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Tuesday, February 26, 2008

Duke Lacrosse I: New Player Lawsuit

Back in October, I wrote about the § 1983 lawsuit filed by the three Duke lacrosse players who were indicted in 2006 on charges of gang-raping an exotic dancer, then exonerated when it became clear the woman had fabricated the story and the district attorney (subsequently disbarred and convicted of criminal contempt) had repeatedly lied to the court and attempted to conceal exculpatory evidence. They sued the prosecutor and various law enforcement officers involved in the case. Last week, 30+ other members of the team (none of whom were indicted) filed their own civil action in federal court, against Duke University and several members of the university administration, most prominently president Richard Brodhead; Duke University Health Services, owner of Duke University Medical Center, where the complainant had been treated following the alleged attack, and two medical staffers who examined the woman and allegedly provided false information about the results of the exam; and a variety of Durham County law enforcement officials. There are 27 counts, involving constitutional and state tort claims. The three indicted players reached a settlement with the university last year before any lawsuit was filed.

I have a particular interest in this lawsuit, and the Duke lacrosse mess as a whole. I have organized and am moderating a panel at this summer's SEALS Annual Meeting in Palm Beach called "The Phases and Faces of the Duke Lacrosse Controversy," which will examine the wide range of legal issues arising from this controversy. PermaPrawf Paul Horwitz will be one of the panelists, particularly to address the free speech and media issues that have come up.

Anyway, some initial thoughts after the jump. I will write more on the complaint later this week.

1) The complaint is 237 pages and 747 paragraphs. So much for a short and plain statement of the claim showing that the pleader is entitled to relief. Actually, this is a good example of litigation as press release that Beth Thornburg describes in writing about another hot sports lawsuit--West Virginia University against former football coach Rich Rodriguez. A pleading becomes as much about telling a story to the public and trying to win the community over as about giving notice to the court and to the defendants about the nature of the claims and the surrounding circumstances. This complaint recounts the full story of the Duke lacrosse mess in exacting detail, highlighting all the wrongdoing by various defendants--without necessarily linking that conduct to any legal right or duty to a particular plaintiff.

2) Former DA Mike Nifong is not a named defendant, despite being at the heart of all of this. Nifong filed for bankruptcy recently, imposing an automatic stay on any litigation naming him as a defendant. These plaintiffs thus did not include him as a defendant. But they argue that his misconduct is attributable to the City of Durham, which is a named defendant. This, by the way, could have a major effect on the action filed by the three indicted players, since their case is all about Nifong and his actions as the person who took (apparently unprecedented) control over the entire investigation.

3) There is an interesting version of cause-and-effect presented in the Complaint. The plaintiffs allege that Nifong (and implicitly the other defendants, especially the university) did not cause the media frenzy that surrounded the case. Rather, they all reacted to it and that media frenzy somewhat explains the subsequent Nifong's behavior--he needed to push the case to look good for the press and to satisfy the public aroused by the story, particularly facing an election to keep his job. Implicit in the complaint is a similar argument that the Duke administration also reacted against the players when pressure from the media and from faculty and student activists reached a fever pitch.

4) Plaintiffs assert constitutional claims against Duke and its administrators and employees. But I do not see how these defendants are state actors. The basic notion is that the hospital staff and university officials cooperated with government in its investigation by: providing information to law enforcement, some of which was either false or unlawfully released; withholding or speaking out to discredit exculpatory information; or making or failing to correct false statements about the case by law enforcement and others. The complaint refers to the university "acting in concert" with law enforcement and to an "agreement and meeting of the minds" as to this course of conduct--seemingly looking to establish state action via a public/private conspiracy. But based on the allegations, I do not see the necessary meeting of the minds that this test requires. Certainly the university helped law enforcement and certainly the university played a role in creating and fostering the resulting circus. But I do not see the allegations alleging anything approaching an explicit agreement to engage in obviously and blatantly unlawful conduct. Cooperation with law enforcement typically is not enough.

5) It will be potentially difficult, but also necessary, for the parties and the court to sort out precisely which plaintiffs suffered what harm from what conduct. The complaint speaks about the plaintiffs as a group suffering a deprivation of rights. But the only harm suffered in common was the cancellation of the lacrosse season (which forms the basis of one breach of contract claim against the university) and everyone being tagged with the infamy, criticism, and potential harassment that came with being part of "the lacrosse team." But I think some more direct and concrete individualized harm is going to be necessary for individual players to recover. For example, which individual players were called in and questioned by police? Which individual players were subject to improper searches or improper questioning? Which players had confidential information disclosed to law enforcement in violation of federal law? Which individual players were subject to direct threats or harassment or physical assaults or taunts at the hands of professors, classmates, and the public? Unlike the three indicted players who ultimately were forced to leave the university, the individualized harm here is not as obvious and it certainly is not clear from the complaint. Perhaps it is not necessary to break that down at the pleading stage (hey--notice pleading lives!). But it will be as the case moves forward.

Posted by Howard Wasserman on February 26, 2008 at 08:47 AM | Permalink


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The problem is not that individual defendants are not identified; it is that individual plaintiffs are not. It is usually difficult (if not legally impossible) for an individual to recover for damage to his reputation (or for the "sadness" to his family) based on statements made either about a group of which he is a member ("the lacrosse players") or about other people with whom he is associated. My point is that the complaint mainly talks about a group harm, without discussing what was said about individual plaintiffs. Only about 4 or 5 players ever are mentioned or discussed by name in the Complaint. When it comes to proving this case, the plaintiffs are going to need some evidence of being targets of individual statements or acts by the defendants.

Posted by: Howard Wasserman | Apr 24, 2008 7:55:55 AM

Conclusions in your Part 4 are flawed because many named members of University staff and faculty made statements and took positions against the team members and coaches without evidence or due process that were flat-out wrong. This damaged the players' reputation and caused sadness to their families. This will hurt them financially and emotionally throughout their lives.

Posted by: Gary Zehnpfennig | Apr 24, 2008 1:22:01 AM

Putting aside the claims against Duke and its personnel, this case is a good example of the anomalies created by section 1983 litigation seeking access to the taxpayers' deep pockets. The individual wrongdoer -- Nifong -- will experience no financial consequences of his misconduct. Even had he not gone bankrupt, he would have been indemnified for the judgment sought. If one is worried about deterring future misconduct, the sanctions Nifong has faced will be far more effective on that front that a damages award for which there will be indemnification. Instead, the case seeks a naked wealth transfer from the people of Durham to the relatively privileged plaintiffs. This wealth transfer will either force Durham to raise taxes or reduce governmental services -- in either case harming innocent third parties generally in far worse financial shape and far more dependent on the quality of governmental services than are the plaintiffs. That is a strange brand of "justice."

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Feb 26, 2008 10:27:32 AM

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