Appeals court sides with city on Duke lacrosse
A 4th U.S. Circuit Court of Appeals panel on Monday tossed out all federal-law claims from three groups of Duke University lacrosse players who’ve sued the city and the police who investigated the 2006 Duke lacrosse case.
The ruling also dismissed several common-law claims against the city and police, save for an allegation of malicious prosecution against two detectives lodged by the trio of lacrosse players who faced rape charges in 2006.
Panel members left standing a catch-all claim by all three groups of players that the city and police had violated their rights under North Carolina’s state constitution.
All of the panel’s judges – Harvie Wilkinson, Diana Motz and Roger Gregory – supported the decision to toss the players’ federal civil rights claims. In the process they reversed a 2010 ruling by U.S. District Court Judge James Beaty Jr.
Motz authored the panel’s opinion, which focused on the technical aspects of the case. Wilkinson filed a concurrence that offered commentary.
He said the players in raising “every conceivable claim” and trying to “corral every conceivable defendant” had created an “overblown” case “on the far limbs of law and one destined, were it to succeed in whole, to spread damage in all directions.”
Their theory implies that whenever police and prosecutors talk about an investigation, “that very act of communication would expose them to a risk of monetary liability should the suspects ultimately be exonerated,” Wilkinson said.
Each group of players argued police and former District Attorney Mike Nifong conspired in 2006 to frame them after stripper Crystal Mangum alleged, falsely, to have been attacked at a team party.
Beaty was willing to hold a trial on the players’ key federal claims, but the city appealed, citing governmental immunity.
Monday’s ruling saw Motz, Wilkinson and Gregory side with the city’s contention that independent acts by Nifong and a grand jury to indict David Evans, Colin Finnerty and Reade Seligmann immunized it and police from federal liability.
“An alleged officer-prosecutor conspiracy does not alter the rule that a prosecutor’s independent decision to seek an indictment breaks the causal chain unless the officer has misled or unduly pressured the prosecutor,” Motz said.
The judges agreed with the city that nothing in the lawsuits alleged that former detectives Mark Gottlieb and Ben Himan had misled or pressured Nifong.
Motz and both her colleagues also rejected federal claims that police had lied to obtain search warrants against the players, including a court order that compelled them to give DNA samples.
The judges said that while there were falsehoods in the affidavits the detectives attached to their warrants, they didn’t in North Carolina law outweigh the fact that Mangum had repeatedly alleged rape.
Noting that a Duke University Medical Center nurse had told the detectives of evidence consistent with rape, Motz said “a rape allegation, paired with corroborating medical evidence, establishes probable cause” for a warrant.
Turning to common-law issues, the panel rejected obstruction-of-justice claims by the players against Gottlieb, Himan and one of their commanders.
Motz said there were no precedents for allowing them “against a police officer for his actions relating to a criminal proceeding.”
But the judges disagreed on a malicious-prosecution claim against Gottlieb and Himan. Motz and Wilkinson voted to allow it to go forward. Gregory would have tossed it.
Motz said North Carolina courts allow malicious-prosecution suits when a defendant has “instituted, procured or participated in a criminal proceeding.”
But Gregory in a dissent on that one point argued that a 2009 U.S. Supreme Court terror-war case should override state practice.
It counseled dismissing civil-rights claims against law enforcement when there’s an “obvious alternative explanation” for police conduct. Here, the obvious explanation for Gottlieb and Himan’s conduct was that they were taking Mangum’s allegations seriously, Gregory said.
“The fact that an alleged rape victim changes the details of her story does not mean she is lying, nor does a witness’ initial denial always correspond with the truth,” he added.
The judges re-united on allowing the players to pursue their state-constitution claims. During oral argument in September they’d voiced reluctance to interpret North Carolina’s separate guarantees of due process and equal protection under the law.
Lawyers for the players added the state-constitution argument to the suits as a fallback if governmental immunity negated their federal claims.
Save for the fallback, a group of 38 and another group of three un-indicted players saw all their claims against the city dissolve.
The group of three, represented by Durham lawyer Bob Ekstrand, got an extra bit of attention from Motz and Wilkinson because their suit included allegations stemming from former player Ryan McFadyen’s post-party email about killing and skinning strippers.
Ekstrand had argued the inclusion of the email in a search warrant was a lie by police because they knew McFadyen was spoofing the novel “American Psycho.” The judges disagreed.
Motz for the panel said a “reasonable officer could have – and given the circumstances here, should have – taken seriously the email’s disturbing contents.”
But hers was mild compared to Wilkinson’s assessment.
Ekstrand’s argument about the email is one “that could succeed only in Never Never Land” because it “takes no account of the real and brutal rampages by disturbed individuals on college campuses and elsewhere in recent years,” Wilkinson said.
The panel coincidentally released its decision only three days after the latest such rampage, the school shootings in Newtown, Conn. But the opinions almost certainly were written and printed before that incident.
Seligmann’s lawyer, Richard Emery, said he was “disappointed” by Monday’s ruling but offered no other comment. A lawyer for the group of 38 un-indicted players, Chris Manning, cited his law firm’s policy in declining comment.
Ekstrand couldn’t be reached for comment.
Senior Assistant City Attorney Kim Rehberg said city officials “were pretty pleased, obviously, with what the panel came up with.” She called it “good progress in dealing with these cases.”
Both sides have the right by Dec. 31 to ask the panel to reconsider its decision or ask the full 4th Circuit to review the case.
Alternatively, they have until mid-March to ask the U.S. Supreme Court to step in. But the high court takes on few cases, so any appeal there is by definition a long shot.
Monday’s ruling left untouched the players’ separate claims against Duke University, against Nifong, against a Burlington DNA lab and against an investigator who worked for Nifong, Linwood Wilson.
None of those matters were on appeal to 4th Circuit.