Thursday, April 03, 2008

Reply to the Motions to Dismiss

Attorneys for Dave Evans, Collin Finnerty, and Reade Seligmann have filed a robust, 122-page reply to the parties’ motion to dismiss the civil suit against the city of Durham, various Durham officials and police officers, and employees of DNA Security. The reply cites 183 federal cases and 46 North Carolina cases to bolster its claim that the civil suit should proceed.

The civil suit itself rests on the overarching claim that

The “Duke lacrosse case” involved a coordinated campaign of politically- and racially-charged misconduct that was authorized and ratified by officials at the highest levels of the City of Durham; it involved longstanding policies, customs, and practices of the Durham Police Department that have not been changed and will continue to result in further misconduct; and it involved a DNA laboratory whose owner and Laboratory Director participated in a conspiracy to fabricate and conceal evidence.

The defendants based their various motions to dismiss on three major points: (1) that, as government employees or entities, they were entitled to either absolute or qualified immunity for their acts, even if those acts involved civil rights violations; (2) that the grand jury indictment, as a matter of law, proved that no malicious prosecution occurred; and (3) even if there were civil rights violations, and even if the grand jury indictment did not provide a sufficient shield for the defendants, everything bad that happened was Mike Nifong’s fault, and the disgraced former D.A. is solely and entirely liable.

Keeping in mind that, when evaluating a motion to dismiss, courts must accept the plaintiffs’ factual claims as true, the players’ reply aggressively rebuts each of these claims—with unintentional, if humorous, assistance from some of the defendants.

For instance, in his brief, Linwood Wilson demanded dismissal of the suit against him, claiming that he possessed absolute immunity as a former employee of Nifong. But Wilson elected to act as his own counsel—which perhaps was not the former investigator’s wisest decision. As the players’ reply points out,

Many of Wilson’s other cases [cited in his brief] actually reject his argument. See Gobel v. Maricopa County, 867 F.2d 1201, 1204-05 (9th Cir. 1989) (denying absolute immunity for role in false arrest, false statements to media, and illegal detention); Auriemma v. Montgomery, 860 F.2d 273, 279 (7th Cir. 1988) (denying absolute immunity for “unlawful investigative activities”); Joseph v. Patterson, 795 F.2d 549, 556-57 (6th Cir. 1986) (denying absolute immunity for participation in unlawful search and investigation of obstruction allegation). As the Sixth Circuit explained in Joseph: “when the nonjudicial official undertakes action on his own initiative or when he carries out administrative or investigatory functions of the prosecutor, he can only claim the affirmative defense of qualified immunity.”

Wilson, alas, was no more competent a legal researcher than he was a D.A.’s investigator.

The reply similarly cites myriad cases to reject claims by former Sgt. Mark Gottlieb and former DNA Security lab director Brian Meehan that they deserve absolute immunity for their acts.

The fall 2007 election season—and virtually every column on the case penned by the N&O’s Barry Saunders—featured heated remarks suggesting that the players deserved no damages because the charges were dismissed before trial. However effective such demagogic claims are in Durham’s poisonous political environment, the reply brief makes clear they have no legal standing. It observes,

Other Defendants . . . attempt to downplay Plaintiffs’ seizures as “temporary” to suggest that they are not actionable. See Addison Br. at 13. But the duration of custody is irrelevant to the fact that a constitutional harm occurs when one is arrested without probable cause. See United States v. McCoy, 513 F.3d 405, 412 (4th Cir. 2008) . . . As to Plaintiffs’ claims for reputational damages, it is well settled that because § 1983 incorporates “the common law of torts,” it permits a plaintiff to recover all damages that flow from a constitutional deprivation, including any damages for “impairment of reputation . . . , personal humiliation, and mental anguish and suffering.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) . . .

The case law establishes that a plaintiff need not have been convicted in order to bring a § 1983 claim under the Fourth Amendment for unlawful seizure without probable cause . . . The only prerequisite for such a claim is that the criminal proceedings have been terminated in the plaintiff’s favor . . . A “conviction” requirement would make no sense in the context of a malicious prosecution/unlawful seizure claim under § 1983: where, as here, defendants inflict constitutional harm by fabricating probable cause to cause a seizure, it would be folly to preclude liability simply because the charges were ultimately dismissed prior to conviction.

