The Civil Suit Arising Out of the Duke Lacrosse Rape Case:
How It Illustrates the Limits of Civil Rights Litigation Even When Serious Wrongs Have Been Done

By HOWARD WASSERMAN

Tuesday, Oct. 16, 2007

The Duke Lacrosse Case is a multi-phase tale of the good, the bad, and the ugly of the American criminal and civil justice system.

The first phase of the case began in March 2006, when prosecutors charged that several white members of Duke University's nationally ranked lacrosse team had sexually assaulted upon an African-American exotic dancer from Durham at an off-campus house party. From the start, the case was loaded with racial, gender, and socio-economic overtones.

In the second phase, the case shifted its focus to the overzealous prosecutors and police who pursued the case, obtaining indictments even as evidence of the players' innocence mounted.

The third phase of the case began when the North Carolina Attorney General took control of the case and, following an independent investigation, pronounced the three players actually innocent of any wrongdoing.

The fourth phase involved a story of prosecutorial ethics, as the district attorney was disbarred and convicted of criminal contempt for his handling of the case.

Earlier this month, the case entered a fifth phase, which is the subject of this column. The three former players who were charged and then vindicated --David Evans, Collin Finnerty, and Reade Seligmann--filed a federal civil rights action against sixteen defendants, including the City of Durham, the district attorney, and numerous Durham police officers. (A key federal civil rights statute allows the recovery of damages and injunctive relief for injuries caused by violations of constitutional rights.) In 155 pages, 559 paragraphs, and 22 counts, the plaintiffs detail the saga of the case and request compensatory and punitive damages, attorney fees, and far-reaching injunctive relief.

The complaint describes a troubling story of government misconduct. Unfortunately, the story, though compelling, will not necessarily translate into success on the merits of many of the claims alleged in the complaint.

Overview of the Complaint

The primary targets of the complaint are the City of Durham; former Durham County District Attorney Michael Nifong; two Durham police investigators, Mark Gottlieb and Benjamin Himan; and the department spokesperson, David Addison. Other defendants include numerous supervisory police officers and members of a private DNA testing company that allegedly released incomplete results to the defense, apparently at D.A. Nifong's instructions. The primary claims are brought under the federal civil rights statute mentioned above, alleging violations of unspecified Fourth and Fourteenth Amendment rights, along with federal conspiracy claims and numerous state tort claims.

The facts alleged can be grouped into several categories. First, the complaint charges that various defendants fabricated DNA evidence by manipulating otherwise-exculpatory test results and reports.

Second, it alleges that Nifong and police officials made false statements to the press and the public about the case, misrepresenting the state of the evidence, the results of scientific testing, and the strength of the government's case, all for the purpose of tainting the jury pool and damaging the players in the court of public opinion.

Third, it alleges that Nifong and investigators willfully disregarded exculpatory evidence -- particularly inconsistencies in the alleged victim's statements, questions about her credibility, and the weight of physical evidence and testimony. Instead, they moved ahead with the investigation, brought the case before a grand jury, and obtained indictments by utilizing manipulated evidence and presenting a one-sided case.

Fourth, it alleges that investigators manipulated evidence. Specifically, it claims they utilized unconstitutionally suggestive procedures for witness photo identifications: Witnesses were shown photos of only white Duke lacrosse players, with no "filler" photos; as a result, if anyone identified, even randomly, it automatically would have been a white Duke lacrosse player. In addition, the complaint allege that police arrested several witnesses on old, unrelated warrants in order to intimidate them into changing their stories.

Fifth, it alleges that Nifong and police failed to disclose exculpatory evidence to the defense, despite repeated requests from counsel and orders from the court. It adds that, even when they did disclose evidence, they did it in a "document dump" of 2000 pages of unfiltered scientific data, without providing the exculpatory scientific conclusions.

Sixth, and finally, it alleges that Nifong made misrepresentations to the court as to the state of the evidence and his overall conduct of the case; these misrepresentations ultimately cost Nifong his law license and landed him in jail for one day.

