« Scapegoating | Main | Happy New Year. Raise a Glass and Empty Your Pockets. »

Monday, December 31, 2012

Fourth Circuit on Duke Lacrosse

A couple of weeks late on this. The Fourth Circuit held that all the Fourth Amendment claims by the Duke lacrosse players against the investigating police officers should have been dismissed on qualified immunity grounds.The court did allow state law malicious prosecution claims by the three indicted players, but not by the 30+ players who never were indicted, to proceed.

Details and thoughts after the jump.

1) The claim by the three indicted players for a Fourth Amendment malicious prosecution violation failed because the indepndent decision of the prosecutor to seek and indictment (and the independnet decision of the grand jury to indict) broke the causal chain between the officers' conduct and the unconstitutional prosecution. Absent allegations that the officers affirmatively misled or unduly pressured the prosecutor to seek that indictment, his acts insulate the officers from liability. The court further rejected the argument that the police and Nifong conspired to seek an unconstitutional indictment and prosecution, emphasizing the duty of police and prosecutors to work together in seeking to establish probable cause and to seek indictments; a "conspiracy" thus could be alleged in every case. On a related point, the court in a footnote rejected an overlapping Fourteenth Amendment substantive due process claim against the officers for fabricating evidence. Substantive due process is not available when there is an "explicit textual source" for a constitutional claim; because the claim could be brought under the Fourth Amendment, the Fourteenth Amendment could not provide the basis for a claim.

This result seems correct, although it illustrates well the difficulty (if not impossibility) of using § 1983 to challenge misconduct in the criminal justice system. A prosecutor enjoys absolute immunity in seeking and obtaining an indictment, while his conduct insulates police officers from liabiltiy, at least absent affirmative lies or concealment of evidence. The court was a bit too dismissive of the possibility of a conspiracy to indict, although that may have been because the complaint itself showed Nifong as the bad actor, taking weak evidence, which the officers themselves insisted was weak, and moving forward with an indictment. On the other hand, because police never themselves initiate a prosecution, perhaps the Fourth Amendment is the wrong source; perhaps cases of fabricated evidence should be handled under substantive due process--after all, it is hard to imagine what misconduct could be more "outrageous" than fabricating evidence.

2) The claims against the City of Durham had to be dismissed once the court held that there was no underlying violation. The same for the "stigma-plus" S/D/P claims against police officers who made public statements suggesting the players' guilt. The DA's independent decision to seek the indictment broke any causal connection between the statements and the indictment, eliminating any "plus" necessary to state a claim. The latter was an unfortunate way to resolve it--I would have liked to hear the court take on whether "stigma-plus" was a valid theory of liability.

3) Judge Wilkinson wrote a strongly worded concurrence, criticizing the e plaintiffs' lawyers for overreaching, both in the dramatic numbers of claims asserted (23, 32, and 40, among the three complaints--and the unindicted players, who never got dragged into the system, actually brought more claims than the indicted players), the "sweeping scope" of the litigation, and the "overwrought" nature of the claims and the allegations. Wilkinson had a stronger position against "stigma-plus" claims as inconsistent with SCOTUS precedent; he also read Iqbal to require particular allegations of precisely what each supervisor did to cause the violations alleged; simply naming names, without identifying their conduct, is insufficient.

4) The state-law malicious prosecution claims remain alive against the officers, as do the claims against Duke University (who could not appeal at this non-final stage) and Nifong (who did not appeal the denial of his motion to dismiss. And despite Wilkinson's point that this case continues more than six years after the criminal charges against the three players were dismissed and coming up on seven years since the infamous party, the case goes on.

Posted by Howard Wasserman on December 31, 2012 at 09:31 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fourth Circuit on Duke Lacrosse:


“a plaintiff's lawyer's overreach that has dragged out discovery for many extra years”

Note: it was the presiding judge who took no less than three years to decide a motion to dismiss, which has dragged the case out for years. And don’t forget Nifong, who claimed
$180 million in liability from the case and declared bankruptcy--delaying the whole process for months (while at the same time he was arguing to the court that he was immune from judgment).

“Does it have to do with the fee structure here? Who is paying these lawyers?”

