Three players appeal Duke lacrosse ruling

Jan. 03, 2013 @ 06:32 PM

 

Three former Duke University men’s lacrosse players want the full 4th U.S. Circuit Court of Appeals to overrule a panel decision so they can resurrect an obstruction-of-justice claim against Durham police.

Durham lawyer Bob Ekstrand filed the request Monday on behalf of 2005-06 Duke players Ryan McFadden, Breck Archer and Matt Wilson.

It basically appeals a Dec. 17 ruling by three 4th Circuit judges that rejected major parts of the lawsuits Ekstrand’s clients and two other groups of players filed against the city over its handling in 2006 of a stripper’s false rape allegation.

Ekstrand in targeting obstruction of justice confined the appeal to the full 4th Circuit to a single, common-law issue. He didn’t challenge the panel’s decision to toss claims from his clients that were based on federal civil rights law or common-law negligence.

The panel – judges Harvie Wilkinson, Diana Motz and Roger Gregory – “misapplied North Carolina law” because state courts “have squarely held” that police can face obstruction-of-justice lawsuits over their handling of investigations, Eckstrand wrote.

Writing for her colleagues, Motz said they couldn’t find any case from any state recognizing such a claim “against a police officer for his actions relating to a criminal proceeding.”

Were a majority of the full court’s 15 judges to side with Ekstrand, he and his clients would target former detectives Mark Gottlieb and Ben Himan, plus the detectives’ former captain, Jeff Lamb. The original claim didn’t target the city government as a whole.

Federal rules make a full-court review of the Dec. 17 decision discretionary. A majority of the 4th Circuit’s active judges have to agree to hear the matter before lawyers can even argue it.

The other two groups of players affected by the panel’s ruling didn’t file appeals requests by Monday, the nominal deadline for doing so in the 4th Circuit. They have until mid-March to ask the U.S. Supreme Court to step in.

Motz, Wilkinson and Gregory allowed three players who at one time faced criminal charges in the lacrosse case – David Evans, Collin Finnerty and Reade Seligmann – to pursue a common-law malicious prosecution claim against Gottlieb and Himan.

The ruling also allowed them, Ekstrand’s clients and 38 other unindicted players to continue a case against the city based on alleged violations of state-level due process and equal-protection rights.

The Dec. 17 decision didn’t affect the unindicted players’ related claims against Duke. Their lawyers and the university’s have been swapping evidence in anticipation of a trial.

Evans, Finnerty and Seligmann settled with the university out of court in 2007.

Monday’s filing by Ekstrand put a bit of a twist on his clients’ claim against police, arguing that the detectives and Lamb in 2006 “engaged in conduct designed and intended to hinder” the players “from obtaining civil remedies” in a post-investigation lawsuit.

His clients’ original lawsuit mostly focused on the possibility of the detectives manufacturing evidence against the players to support, procure or shore up rape indictments against team members.

It also briefly alluded to the possibility of continuing efforts in 2007 to “defeat or diminish the award of damages in civil actions [police] assumed would be brought against them.”

The trio of state-court decisions Ekstrand’s now pointing to as reason for the full 4th Circuit to override the panel ruling all involve alleged cover-ups of various sorts. 

One, in 1983, led to the ouster of a state-court judge who tried to shut down a grand jury hearing about his conduct. Another, in 1984, concerned medical practitioners who allegedly altered or destroyed a patient’s records after the patient died.

The third, decided in 2007, also involved the Durham Police Department. A state appellate panel allowed an obstruction claim against the city because the in-car camera of an officer’s traffic accident had gone missing.