The brief cited four cases beyond the ones quoted in the above excerpt to make the point.

The city and its employees based much of their motions to dismiss on the assertion that the grand juries’ indictments shielded everyone except possibly Nifong from suits for civil rights violations. Their argument: “As a matter of law, a prosecutor’s decision to proceed or a grand jury’s decision to indict insulates all pre-indictment misconduct by others; second, . . . because Nifong had all of the relevant information relating to Defendants’ misconduct and decided to seek indictment anyway, Nifong’s decision was an independent and intervening cause of the constitutional deprivation.”

These contentions, appropriately, generated a strong response from the players’ attorneys: “The first argument is wrong on the law. The second would turn the law on its head,” by essentially saying that if police and prosecutors could conspire to obtain a fraudulent grand jury indictment, they never could be sued for civil rights violations. Indeed, as the brief observes, in this instance, “Defendants, knowing there was no probable cause to indict Plaintiffs, decided to fabricate inculpatory evidence, conceal evidence of actual innocence, and make false statements in bad faith in order to mislead the grand juries and effect seizures of Plaintiffs. Since the indictments and seizures were not only reasonably foreseeable, but the intended result of this misconduct, Defendants cannot now point to the indictments as ‘intervening causes’ of Plaintiffs’ seizures.”

For precedent, the reply brief cites White v. Frank:

The intervening acts of a grand jury have never been enough to defeat an otherwise viable [§ 1983] malicious prosecution claim. . . . And though an indictment by a grand jury is generally considered prima facie evidence of probable cause in a subsequent civil action for malicious prosecution, this presumption may be rebutted by proof that the defendant misrepresented, withheld, or falsified evidence.

* * *

As with the grand jury, . . . the public prosecutor’s role in a criminal prosecution will not necessarily shield a complaining witness from subsequent civil liability where the witness’s testimony is knowingly and maliciously false.

The players’ attorneys also note that the “blame-Nifong” defense doesn’t let Durham, its employees, or DNA Security off the hook:

Defendants are essentially arguing that even though Nifong joined with them in the unlawful scheme to indict Plaintiffs in the absence of probable cause, they cannot be liable because Nifong, as their co-conspirator, knew that they had also fabricated inculpatory evidence, concealed evidence of actual innocence, and made false and inflammatory statements in furtherance of the scheme.

This argument does not suffer for lack of creativity or nerve. In essence, Defendants take the settled law described in the previous Section—that a deceived prosecutor cannot shield a wrongdoer from liability—and flip it on its head, arguing that since Nifong was not deceived, his actions must have been independent.”

Moreover, the attorneys argue, Durham has misrepresented a key citation: “The City and Gottlieb rely on Rhodes v. Smithers, but as that case makes clear, the actions of a prosecutor serve as an intervening cause only where he or she acts in good faith.”

The players’ attorneys have little difficulty with one of the city’s less credible claims: that because Nifong was a county/state employee, neither the city nor its employees should be held liable for his actions—even though the DPD delegated to Nifong control of the police investigation. Carried to its logical conclusion, the city’s stance would emasculate a 1988 case called City of St. Louis v. Praprotnik, which maintained, “If . . . a city’s lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1983 could not serve its intended purpose.”

The reply brief also scoffs at the city’s claim that the DPD allowed Nifong to run the police investigation as part of “the normal coordination between municipal police officers and State prosecutors” that could not have “transformed him into a City official.” As the players’ attorneys point out,

Plaintiffs are not asserting that a municipality in North Carolina can ordinarily be held liable under § 1983 for the actions of a District Attorney in his or her traditional advocacy role. Rather, Plaintiffs assert that the City is liable for Nifong’s actions because its policymakers delegated authority over the Durham Police investigation to Nifong and because the civil rights violations arose from Nifong’s misconduct in that investigative role. [emphasis in original]

Finally, the players’ attorneys bluntly point to recent events to justify the continuing need for an injunction over criminal investigations involving both the DPD and the DSI:

The requested Injunction and Court monitoring are necessary because there is no indication that the City and DSI ever intend to take responsibility for their misconduct and implement reforms that would protect Plaintiffs and others. The City announced, to much fanfare, a blue ribbon commission to investigate the Durham Police Department’s misconduct in this case, and then promptly canceled it before it could hear a single witness from the City or Durham Police. The City then announced that Defendant Patrick Baker would be stepping down as City Manager, but only so that he would become the City Attorney, notwithstanding his role in ordering arrests without probable cause and approving the unconstitutional April Photo Array. Addison received a promotion. And while Meehan is no longer employed by DSI, upon information and belief Clark continues to run the company.

