Second group asks Supreme Court to review lacrosse case

Jun. 20, 2013 @ 08:15 PM

Trying to capitalize on a recent U.S. Supreme Court ruling, another group of former Duke University lacrosse players has asked the court to reinstate part of their civil-rights lawsuit against the city.

Three players represented by Durham law Bob Ekstrand say that the justices should review and overturn a 4th U.S. Circuit Court of Appeals decision that threatens the Fourth Amendment standards judges use when deciding how much leeway to give police in investigating a criminal case.

Ekstrand’s review request specifically targets the “non-testimonial order” Durham police used in 2006 to obtain DNA samples from most members of Duke’s 2005-06 men’s lacrosse team.

Detectives were investigating stripper Crystal Mangum’s allegation that she’d been raped at a team party.

But the court order sanctioned a police dragnet that ran counter to the idea that “not one quantum of proof less than probable cause [can] justify the detention and intrusive bodily search of a suspect solely for the purpose of collecting evidence of a crime,” Ekstrand said.

All nine justices, he added, agreed on that proposition as recently as June 3 when, in an otherwise sharply divided ruling, they allowed police to gather DNA samples as part of routine booking procedure when a person’s been arrested.

Ekstrand’s petition to the court arrived in Washington about a month after another group of three players asked the justices to reverse December’s 4th Circuit ruling as a having misread the law on governmental immunity.

The appeals court tossed all federal claims that former Duke players have made in three different lawsuits against the city.

The initial petition to the Supreme Court came from David Evans, Colin Finnerty and Reade Seligmann, who were indicted on and later exonerated of charges of having raped Mangum.

Ekstrand represents former players Breck Archer, Ryan McFadyen and Matt Wilson, who were among the players that police investigated but never charged.

Thirty eight other unindicted players sued the city, but to date have sat out the Supreme Court process. They could be drawn in if four of the court’s nine justices agree to take the case.

Legal scholars have noted that the odds of the court taking any case are low. It receives thousands of petitions each year, and usually accepts only 70 to 80.

Lawyers thus have to craft review petitions with an eye toward what issues might interest the justices.

The attorneys for Evans, Finnerty and Seligmann opted to highlight differences between the 4th Circuit’s approach to governmental immunity versus that of other federal appellate courts. Ekstrand elected to focus on the June 3 DNA ruling, which sundered the court’s usual alliances.

It came down as a 5-4 decision that saw conservative Justice Antonin Scalia write a vigorous dissent supported by liberal Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

Ekstrand’s petition leaned a bit more heavily on Scalia’s dissent than on Justice Anthony Kennedy’s majority opinion, but cited both.

He called the justices’ attention to the fact the North Carolina statute on non-testimonial orders allows judges to sanction DNA sampling when there’s probable cause to believe a felony has occurred, but only “reasonable grounds” to think the targets of sampling committed it.

What’s now a long line of Supreme Court cases, Ekstrand argued, has allowed fingerprinting or DNA sampling only when there’s probable cause – a higher standard than reasonable grounds – to suspect a person’s involvement.

Ekstrand contends that police couldn’t meet the probable-cause standard because Mangum’s story changed constantly and, at the time of the court order, she hadn’t picked any of the players out of numerous photo lineups.

He contends the 4th Circuit should have seen that and allowed the players’ lawsuit to continue.

For the sampling to be legal, police needed “a warrant supported by probable cause as to each individual,” as “individualized suspicion” rather than the targeting of groups “has always been the core principle of the Fourth Amendment,” Ekstrand said.

But he stopped short, in his petition to the Supreme Court, of asking justices to rule the state statute unconstitutional.

The players’ initial lawsuits raised that point, but trial judge James Beaty Jr. declined to address it when he allowed them to proceed. He said neither state courts nor the Supreme Court had issued clear guidance on the matter.

At the 4th Circuit level, the constitutionality of the statute merited only a footnote in the decision, as the players’ lawyers at that time didn’t harp on the point. Like Beaty, appeals judges said it fell in a legal gray area.