Thursday, March 31, 2011

Beaty Decision (Evans Lawsuit): Key Passages (Updated)

Seligmann attorney Richard Emery: "The opinion is what I would call, overall, a ringing success for the boys . . . We’re glad that we’re moving ahead with the case.” Duke spokesperson Michael Schoenfeld commented, "The few claims remaining are substantially narrowed, as we had hoped."

Somehow, I doubt that Duke "hoped" that at this stage of the game, the university, Pres. Brodhead, Bob Steel, Tara Levicy, Dean Sue Wasiolek, and Duke Health would remain as defendants, and thus be subject to depositions and discovery. The university did score a victory in the dismissal of claims against the most virulently anti-lacrosse member of the upper administration, Larry Moneta. I will have more on the unindicted players' suit tomorrow.


Key passages:

Beaty complains about the filing’s length, but then adds a strong conclusion: “The Court is also compelled to note that the allegations in the Second Amended Complaint that are going forward, particularly as to Counts 1-3, set out allegations of significant abuses of government power. Indeed, the intentional use of false or misleading evidence before a grand jury to obtain an indictment and arrest without probable cause is exactly the type of “unreasonable” search and seizure that the Fourth Amendment was designed to protect against, and would violate the most fundamental concepts of due process. In this regard, it has been noted that “‘if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction).’”

. . . Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause. This Court cannot take such a restrictive view of the protections afforded by the Constitution." [emphasis added]

Counts 8-12—conspiracy under § 1985—dismissed

Beaty holds that the counts could apply only if the lacrosse players were a protected class, which they are not (in other words, municipalities can’t be held liable under § 1985 for deciding to go after white males)

Count 13: conspiracy to commit malicious prosecution

Very high standard, but enough to go forward at this stage: “Defendant Nifong enjoys absolute prosecutorial immunity for the decision to prosecute, but that immunity does not extend to investigatory acts by Defendants Nifong and Wilson, particularly the creation of false and misleading evidence during the investigation.” [emphasis added]

Count 15: emotional distress—dismissed

Very high standard under North Carolina law, yet “Plaintiffs do not include any specific allegations of emotional or mental disorders or severe and disabling emotional or mental conditions suffered by any of the Plaintiffs individually.”

Counts 18-22: negligence claims against Durham, DNA Security

Beaty dismissed the claims against DNA Security, noting that the company had no specific obligation to the lacrosse players. (Its “client”—to use Brian Meehan’s term—was Durham.) He allowed the claims against the city to proceed, but strongly hinted he would dismiss them at summary judgment.

Count 4—false public statements--upheld

Beaty: must move beyond reputational harm; “Plaintiffs contend that they have stated a claim because the false public statements made by governmental officials in this case were intended to inflame the grand jury pool and result in indictments against Plaintiffs.”

“Plaintiffs have alleged that each of the named Defendants made deliberately false public statements in connection with the alleged falsification of evidence that was used to subject them to indictment and arrest. In addition, this right was clearly established well before the conduct alleged in the present case, and a reasonable official would have known that it violated clearly established constitutional rights to deliberately make false public statements regarding a citizen in connection with an unlawful arrest of that citizen.”

Count 5: city liability because of poor policies, insufficient supervision—upheld in part

“The Court concludes that Plaintiffs have alleged that the City had a policy of targeting Duke students that led to multiple constitutional violations against Duke students, particularly by Gottlieb, and that the City through its final policymaking officials nevertheless continued the policy and ratified and condoned those violations. Plaintiffs have stated a plausible claim that this condoning of constitutional violations in the enforcement of the policy led to the constitutional violations and injuries”

Nifong, however, is a different story: “the City could not have delegated its policymaking authority to Nifong, and the claims against Nifong in his “official capacity” are claims against the State, not the City. In light of this conclusion, the City cannot be liable under § 1983 for “official capacity” claims against Defendant Nifong or for alleged conduct by Nifong as a “policymaker.’”

Essentially holding that what Durham did was against the law, but the city cannot be held liable for it.<

Count 6: supervisory liability—upheld

“Under the Fourth Circuit’s decision in Shaw, it was clearly established that an official violated the Constitution if, in deliberate indifference to the constitutional rights of citizens, the official knew of his subordinate’s constitutional violations and failed to act.”

But plaintiffs must “pinpoint” what each defendant knew, when he knew it, and what he did about it.

