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Plaintiffs’ Response to Nifong’s Motion to Dismiss
Topic Started: Jan 31 2009, 12:32 AM (8,059 Views)
sdsgo


IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT MICHAEL B. NIFONG’S MOTION TO DISMISS



Defendant Michael B. Nifong’s Motion To Dismiss (“Motion”) asserts three grounds for dismissal, incorporating by reference the arguments made by Defendant Linwood Wilson and by Defendants DNA Security, Inc. (“DSI”) and Richard Clark in support of their previously-filed motions to dismiss. Plaintiffs have already responded to the arguments advanced by Wilson and the DSI Defendants in the Consolidated Opposition to the previously-filed motions to dismiss, and in the interests of economy Plaintiffs incorporate those responses herein. Plaintiffs submit this brief memorandum to summarize their response to these arguments as they relate to Nifong, and to discuss a new Supreme Court decision that reconfirms that Nifong is not entitled to absolute immunity.

First, Nifong asserts that the Amended Complaint fails to state a claim against him upon which relief can be granted. See Motion, ¶ A. However, the Consolidated Opposition summarizes the detailed allegations against Nifong and the other Defendants—including Nifong’s involvement in the fabrication of false inculpatory evidence, the concealment of evidence of Plaintiffs’ actual innocence and the lack of probable cause against them, the intimidation of witnesses, and the making of false and inflammatory public statements regarding Plaintiffs’ supposed guilt—all of which resulted in the wrongful seizures of the three innocent Duke students and caused them to suffer substantial economic, emotional and physical harm, irreparable reputational harm, and millions of dollars in legal fees. See Consol. Opp. to Defs.’ Mots. To Dismiss the First Am. Compl. (Docket No. 51) (“Consol. Opp.”), at 2-17 (summarizing allegations against Nifong and other Defendants). As the Consolidated Opposition explains, these allegations satisfy the elements of the federal civil rights violations and state-law torts alleged against each of the Defendants, including Nifong. 1

Second, Nifong argues that he has absolute immunity from these claims because, he contends, all of the actions alleged in the Amended Complaint “were done in his role as District Attorney.” Motion, ¶ C. However, Plaintiffs’ Consolidated Opposition explains the relevant standards relating to absolute prosecutorial immunity and makes clear that, contrary to Nifong’s argument, the mere fact that a defendant holds a prosecutorial title or position at the time of his alleged misconduct does not mean that he is entitled to absolute immunity. See Consol. Opp. at 23-26. Rather, courts apply a “‘functional approach,’ which looks to ‘the nature of the function performed, not the identity of the actor who performed it.’” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal citations omitted); Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 230 (4th Cir. 1997) (“[T]he scope of absolute prosecutorial immunity has been narrowly drawn.”).

Indeed, in Buckley, the Supreme Court refused to extend absolute immunity to prosecutors who were alleged to have engaged in similar misconduct, including the fabrication of inculpatory evidence during an investigation and the making of false and defamatory statements at a press conference. See 509 U.S. at 273-78. Here, as in Buckley, Nifong is not being sued because of prosecutorial functions “‘intimately associated with the judicial phase of the criminal process.’” Id. at 270 (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Rather, like Wilson, the allegations concerning Nifong relate to investigative functions and other non-prosecutorial acts that are not entitled to absolute immunity. These non-prosecutorial acts include the manufacturing of the phony “identification” of Plaintiffs during the April Photo Array (AC ¶¶ 175-97); the fabrication of the false May 12 DSI forensic report and concealment of DNA evidence showing Plaintiffs’ actual innocence and the lack of probable cause against them (AC ¶¶ 198-242); the efforts to intimidate witnesses into providing false inculpatory statements and disavowing prior exculpatory statements (AC ¶¶ 245-54; AC ¶ 264); and the publication of false and inflammatory public statements regarding Plaintiffs’ supposed guilt (AC ¶¶ 144-55). Nifong is liable even for the wrongful investigative acts that occurred after Plaintiffs were indicted: as the Supreme Court held in Buckley, “a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.” 509 U.S. at 274 n.5. In short, Nifong is liable for his investigative misconduct and false public statements in the same manner as any other law enforcement officer. 2