Given the overwhelming number of on-point cases cited by the players’ attorneys, it’s very hard to see any of the key figures in the case—Gottlieb, Wilson, Baker, Addison, Meehan, the City of Durham—prevailing in their motion to dismiss.


Anonymous said...

(2) that the grand jury indictment, as a matter of law, proved that no malicious prosecution occurred;

Oh, this is classic rich! It is another version of "the defendant, who is accused of murdering his parents, deserves lenience because he is an orphan."

So, even though Gottlieb and Himan lied, hid exculpatory evidence and fabricated other "evidence," the fact that their lies convinced a grand jury to indict is "proof" that there was a legitimate case.

They should not forget that statements from the DPD, and specifically David Addison, had just as much a prejudicial effect as the statements from Nifong, and contributed to setting an atmosphere in which grand jurors were eager to indict.

So, what is one more lie on top of another?

Debrah said...

KC outlines and explains everything better than the other blogs.

He makes us feel so well-tended.

I just want the discovery out in the open once and for all!

Anonymous said...

This powerful brief by Sullivan, Scheck, Emery and their colleagues only tells part of the story. Because their clients settled with Duke, the roles of Levicy, Arico, Wasiolek, Moneta, Brodhead, Duke police officer Day, and others are omitted from the narrative. It's like reading half a story.

Anonymous said...

I wonder just how many of the defendants and/or their attorneys upon reading the plaintiffs' reply reacted as Nifong did that day.

You know, "We're f**ked!"

Anonymous said...

Although probably not a legal term, "robust" is probably the best word to decribe the response.

Anonymous said...

Slowly, ever slowly, but in a steadfast manner the proverbial boot is beginning to fall on the Durham/Duke ass-clowns.

Please--oh, pleeeeease--dear Baby Jesus, let there be discovery.

Anonymous said...

I LOVE that slapdown! Defendants do not "suffer for lack of creativity or nerve".

Of course, for me the ultimate of both has always been describing Crystal as a 'shy, soft-spoken mother of two'.

Anonymous said...

The City of Durham's attorneys better examine the plantiffs' response at length and understand that they can not use logical fallacies as arguments. Unless the City of Durham has paid off the judge, it is clear that the City's attorneys are outgunned and destined to endure a sound legal ass whipping. The City's motion, as well as Duke's for that matter, were not well researched in terms of case law and legal precedent. Both Duke and the City would be smart to settle. But when have either done the smart thing ?

Anonymous said...

Excellent work by K.C. Johnson! I didn't have time to read the 120+ pages of the actual response. I did have time enough to read a well-crafted post about it. Thanks!

Anonymous said...

The defendants are indeed, one and all, fucked. The state's attorney general has declared the three plaintiffs innocent of the crime for which they were wongfully indicted? The prosecuting DA was disbarred for unethical conduct? Some of the defendants have given public testimony that they did participate in meetings to suppress evidence? The plaintiffs' allegations are all deemed true in a motion to dismiss. Oh yes, we all engaged in a conspiracy to intimidate witnesses, falsify evidence, suppress evidence, etc. but that is all perfectly legal behavior.

Pitiful. I can't wait for the motion for summary judgment.


Anonymous said...

CONUNDRUM: One of my nephews has just been offered a full-ride scholarship to Duke Law. Arrrrghhh. I think he knows little about the lacrosse scandal. What should I tell him?


JSwift said...

The plaintiffs' attorneys are far too charitable in their description of the Whichard Commission:
"The City announced, to much fanfare, a blue ribbon commission to investigate the Durham Police Department’s misconduct in this case, and then promptly canceled it before it could hear a single witness from the City or Durham Police. "

Despite its lack of meetings, the Commission nevertheless demonstrated that its purpose was merely to whitewash the DPD's involvement.

Judge Wichard met with Patrick Baker and City Attorneys on several occasions. After these meetings, Whichard disgraced himself when he parroted the aready discredited Baker/Chalmers explanation of the April 4 lineup as an attempt to identify "witnesses."

An investigative commission that takes direction from one of its targets lacks both independence and integrity.

