Ekstrand Filings

Last week, Bob Ekstrand—on behalf of lacrosse players Breck Archer, Ryan McFadyen, and Matt Wilson—filed a lengthy series of responses to Duke, Duke Hospital, and various Durham officials.

Ekstrand urged a broad view of case, with events the unfortunate if likely outcome of the Duke/Durham policy of treating Duke students as second-class citizens in the city: “It was,” he wrote, “not the natural consequence of a false allegation made by a drug-addled woman who, at the time, was in the midst of an apparent psychotic break, in police custody, and in the process of being involuntarily committed. It was the product of a well-worn policy and custom of police to deprive ‘temporary residents’ of their constitutional rights in all encounters with law enforcement. So ingrained was Zero Tolerance in the police apparatus that, six months into the “fiasco,” when news reports unmistakably documented Sgt. Gottlieb’s miserable record of deliberate, inhumane violations of Duke students’ rights, the Durham Police Department’s Internal Affairs Chief reflexively held a press conference to say that Sgt. Gottlieb was following his ‘orders’.”

Some of the highlights:

1.) The lawsuit has a legitimate civil rights claim, since the matter involves an established city policy to deny rights to a class of individuals.

There is no doubt that the City and its Police Department, are responsible for the violations of Plaintiffs’ federal rights—just as Duke and its Police Department were responsible for the violations of Plaintiffs’ federal rights—through their official policies and their customs. That is particularly true of their jointly devised and jointly executed Zero Tolerance Policy, the application of which the [original complaint] describes in vivid detail, from its application in the time before Mangum’s bogus claim to the period covering the “investigation.”

2.) The March 2006 non-testimonial order, which Ekstrand correctly noted “fabricates and omits material facts,” puts both Durham and (through former SANE nurse-in-training Tara Levicy) Duke on the hook.

A reasonable officer in Gottlieb’s, Clayton’s, and Himan’s position would know—even to a moral certainty—that what they were doing violated clearly established law. Further, a reasonable officer would also know that leaking the NTID Order they obtained by fraud to the press to ignite a media firestorm and to publicly vilify [the lacrosse players] not only violates clearly established law, but is also arbitrary.

3.) Ekstrand easily rebuts the bizarre Duke (and, to a lesser extent, Durham) claim that the essence of the players’ case was an assertion that they had a right not to be investigated.

Plaintiffs do not contend that they have the right to remain free of investigation or that investigations by nature are extreme and outrageous conduct. Instead, the difference is that in this instance, the fabrication and other actions of the City Defendants were used to continue the investigation, in furtherance of the Conspiracy to Convict, even after they knew that neither Plaintiffs nor their teammates were guilty of anything, and thereby continued to subject them to public trauma and humiliation.

4.) Duke’s September 2006 suppression of the Duke Students for an Ethical Durham voter registration drive (which included the three Ekstrand plaintiffs) exposes the University to civil liability.

The voter registration effort was a lawful attempt to redress Durham’s discriminatory custom and policies that abused the criminal laws and processes in all matters where “permanent residents” complained of “non-permanent” residents of North Carolina. Defendants’ seizure of Plaintiffs and the confiscation of their registration forms violates federal voter registration law and was in furtherance of the unconstitutional Zero-Tolerance Policy for “non-permanent” residents. This is an overt violation of Plaintiffs’ First, Fourth, and Fourteenth Amendment Rights.

5.) The efforts of Durham employees (chiefly CrimeStoppers head/acting police spokesperson David Addison), figures to whom Durham had improperly delegated authority (Mike Nifong) and various Duke employees, including faculty members to “break” the lacrosse players’ alleged “wall of silence” violated the players 1^st amendment rights.

The complaint alleges multiple admissions by Defendants who openly confessed that the conscious object of their conduct was to coerce Plaintiffs into speaking, or, in the language of the element, to chill Plaintiffs’ exercise of their protected right not to speak. For example, on March 25, 2006, Addison admitted publicly—on television—that there would have been no NTID Order (and, of necessity, no fabricated, sensationalized Affidavits) if the Plaintiffs had cooperated with Gottlieb and Himan. Nifong later admitted in sworn testimony—twice—that his sole purpose in publicly vilifying Plaintiffs was to coerce their speech.

