Responding to Nifong

The falsely accused players’ attorneys have filed a response to the 11-line motion to dismiss penned by Nifong attorney Jim Craven.

It makes two major points. First, while Craven and Nifong asserted (in lines four and five) of the 11-line masterpiece that the players had not stated a claim against Nifong for which relief could be granted, the players’ attorneys note that the allegations against Nifong include the disgraced ex-DA’s “involvement in the fabrication of false inculpatory evidence, the concealment of evidence of Plaintiffs’ actual innocence and the lack of probable cause against them, the intimidation of witnesses, and the making of false and inflammatory public statements regarding Plaintiffs’ supposed guilt—all of which resulted in the wrongful seizures of the three innocent Duke students and caused them to suffer substantial economic, emotional and physical harm, irreparable reputational harm, and millions of dollars in legal fees.”

Those, in short, would be claims under relevant federal and state laws.

Second, while Craven and Nifong asserted (in lines seven, eight, and nine) of the 11-line masterpiece that Nifong had absolute immunity, because all of his actions “were done in his role as District Attorney,” the players’ attorneys noted that “the mere fact that a defendant holds a prosecutorial title or position at the time of his alleged misconduct does not mean that he is entitled to absolute immunity. Citing a variety of Supreme Court precedents, the response brief concluded that “Nifong is liable for his investigative misconduct and false public statements in the same manner as any other law enforcement officer.”

In a timely reminder of this doctrine, the attorneys cited the Supreme Court’s just-decided Van de Kamp v. Goldstein, which explained that “absolute immunity does not apply” for a prosecutor’s “investigative . . . tasks.”

Essentially, Nifong performed three roles in the lacrosse case. First: from April 18, 2006 (the day he obtained indictments) until January 12, 2007, he served as the (corrupt, unethical) prosecutor in the case—for which he was disbarred and jailed for criminal contempt, but for which he cannot be sued under the doctrine of absolute immunity for prosecutorial functions.

Second: from March 24, 2006, when his DPD superiors instructed then-Sgt. Mark Gottlieb to take orders on the investigation from Nifong, until May 15, 2006, when he completed his investigatory work with then-lab director Brian Meehan, Nifong served as the de facto lead detective on the case. He revived this role periodically between May 2006 and January 2007, usually when he ordered henchman Linwood Wilson to “re-investigate” the case to develop new “facts” that conformed to whatever theory Nifong happened to be supporting at the time.

Third: between March 27, 2006, when he began his pre-primary publicity crusade, and mid-April 2006, Nifong served as the de facto public spokesperson for the Durham Police Department, regularly briefing the local, state, and national media on the progress of the “investigation” and the state of the “evidence” that the Police “investigation” he supervised had allegedly developed.

The 11-line brief filed by Jim Craven contended that Nifong is entitled to absolute immunity for all of these actions, apparently because all of these actions were proper prosecutorial functions. Perhaps if Craven had devoted more than 11 lines to his brief he could have provided a few facts that might have supported this argument. But as things stand now, as the players’ response brief points out, in claiming that the discredited ex-DA is entitled to absolute immunity for actions he performed in supervising the police investigation or serving as DPD de facto spokesperson, Nifong and Craven want a federal district court to overturn multiple Supreme Court precedents. That’s not likely to occur.