The Iqbal Briefs: The Unindicted Players

Friday’s Wall Street Journal profiled the recent Supreme Court decision Ashcroft v. Iqbal, which is now at the heart of the lacrosse case. At the request of Duke’s attorneys, Judge Beaty allowed all parties to the case to file briefs regarding Iqbal; offerings from Duke, various Durham entities, and DNA Security have arrived. Attorneys for the lacrosse players will now have 20 days to respond.

Even though the 5-4 decision dealt with national security affairs, two of its findings had much broader relevance. First, the Court held that former Attorney General John Ashcroft and FBI director Robert Mueller could not be held liable—in a “supervisory” capacity—for the allegedly discriminatory activities of their subordinates. Second, the Court made it easier for judges to dismiss civil suits before the discovery process begins, since, according to Justice Kennedy, “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” As Justice Souter implied in his dissent, Kennedy’s wording overruled the standard by which judges in civil cases were required to treat all allegations as true in evaluating motions to dismiss.

The Journal quoted SCOTUSblog’s Tom Goldstein predicting that the case—which he described as “an unexpected gift for the business community”—would be “cited more than any other [from the current term] by a factor of 100.”

By making it harder for plaintiffs to survive a motion to dismiss, Iqbal was a victory for any business (like Duke) or any municipality (like Durham) subjected to a civil suit. It is more than ironic that a decision supported by the four reliable conservatives on the Court could benefit a Duke administration that cowered before politically correct campus ideologues and a Durham Police Department whose conduct veered into race-based demagoguery. Somehow, I doubt that in any other circumstance would Richard Brodhead or the Group of 88 celebrate the work of Antonin Scalia, Clarence Thomas, Samuel Alito, or John Roberts.

Before beginning, three general points:

(1) Because of its findings regarding supervisory employees, Iqbal would most seem to benefit the upper-level figures in the DPD, about whose conduct we still know relatively little, and former SANE nurse-in-training Tara Levicy’s supervisors at Duke Hospital. In a perverse fashion, Iqbal appears to encourage a “see-no-evil/hear-no-evil” approach to supervising rogue employees.

(2) The Ekstrand lawsuit made many more inferential claims—especially regarding a “consortium” of Duke and Durham employees—than did either the lawsuit filed by the three falsely accused players or the offering of the other unindicted players. While the conclusions in the Ekstrand lawsuit may well be true, its aggressiveness makes it more vulnerable to the Iqbal standard, a point that is hammered home in briefs filed by Durham and Duke. One unanswered question is whether Judge Beaty will allow the attacks on the Ekstrand lawsuit to affect his consideration of the more limited claims offered by the falsely accused players and the other unindicted players.

(3) Iqbal hurts civil suit plaintiffs because documents and testimony necessary to sustain “factual allegations” often are not available until the discovery process is completed. In the lacrosse case, on the other hand, a lot of facts have become public—whether through Mike Nifong’s ethics trial; or his criminal contempt trial; or through the work of 60 Minutes, ABC’s Law & Justice Unit, and local media such as the N&O; or through the efforts of case blogs; or even through selected publications. In that respect, the lacrosse plaintiffs are much better equipped than the average plaintiffs to overcome the hurdles that Iqbal has imposed, since they have myriad facts upon which to base their allegations.

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Today’s post will analyze the defendants’ responses to the suits filed by the unindicted players; Thursday’s post will look at the responses in the suit filed by the three falsely accused players.

1.) “We Didn’t Know What Was Going On”

In light of Iqbal’s findings regarding supervisory liability, Durham attorney Patricia Kerner proclaims, almost gleefully, “There are no factual, individual allegations describing conduct that would allow a court to infer that any individual’s actions constitute ‘deliberate indifference’ or why any individual would have had knowledge of a subordinate officer’s conduct.”

In other words: in the highest-profile criminal case in the history of the Durham Police Department—one that attracted blanket local and national attention—Durham’s current position is that it’s not plausible to believe that the chain of command in the Durham Police Department “would have had knowledge of a subordinate officer’s conduct.”

Durham, perhaps, should amend its city slogan to “Come to Durham: Our Police Leadership Is Clueless!”

The DNA Security brief offers a similar line of argument. It concedes that company president Richard Clark attended the meeting at which Nifong and former lab director Dr. Brian Meehan agreed to produce an incomplete report that would exclude the exculpatory DNA evidence that would ultimately bring down the case. But, Clark suggests, he’s not legally liable. Why not? “In the absence of any specific allegation of wrongdoing (or, indeed, even of knowledge) on Clark’s part, Plaintiffs appear to premise their claims against him on his title alone.”

Is DNA Security really suggesting that it’s not plausible that Clark had “knowledge” of what occurred at the Nifong-Meehan meetings, meetings at which he was present? Is the company’s line of defense actually going to be that its president ordinarily attends meetings but has no idea what occurs in them?

Imagine the new advertising motto: “DNA Security: Our President Is Clueless!”

In their brief, Duke attorneys Jamie Gorelick and Donald Cowan also cite Iqbal to excuse the liability of senior Duke administrators.

In so doing, however, they choose not to deal with a critical difference between the Iqbal facts and those of the lacrosse case: Chairman Robert Steel’s April 11, 2007 e-mail. The Board chairman informed the world that “throughout the past year President Richard Brodhead consulted regularly with the trustees and has had our continuing support. He made considered and thoughtful decisions in a volatile and uncertain situation. Each step of the way, the board agreed with the principles that he established and the actions he took. As we look back and with the benefit of what we now know there is no question that there are some things that might have been done differently. However, anyone critical of President Brodhead should be similarly critical of the entire board.” [emphases added]

Neither Ashcroft nor Mueller, of course, ever issued such a statement regarding the facts in the Iqbal case. For Duke, alas, the “we-didn’t-know-what’s-going-on” defense is undercut by Steel’s e-mail—which he surely now wishes he never had sent.

