Friday, January 23, 2009

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.


Anonymous said...

On the same note, I remember that Sam Alito attended the party in Washington, D.C., that was held to honor K.C. and Stuart for their book. Hmmm. One hopes that the good sense in UPI might even rub off on the courts!

Durham has been demanding that its employees be granted immunity precisely to avoid discovery. The SCOTUS decision is not going to be very helpful in that regard, and it provides a nice roadmap for Judge Beaty.

However, if I know the attorneys for Durham, they are going to insist that Pearson lets them off the hook. Sorry, folks, it doesn't work that way.

Anonymous said...

Wow, what a legal education we are getting here. Thanks for being on top of this ruling. Did you discern this Prof. Johnson or did somebody tip you off to the implications for Durham arising from this ruling? How easy would this ruling be to ignore by a judge somewhere (say in North Carolina)?

Anonymous said...

Is it just me, or are others also sensing that it is beginning to rain sh*t in Durham. As this long and ever-winding Hoax approaches end-game, increasingly--and with accellerating velocity--breaks continue run against Durham, Duke, Broadhead, G88, Steele, et al. Dicta from the Pearson decision is yet another sign--albeit subtle--of good things to come.

Grab your wallets Durhamites--the tax man commeth--and its the former Duke Lax team!

Anonymous said...

The sad part is that there are some good, decent people in Durham. Unfortunately, there are far too many ambulance chasers, how can we possibly help out the ambulance chaser types. Hey are a truly pathetic bunch. Like dome of the big league athletes, I guess it's time for these Gang 88 members to go find a nice rock and crawl under.

Anonymous said...

To 9:42,

No one can ignore Supreme Court rulings or language like this and not expect to be overturned and embarrassed on appeal...something every sensible judge tries to avoid. Obviously in the Duke case a lot of people ignored a lot of important laws/ judicial decisions protecting the rights of the accused, but this is instruction intended for a judge not a policeman. So, NOT EVEN IN NC will they try to ignore this!

I thought the case was already clear of summary judgment, but this really seals the deal. Excellent news. And, yes, bad news seems to pile on top of bad news for Durham/Duke.

BA, Very glad to hear Samuel Alito is paying attention to UPI. That's very good news, too!


Anonymous said...

I was among those fortunate to attend the book signing in Washington, D.C. for UPI. Among the attendees was Justice Samuel Alito, with whom I had a long conversation about the Duke lacrosse case (I also had a conversation with journalist Sam Donaldson... but that's another story).

Never in my life did I expect to have an opportunity to visit with a Supreme Court Justice, and here was one in which the Justice had a sincere interest in the various injustices revealed in the Duke lacrosse case. I remember thinking then, "If only a way could be found to get a Duke lacrosse trial to the Supreme Court!". That seemed unlikely then, as it does now... but, one never knows. We never thought that we'd hear the word "Innocent"... but we did!

Anonymous said...

Well, this puts the Federal Judge in the LAX case in a pickle. He either has to allow full discovery of any issue related to the Summary Judgment Motions, or risk being over-turned on appeal because he did not. Of course, he could just deny all the motions!


I felt the way some courts handled discovery before hearing dispositive motions was unfair -- even when it benefited me in the representation of a defendant. Good to see that the SCOTUS is not naive enough to believe that defendants would be forthcoming before a Summary Judgment hearing (even though the rules require automatic discovery of some information).


Did you hear that? That was the sound of Durham and Duke opening their velcro wallets. They cannot afford discovery, too many careers hang in the balance.


As always, and I'll say it slowly this time: T h e s e a r e m y o p i n i o n s o n l y. MOO! Gregory

One Spook said...
This comment has been removed by the author.
Anonymous said...

Is Alioto a Communist?

Gary Packwood said...

Anonymous 1/23/09 9:46 PM said...