Anonymous said...

Well, at least my kid is learning valuable lessons by being in the midst of this cesspool!

So long as he doesn't get
- murdered,
- harmed by the SWAT team that broke down the door and stormed the house w/ automatic weapons at the ready during one of the recent bad drug frames/busts on Duke students (but waited paitiently outside while negotiating to arrest the murder suspect),
- "othered" by the many malcontent, mush-headed activists,
- framed by the same crooked DAs who at least stood idly by while this monumental entrerprise was unfolding, or
- "taught" by any of the so-called educators who were "listening",

he will get a whole extra dimension to his education.

Anonymous said...

The reply brief looks beautiful. And I am happy to say that the immunity defenses now look weaker than I expected.


Anonymous said...

RRH, I hate to say this, since I think Durham is a dangerous place, but I'd be inclined to tell your nephew to take the Duke offer. Law school is hideously expensive and student loans can be oppressive. A free ride is hard to resist.

Anonymous said...


Tell your nephew to go to Duke law School and take advantage of all the opportunities Duke offers. It is a top notch law school on a beautiful campus in a crumby town, but alot of colleges are located in corrupt, crumby towns. Tell your nephew to be aware of the police corruption and gang activity so he should lock his door and watch his back just like he would in any other city.

I'm sure you will find 88 wacko, stupid professors at any liberal arts college in the country if you looked for them.

What you hopefully wouldn't find at any college in the country is a Presdident who is as weak and spineless as Brodhead and a cast of fawning adminstrators. But the existence of these idiots shouldn't hurt your nephew's experience unless he hires a stripper who turns on him.

Anonymous said...

Is it too much to ask for more from local government? At the risk at sounding like a racist, is it possible that black voters ask little more of their candidates than to be black. Before that question is answered, too quickly, by pointing out a lot of the "bad" guys are white, take another look at the real underpinnings of power in Durham. How many places could of Chalmers gotten away with his always absent act? And how easy it was to for Nifong to pander to a racist agenda during his election?

W. R. Chambers said...

Assuming he is judgment proof, whatever else may said about Mr. Wilson, at the end of the day, when the case is over and the parties compare what they spent to what they got, he may not have any regrets. While he may be foolhardy to represent himself, it is unlikely he can afford a lawyer and he gets some credit, if not sympathy, for speaking for himself rather than allowing a default to enter.

Anonymous said...

RRH --

I agree with the commenters who say to take the full-ride. Starting a career without a 6 figure school debt is a big plus.

It goes without saying, however, (but I will anyway) that anyone who spends time in Durham / Duke longer than it takes to drive through must keep a well-read copy of UPI close at hand.

To attend Duke (especially the law school) and not have a thorough understanding of the details of the Nifong scandal is pure folly.

Jim in San Diego said...


Didn't your child apply elsewhere?

Very risky to apply only to Duke, for a number of reasons, some related to finance, some related to physical safety. (see comments by anonymous 10:46.)

Have you considered home schooling, as a better alternative than attending Duke University under the current regime?

Jim Peterson

Anonymous said...

Thank you to Scott, TexasMom, and "anonymous at 8:12 AM"!

I will send your comments -- and any others I may receive here in the next few days -- to my nephew and his parents via copy-n-paste and e'mail.


Anonymous said...

Is Meeham a Communist?

Unknown said...


I have a child that is a senior at Duke right now. I would love to have our next child attend Duke as well. For anyone to think that there aren't liberal professors all over the country is ludicrous. There are many dangerous cities where there are great schools. Our state school that is in a quaint, safe, and lovely little town had 4 sexual assaults on the campus just last month. There is no where in the country that is perfect.

Anonymous said...

"the SWAT team that broke down the door and stormed the house w/ automatic weapons at the ready during one of the recent bad drug frames/busts on Duke students (but waited paitiently outside while negotiating to arrest the murder suspect)"

Are those Duke students whose door got broke down white? If so, perhaps a double standard??? The 17 year old murder suspect of Eve Carson who is innocent until proven guilty was treated with kid gloves by the NC Juvenile Justice System, not once, not twice, but more times than you should count. See Friday's N&O for sickening details of how the system failed(or on purpose treated him gently) time after time after time. Was the suspect handled gently by his own in those prior cases for some reason? We will never know if Eve Carson would be alive today if the system had operated properly, but one must wonder...

