By Howard M. Wasserman
Professor of Law, FIU College of Law
The latest salvo in the never-ending battle arising from false rape allegations against members of the Duke University men’s lacrosse team in March 2006 was fired in December by the United States Court of Appeals for the Fourth Circuit in a decision in the civil litigation brought by the former players.
The litigation involves three consolidated lawsuits–one case by the three players who actually were indicted, one case by two players who were investigated but not indicted (including Ryan McFadyen, the player who wrote the infamous email about killing a stripper), and one case by 38 players who were investigated but not indicted. A host of different defendants are named in the various cases, including Duke University and various Duke employees; former Durham District Attorney Mike Nifong; Durham police officers Mark Gottlieb and Benjamin Himan; a number of supervisory officers in the Durham government; the City of Durham; and the private laboratory that conducted DNA testing. The cases involve an overwhelming barrage of federal constitutional, state constitutional, and state tort claims.
Majority Opinions
This interlocutory appeal challenged the denial of motions to dismiss or for summary judgment by Gottlieb and Himan, the City of Durham, and the supervisory officials. We can break the court’s decision into four phases.
First, the court rejected a Fourth Amendment malicious prosecution claim by the indicted players against Gottlieb and Himan. The independent decision by Nifong to seek an indictment (and the independent decision of the grand jury to indict) broke the causal connection between the officers’ conduct in investigating and providing the DA with evidence and the unconstitutional prosecution. Absent allegations that the officers affirmatively misled or unduly pressured the prosecutor to seek that indictment (neither of which were present in the complaints), independent acts of others insulate the officers from liability.
Second, the court rejected Fourth Amendment claims against Gottlieb and Himan by both sets of unindicted players; these challenged the seizure of physical evidence (photographing and DNA testing), as well as a search of McFadyen’s home and car. While the searches and seizures were conducted pursuant to warrants, plaintiffs alleged that the warrants flowed from the officers’ dishonest affidavits in support of the warrant request. These claims failed under the controlling standard of Franks v. Delaware, 438 U.S. 154 (1978), which requires 1) a showing that officers made false statements or omitted statements knowingly or intentionally or with reckless disregard for their truth and 2) a showing that those false statements were “material,” meaning “necessary” to a neutral and disinterested magistrate’s authorization of the search. While the plaintiffs did identify a number of knowingly false statements in the affidavits, the court held that the affidavits were sufficient to support a finding of probable cause even with the false statements excised, thus the false statements were not material and the claims failed on the second Franks prong.
Third, the court rejected Fourth Amendment claims against the City and various supervisory officers and a Fourteenth Amendment substantive due process claim against several officers who made public and media statements about the investigation. These claims all depended on the existence of a predicate constitutional by an individual officer; because neither Gottlieb nor Himan committed any constitutional violations, however, their supervisors and the entity cannot be liable. The one uncertainty as to this portion of the opinion was whether the Fourth Circuit even had appellate jurisdiction as to the City. The individual police officers and the supervisory officers all appealed the denial of a defense of qualified immunity, which is immediately appealable (even though the denial does not dispose of the case) under the “collateral order doctrine.” But the City was not appealing a denial of qualified immunity, since municipalities do not enjoy that defense. Nevertheless, the court exercise pendent jurisdiction over the City’s claims, because resolution of the individual qualified immunity appeals would “fully resolve” the City’s liability.
The indicted players achieved one small victory. A two-judge majority did allow state law malicious prosecution claims by the indicted players to proceed against Gottlieb and Himan. Unlike the Fourth Amendment, under North Carolina tort law an independent decision by another actor (such as the DA or grand jury) does not always break the causal chain between the prosecution and the officers’ investigation. Although the court expressed doubt in the plaintiff’s “attenuated view” of causation, it insisted that plaintiffs on a state claim only must show that the defendant “instituted, procured, or participated in” a criminal proceeding; that standard was satisfied on the allegations of the complaint as to Gottlieb and Himan (although not as to a third police officer).
Criticizing the Plaintiffs
While joining the “fine opinion” for the court, Judge J. Harvie Wilkinson added a blistering concurring opinion. He sharply criticized the plaintiffs for seeking “to raise every experimental claim and to corral every conceivable defendant,” producing “a case on the far limbs of law and one destined, were it to succeed as a whole, to spread damage in all directions.” Wilkinson criticized the plaintiffs and their lawyers for overreaching in the dramatic numbers of claims asserted (23 by the indicted players, 32 by the large group of unindicted players, and 40 by the two unindicted players), the “sweeping scope” of the litigation, and the “overwrought” nature of the claims and the allegations. This comports with the views expressed by the district court judge in this litigation; in granting in part and denying in part the various motions, the lower court noted the unwieldy scope of the litigation and encouraged the parties “to make every effort to reduce the volume of filings and to avoid unnecessary rhetoric, and to proceed on the remaining claims in a direct, professional manner, without requiring unnecessary involvement from the Court.”
It remains to be seen whether that criticism and advice will be heeded.
Meanwhile, this litigation is far from over. The state-law malicious prosecution claims against Gottlieb and Himan return to the district court and should proceed to discovery. They join some unappealed federal and state claims that remain alive against other defendants, including Nifong (who failed to appeal the denial of his qualified immunity defense), a nurse at Duke University hospital, and the DNA laboratory. As Judge Wilkinson pointed out, more than six years have passed since the criminal charges against the three players were dismissed. And this March will mark seven years since the infamous team party that started this all. Nevertheless, the case marches on.
Howard M. Wasserman joined the Florida International University College of Law faculty in 2003. He graduated magna cum laude from the Northwestern University School of Law, where he was an associate articles editor of the Law Review and was named to the Order of the Coif. Following law school, he clerked for Chief Judge James T. Giles of the United States District Court for the Eastern District of Pennsylvania and Judge Jane R. Roth of the United States Court of Appeals for the Third Circuit. He also has been a visiting professor at Saint Louis University School of Law and Florida State University College of Law. Professor Wasserman teaches civil procedure, evidence, federal courts, civil rights, and First Amendment; his scholarship focuses on the freedom of speech and on the role of procedure and jurisdiction in public-law and civil-rights litigation. He can be reached at wasserma@fiu.edu.
