Friday, September 13, 2013
Attorneys for the three falsely accused players have filed their reply to the City of Durham’s brief, the final stage before the Supreme Court will decide whether to hear the appeal.
A brief reminder on how we got here: a three-judge panel of the 4th Circuit essentially sided with Durham, dismissing all but one state claim on the grounds that the police were honest with Mike Nifong (acting, at the time, in his improper capacity as supervisor of the pre-indictment police investigation) about the evidentiary weaknesses in Crystal Mangum’s wild allegations; and a grand jury (acting, in the case of Sgt. Gottlieb’stestimony, on an erroneous recapitulation of the facts) returned indictments, breaking the chain between the police misconduct and the arrests.
The falsely accused players appealed to the Supreme Court, citing three lines of argument. First, their brief noted that several other circuits had held that civil liability ensued for pre-indictment police misconduct, even when a prosecutor secures an indictment; and that the Supreme Court, in oral arguments for a case ultimately settled on other grounds (Pottawamie County), appeared to agree. Second, the petition suggested that the 4th Circuit had strengthened a circuit split on the question of whether police officers fabricating evidence during an investigation violates the Constitution. Finally, the players’ filing noted that even on its own terms (that an indictment wipes clear the city’s federal liability for everything that occurs before) the 4th Circuit’s ruling made no sense, given that the improper conduct by city employees (the harassment of Elmostafa, Sgt. Gottlieb’s magical “notes”) came after indictments occurred.
Durham countered by reiterating its traditional line of argument, which was previously summarized by Judge Beaty: that “no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”
The players’ reply opens with this wonderful line: “In a brief in opposition that is long on invective—and, for that matter, just plain long—[Durham] respondents seek to hold petitioners to an impossible burden.” The Durham argument amounts to a suggestion that because the Supreme Court has never before considered a case precisely like the lacrosse case (was there such a case?), the Court should allow the 4th Circuit decision to stand. But the Supreme Court often hears cases that involve previously-unseen facts; the issue, as the reply brief correctly notes, is whether this case illustrates a split between the federal circuits on an important issue. And Durham never really argued otherwise.
The reply brief makes three central points:
First, the brief dismisses Durham’s efforts to distinguish its conduct from cases in other circuits where governmental agents were held liable for federal violations. The city had claimed that all of these cases differed from the lacrosse case because in each of them, police had not fully shared information with the prosecutor, but had instead misled or withheld evidence from the prosecutor, which the Durham Police did not do. But the players’ reply brief observes that the circuits whose opinions are in question (the 2nd and 6th) did not, in fact, make such a hard and fast distinction, and certainly did not suggest that facts like the lacrosse case—in which police conspired with a prosecutor acting as their de facto supervisor to produce evidence to frame innocent people for a crime that never occurred—should be shielded from constitutional claims. Indeed, the brief notes that one case on which Durham relied (Wray v. City of New York) actually appears to back the players’ position, not Durham’s, on this point.
Second, the brief reasons that the arguments in Durham’s filing “do not pass the smell test” regarding the city’s attempts to differentiate its behavior from earlier cases in which federal courts had found that “the fabrication of evidence at the investigation stage, standing alone, gives rise to a constitutional violation.” For instance, the brief observes, the City had tried to distinguish its behavior from a 1st Circuit case, Limone v. Condon, on grounds that the plaintiff in Limone was falsely imprisoned using fabricated evidence, while the lacrosse players were only falsely arrested, detained, and would have gone to trial but for a 9-8 decision by the State Bar to bring charges against Nifong. Yet the case that Durham believes helps in cause in fact says that “if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” Durham thinks that Limone helps its cause?
Finally, the brief cleverly uses its rebuttal of Durham on this point to remind the Court that the behavior of the lacrosse case was, in a way, more egregious than the cases cited by either side. It’s true, the brief notes, that most of the cases involving constitutional claims based on police misconduct involved the police behaving improperly toward the prosecutor. But that’s because, in each of these cases, the prosecutor wasn’t himself involved in a conspiracy with the police to fabricate sufficient evidence to secure indictments. It’s not as if any circuit other than the 4th Circuit has held that this sort of record should be shielded from constitutional challenge as long as the prosecutor managed to fool a grand jury into returning an indictment. For instance, the brief points to a 5th Circuit case, Hand v. Gary, to explain that “a prosecutor’s intervening action ‘remain(s) tainted by the malicious actions of the government officials’ either if the officials ‘join in malicious prosecution by prosecutors’ or if the officials’ malice ‘results in an improperly motivated prosecution without probable cause.’”
The Court does not accept many cert grants. But if the justices decline to hear this case, and thereby allow the 4th Circuit ruling to stand, they’ll be saying that a victim of a police-prosecutor conspiracy to create evidence to indict the victim without merit has no federal constitutional claim in six states. That would be a terrifying precedent.