The Supreme Court’s decision earlier this week in Van de Kamp v. Goldstein, ___ S. Ct. ___, No. 07-854, 2009 WL 160430 (Jan. 26, 2009), reaffirms this functional immunity analysis and reconfirms that Nifong is not entitled to absolute immunity for his investigative misconduct and public statements. Van de Kamp involved claims that supervisory-level prosecutors had failed to properly train and supervise lower-level prosecutors to disclose impeachment material in their criminal trials, and to create a database of information relating to trial informants. As the Court explained, the allegations in Van de Kamp addressed an entirely different situation from a prosecutor’s “investigative . . . tasks,” “advice to police during a criminal investigation,” or “statements to the press,” to which “absolute immunity does not apply”:


The Court made clear [in Imbler] that absolute
immunity may not apply when a prosecutor is not acting as
“an officer of the court,” but is instead engaged in other tasks,
say, investigative or administrative tasks. To decide whether
absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of the
“functional” considerations discussed above. . . .

…..

In the years since Imbler, we have held that absolute
immunity applies when a prosecutor prepares to initiate a
judicial proceeding, or appears in court to present evidence in
support of a search warrant application. We have held that
absolute immunity does not apply when a prosecutor gives
advice to police during a criminal investigation, when the
prosecutor makes statements to the press, or when a
prosecutor acts as a complaining witness in support of a
warrant application. This case, unlike these earlier cases,
requires us to consider how immunity applies where a
prosecutor is engaged in certain administrative activities.


Id. at *6 (quoting Imbler, 424 U.S. at 431 n.33; citing Burns v. Reed, 500 U.S. 478, 492, 496 (1991); Buckley, 509 U.S. at 277; Kalina v. Fletcher, 522 U.S. 118, 126 (1997); id. At 132 (Scalia, J., concurring)). Ultimately, the Court held that the tasks at issue in Van de Kamp were “directly connected with the prosecutor’s basic trial advocacy duties” and, therefore, entitled to absolute immunity: “The management tasks at issue, insofar as they are relevant, concern how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor’s basic trial advocacy duties.” Id. at *8. As previously noted, however, Nifong’s liability arises not from a failure of “trial advocacy duties,” but from misconduct during the investigation of Plaintiffs and false public statements that “have no functional tie to the judicial process.” Buckley, 509 U.S. at 277. As Van de Kamp reconfirms, Nifong is not entitled to absolute immunity for such acts.

Finally, Nifong argues that Plaintiffs lack standing to seek the Injunction requested in the Amended Complaint. See Motion, ¶ B. However, Plaintiffs do not seek injunctive relief against Nifong. Therefore, Nifong himself lacks standing to make this argument. 3


CONCLUSION


For the aforementioned reasons, the Court should deny the Motion.

Dated: January 29, 2009

Respectfully submitted,
WILLIAMS & CONNOLLY LLP

Footnotes:

1. See Consol. Opp. at 30-46 (42 U.S.C. § 1983 claims); id. at 82-98 (42 U.S.C. §§ 1985 & 1986 claims); id. at 98-114 (state-law tort claims).

2. Nor can Nifong rely upon the DSI Defendants’ absolute immunity claim. As the Consolidated Opposition explains, an expert is not entitled to absolute immunity for his or her forensic analysis and reporting in support of a police investigation. See Consol. Opp. at 27-29; Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006).

3. See also Consol. Opp. at 116-18 (discussing Plaintiffs’ standing to seek Injunction and explaining why the City of Durham’s and DSI Defendants’ requests to dismiss prayer for Injunction are premature).

http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2007cv00739/46882/92/0.pdf
Edited by sdsgo, Jan 31 2009, 12:38 AM.
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Quasimodo

... contrary to Nifong’s argument, the mere fact that a defendant holds a prosecutorial title or position at the time of his alleged misconduct does not mean that he is entitled to absolute immunity.


Indeed, in Buckley, the Supreme Court refused to extend absolute immunity to prosecutors who were alleged to have engaged in similar misconduct, including the fabrication of inculpatory evidence during an investigation and the making of false and defamatory statements at a press conference.



" We have held that
absolute immunity does not apply when a prosecutor gives
advice to police during a criminal investigation, when the
prosecutor makes statements to the press,
or when a
prosecutor acts as a complaining witness in support of a
warrant application. This case, unlike these earlier cases,
requires us to consider how immunity applies where a
prosecutor is engaged in certain administrative activities.


