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Monday, April 04, 2011
Thoughts on the Duke lacrosse decisions--Substance

Upon actually reading the opinions in Evans (the indicted players) and Carrington (the unindicted players), it appears (contrary to what news reports and self-interested bloggers suggested) that the indicted players kept most of their case, while the unindicted players have much less left in theirs. Still, there is something left in both cases, particularly in their constitutional claims.

By the way, the opinions were released just over five years to the day of the team party, the false charges, and the early steps in this mess. And just to make the timing of things really strange, Crystal Mangum, the exotic dancer whose allegations really started it all, was arrested early Sunday morning in connection with the stabbing of an unidentified man (believed to be her boyfriend).

1) In both cases, the court denied dismissal of Fourth Amendment claims based on the intentional or reckless suppression and withholding of evidence and the fabrication or manufacture of false evidence for use in pretrial proceedings (magistrate proceedings producing warrants and grand jury) resulting in a search or seizure--the indictment and arrest of Evans, Finnerty and Seligmann; the photographing and DNA testing of the unindicted players; and the issuance of various warrants. As to the indicted players, the court further predicted that the Fourth Circuit would recognize a Fourth Amendment claim by a person arrested pursuant to a process (including a grand jury indictment) that lacked probable cause, where officials intentionally or recklessly lied or hid facts or fabriacted the evidence used in that process. In addition, the court recognized overlapping Fourteenth Amendment claims for the same conduct (acknowledging the gray area and uncertainty in which various constitutional rights and liberties interact).

The problem I had seen with the Fourth Amendment claims was that the indicted players never went to trial and the unindicted players never were involved in any formal processes. But this potentially meant that police and prosecutors could fabricate or withhold evidence at will, as long as the material never was used in any formal proceeding. (Or, at the very least, such a claim would have had to run through catch-all substantive due process and City of Sacramento v. Lewis's shocks-the-conscience test). But if such a claim can stand as to any deprivation of liberty at any stage of the criminal process, it may have some legs. It also may go along way to allowing § 1983 to provide some check on abuses within the criminal-justice process.

2) The court also denied dismissal of Fourteenth Amendment claims by both sets of plaintiffs based on the various false and incriminating media statements by Nifong and the police. This again was a claim that I believed lacked  merit, because the making of the statements did not violate any right beyond the players' reputation and the stigma associated with loss of reputation--which does not violate the Fourteenth Amendment under Paul v. Davis. But the court adopted (from other circuits) the "stigma-plus" theory of the Fourteenth Amendment, under which the Fourteenth Amendment is violated by statements that impose a stigma in connection with unlawful arrests, searches, or seizures that violate the Fourth (or, I suppose, the Fourteenth) Amendments.

3) The court rejected in both cases allegations that Duke or its top administrators was a state actor as to the constitutional claims. The only constitutional claim against a Duke person that survived (shockingly) were the claims against Tara Levicy, the ER nurse who examined Crystal Mangum and told officers that Mangum had suffered injuries "consistent with" sexual assault, which lead to the warrants and other investigations. The court accepted that these allegations sufficiently alleged a conspiracy and joint action between Levicy and the police, in part because the officers had tried to shift the blame to Levicy.

This one seems wrong to me, at least as alleged. Conspiracy as a test for state action usually requires far more conscious agreement to engage in obviously unlawful conduct. Levicy is alleged to have given the police inaccurate information about the rape-kit exam, information she was neither qualified nor authorized to provide. There are no allegations that she knew this information was wrong or that she did this intended to help the police frame the players. It thus seems a stretch to say that her conduct in speaking with and cooperating with the officers (however much in error) is atrributable to the state. I also thought it odd that the court pointed to the officers' attempts to blame Levicy as somehow relevant to whether she is a state actor.

By contrast, the court seems on stronger footing in the indicted players' case in finding thet DNA Security, Inc. (DSI) and its president and lab director were state actors, where they explicitly agreed with Nifong not to fully disclose information from the DNA tests, conduct that is facially and obviously wrongful.

4) The court rejected defenses of prosecutorial immunity by Nifong and his chief investigator and of qualfiied immunity by all public officials. Prosecutorial immunity was not in play because the conduct at issue was investigative, involving the suppression and manufacture of evidence during an investigation, rather than anything as prosecutorial advocate for the state. Qualified immunity was denied because the Fourth and Fourteenth Amendment rights at issue were clearly established.

The prosecutorial immunity decision seems right, since most of Nifong's misconduct involved his leadership of the investigation in the case, apart from anything that happened in judicial proceedings.

The qualified immunity decision is weaker, I think. The court was very cursory in its analysis, usually simply declaring that the right at issue was clearly established without explaining how it reached that conclusion or analyzing the state of the law to show that the right was clearly established. For example, the court held that the Fourteenth Amendment liberty from false government statements was clearly established, even though the Fourth Circuit never had adopted the stigma-plus theory. Similarly, the court was explicitly predictive in stating its view that "the Fourth Circuit would recognize a potential § 1983 claim for violation of the Fourth Amendment when an individual is arrested pursuant to legal process that was not supported by probable cause." The court used similarly predictive language about a claim based on an official's intentional or reckless fabrication of evidence to present before a magistrate (in seeking a warrant) or a grand jury (in seeking an indictment). But predicting that the Fourth Circuit would recognize such a claim is not the same as saying the Court has recognized such a claim and the latter is necessary to say a right has been clearly established. And the court never tried to classify these claims as "so obviously violative that analogous cases are not required"--although if there is such a claim, suppressing/fabricating evidence would seem to fit.