Most attorneys want fees, but the injured parties want the truth; they want the whole truth so that their reputations can be restored. And since the feds won’t prosecute anybody in Durham, the only way to get at that truth is by forcing depositions--something
the presiding judge--Beaty--wouldn’t allow until he decided the motion to dismiss. In that interim, two witnesses died, and the parties were scattered across the US and the world. (What was that in the rules of procedure about “speedy and inexpensive resolution”?) Don’t blame the plaintiffs for this one; they could--and normally would have--had the testimony they wanted six years ago.

“In the end, one thing we need not to lose sight of is that it was correct for prosecutors, based on the evidence available, to initially pursue this investigation”

Nonsense. Police knew who the accuser was, where she lived, and that she had two children likely left at home alone, before she had opened her mouth. She didn’t claim rape until she was about to be committed to a detox center. She had previously made a claim of gang rape; and had a history of mental instability. That night she claimed 3, 5, or 20 men had raped her inside a tiny bathroom, while she tried to fight them off for 30 minutes. Right.

Police never investigated; they avoided investigating; and in the course of a year no one asked the accused to give statements, or questioned them about the case--at all. The DA refused repeated offers to view the accused’ alibi evidence or to have them take lie detector tests. And that‘s likely because he needed to remain officially unaware of the evidence--that two of the accused were not there at the time of the alleged rape, and could prove it with photos, documents, cell phone records, and more; and that DNA evidence cleared the entire team (while showing the woman had recent sexual contact with as many as eleven other men).

That‘s sure grounds to continue a prosecution for year, while raising racial animus against the defendants to poision the jury pool. (Seventeen percent of those polled in Durham said they would vote to convict even if the accused were innocent.) That‘s called forcing a plea bargain--

that‘s right: a DA can force a plea bargain for a crime which never happened; and the judges on the courts (all the way up to SCOTUS and their decision this year in
Rehberg v. Paulk, 9-0) seem to find nothing actionable in that.

“It would be a shame if the message this case were to send to government officials is "don't get anywhere near an investigation of rich white boys with expensive lawyers”

The only reason the lacrosse case could last for so long was because “rich white boys” are the only class in America that rights activists will not step forward to defend. Now those who are not “rich white boys” are going to have to live with the legacy of their inaction--because those court decisions limiting the rights of accused persons are going to apply to everyone.

Posted by: Chavez | Dec 31, 2012 6:27:32 PM

The prosecutors obviously screwed up this case and needed to drop it much sooner. But Judge Wilkinson's opinion rightly calls out the plaintiffs here for bringing a bewildering array of claims against an inflated set of parties, including novel claims like "stigma-plus," in a plaintiff's lawyer's overreach that has dragged out discovery for many extra years and frankly smacks of payback for the prosecutorial overreach that gave rise to this whole thing.

I am curious about why the plaintiffs pursued this scorched-earth, leave-no-concievable-defendant-unsued strategy. Does it have to do with the fee structure here? Who is paying these lawyers?

In the end, one thing we need not to lose sight of is that it was correct for prosecutors, based on the evidence available, to initially pursue this investigation (notwithstanding inconsistent victim statements, which are common). It would be a shame if the message this case were to send to government officials is "don't get anywhere near an investigation of rich white boys with expensive lawyers -- if it turns out that they didn't commit the crimes, or you can't prove they did, they will bury you in a barrage of counterclaims for years." Because that message is not conducive to justice, any more than it would have been for Nifong's overreach to have gone unpunished (which it didn't -- the guy lost his job and was disbarred!).

Posted by: JR | Dec 31, 2012 3:44:30 PM

Bottom line: if prosecutors can get away with what Nifong did,
and there is no federal investigation afterwards, and no civil suits
are allowed (for the purpose of getting depositions), then there is
no redress at all for prosecutorial abuse.

As for Wilkinson,not only did he display basic ignorance about some of the facts of the case, but he also had more harsh words of condemnation for the plaintiffs than he did
for Nifong et al. IMHO, the very first words out of the mouths of the judges should have been outrage that innocent persons could be prosecuted under our system for a crime which never happened.

Clearly the judges regarded safeguarding prosecutors and police from the threat of liability, as a more urgent need than protecting the rights of accused persons.

Posted by: Chavez | Dec 31, 2012 10:02:39 AM

The comments to this entry are closed.