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sdsgo

Hat tip to Tidbits for posting the Van de Kamp decision earlier this week. The thread was right on target and provided a great preview for the plaintiffs’ response.

:toast:
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genny6348
Genny6348
sdsgo
Jan 31 2009, 12:57 AM
Hat tip to Tidbits for posting the Van de Kamp decision earlier this week. The thread was right on target and provided a great preview for the plaintiffs’ response.

:toast:
I second :toast:
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Baldo
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Great Job to the Blog Hooligans on this one. We know when it comes to current legal news that not much gets by Tidbits, sdgso, and Quasi.

As for the world's greatest self proclaimed Durham ex-attorney it looks like he is running out of options.
Edited by Baldo, Jan 31 2009, 02:41 AM.
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Tidbits

Hooligan's never sleep.
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Joan Foster

Great work, Tidbits!

:bd: :bd: :bd: :bd: :bd:
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Bill Anderson
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Nifong and Wilson have contended that they were free to lie, intimidate witnesses, fabricate evidence, and make a mockery out of the investigative process. It is my belief that prosecutors, police, and judges should have NO immunity at all. None.

Since innocent people are indicted and convicted, that proves false the notion that innocence is the best defense. The reason that these travesties occur is because of lying prosecutors, police, and corrupt judges. Thus, they need to be held responsible for their lies, since innocent people apparently cannot depend upon the truth anymore.

Think of it. The justice "system" in this country no longer depends upon the truth. In fact, the truth is no longer an adequate defense, and that sorry and destructive condition exists because of the courts, and people like Mike Nifong and Linwood Wilson. (For Wilson, even his religious beliefs -- which he openly advertises -- did not stand in the way of his lying and intimidating witnesses. That is why I have nothing but contempt for him.)

One way to deal with the lies and abuse of the "justice" (sic) system is to make prosecutors, police, and judges fully liable for their wrongdoing. No immunity at all. None.

Oh, prosecutors would scream that every petty crook would sue them. They would scream that they could be wrongfully found liable. Well, do you know something? The reason that conditions that encourage wrongful convictions have been set by the prosecutors and especially the judges. So, hoist them by their own petards!

Yes, the courts would complain that they would be subject to their own abuses, to their own lies, and to their own rules. Gee! Making these people subject to the laws that stick it to the rest of us. If those laws and rules are good enough for us, why are they not good enough for them?

:bill:
Edited by Bill Anderson, Jan 31 2009, 09:02 AM.
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MikeZPU

Baldo
Jan 31 2009, 01:57 AM
Great Job to the Blog Hooligans on this one. We know when it comes to current legal news that not much gets by Tidbits, sdgso, and Quasi.

As for the world's greatest self proclaimed Durham ex-attorney it looks like he is running out of options.
Hat Tips to all!

This is a very strong response to Nifong.

I guess anything can happen, but I believe that the chances of
the civil suit against Nifong proceeding are VERY high, especially
boosted by the recent Supreme Court decision.

The summary here is excellent: for sure, the ID procedure was "phony"
and was manufactured by Nifong ("advice given to police"), Kim Roberts
was definitely intimidated into eventually disavowing her earlier HIGHLY
exculpatory statement (that was witness intimidation AND witness tampering),
Elmo was intimidated too, and the May 12 DNASI report clearly was
designed to conceal innocence at Nifong's request.

My God, if Nifong was allowed to claim absolute immunity for these actions,
our justice system would be a joke.
Edited by MikeZPU, Jan 31 2009, 02:55 PM.
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chatham
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I am guessing that many if not all of the defendants in all the civil suits feel water flowing down their leg over the Supreme Courts decision. If nifong did not have to testify because he was a prosecutor and was immune then he would not have to tell anyone anything and everyone surrounding him would feel very comfortable. Everyone could blame nifong and why care, he was immune.

Now, however, with nifongs testimony most likely required there will be a whole lot of folks getting ready to change their story to blame other people. Its has all of a sudden become an abandon ship, everyone for themselves, case.
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Bill Anderson
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Quote:
 
My God, if Nifong was allowed to claim absolute immunity for these actions,
our justice system would be a joke.

Let's be honest; it already is a joke, but the joke is on us.