Counts 1-3: alicious prosecution, concealment of evidence, and fabrication of false evidence—upheld

City had argued for dismissal based on grand jury indictment—Beaty says no

The D.C. Circuit recently concluded that in a civil case for malicious or retaliatory prosecution, a grand jury indictment is only prima facie evidence of probable cause that may be rebutted by evidence that the indictment was “produced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.” Moore v. Hartman, 571 F.3d 62, 69 (D.C. Cir. 2009).

The Fourth Circuit has likewise recognized that when police officers effect a “seizure” by arresting an individual pursuant to an arrest warrant, the officers are liable under the Fourth

Amendment if the officers “intentionally lie in warrant affidavits, or recklessly include or exclude material information known to them.” Miller, 475 F.3d at 630.

the Fourth Circuit has also recognized that even when a probable cause determination has been made by a neutral third party, “an officer who intentionally or recklessly puts lies before a magistrate, or hides facts from him, violates the Constitution unless the untainted facts themselves provide probable cause.” Miller, 475 F.3d at 630-31.

Defendants’ response: “This analysis includes extensive parsing of pieces of the Second Amended Complaint, as well as contentions by the Defendants blaming one another for any alleged violation here.” Such a matter can’t be covered in a motion to dismiss.

Plaintiffs can meet the standards set out above, specifically by alleging that Plaintiffs were arrested pursuant to an indictment that was obtained by the intentional or reckless creation of false or misleading evidence used before the grand jury that was necessary to a finding of probable cause, or the deliberate or reckless omission of material information that officials knew would negate probable cause.”

14th amendment claims regarding false arrest generally held to high standard, but “the Fourth Circuit has also held that individuals possess a Fourteenth Amendment Due Process right not to be deprived of liberty as a result of the deliberate fabrication of evidence by a government officer acting in an investigating capacity.”

Absolute immunity for grand jury testimony, but “the Fourth Circuit has held that even though an officer cannot be held liable for his testimony in a legal proceeding, this immunity does not extend to the “initial act of fabrication,” and would not protect an officer who allegedly fabricated a police report where the report was later used at trial.”

Nifong and Wilson claimed absolute prosecutorial immunity, but “the Supreme Court [in Buckley v. Fitzsimmons] ultimately concluded that the prosecutor was not entitled to absolute immunity for his investigative work, including his alleged efforts to fabricate evidence prior to initiation of judicial proceedings.” And “based on the allegations . . . Nifong was acting far outside his prosecutorial role and was instead assuming an investigatory role in this matter, going so far as to assume supervision of an investigation that had just begun.”

Counts require demonstration of individual actors committing specific acts that violated the plaintiffs’ constitutional rights—clear in the case of Nifong, Gottlieb, Himan, shakier in the case of Meehan, Wilson, but still enough to move forward.


RighteousThug said...

Beaty: " the intentional use of false or misleading evidence before a grand jury to obtain an indictment and arrest without probable cause"

Unfortunately, without recorded GJ testimony, this may be difficult to prove.

Great news overall, though. Good post, KC, thanks!

Gary Packwood said...

Congratulations to the plaintiff attorneys.

Hard work and attention to detail is always respected and appreciated.

Many of us stand with you and support your work until we are no longer needed.

Roper said...

KC - Thank you another brilliant synopsis. Whenever there is a new development in this case, your blog is the first place we turn for coherent analysis.

Keep the faith, Baby!

Anonymous said...

To what extent will the effect of these rulings (and the judge's rulings later)
be to limit culpability to Gottlieb and Himan (who then may become, along with Nifong, the scapegoats for everyone else)?

It's great to have discovery, and the main point is to get the truth out; and to the extent this can be a vehicle for that, this is
a (tremendous!) victory (for truth and justice).

But cynic that I am, after seeing the way NC operates, I would not be surprised if
the court arranges matters so that assignable guilt will apply only to one or two additional, low-level persons.

(hopefully I will be wrong...)

Anonymous said...

too many lawyers and layman watching this case, for corruption. besides, the young men that were accused have the very best of lawyers, have faith.

f1guyus said...

If I was the night shift janitor at Duke Medical Center I'd be lawyering up right now

Chris Halkides said...


I raised the issue of lack of recording of grand jury testimony with my then state senator, but to no avail. Perhaps the future will hold a positive development.

Anonymous said...

Well done, KC!

Thank you.

Duke Prof