Anonymous said...

I'm a Duke alum and have 4 kids yet to graduate from high school. I have not encouraged either of the 2 oldest to apply to Duke and both of them will be going to other top-rated engineering schools. However, I would toss all caution to the wind for a full ride--I'd just tell them to cross their fingers and be very pleasant to any Durham cop they happen to talk to, and call me immediately afterwards. I'd also make sure they had an attorney's phone number with them at all times.

But a full ride is like winning the lottery. Once in a lifetime. But if I had a choice of full rides, I'd probably recommend that someone take the other one!

Anonymous said...

aleva is leaving duke

Anonymous said...

Thank you Jim Peterson, Kate, and "anonymous at 9:52 PM". Your comments have been sent to my nephew and his parents.

I think it was good advice to have handy a lawyer's phone number in case of contact with the Durham "authorities". I happen to be a lawyer, but I am not in and never will be in Durham if I can help it. As a longtime neighbor and student of Mexico, I have advised people who were going to Mexico that if they were stopped by the Mexican police in the middle of nowhere, the best thing they could do is start shooting -- because it's probably their best chance at living at that point. Of course, I don't think the Durham police have reached Mexican-levels of corruption, but I think that a business card from Brad Bannon might be as useful there as a gun would be outside Juarez.


Anonymous said...

I would think long and hard about the offer of a full ride to Duke. If there had been some real changes made at either Duke or in Durham I would be more likely to advise taking the full ride. However, it seems that little if anything has been done.
My duaghter has just completed her applications to law school and though she only applied to southern schools Duke was not among them as we told her our money would not be going to that administration. It will not be on either of her two brother's choices of law schools either. There will be no change at Duke until the administration and board of trustees feels an economic consequence to the actions that they took (or failed to take). By extension, the Durham community, whether they like the existence of college students or not, depend on the monies that they inject in the local economy.
While a free ride to a school is something that (particularly in this day and age is hard to turn down) there is also the question of principle (which ultimately must be given a higher priority since one must live with one's conscience). Ultimately, your nephew will need to determine whether money is more important that principle.

Anonymous said...

A full ride to Duke Law School - that should take about a microsecond to accept the offer. I assume the guy/gal applied to the school and fellowship. If you can not get into harvard, Duke is a great second choice,

mac said...

The defendants response in the present case - (and the community's gripe) - that there was no harm done to the accused students, since the young men weren't convicted is like arguing that a falsely accused man on death row has no greivance unless he's actually put to death.

(Have I seen this posted somewhere else before?)

Anonymous said...


Congratulations to your nephew for his being favorably viewed by Duke law.

I am going to disagree with many on this thread. Without knowing your nephew's other alternatives, I don't think anyone could provide sage advice. If he has no other alternatives, then he may want to create some. Choosing the only alternative despite it being bad is not good judgment. If however he views Duke as a very good alternative, then financing is clearly a win.

But my advice would be this:

Try to determine what type of law one wishes to practice. Then try to determine who is/are the best teachers in the country specializing in that type of law. Then apply to those schools (after interviewing the professors to determine fit) and if accepted, figure out a way to go -- whether full grant-in-aid or loans or whatever.

Don't let money drive the decision.

Let a full career -- 40+ years -- be the important determinant.

That's my 2 cents.

Anonymous said...

"Interview the professors to determine a fit" - Is this a joke?

river rat said...

Free Ride at Duke Law???

Like placing your loved one on a bus driven by a blind drunk -- through a crime ridden ghetto in a city run by black racists and a black pandering city council ---- for transportation to a University staffed with one of the largest ratios of racists, feminists, leftists and dangerously incompetent jerks in the country..

Some "rides" are not worth the risk at any price ---- even free..

One can not live their college years in a vacuum -- immune from the positively poison filled atmosphere the public witnessed on the Duke Campus, Duke Administration and in charge in the city of Durham.

Please note - that to date, NONE of the Administration or Faculty have been slapped down or dismissed for their obnoxious and unconstitutional behavior in conflict with their fiduciary responsibilities to the CHARGED students..

Anonymous said...

I have met Duke law students, and they do not care about this case. They are headed for Wall Street, and as such, will not really be involved in prosecution, wrongful or not.

Tell him to come on down. Just don't leave campus.