Supreme Court to decide another Duke lacrosse petition

Oct. 23, 2013 @ 06:07 PM

The U.S. Supreme Court’s nine justices have scheduled their second and potentially final discussion of the Duke lacrosse case for Nov. 8.
They will confer in private and decide whether to undertake a full review of a civil-rights lawsuit against the city brought by three members of Duke University’s 2005-06 men’s lacrosse team represented by Durham lawyer Bob Ekstrand.
Four justices have to support granting review for there to be a further, public hearing.
The high court earlier this month considered and rejected an appeal from three other players – David Evans, Colin Finnerty and Reade Seligmann – who were indicted in 2006 on rape charges and exonerated a year later.
Ekstrand is arguing that his clients – Ryan McFadyen, Breck Archer and Matt Wilson – while never charged in the case were improperly forced in 2006 to provide DNA samples to the police who were investigating stripper Crystal Mangum’s claim she’d been attacked at a team party.
The case “squarely presents the question of whether dragnet station-house detentions of citizens to collect their DNA and search them for investigative purposes” based on mere suspicion is allowed by the Fourth Amendment, Ekstrand said in his final appeal to the Supreme Court.
City lawyers, however, have countered that police were operating under a state statute that allows court-ordered testing when there are only “reasonable grounds” to think its target may have committed the crime.
They contend Ekstrand is pushing an issue that neither a trial judge nor the 4th U.S. Circuit Court of Appeals addressed in earlier rulings on the case. Moreover, they said, courts in other states have sanctioned the same sort of suspicion-based testing.
Both sides acknowledge the Supreme Court has never ruled on how high a hurdle police should have to overcome before being allowed to procure DNA samples from suspects.
What precedent exists on the question mostly deals with the gathering of fingerprints.
The players who’ve gone to the Supreme Court all did so in hopes of convincing it to overturn a December 2012 ruling from the 4th Circuit that sharply narrowed the scope of three lawsuits against the city.
Last year’s disallowed all the civil-rights claims grounded in federal law that players lodged against police and administrators.
The 4th Circuit allowed the indicted players, Evans, Finnerty and Seligmann, to pursue a common-law malicious-prosecution claim against the two detectives who investigated Mangum’s allegations.
It allowed players who had not been indicted – Ekstrand’s clients, and separate group of 38 team members – to continue only a catch-all claim under the state constitution that typically has only a scant chance of ultimate success.
Evans, Finnerty and Seligmann likewise received from the 4th Circuit the right to press a last-ditch state-constitution claim.
The members of the 38-player group opted against petitioning for Supreme Court review. In late August, they served notice through their lawyers that they’ll drop what remains of their lawsuit against the city if the justices reject the appeal from Ekstrand’s clients.
The group of 38 and Ekstrand’s clients also sued Duke University. The 38 settled with Duke in February; Ekstrand’s clients have pressed on.