Friday, June 05, 2009

Civil Suit Delay

ORDER signed by CHIEF JUDGE JAMES A. BEATY, JR on 6/4/2009 that within 20 days of the date of this Order, any of the previously-designated Defendant groups may file a Supplemental Brief, not to exceed 20 pages, addressing the impact of the Supreme Court's decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), on the resolution of the pending Motions to Dismiss in this case. FURTHER that within 20 days after such Supplemental Briefs are filed, Plaintiffs may file a Response Brief, not to exceed 20 pages, responding to any issues raised in the Supplemental Briefs.

Ashcroft upheld the government's position in a qualified immunity claim by federal officials (in this case then-Attorney General John Ashcroft and FBI director Robert Mueller).


Anonymous said...

And the wheels of justice continue to grind slowly.

William L. Anderson said...

Very slowly. Let us hope that they grind at all.

No justice, no peace said...

An interesting read about Yale's endowment and management.

Cardinal rule for all university leaders: Thou shalt never upset an alumni giver.

"..Rick Levin knows plenty about troubled institutions. In the early 1990s, Yale fit that bill. Its neglected and aging physical plant required urgent renovation. The budget was deep in the red. A faculty revolt helped force the resignation of senior administrators, who included prominent conservatives disliked on the liberal campus. In addition, Yale had the worst record of labor strife of virtually any school and found itself in one of America's most crime-ridden towns. (In 1991, a 19-year-old student named Christian Prince was gunned down near campus.)..."

No justice, no peace said...

More from the aforementioned WSJ article quoting Levin, "I think we're beyond the culture wars -- certainly at Yale. I think we have a healthy coexistence between scholars devoted to the study of the traditional canon of Western civilization and those that are interested in more innovative approaches." Certainly, he continues, "university faculties as a group are left-of-center, part of that is a generational phenomenon."

More "innovative" approaches...that's rich. Those "innovative" statist, totalitarian approaches have a distinct history of failure. Unless he is speaking of new ways to fail, his statement rings false.

Is it just me or do Bob Steel and Richard Brodhead have a scorched earth history of institutions they've "led"?

Debrah said...

Lacrosse judge to hear motions

Debrah said...

I found this at the old UBUNTU! site.

Like so many others, when the case fell apart, they failed to update their drama.

scepticak said...

The SCOTUS ruling in Ashcroft v Iqbal, which makes it easier for officials to claim qualified immunity when charged with wrong-doing, may affect the lacrosse case in a couple of ways.

First, the ruling makes it difficult to go after supervisors on the basis of actions of their subordinates. Thus, the Durham Police Supervisory defendants such as Lamb, Russ, Mahaich and even Hodge and Chalmers may win their claim of qualified immunity unless the plaintiffs can show that they had active involvement. The same may also apply to Duke Supervisory defendants such as Arico, Dzau etc.

Second, the ruling appears to undermine the principle that plaintiff's facts are considered to be true. Ekstrand has stated that there was a Consortium which deprived the rights of the players. The defendants have argued that there was no conspiracy, and that just because Ekstrand claims one does not make it true. The ruling seems to tighten the requirements for facts to allege a conspiracy. Ekstrand may now need to more tightly tie some of the defendants by their actions to the civil rights violation.

For federal civil rights violations, the plaintiffs have to show that they are victims of discrimination. The plaintiffs may need to emphasize more that the players were indeed victims of discrimination-- based on the facts that they were white (except one) Duke lacrosse players being accused by a black woman in a town with a large black population during an election campaign.

While the Ashcroft ruling opens a whole new can of worms, it is better it happened BEFORE Judge Beaty's decisions rather than muddying the waters afterwards.

(My prediction is that Judge Beaty eventually will dismiss the suits against many of the peripheral defendants named, but enough will remain to allow depositions to go forward).

Anonymous said...

Well, does anyone have any insight on this and an interpretation of the Courts ruling. My reading means a significant blow to the civil suits. Anyone else have a different take? If the trial judge is asking for supplemental briefs dealing with these issues, seems to me that he is inclined to dismiss. Anyone????

"Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540–541 (1993) (First Amendment); Washington v. Davis, 426 U. S. 229, 240 (1976) (Fifth Amendment). Under extant precedent purposeful discrimination requires more than “intent as volition or intent as awareness of consequences.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979). It instead involves a decisionmaker’s undertaking a course o f action “‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Ibid. It follows that, to state a claim based on a violation of a clearly established right, respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin."

Ex-prosecutor said...

Following law school, I was a law clerk for a US District judge. I have practiced law for 40 years, about half in federal court.

I do not recall ever seeing even the most trivial case back-handed in the fashion as was Judge Sotomayor's reverse discrimination. Over the years, I defended our prison from 100-150 civil rights claims, such as those claiming that the warden was slow in replacing a burned out light bulb or that the prison cook put a few pork weenies into the beanie-weenies intended for muslim inmates.

Even these cases rated a least a few paragraphs by the appellate judges.

My experience is that when appellate judges feel strongly about an issue, and the law is against them, they avoid or trivialize the issue, so they won't have to adopt a position with which they disagree.

Gary Packwood said...

scepticak 6/6/09 :: 9:32 AM ...said...

...The SCOTUS ruling in Ashcroft v Iqbal, which makes it easier for officials to claim qualified immunity when charged with wrong-doing, may affect the lacrosse case in a couple of ways.
First, the ruling makes it difficult to go after supervisors on the basis of actions of their subordinates.
It seems to me then, that Brodhead needs to be ignored for the moment along with the BOT and focus on his subordinate Larry Moneta, VP for Student Affairs (A $40M organization at Duke) and his many directors and how they all communicated with Durham PD and Crime Stoppers.

Anonymous said...

I do not agree that the Ashcroft case will assist anyone from getting out of the civil lawsuit. Ashcroft and Mueller were very high officials, far removed from FBI/prison operations. They were not a warden of Federal prison who had direct supervision of guards. In contrast, Durham supervisors had day-to-day control over police and were in the same physical office. The City Council are the policy makers akin to the roles played by Ashcroft and Mueller.

Anonymous said...

To Ex-Prosecutor:

We must read different case reporters because mine have a bunch of one or two paragraph opinions. Some are even one word: "Affirmed." MOO! Gregory

Debrah said...

You have to wonder what organizations such as The Kenan Institute for Ethics think about the continuing saga of the Lacrosse Hoax.

In the past I've attended some of their events and panel discussions when they had interesting national figures on the program, so I get their bulletins in the mail.

The cover story of the latest one is "Confessions of a Pre-Med Pre-Law Major"....(with a slash over the word pre-med) Poorav K. Rohatgi '10.

He mentions Rom Coles and I'm sure many of the Gang of 88 are frequent go-to's for their sweeping experiences in the area of ethics.


Seriously, I'd like to see the Institute put together a program designed to examine the Hoax at Duke.

Perhaps ask Karla Holloway to represent the law school on a panel.

Anonymous said...

Is Ashcroft a Communist?

Debrah said...

TO (9:05 AM)--

No, I don't think so, but he does sing goofy barbershop tunes and he hates naked statues!

RighteousThug said...

Anon @ 6/6/2009 12:26pm:

If the trial judge is asking for supplemental briefs dealing with these issues, seems to me that he is inclined to dismiss. Anyone????

First, Judge Beaty isn't 'asking for' supplemental briefs, he is allowing them, as one would expect in this situation.

Rather than being 'inclined to dismiss', he is inclined to hear how & why the parties believe that this recent ruling affects their respective positions.

Anonymous said...

Anon, perhaps you are right. It is clear that the question of immunity has always been on the table and it is only right the judge allow comment. Do you think that the plaintiffs won't file briefs? Of course they will! The defense has been saying from day one that most of the suits don't hold water because of immunity. It would be crazy if the plaintiffs did not respond.