Overarching all of these separate allegations, moreover, are claims that supervisory and policymaking police officials knew about, encouraged, or enabled this misconduct, permitting liability up the chain of command and to the City of Durham itself.

The Weaknesses in the Complaint: A Compelling Story, But Not a Slam-Dunk Lawsuit

The facts, as the plaintiffs describe them, certainly sound egregious. But it is a very different, and more difficult, question whether these facts establish civil liability. Difficult legal questions follow, such as which defendants may be liable for what conduct and what remedy will be available. Several of the claims as to several parties present immediate and obvious difficulties for the plaintiffs.

First, the court must separate Nifong's prosecutorial functions from his non-prosecutorial conduct, with Nifong likely enjoying absolute prosecutorial immunity -protection against any liability - for the former. The phrase "prosecutorial functions" refers to conduct prosecutors perform as advocates for the state. This means those acts "intimately associated with the judicial phase of the criminal process." The judicial phase begins, at the latest, at the point that a prosecutor has enough (or believes he has enough) to go to the grand jury for indictment. Thus, Nifong almost certainly will be immune from civil liability for much of his most serious alleged misconduct in prosecuting the players: deciding to bring charges, even when faced with contradictory evidence and evidence that the alleged victim was not credible; presenting the case to the grand jury and obtaining indictments; appearing and making arguments (and even misrepresentations) to the grand jury and to the court; and disclosing (or not disclosing) evidence to the defendants during the pre-trial discovery process.

Importantly, even improper motive, bad faith, or intent to do constitutional harm does not abrogate prosecutorial immunity. Thus, it does not matter, for purposes of immunity, whether, as plaintiffs allege, Nifong pursued the prosecution despite knowing how weak the case was or whether evidence pointed strongly against the players' guilt even before Nifong went to the grand jury. It does not matter whether he pursued the case to win a close primary election for DA by currying favor with the county's African-American population. It does not matter whether Nifong's misrepresentations to the court were clearly inappropriate or that they formed the basis for his later disbarment and contempt conviction. Civil liability for individual prosecutors cannot be grounded on plainly prosecutorial functions. Prosecutorial immunity is intended to leave prosecutors free to wield their discretion without fear of reprisal. It also may mean that a "bad apple" prosecutor can avoid civil liability despite causing substantial harm.

Second, as to the claims against the police detectives and as the claims not relating to Nifong's prosecutorial functions--namely the allegations of fabricating evidence, intimidating witnesses, and making false public statements--there may be a defense of qualified, as opposed to absolute, immunity. Qualified immunity means that, even if the officers did violate the plaintiffs' rights, they can be held liable only if the right at issue was "clearly established," such that a reasonable officer would have known that his conduct, defined in the factual context and circumstances at hand, violated that right.

Consider, for example, the suggestive photo identification procedures. Assume a procedure that does not use "filler" photos is unconstitutional. Even so, the officers can be liable for damages only if a reasonable officer would have known that this particular procedure was unconstitutional. Similarly, a reasonable officer would have to know that making public statements about the state of the evidence, particularly false ones, amounts to a constitutional violation (as opposed to simple defamation), in order to be held liable for a civil rights violation. For a right to be "clearly established" requires either case law holding that procedures or actions, considered in factual context, violate the federal constitution, or specific departmental or state guidelines declaring particular acts constitutionally inappropriate.

Third, the plaintiffs allege a conspiracy to obstruct the due course of justice and to deprive them of the equal protection of the laws. But the conspiracy counts are brought under provisions of the Ku Klux Klan Act of 1871, an enactment designed to counter the new social and political power of the KKK in the post-bellum South; those claims require that the conspiracy be motivated by some racial or other class-based animus.

Here, it is not clear what class the plaintiffs belong to--White males? Duke students? Student-athletes? Lacrosse players? Nor is it clear if, and why, the defendants held animus against that class. There is an allegation that Detective Gottlieb disliked Duke students, an animus that allegedly affected his police work in the past. But the complaint gives no explanation why any of his alleged co-conspirators shared that animus or acted on it.

