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.