5a.) What motivated the campaign of vilification? Ekstrand theorizes that the goal was to coerce a false story from the lacrosse players:

The motives of the conspirators [in going public with their false claims of a crime, from 23 March 2006 through mid-April 2006] were to retaliate against Plaintiffs for exercising their right not to speak or submit to police interrogations, to coerce Plaintiffs into providing false inculpatory testimony through the continuing threat of a prosecution that Plaintiffs knew to be a frame up and to prevent the disclosure of the enormity of their misconduct so they could not be held accountable for it in a federal civil rights action such as this one or in a federal criminal prosecution for obstruction of justice and criminal conspiracy.

6.) Tara Levicy was a critical component of the conspiracy, since her repeated alterations of her story—to conform to whatever theory of the ‘crime” Nifong happened to be espousing—suggested a “meeting of the minds” between Duke (through Levicy) and Durham authorities.”

The falsifications in the [March 2006 Levicy report] were plainly designed to fabricate a forensic medical record of things that did not happen, responses Mangum never gave, and evidence that did not exist, all designed to corroborate the sensationalized version of Mangum’s account that Gottlieb falsely reported in his factual sections of the application for the NTID Order . . . Another “meeting of the minds” involving Duke SANE Defendants is Levicy’s proffered testimony calculated to save Mangum’s identifications from suppression. The evidence that Mangum was incoherent, if not suffering from psychotic delusion, in the early morning hours of March 14th was a significant basis for excluding any in-court identifications. Levicy proffered testimony to rebut the evidence of psychosis that initiated her commitment proceedings. Nearly a year after the SAE, Levicy agreed to testify falsely that Mangum “could always speak articulately” and that she was “very alert.” Levicy proffered the foregoing fabricated testimony on the evening of January 10, 2007 just before Nifong quit the case.

7.) Despite the assertions of Duke attorneys, the lacrosse players never alleged medical malpractice against Levicy—the standard, Ekstrand contended, is entirely different.

To the extent that SANE Defendants could possibly be construed as presenting a question of law, the law in North Carolina on this issue, is well settled that there is a very important distinction to be drawn between the work performed by a forensic nurse examiner verse providing health care to a patient. See, e.g., N.C. GEN. STAT. § 90-171.38 (2008). Levicy conducted the examination of Mangum in her capacity as a member of the DUHS and Duke University nursing staff and the DUHS SANE program as a SANE­in-Training, having been retained to provide forensic medical evidence collection and analysis services in conjunction with and for the purposes of the police investigation of Mangum’s false allegations. Defendants fail to recognize that in this capacity, Levicy acted under color of state law.

Ekstrand’s filings also address several other arguments raised by Duke and or Durham in their responses to the civil suits. He contends that the showing of racial animus toward the players by both city and Duke employees provides grounds for a civil rights suit, even though this provision of the law usually is reserved for minorities. And he also effectively challenges the Duke/Durham arguments that the case should be dismissed because players were never charged.

Perhaps the most interesting sections of the Ekstrand filings comes when he addresses the troubling pattern of the defendants—especially Duke attorneys—”in recasting Plaintiffs’ allegations to find a foothold for their arguments” Many elements of original complaint, he noted, were never addressed, in part because both Durham and (especially) Durham authorities mischaracterized the players’ claims.

He adds that “the SANE Defendants make several arguments for dismissal of Plaintiffs’ negligence claims, all of which fail because they all engage in cherry-picking and recasting the Plaintiffs’ allegations in an effort to inaccurately redefine the active course of conduct alleged by the [original] Complaint.”

This pattern most clearly manifests itself in the oddest Duke assertion—that the lacrosse players’ suit against Levicy asserted that Levicy should be liable merely because she provided evidence of a crime to police officers. Ekstrand’s reply:

The SANE Defendants forget the facts as they are alleged when they assert that allowing Plaintiffs to proceed on this Cause of Action would “deter witnesses from coming forward with evidence.” Plaintiffs hope that this action has a deterrent effect, but disagree as to what conduct will be deterred. As alleged in the [original complaint], the conduct at issue is not the act of “coming forward with evidence”; rather, the conduct to be deterred is that of the SANE Defendants: the formulation and execution of a calculated, deliberate scheme pursued by multiple parties to abuse the power of the State for the purpose of convicting innocent persons for a crime the defendants knew did not occur.

Why Duke attorneys Jamie Gorelick and Dan McLamb gave Ekstrand such an opening by wildly mischaracterizing the claims of the lacrosse players remains one of the mysteries of the civil case.