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Durham Faces Federal Lawsuit From Ex-Lacrosse Players

Posted October 5, 2007
Updated October 25, 2007

— Three former Duke lacrosse players Friday filed a federal lawsuit  that seeks  damages from Durham and asks the court to order numerous changes in how the Durham Police Department handles criminal investigations.

The suit against the city of Durham, former District Attorney Mike Nifong, former police Chief Steve Chalmers and several police detectives and officers wants the defendants punished "for outrageous conduct pursued out of actual malice" that violated the players' civil rights.

It calls for the appointment of an independent monitor who would oversee the police department for 10 years and have the power to hire, fire and promote police department personnel, including the chief of police. The monitor would answer only to the federal court.

City spokeswoman Beverly Thompson said the city's attorneys will conduct a "full and thorough review" of the 155-page complaint and fight it.

"We understand the complaint assesses claims against the city and its employees that appear to be based on untested and unproven legal theories," Thompson said in a statement. "In light of that, the City Council has directed legal counsel to vigorously defend the city and city employees in court against this lawsuit."

"We look forward to it," said Richard D. Emery, a New York-based civil rights attorney representing Reade Seligmann, one of the plaintiff trio. (Hear the full interview with Emery.)

The city has 20 days to respond.

Seligmann, David Evans and Collin Finnerty also want to change photo-identification lineups like the one that helped secure their indictments. One thing they want is to have all identification procedures, both formal and informal, videotaped.

Other reforms include establishing an independent citizen review panel to publicly hear complaints of police misconduct; requiring results of DNA and other scientific tests to include raw data, and requiring the monitor to approve all written and spoken communication from the police and Crime Stoppers during an investigation.

Police personnel should also be trained on the chain of command in criminal investigations, issuing public statements, conducting identification procedures, serving warrants, prohibiting threats against witnesses, standardizing notes and other documents, supervising private contractors and standardizing probable cause. (Read what else the plaintiffs want.)

"The demands here are to protect other people from false accusations that these boys suffered – other people in Durham and other people throughout the country – by using this case as a deterrent," Emery said.

North Carolina Central University political science professor Jeffrey Elliot said the demands could be one reason why the city is not willing to settle the lawsuit.

"To take that extreme step would suggest that the police department was riddled with corruption," he said.

An independent panel was examining the police department's role in the lacrosse case up until August, coming behind an internal police probe that found no wrongdoing. The possibility of a lawsuit stalled the panel's work because the city's insurance company is concerned about how any findings could affect a suit.

Durham Mayor Bill Bell said Friday the City Council has not decided whether the panel's work will continue.

Evans, Finnerty and Seligmann were charged in April and May 2006 after exotic dancer Crystal Mangum claimed she was raped at an off-campus party hosted by lacrosse players. Even as the case unfolded, Nifong pursued charges of first-degree rape, kidnapping and sexual assault until December, when he dismissed the rape charge against the three men.

Less than a month later, he recused himself from the case and asked for a special prosecutor to handle it. Earlier this year, North Carolina Attorney General Roy Cooper dropped the case, saying his special prosecutors had found no grounds to proceed.

The lawsuit charges Nifong and the other defendants conspired to keep alive a pitifully weak case as he faced a tightly contested election in the Democratic primary for district attorney.

The ex-players contend that Nifong, the police and others withheld exculpatory evidence, intimidated witnesses who would undermined the investigation, made numerous public statements to smear the lacrosse players, and used a photo lineup that had only  lacrosse players so Mangum would name three team members as her attackers. The suit says it all was intentional or stemmed from officials not supervising subordinates as they should have.

The complaint also accuses the defendants of ignoring Mangum's shifting versions of the alleged attack and accuses police department leaders of negligently allowing Nifong to take control of the investigation.

Last month, the players lawyers gave the city until early October to respond to a reported $30 million proposed settlement. The two sides could not agree on the deal,  which would have included the city's leading lobbying for legislation to limit the power of district attorneys.

"The city's response to our offer to negotiate has been pitiful and disappointing and not worthy of discussion," Emery said. "And so, we're going ahead with the lawsuit."

The city is self-insured for $500,000 in damages, and the city's insurance company would pay a maximum of $5 million for any other damages awarded to the plaintiffs. Anything else would be paid from the city's general fund. Depending on the amount of any awarded damages, it could mean a tax increase to cover the excess.

"The big losers are the taxpayers, the citizens – who are innocent parties in this," Elliot said.

The complaint also asks for an injunction prohibiting Dr. Brian Meehan and his private laboratory from providing any reports or expert testimony in a court proceeding for 10 years. Meehan, the director of DNA Security Inc., was hired to test DNA samples from 46 members of the 2006 Duke lacrosse team.

Meehan had told Nifong by April 2006 that testing had found genetic material from several unidentified men – though none from any lacrosse player – in Mangum's underwear and body. That information was not included in a report summarizing the lab's findings, and Nifong did not provide it to defense attorneys until October.

When he did so, the information came in the form of nearly 2,000 pages of raw data that took one of Evans' defense attorneys days to decipher.

