Setback for Durham?

The dragging out of the civil suit briefing process—caused largely by Mike Nifong’s ultimately unsuccessful attempts to use bankruptcy proceedings to get out of the civil suit—has resulted in some bad luck for Durham.

On Wednesday, the Supreme Court handed down a ruling that could weaken the Durham defendants’ efforts to use a claim of qualified immunity to avoid liability. Given that this claim formed a central element of Durham’s pleadings, the setback could be a formidable one indeed.

The Wednesday decision, Pearson v. Callahan, arose out of a Utah case involving a warrantless search. The victim of the search filed suit under §1983 (as the lacrosse players have done). The circuit court allowed the lawsuit to go forward. But the Supreme Court overturned decision, and instead held that the police officers in the Utah case were entitled to qualified immunity for their actions.

Good news for Durham, right? Not exactly. The Court stated in Utah, The unlawfulness of the officers’ conduct in this case was not clearly established.” Accordingly, the officers were entitled to qualified immunity under the standard laid down in Wilson v. Layne: the “objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.”

Unfortunately for Durham, no one (outside of Victoria Peterson and some Group of 88 extremists) could assert with a straight face that the actions of figures such as former Sgt. Gottlieb met a test of “objective legal reasonableness.”

Problematically for Durham, however, Justice Alito, writing for a unanimous Court, devoted most of his ruling not to the specific facts of the Utah case. Instead, he called for more flexibility in how lower courts address claims of qualified immunity presented by municipalities or municipal employees.

In a passage that almost read as if it came from briefs filed by the lacrosse players’ attorneys, Alito wrote that “when qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff’s claim or claims may be hard to identify” without the full discovery process that a summary judgment would prevent.

Accordingly, the Supreme Court held that “the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”

Any ruling that allows more discretion on whether a §1983 lawsuit can go forward is bad news for Durham—since the city essentially has no case beyond a claim of qualified immunity. A ruling cautioning that “when qualified immunity is asserted at the pleading stage [as Durham has done], the precise factual basis for the plaintiff’s claim or claims may be hard to identify” is especially bad news for Durham: does anyone really believe that if and when the players’ attorneys are allowed to depose Gottlieb and his cronies, and get access to internal DPD emails, that “the precise factual basis for [their] claim or claims” will not become clearer?

If Judge Beaty were looking for guidance in how to handle this portion of the summary judgment stage, Pearson would seem to be on point.