The Cert Petition

Now that Supreme Court has at least forced Durham to respond, I thought it might be worthwhile to analyze the falsely accused players’ petition, written by Williams & Connolly attorney Kannon Shanmugam. A couple of general points:

(1) The petition doesn’t even bother to respond to JudgeGregory’s race-based opinion in the 4^th Circuit—perhaps presuming, correctly, that any Justice who would find even one word of Gregory’s rant persuasive would never vote to grant cert anyway.

(2) The petition frames the question for the Court in a narrow manner: “Whether police officers who conspire with a prosecutor to fabricate evidence for subsequent use are immune from liability as a matter of law by virtue of the conspiring prosecutor’s decision to use the evidence.” This framing accomplishes two purposes: first, to preemptively meet at least some of the concerns expressed by Judge Wilkinson in the 4^th Circuit; and second, to more clearly distinguish the Evans case from the McFadyen case, which might also still be appealed to the Supreme Court.

The petition opens by pointing to a 2009 case, Pottawamie County, which revolved around the question of whether a prosecutor had absolute immunity if he conspired with police to procure false evidence, and then used that evidence at trial. The case was ultimately settled before the Supreme Court decided it, but the cert petition notes that the Solicitor General and (at oral argument) five justices argued that the police in such a circumstance could be held civilly liable. On this point, of course, the 4^th Circuit disagreed; and since Pottawamie County was settled before resolution, these sentiments didn’t form a clear precedent.

The petition’s description of the lacrosse case facts pulls no punches. Noting that although Mangum “provided wildly inconsistent and patently implausible statements concerning the circumstances of the alleged rape to Durham police officers and to personnel at the Duke Medical Center,” Durham authorities elected to turn the case over to Sgt. Gottlieb, “an officer with a known history of malicious prosecution, false arrest, excessive use of force, fabrication of evidence, and filing of false police reports directed against students at Duke University.” (Keep in mind that news of Gottlieb’s past was initially broken not by defense attorneys but by the N&O and then in greater detail by the Chronicle.) Gottlieb and Himan, in turn, were instructed to take orders from Mike Nifong, who despite acknowledging that the lack of evidence left the trio “fucked” made dozens of inflammatory statements to the media. Those “false statements inflamed the Durham community” to such an extent that on “March 29, Durham police supervisors . . . ordered them to expedite the identifications and arrests of Duke lacrosse players.” Misconduct continued through the rigged photo array to the meeting with Dr. Meehan, and directly led to the indictments of the falsely accused players.

But the misconduct did not end when Nifong achieved his twin goals: indictments, coupled with his successful nomination.

In a clever and important point, the petition notes that Nifong, Gottlieb, and Himan continued their wayward behavior—whether overseeing the arrest of cab driver Moezeldin Elmostafa, or through Gottlieb’s production of an “after-the-fact ‘report’ of his purported activities in the investigation.” Even by the 4^th Circuit’s claim that indictments broke a chain of misconduct, this behavior occurred after indictments. As the petition notes, the 4^th Circuit opinion did not explain how these examples of post-indictment misconduct were shielded by “an independent intervening act—i.e., (p)rosecutor Nifong’s decision to seek the indictments,” between the arrests on false causes and the untoward pre-indictment behavior of Gottlieb and Himan. The 4^th Circuit nonetheless dismissed the federal civil rights claims against the duo, which in turn provided grounds for the dismissal of the suit against the city of Durham.

The petition invites the Court to determine that the 4^th Circuit erred on any of several different grounds. First,  several courts of appeals have taken much different approaches than did the prosecution-friendly 4^th Circuit panel on what sort of intervening conduct can shield police officers, and the city that employs them, from a federal civil rights suit. The 2^nd and 6^th Circuits, for instance, “have held that police officers may be liable for the ‘natural consequence’ or ‘reasonably foreseeable result’ of their investigative misconduct, despite a prosecutor’s subsequent action that contributes to the injury.” The 9^th Circuit wasn’t quite as broad, but did render an opinion that would seem to allow suits for clear cases of police misconduct leading to indictments. And while, the petition asserts, the 5^th, 7^th, and 11^th Circuits have adopted standards that an intervening indictment “breaks the causal chain absent evidence that the officers misled or pressured the prosecutor,” their specific guidelines would not have shielded Gottlieb and Himan.

The petition also explains that the breadth of the 4^th Circuit’s opinion “implicitly took sides in another Circuit conflict, on an issue that stands as a logical antecedent to the causation issue: . . . whether the fabrication of evidence at the investigation stage, standing alone, gives rise to a constitutional violation.” The 1^st and 8^th Circuits have said it does; the 2^nd Circuit said it does not. Obviously the 4^th Circuit panel agreed with the 2^nd Circuit.

Finally, and in perhaps the document’s most interesting section, the petition forcefully takes on Judge Wilkinson’s absurd arguments that allowing the case to go forward would initiate a floor of lawsuits from other figures, or that somehow we should see Durham police employees as victimized figures in the process. The petition argues that Supreme Court holdings dating back nearly 80 years have established that “prosecutorial action undertaken as part of a conspiracy to fabricate evidence with investigating officers does not absolve the officers of liability for their improper investigative acts in furtherance of the conspiracy.”

And yet, “in reaching a contrary decision, the Fourth Circuit heavily relied on the concern that recognizing liability in the circumstances presented here would open the floodgates to similar claims that officers conspired with prosecutors ‘render(ing) the officers’ qualified immunity from suit effectively lost and mak(ing) discovery the rule, rather than the exception.”

This fear, the petition correctly notes, is absurd. First of all, “one would hope that there are few, if any, cases in the pipeline even remotely similar to this one.” Second, judges already have more than sufficient tools to toss out weak or implausible cases under relevant Supreme Court precedent. Durham, of course, tried and failed at that task—an indication of just how strong the plaintiffs’ case is on a factual basis. Finally, and contrary to Judge Wilkinson’s concerns, the petition observes that the Supreme Court “has consistently declined the invitation to insulate officials entirely from liability in the face of similar ‘floodgates’ arguments.”

As I’ve noted previously, from a factual standpoint, the case made in the petition is extremely strong. Indeed, in light of the 4^th Circuit’s ruling, the standard in Maryland, North and South Carolina, and Virginia and West Virginia is that (to quote Judge Beaty) “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.”

Will four justices be willing to evaluate the case individually, on its own merits—in a manner that Judge Wilkinson in particular did not?