2.) Defending Unusual(!) Procedures

Gorelick and Cowan also have the thankless task of defending the conduct of former SANE nurse-in-training Tara Levicy. As in the past, they do so in a way that makes a mockery of the “factual allegations” established by the Attorney General’s report.

Here’s how Gorelick and Cowan describe Levicy’s role in the case: “The fact that Ms. Levicy met with police officers and prosecutors does not plausibly demonstrate a conspiracy, as Iqbal requires. Rather, it shows only the unremarkable fact [emphasis added] that the police investigating a possible crime gathered information from a health care provider who examined the alleged victim.”

There are only two possible justifications for the Gorelick/Cowan description of Levicy’s performance as “unremarkable”:

(1) The “information from a health care provider who examined the alleged victim” was accurate. But, of course, we know that Levicy’s information both wasn’t accurate and constantly shifted in manners that went along with Nifong’s ever-shifting rationalizations of the case.

(2) It was “unremarkable” for a Duke employee to give such false information—in her capacity as “a health care provider”—to “police investigating a possible crime.”

Could Duke really be claiming that either (1) or (2) are plausible explanations for former SANE nurse-in-training Levicy’s conduct?

Gorelick and Cowan have the same problem regarding the performance of the Duke Police Department. “Plaintiffs’ assertions about meetings and communications between the Duke and Durham police,” they note, “show only that the two forces were occasionally, and entirely properly, [emphasis added] exchanging information about the case.”

Yet among the “information” exchanged was the key-card records of Duke students—“information” that is protected under FERPA. Could Duke be plausibly claiming that the unauthorized release of FERPA-protected information—information that a Durham judge, citing FERPA, later denied to Mike Nifong—constituted the “entirely proper[] exchang[e of] information”?

Durham attorney Kerner likewise meanders into the unusual. “Plaintiffs allege no facts,” she writes, “showing that [former City Manager Patrick] Baker, or anyone else, suggested at the [March 29, 2006] meeting that someone should be arrested for the rape, unless the investigation led to a proper identification [emphasis added] and probable cause for the arrest.”

But, of course, no “proper identification” ever occurred in this case: Nifong and the DPD plowed ahead with a lineup that flagrantly violated their own procedures. So what, exactly, is Kerner’s rationalization for the DPD having proceeded with the investigation?

And here’s how the attorney for DNA Security describes the meetings between Mike Nifong and former DNA Security lab director Brian Meehan: “A prosecutor’s consultation and coordination with his retained expert is not suggestive of conspiracy but simply describes the ordinary and expected interaction [emphasis added] between key participants in a criminal investigation.”

The meetings between Nifong and Meehan resulted in the incomplete report that violated both North Carolina’s NTO law and the constitutional requirements of Brady. Is DNA Security really describing this tête-à-tête as an “ordinary and expected interaction”?

Kerner, meanwhile, describes the public statements of David Addison in the following manner: “The only plausible conclusion [emphasis added] is that Addison was attempting to urge witnesses to come forward, in connection with discharging his duties for Durham Crimestoppers.”

Is it really Durham’s official position that performing his official duties is the only plausible explanation for a police officer uttering false, inflammatory statements? Perhaps that explains why Addison was subsequently promoted? Could it be that the DPD actually expects its officers to utter false, inflammatory statements, at least when the targets are those without strong support in the Durham “community”?

3.) Extraordinary Assertions

The Kerner brief contains two items so outrageous that they stand out even in the pantheon of bizarre assertions by Durham authorities throughout the case.

Kerner concedes that one week before the captains’ party, Sgt. Mark Gottlieb was transferred away from a position in which he would have regular contact with Duke students. And she doesn’t deny that the transfer was related to Gottlieb’s troubling record regarding Duke students.

Yet, she adds, this undenied fact of the transfer “has no plausible relation to Plaintiffs’ claims.”

Why not? Kerner never says.

Of course.

Similarly, Kerner contends that Addison’s false and inflammatory statements didn’t cause any harm to the lacrosse players.

Why not? “Although Plaintiffs have no doubt catalogued every article, blog, photograph, or comment about the investigation, they do not allege that they were ever individually mentioned at any time by Addison.”

So: Addison should be shielded from the legal effects of his misconduct because he referred to the group as a group, never mentioning that perhaps his comments didn’t apply to all of the group?

4.) New Item

Finally, the briefs contained one new, and potentially explosive, item.

In attempting to defend DPD Capt. Jeff Lamb, Kerner concedes (in perhaps the strongest manner yet from any representative of the City of Durham) that on March 24, 2006, Lamb did, in fact, inform Sgt. Mark Gottlieb that Nifong would be directing the police investigation. We still don’t know why Lamb made that decision—and Kerner doesn’t say. But her brief suggests that prevention from future civil liability might have accounted for Lamb’s very strange action. As Kerner explains, "The [Ekstrand] Complaint contains no factual allegations even implying that Lamb knew, or would have any reason to know, that his agreement to have Nifong direct the investigation could create a risk of constitutional injury . . . Nifong was the District Attorney appointed to serve by the Governor, and police officers are immune from liability for taking direction from a prosecutor [emphasis added].

In other words: in violation of DPD rules, Lamb transferred the case to Nifong’s jurisdiction, and because he and his underlings were thereafter “taking direction” from the rogue “prosecutor,” they should be deemed immune from liability. I suspect this is a line of inquiry the Durham attorneys will wish they hadn’t opened for exploration, since it certainly sounds like the DPD knew it was doing something very wrong, and was desperately scrambling for a bureaucratic solution that would absolve it of future civil liability.