin academic fare KC chronicles so well; however, not on the embarrassing level as one Cornel West.

If this police account is true, this makes me very angry.

Who wouldn't call the police when you see someone trying to get into a house without a key? For all practical purposes, you are breaking into a house!

Gates should be glad there are authorities who will guard against such potential crimes.

But instead, we get the old "racist" mantra.

I'd love to just slap him.

Anonymous said...

Is Craven a Communist?

Anonymous said...

Excellent summary. What's the next timetable for the judge in this case?

Debrah said...


Family of NC murder victims back racial data bill

Jul 20, 2009

RALEIGH, N.C. -- Some North Carolina residents who lost family members to crime but oppose the death penalty are backing state legislation to allow a judge to consider data supporting racial bias.

Three men who lost children to killers spoke out at a news conference at the state capital in Raleigh on Monday. Andre Smith of Raleigh said he didn't want lawmakers to think all crime victims' families opposed the legislation.

The bill would allow defendants to try proving that race was a significant factor in a death sentence or in a prosecutor seeking the death penalty. A judge who agrees could limit a death sentence to life in prison without parole.

Opponents say it won't work and would discourage prosecutors from seeking capital punishment.

Debrah said...


Duke to offer more early retirement packages

By Neil Offen : The Herald-Sun
Jul 21, 2009

DURHAM -- The head of the human resources department at Duke University anticipates that in the next couple of weeks, the university will probably move ahead with a second early retirement offer to employees.

The first offer -- made last month to bi-weekly, salaried staff on Duke's defined benefit program -- was accepted by 292 of the 825 employees who were eligible. The early retirements, more than twice as many as the university had expected to accept the offer, will save Duke around $15 million annually.

But the university still needs to trim more from its budget.

Duke administrators have said they need to cut $125 million from the university's $2 billion operating budget over the next three years. That's why, said Kyle Cavan-augh, Duke's vice president of human relations, a number of "work force management strategies" still will be needed.

A final decision on a new early retirement offer -- to generally higher-salaried administrative staff, who are on the university's defined contribution plan -- is still under strong consideration, Cavanaugh said.

"A final decision has not been made at this point in time," he said, "but I am anticipating that this would be a strategy we would deploy."

Administrators are trying to determine exactly who would be eligible for the new offer and exactly what the incentives would be to get staff members to accept it. The earlier offer gave employees an additional five years of service and five years added to their age, thus increasing monthly pension payments, which are calculated according to age and years of service.

Duke is proceeding very carefully in making the decision about the second retirement offer, Cavanaugh emphasized.

"We are taking a very deliberate approach," he said. "We want to make sure that we ensure that we can continue to provide high quality services with as little disruption as possible. We are trying to deploy all these various [cost-saving] strategies in a very methodical, strategic fashion."

Among other efforts Duke has made recently to cut the budget are instituting a partial hiring freeze and eliminating salary raises for all employees making $50,000 or more per year.

No justice, no peace said...

"The best and only safe road to honor, glory, and true dignity is justice."

--George Washington letter to Marquis de Lafayette, September 30, 1779

Debrah said...

Someone please review this and give an objective legal analysis.

No justice, no peace said...

Thanks Debrah for connecting the with the Gates arrest. I just saw the headline and didn't realize the "victim" was a professor, an AA professor, one associated with an "esteemed" school.

Before the Duke lacrosse case I would have been surprised that something like this could happen.

Now my initial reaction is that this is probably theatre. Knowing it was an AA professor almost certainly assures that he was generating a crisis.

One wonders how many hangmen's nooses were found on the door knobs. Or how much hate mail rests in his email account.

This is the legacy of the race, class, and gender warriors. Any who believe anything they say on any topic should begin from a position that is complete b.s. to serve radical political ends.

Anonymous said...

A review of the plaintiffs' and defendants' briefs establishes one proposition for me. That is, the defendants need to hire more better attorneys. When Linwood Wilson is your best advocate, your side needs some law skool.

In their briefs, the attorneys for Duke and Durham "fight" the Iqbal decision; whereas, the boys' attorneys wove it seemlessly into their argument. It was almost as if the holding in Iqbal was: "Duke lacrosse students can sue supervisory defendants."


Excellent legal analysis, Professor! I especially liked this quote: "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."


In the Gates matter, I can hear the Harvard professor putting a new spin on an old favorite: "Why arrest me when there are so many white non-rapists out on the streets non-raping?" When he left Duke, Henry Gates called the experience "the most racist experience of his academic life."

Interesting that I've already seen more proof that Gates was “exhibiting loud and tumultuous behavior” -- a picture of him yelling on his front porch in the custody of police officers -- than there ever was in the lacrosse case. Of course, that didn't stop Gates' lawyer, Harvard Law Professor Charles Ogletree, from declaring the porch incident to be "racial profiling" and joining Jesse Jackson on his radio show to talk about the Duke non-rape. MOO! Gregory

Gary Packwood said...

Bill Anderson :: 7/20/09 9:40 AM ...said...

...The main thing to keep in mind is that the police "investigation" was no investigation at all. It was a thinly-disguised attempt to railroad innocent people by grasping at straws and trying to pound square pegs into round holes.
I agree completely.

A relatively small number of people at Duke along with an even smaller group of people in Durham all had their version of The Ten Commandments for destroying young white privileged males and not one of those commandments assumed the need for a police investigation of themselves.

We need to see and broadcast those Ten Commandments before they are shared with other universities... especially Methodist affiliated universities.