Lacrosse players will seek Supreme Court hearing

Jan. 14, 2013 @ 07:52 PM

Three former Duke University lacrosse players say they’re going to ask the U.S. Supreme Court to reverse a lower-court ruling that tossed out most of their civil-rights lawsuit against the city.

Lawyers for David Evans, Colin Finnerty and Reade Seligmann served notice of their plan Friday, telling a Greensboro-based judge he shouldn’t toss claims against a lieutenant of former District Attorney Mike Nifong without hearing from the high court.

The procedural filing was in itself not the formal request that would trigger Supreme Court involvement. That would be filed with the high court in Washington, D.C., and isn’t due until mid-March.

But the three players “intend to seek Supreme Court review of” the decision a three-judge panel of the 4th U.S. Circuit Court of Appeals handed down Dec. 17, their lawyers said.

Evans, Finnerty and Seligmann were indicted on charges of rape and later exonerated after stripper Crystal Mangum alleged, falsely, that she was attacked at a 2006 party for member’s of Duke’s 2005-06 men’s lacrosse team.

They sued the city in 2007, alleging police conspired with Nifong to fabricate evidence against them.

The 4th Circuit panel – judges Diana Motz, Harvie Wilkinson and Roger Gregory – tossed out all claims against the city anchored in federal civil rights law.

They left the players only a common-law claim of malicious prosecution against two police detectives, plus a state-constitutional argument that the city’s move to invoke governmental immunity had violated their rights.

The panel decision also sharply pared down separate lawsuits filed by two groups of unindicted players.

One group, represented by Durham lawyer Bob Ekstrand, has asked the full 4th Circuit to review and overturn the panel ruling. Ekstrand argues that Motz and her colleagues misinterpreted state common-law doctrines.

The other 38, players represented by Washington lawyer Charles Cooper, haven’t signaled their intentions but in a filing Monday noted that there’s still plenty of time to decide.

Supreme Court reviews of lower-court rulings are rare.

The justices, through the court’s rules of procedure, have noted that a review is “not a matter of right, but of judicial discretion … granted only for compelling reasons.” They reject the vast majority of review requests.

Justices prefer reviewing specific types of cases: those that promise to resolve major disagreements about legal doctrine amongst lower courts, those that plow new ground or those where lower-court rulings conflict with the Supreme Court’s decisions.

“A petition … is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law,” the rules say.

Friday’s filing gave no hint about the grounds lawyers for Evans, Finnerty and Seligmann will argue to justify a high-court review.

But a Florida International University law professor who’s written about the lacrosse case, Howard Wasserman, in a Dec. 30 blog posting said the 4th Circuit panel’s Motz-written opinion was “a bit too dismissive of the possibility of a conspiracy to indict” the players between Nifong and police.

The decision nonetheless “seem[ed] correct,” the judges likely ruling as they did because the players’ complaint “showed Nifong as the bad actor, taking weak evidence, which [police] officers themselves insisted was weak,” and using it to procure an indictment, Wasserman said on the Sports Law Blog.

Wilkinson in a concurring opinion addressed the conspiracy issue head-on, saying the players’ theory of the case implies that police, if they talk at all to prosecutors, could be liable for civil damages whenever someone accused of a crime is exonerated.

Should the Supreme Court grant the players’ review request, it’s unlikely to hand down a decision in 2013 that affirms or reverses the 4th Circuit.

It usually takes the justices a couple of months after fielding a request to decide whether they should grant review. The court is already deep into its 2012-13 term and is scheduled to hold final oral arguments of the term late in April.

The court’s 2013-14 term will begin on Oct. 7. Four justices have to support reviewing the case for the court to schedule oral argument.