305 Comments

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  • nycole125 Oct 8, 2:40 p.m.

    In my opinion, Nifong is the main vilain in this long story. Yes, he was suported by the DPD but he also incited the mobs with the help of Jackson, Sharpton and the Black Panthers. Why this hate? Why can't we all live in peace and harmony? And if you want to really help CGM, offer her mental care and take care of her kids. She should not be prosecuted. MOO

  • nycole125 Oct 8, 1:55 p.m.

    Question: elcid considers Nifong above the law? This vile, amoral, shameless man, with such a rotten conscience can get off the hook when the suit is tried in Greensboro?

  • leelou3 Oct 7, 3:26 p.m.

    Durham recently made the list of the ‘Fittest Kids in America’. Do you know how Durham funds the after school programs that keep children safe and off the streets? Do you not think that more money could be used to go towards paying our civil service employees and securing their families future? So many things are wrong with Durham because of inadequate city funding. Evaporating millions of dollars out of a city in Durham economic condition for any reason is point blank selfish.

  • leelou3 Oct 7, 1:08 p.m.

    c4sp3r-

    My point is we as a country really haven't evolved much as a people. The fact remains that America and Americans are not the best example of a country that takes care of its own. Black or white because it’s more about class now anyway. You made the statements that it's ok for Durham to be destroyed? Do you not think that would have an impact on all of NC in some shape or form? This case is bigger than those three men because it will have a lasting impact us as a community (locally) and society (nationally). Durham should fight this to the highest court if need be. And no, I don't think the civil war was fought just behind slavery. It is known fact that most people then viewed black people as a commodity. The funny thing about it, not much has changed and the dollar over lives is still the bottom line.

    Durham recently made the list of the ‘Fittest Kids in America’. Do you know how Durham funds the after school programs that keep children safe and off the streets? Do you

  • casp3r Oct 6, 10:10 p.m.

    leelou3= Your arguments are really funny. Trying to bring Katrina into this and blaming fema. I guess you really need to learn the facts about that scenerio also. The black mayor had plenty of time and hundres of school buses that he never used to get his people out of there. There were pictures of said buses flooded in parked in a nice little row. I guess it is just easier to blame the white's for that problem then to realize it was blown from the start by the mayor himself. I wonder if he likes his chocolete city now?

  • casp3r Oct 6, 10:07 p.m.

    leelou3= WOW, got to go back to the civil war? I guess you think slavery was the only thing the war was over also dont you? The city tried to destroy these young men with lies. There was evidence the first week that one of them was not even at the party when she said she was raped. The city showed their racism and now you are trying to play it also. When will your deck be out of that card?

  • elcid89 Oct 6, 7:46 p.m.

    Kalina clarified that position in holding that a states attorney commencing proceedings in which she made false statements of fact in support of an arrest warrant was not entitled to absolute immunity. Prior to Kalina, SCOTUS had not directly addressed prosecutorial liability for conduct in obtaining an arrest warrant, and there existed disparate opinions within the circuits on the concept. The court, in Kalina, granted certiorari to resolve the conflict.

    The opinion in Kalina is the best source of clarity, in that it references the existing case law in establishing its finding and is a relatively "one stop shop" explanation of the current state.

    Hope that clarifies it. This will hinge on what role Nifong was acting in and what latitude the MD affords him in considering qualified immunity for any actions falling outside the scope of Imbler.

  • elcid89 Oct 6, 7:38 p.m.

    Old - for some clarification of prosecutorial immunity, reference Imbler v. Pachtman, 424 U.S. 409 (1976), Buckley v. Fitzsimmons, 509 U.S. 259 (1993) and Kalina v. Fletcher, 522 U.S. 118 (1997).

    Prosecutors are entitled to absolute immunity from relief for any actions undertaken pertinent to the role of advocate, specifically "a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution" (Imbler).

    Similarly, in Buckley, SCOTUS affirmed that "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity."

    Buckley, however, also found that prosecutors were not acting in the role of advocate when holding press conferences or fabricating evidence concerning unsolved crimes.

    In Kalina, however

  • elcid89 Oct 6, 5:02 p.m.

    "
    I didn't go through all 291 comments, though. Did you mention abosolute immunity for Nifong for his actions in the courtroom? (I know that's somewhat unsettled in 1983 claims, but my recollection is that absolute immunity stands even in cases of actual malice.)"

    I didn't mention it because as far as I can tell from this rambling mess of a complaint, they are attempting to stipulate that Nifong was acting as a policymaker for DPD and is therefore addressable under color of law.

    I pretty much stopped reading when I got to that point. They're attempting to effect an end run around prosecutorial immunity. I can imagine how that's going to fly in the Middle District.

    You are correct though. Prosecutors enjoy absolute immunity from criminal procedure as well as civil liability for any acts committed under the onus of their role, even in instances of willful or malicious intent.

  • syracuseinwonderland Oct 6, 4:32 p.m.

    leelou3 wrote:
    "I don't think that the city of durham paid her off."

    Who exactly do you think paid her off?

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