Why the Broad Injunctive Relief Sought in the Complaint Will Likely Prove Unavailable

The complaint's weaknesses also extend to the remedies sought. The plaintiffs seek substantial compensatory damages, particularly to recover legal costs the three incurred in defending themselves against the criminal charges, as well as with value of harm to their reputations, their privacy, and their educational and professional opportunities, along with punitive damages. These harms seem real and substantial. Thus, if the underlying allegations prove true, and the relevant immunities do not cover all defendants for all the bad acts alleged, the plaintiffs likely will be able to recover significant damages..

However, the plaintiffs also seek broad injunctive relief, which they are unlikely to obtain. In particular, they ask for a judicial order establishing oversight and restructuring of the Durham Police Department, the appointment of a monitor to control the department, and the establishment of a host of policies relating to (among other things) press releases and public statements, disclosure of exculpatory evidence, the issuance of arrest warrants, and witness identification procedures. The plaintiffs' goal is "to protect all persons and to prevent such misconduct from ever happening again."

These plaintiffs, however, almost certainly lack standing to seek this injunctive relief and they are unlikely to obtain any type of injunction. Federal courts only can impose remedies that benefit the parties before the court; they cannot reach out to impose injunctive relief, absent an appropriate plaintiff or in an action by the federal government. Suffering past constitutional harm entitles injured plaintiffs to a retrospective remedy--damages for past injuries. It does not entitle them to a prospective - that is, forward-looking relief to prevent injury in the future - remedy, such as judicial decrees compelling the department to alter its policies. Plaintiffs can obtain an injunction only when there is some evidence of a genuine risk that these plaintiffs will be subject to the same misconduct by these defendants in the future, such that these plaintiffs will benefit from any departmental changes. Moreover, in cases in which the unconstitutional conduct involves the criminal justice system, courts generally are reluctant to presume that individual plaintiffs again will be accused of crimes, or otherwise come into contact with police or prosecutors in a way that likely risks a repeat of the unconstitutional conduct. This is especially true here, since none of the plaintiffs still attends Duke University, resides in Durham, or spends any time in Durham.

The plaintiffs bring this case as "private attorneys general," seeking to enforce the Constitution and to fundamentally alter the functioning of the Durham Police Department, in order to ensure that no one will be subject to similar unlawful treatment in the future. But they can fulfill that role even without broad injunctive relief. The purpose of a civil rights action for damages is both to compensate the plaintiff and to deter the defendant; the theory is that, after being hit with a substantial damages judgment, the government will take it upon itself to restructure its rules and policies to avoid similar future misconduct and future damage awards. Whether that presumption proves accurate in this case turns on what, if anything, the City of Durham, if ordered to pay a substantial judgment, actually does to remedy its problems.

Why Settlement Is Likely and May Well Include Some Departmental Changes

My prediction is that the case settles, as do most large-scale civil rights claims with strong facts. The defendants, particularly the city, may view settlement as a best option in light of the dramatic and disturbing allegations in the complaint, many of which already have been substantiated by the ethics investigation into Nifong's misconduct.

A settlement may include, in addition to substantial damages, some of the departmental restructuring that the plaintiffs request: Even if they could not achieve that result from the court, nothing bars the city from voluntarily restructuring or changing its policies as part of a settlement.

Given the realities of constitutional and civil rights litigation, particularly individual immunities, the case is not entirely a slam-dunk for the plaintiffs and many of their factual allegations, as egregious as they sound, will not form the basis for a legal remedy. Settlement is likely, but it may not accurately reflect the full damages the plaintiffs suffered, because it may be reduced by the expectation of many litigation hurdles down the road.

That reality reflects not just the situation in this case, but also the limits on civil rights litigation as a corrective for government's constitutional misconduct, particularly misconduct within the criminal justice system.


Howard M. Wasserman is Visiting Associate Professor at Saint Louis University School of Law and Associate Professor of Law at FIU College of Law.

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