It will be interesting to see what the officer defednants do next. Denial of qualified immuniy is immediately appealable, at least where the denial is based on the purely legal question of whether a right was clearly established. So the government defendants could preempt much of discovery, at least for now (in the face of the crowing of plaintiffs' counsel and PR team in both cases about how they are going to wade hard into discovery) and at least as to the constitutional claims by seeking immediate review as to the legal issue of clearly established. On the other hand, the court took great pains to make clear that it was taking only a preliminary look at the qualified immunity issue and that it fully expected to take another, closer look on subsequent summary judgment motions.

5) The unindicted players brought a number of tort and contract claims against Duke, Duke President Richard Brodhead, a university vice president, and the dean of students, based on interactions the players immediately after the rape charges came out. The upshot of all the claims is that Duke and the administrators sold the players old--they tried to get the players to talk to them in detail about the events; disclosed details of purportedly confidential meetings to the police and DA; tried to strong-arm the players into talking with them and not seeking support from parents or outside counsel; failed to support the players publicly and in fact undermined them by canceling the season and firing Coach Mike Pressler; and failed to protect the players from harassment and criticism.

Of these, the one that survived dismissal was a claim for constructive fraud, but based only on the narrow theory that university officials created a confidential relationship with the players by encouraging them to talk openly with university officials once the controversy broke and by trying to close them off from outside assistance from their parents or non-university counsel. The court rejected broader theories of a general special or fiduciary relationship between a university and its students or its student-athletes or of a general duty to protect its students/student-athletes from criticism by other students or faculty. The court also rejected the theory that the anti-harassment policies in the student handbook create a contractual obligation between the university and its students.

All in all, a mixed bag. The players are declaring victory here and it is somewhat deserved--not-insignfiicant portions of both cases live another day, although they may run into a new roadblock at summary judgment. In fact, even while denying dismissal of numerous claims, the court used language suggesting his view that this analysis was very temporary and preliminary, that the players continued to beat a weighty burden (with even stronger hints that he questioned whether the unindicted players could show damages), and that most of these legal and factual issues would be revisited, probably more rigorously and strictly, at summary judgment.


A few comments:

We are in trouble if the courts permit prosecutors to fabricate false evidence so long as it is not used at trial. Prosecutors seek plea deals; and giving them a free hand to fabricate a phony case in order to pressure a defendant is like giving a kid the key to a candy store. Pity the next defendants who are falsely accused of rape, and have a community stirred up against them with lies and false evidence...

As for Levicy, she repeated changed her SANE report and her own testimony (even 10 months later, in January 2007) to make it conform to Mangum's changing stories and each new police "theory" of the case. Her lies provided the only "probable cause" the case ever had; without it, the police would have had no basis on which to obtain search warrant.

But the court ruled (wrongly, IMHO) that as a SANE (sexual assault nurse examiner) she owed no duty to persons who might be accused on the basis of her reports, because--as a medical officer--she had a duty of care only to those who were her patients. But the court misunderstands the role of a SANE; that role is to gather evidence, not to treat the patient.

The court also ruled that the actions of the Black Panthers in threatening a defendant inside a courtroom with death, passing out photos of the accused and promising to bring "their own kind of justice", and making other death threats, was not akin to the sort of Klan actions covered by section 1985; and since the Fourth Circuit has held that section 1985 applies only to African-Americans or those with a similarly long history of past discrimination, the Duke students are not included in its protections.

As well, Duke, though it handed over private student information in violation of FERPA (and lied about it afterwards to the court) nevertheless did not violate their privacy rights because the actions recorded on the students' key card information were all taken in public, and therefore had no expectation of privacy.

Nifong used that information to pick suspects whom he could confirm had been in Durham. (As one of his investigators said, they didn't want to pick someone only to find out he had been on a plane at the time.)

To my mind that makes Levicy, Duke, and Nifong all co-conspirators.

All in all, the effect of Beaty's decision, IMHO, was to narrow down the potential liabilities as much as possible to only a few police offices, who may--perhaps--be turned into the scapegoats, in an effort to limit damage and confine it, first to Nifong, and then only to a couple of "rogue" officers.

IMHO, a generally bad decision.

Anonymous Anonymous -- 4/04/2011 9:37 AM  

"...the unindicted players never were involved in any formal processes"

I'd certainly classify the NTO as a "formal processes," along with a few other warrants and orders used.

"...Levicy …There are no allegations that she knew this information was wrong."

The allegations are that SHE provided the false information.

I appreciate much of what you openly share here, and understand that there are more than a couple thousand pages to cover just to see what is in the complaints and rulings.

Blogger kbp -- 4/04/2011 12:23 PM  

But providing false information, while tortious, does not make someone a state actor subject to constitutional liability.

Blogger Howard Wasserman -- 4/04/2011 4:48 PM  

That statement would seem to also cover Meehan (spelling?).

Blogger kbp -- 4/04/2011 6:35 PM  

Absolutely. As I said in the pose, the court got it right as to DSI and Meehan, because there clearly was an agreement between private and public persons to engage in unconstitutional conduct. And the court got it right that no one from Duke had made such an agreement.

Blogger Howard Wasserman -- 4/05/2011 12:38 AM  

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