Murray Rothbard, a great economist of the 20th Century, wrote that monopolies tend to be "captured" by their employees, and monopolies also are able to "capture" the outside regulators. In the case of the courts, we can see that the employees of the monopoly are permitted to set all of the rules. They are free to do whatever they damn well please, and in the lacrosse case that is exactly what we saw.

Does anyone think that Nifong would have done what he did had he been truly liable for his actions? Don't forget that the decision of the state bar to go after Nifong was decided by ONE vote. In other words, despite the obvious fact that Nifong was using the legal system to perpetuate a big lie, the keepers of the system were reluctant to go after him.

Why are we surprised when the courts are abusive? Judges have absolute immunity; they are not held responsible for anything that they do, and it is extremely rare when a judge actually has to answer for anything that he did. Is that because judges are more honorable than the rest of us? Hardly. It is because judges through court decisions have ruled that they cannot be held to any decent legal standards.

So, yes, the system is a very bad joke. We can be happy that this case at least had a somewhat decent resolution, but it took gargantuan efforts and resources to defeat what was an obvious lie. That should tell us something.

I am thoroughly convinced that this system cannot reform itself. Furthermore, legislatures, both state and national, are not going to do anything. The only way that any kinds of decent liability requirements could be imposed upon the courts is through constitutional amendment, and I can guarantee that judges would declare even constitutional amendments to be unconstitutional.

:bill:
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chatham
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I am guessing now that duke is very concerned (worried...embarrassed) about this case. I dont think their primary concern is about any money that may be awarded in this case. I think they are more worried about the failure of political correctness. Duke will be setting a precedent in the upper echelon of academic circles that being politically correct fails miserable if students fight back. Political correctness will fail, in fact, if anyone fights back. Truth over PC in the academic world is unheard of and brodhead and his duke circle of friends will always be named as the cause of the failure of PC. Duke and its leaders will become the absolute embarrassment to its peers and all those who so readily accepted ignorance over truth, blame over being innocent and race over honesty. Yup, poor richard's almanac; the lessons of the DUKE LAX FRAME.
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abb
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chatham
Jan 31 2009, 10:28 AM
I am guessing now that duke is very concerned (worried...embarrassed) about this case. I dont think their primary concern is about any money that may be awarded in this case. I think they are more worried about the failure of political correctness. Duke will be setting a precedent in the upper echelon of academic circles that being politically correct fails miserable if students fight back. Political correctness will fail, in fact, if anyone fights back. Truth over PC in the academic world is unheard of and brodhead and his duke circle of friends will always be named as the cause of the failure of PC. Duke and its leaders will become the absolute embarrassment to its peers and all those who so readily accepted ignorance over truth, blame over being innocent and race over honesty. Yup, poor richard's almanac; the lessons of the DUKE LAX FRAME.
And all this was helped along by the information revolution - blogs, internet, networking, etc. The changes in world society that will be wrought by the information revolution will equal or surpass those of the invention of movable type five hundred years ago.
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Payback
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Joan Foster
Jan 31 2009, 07:55 AM
Great work, Tidbits!

:bd: :bd: :bd: :bd: :bd:
Ditto.
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chatham
Jan 31 2009, 10:09 AM
I am guessing that many if not all of the defendants in all the civil suits feel water flowing down their leg over the Supreme Courts decision. If nifong did not have to testify because he was a prosecutor and was immune then he would not have to tell anyone anything and everyone surrounding him would feel very comfortable. Everyone could blame nifong and why care, he was immune.

Now, however, with nifongs testimony most likely required there will be a whole lot of folks getting ready to change their story to blame other people. Its has all of a sudden become an abandon ship, everyone for themselves, case.
I have been consistently surprised by Nifong's loyalty to his co-conspirators. He has NOT been talking, and several times seemed to be waiting for someone to come and rescue him. Presumably, everyone here will agree that Nifong is a piece of scum, and is only interested in himself - in my experience, such people start singing at the drop of a hat. And Mikie has not been singing! Where is this OMERTA coming from, and how far does it extend?

There seems to exist an agreement to blame everything on Mike, and to protect him from the worst consequences - as long as he does not fight back. If I were Brodhead (a truly dreadful thought!), this is what I would try to pull off at this point. Or am I being paranoid? :think:
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