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.