...Grab your wallets Durhamites--the tax man commeth--and its the former Duke Lax team!
Exactly but did you notice that The City of Durham and Durham County are talking merger again? Perhaps they are trying to figure out a way to spread the pain when 'the tax man commeth'?

Anonymous said...

According to Reuters, SEC has, appropriately, launched an investigation into Robert Steele's comments publicly about the stability of Wachovia while he was, secretly, trying to dump it. He has now ruined two venerable institutions by his poor leadership as chair, Wachovia Corp and Duke University.

Anonymous said...

Folks, a bit of civil procedure. Currently before the court are motions to dismiss under Rule 11. The standard is, under no circumstances as alleged in the complaint can there be liability. A Rule 11 motion is NOT summary judgment.

Summary Judgment is under Rule 56 and only comes after discovery is complete. The standard here is, after looking at all record evidence, no reasonable jury (given the law) could find for Plaintiff.

A Rule 11 motion is very difficult for a Defendant to win. The majority of the Rule 11 motions in this case will be denied and discovery will eventually commence. In federal practice, it takes 9 to 12 months for discovery to be completed. At that point Rule 56 motions will be filed and can take as long as 12 months to be ruled upon.

Anonymous said...

Although I'm fond of most of the posts here, I think this post is drawing unwarranted conclusions about the Supreme Court's decision. Pearson will have little or no effect on this case. It merely changes a procedural rule: instead of requiring courts to analyze constitutional violations prior to determining qualified immunity, courts now have discretion to skip to the qualified immunity determination. If any of the defendants are protected by qualified immunity, they're going to win, and if they're not protected, they're going to lose (assuming they're a constitutional violation). Pearson will have no effect on this.

Btw, the previous poster presumably meant Rule 12, not Rule 11.

Anonymous said...

KC, I know you're not a lawyer and I appreciate the work you've done on this site, but you've got Pearson v. Callahan exactly 180 degrees backward.

Before Pearson, the qualified immunity was governed by a case called Saucier v. Katz. Under the Saucier rule, judges were required to first decide whether a plaintiff's constitutional rights had been violated, and then only after deciding that a violation had occurred, to decide the issue of qualified immunity.

The rationale was that by deciding the constitutional question, even if the case would ultimately be dismissed on qualified immunity grounds, the courts would still develop and articulate the constitutional standards that government officials need to abide by.

Government officials have qualified immunity unless they violate "clearly established" law. The concern in Saucier was that if judges keep dismissing cases on qualified immunity grounds, then the law will never become clearly established.

In Pearson, the court overturned the Saucier rule, allowing courts to decide either issue first, as they see fit. In other words, the discretion the court talked about in Pearson is the discretion to NOT decide a plaintiff's constitutional claims, but to instead just dismiss the case on qualified immunity grounds.

The passage you quote about the factual basis of plaintiff's claims being hard to identify without full discovery was an explanation of why the court should be able to dismiss the case without deciding plaintiff's constitutional claims at all.

Now, it's certainly an open question how the new rule will play out in practice, and whether it will ultimately be helpful or harmful for plaintiffs, but it seems like quite a large stretch to spin this as a loss for Durham.

Again, I appreciate the work you're doing, but your analysis would be much improved if you consulted with a good civil rights lawyer before posting about technical legal issues.

Anonymous said...

Anonymous 12:27 PM:

A motion to dismiss for failure to state a claim for which relief can be granted is under Rule 12(b)(6), not Rule 11. Rule 11 is for sanctions against the other party for misconduct.

Also, a Rule 56 motion for summary judgment can be made at any time, not just after the close of discovery.

kcjohnson9 said...

To the 2.56:

Many thanks for your advice on consulting with a "good civil rights lawyer."

While I'm not a lawyer, I do teach constitutional history, and am quite familiar with the Saucier test.

Anonymous said...

All below are right....not sure where my brain was. It's Rule 12(b)6. Ugh, long week.

Anonymous said...

CGM & Mike Nifong still have many many supporters because they believe Crystal & believe Mike Nifong was punished too harshly.They just don't blast it on a blog.

Why does no one here ever talk about the drunkards using racial slurs against the dancers or about someone stealing money from one of them. We know it was in the files. Even Cooper reported on the money.

Will I get an answer, KC?

Anonymous said...

Let's see emails and memos and calendars. Open up hard drives and phone logs. Time to swear in witnesses. It's discovery time!

Anonymous said...

"Why does no one here ever talk about the drunkards using racial slurs against the dancers or about someone stealing money from one of them. We know it was in the files. Even Cooper reported on the money."

Who was drunk? Certainly not the three defendants. Who used racial slurs? The only allegations of that came from the two dancers, whose other "recollections" have been shown to be fabrications.

Money? They were hired for a two-hour show at $800, but had to quit after four minutes due to their own inebriation. They shouldn't have been paid at all.

And, on the same topic, where did Crystal get her $2000? Does she report all her income on her IRS forms?

JSwift said...

To the 11:49 am:

You owe KC an apology.

Before you make charges, you should make certain that you are aware of the facts.

You have failed to do so.

Both of those subjects have been addressed on this blog on many occasions in the past. I suggest that you reread all of the posts through the blog archive. I am not going to do your research for you.

The players have admitted to the "cotton shirt" remark in response to a slur first uttered by Kim. Jason Bissey stated that he heard that retort. Kim has admitted to initiating that exchange.

Kim has also charged that one of the players used the n-word during that exchange, a charge denied by the players. Bissey did not hear that word used.

Crystal charged that the players used racial slurs during the alleged attack and when they started their performance. Kim did not support that allegation.

None of the indicted players were involved in this exchange. Finnerty and Seligmann had left before the argument began.

Crystal initially claimed that Kim had stolen her money. In Evans' written statement, he indicated that a couple of the players, angry that they had paid $800 for a several minute performance, had taken some of Crystal's money. Evans stated that he insisted that the players replace the money. Crystal also indicated that she may have deposited it.

I am appalled that you suggest that either of these charges can be compared with the actions of Nifong and the Durham Police.

Publicly available information from the filings in the criminal case, the AG’s report, and Nifong’s disbarment and criminal contempt hearings provide substantial evidence to support the allegation that Nifong and Durham police officers committed crimes as they deliberately framed three Duke students for a sexual assault they knew had never occurred.

Credible evidence strongly supports the accusation that Gottlieb and Himan obstructed justice, committed and suborned perjury, intimidated witnesses, and ignored, fabricated and withheld evidence.

The complete failure of their supervisors to properly oversee their actions in a highly publicized case belies the explanation that “rogue” investigators led by a “rogue” DA abused their authority. Moreover, the DPD’s failure to discipline any officers for their role in this case can be seen to have validated these actions.

Again, KC has discussed both of these allegations in earlier posts. Your 11:49 am post is thus based on a flawed premise.

I await your apology.

unbekannte said...

To Anonymous 1/25/09 11:49 AM:

"CGM & Mike Nifong still have many many[!!!] supporters because they believe Crystal & believe Mike Nifong was punished too harshly.They just don't blast it on a blog."

I guess you have never read the delusional ravings of the justice4nifong gang of THREE on their justice4nifong blog. Since I stopped posting hardly anyone posts there. Most of the comments posted there supported neither cgm nor nifong nor the delusional head blogger.

Anonymous said...

"CGM & Mike Nifong still have many many supporters because they believe Crystal & believe Mike Nifong was punished too harshly.They just don't blast it on a blog."

Brawhaha (is that how you spell that gleefully malicious laugh?)

I love this. Poor little solitary soul has delusions of the mob (the pot-bangers, Klan of 88, et al) still agreeing but silent. Sure, those who marched, protested, threatened, lied, made wanted posters, and on and on, still believe but can't be bothered to make comments on a blog.

Awww, the longing for the days of past glory, mob rule, when false allegations actually carried the day.