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Duke Lacrosse Lawsuits to Move Forward, Judge Rules; Discovery ahead !!
Topic Started: Mar 31 2011, 04:21 PM (12,244 Views)
Quasimodo

Quote:
 
First, to the extent that Plaintiffs allege that their Fourteenth Amendment rights wereviolated because Defendants pursued a “baseless” criminal investigation against them, the Courtnotes that there is no recognized claim for a Fourteenth Amendment violation based only ona “malicious investigation.” See, e.g., United States v. Trayer, 898 F.2d 805, 808 (D.C. Cir. 1990)(“there is no constitutional right to be free of investigation.”)...(finding noconstitutional right to be free from child abuse investigations); Hernandez v. Terrones, 397 Fed.Appx. 954, 966 (5th Cir. 2010)

(concluding that “there was no freestanding, clearly established constitutional right to be free from a reckless investigation”);

see also Lambert v. Williams, 223F.3d 257, 262 (4th Cir. 2000) (“there is no such thing as a ‘§ 1983 malicious prosecution’ claim,[and w]hat we termed a “malicious prosecution” claim in [Brooks v. City of Winston-Salem, 85F.3d 178, 183 ...

Therefore, Plaintiffs cannot state a general § 1983 claim for a Fourteenth Amendment violation based on a “malicious investigation.”


Plaintiffs never claimed they had a right to be free from investigation, so the most of the citations above
are irrelevant.

Plaintiffs do claim a right not to be framed.

Apparently, the court is in agreement with the US Government that there is no constitutional right not to be framed.


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To the extent Plaintiffs contend that their Fourteenth Amendment rights were violated because Defendants concealed exculpatory evidence, the Court notes that the right to disclosure of exculpatory information is a trial right, and failure to disclose exculpatory information during an investigation does not allege a deprivation of any right guaranteed under the Due Process Clause of the Fourteenth Amendment.


So Brady has his wings clipped?

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In addition, to the extent Plaintiffs contend that their rights were violated because Defendants tampered with and coerced witnesses and manufactured false evidence, the Fourt hCircuit has held that individuals possess a Fourteenth Amendment Due Process “‘right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity.’” Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005)(quoting Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000)); see White v. Wright, 150 Fed.Appx. 193, 198-99 (4th Cir. 2005). However, this Fourteenth Amendment right applies to the use of fabricated evidence at trial.



So go ahead and intimidate witnesses and manufacture false evidence during an investigation, in order to FORCE A PLEA BARGAIN?
I guess that is perfectly fine with the Fourth Circuit.

Pity the future defendants in NC..



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Thus, established case law simply does not allow this Court to recognize a separate Fourteenth Amendment violation for manufacturing of false inculpatory evidence, where no life, liberty, or property interest is impaired as a result of that misconduct


But the defendants WERE deprived of liberty when they were arrested.

And even that brief time is sufficient to constitute deprivation of liberty.

(Doesn't the judge know the law on this subject?)

And how much economically did the plaintiffs lose when they were falsely charged and arrested? (Isn't that a "property
interest"?)
.
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Quasimodo

Duke is also let off the hook for section 1983 claims because the court says that Duke is a "private
party", and 1983 claims are intended as claims against government entities.

However, IMHO Duke's police were an accredited police unit with full governmental authority; ergo,
whatever its police did, renders it to that extent a "state actor".


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chatham
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Any reason we have not heard from JUSTICE FOR NIFONG? hehehehehee
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~J~ is in Wonderland
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~J~ is in Wonderland
chatham
Apr 1 2011, 01:41 PM
Any reason we have not heard from JUSTICE FOR NIFONG? hehehehehee
You read my mind chatham.

I guess they are trying to think about-whats next?

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Joan Foster

~J~ is in Wonderland
Apr 1 2011, 01:50 PM
chatham
Apr 1 2011, 01:41 PM
Any reason we have not heard from JUSTICE FOR NIFONG? hehehehehee
You read my mind chatham.

I guess they are trying to think about-whats next?

I think he is occupied today...trying to figure out how to cast Judge Beaty as an agent of the Carpetbagger Jihad.
Edited by Joan Foster, Apr 1 2011, 01:55 PM.
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Acc Esq

abb
Apr 1 2011, 10:29 AM
Call me a cynic, but it's just too convenient that these rulings come out just days after the federal five-year statute of limitations runs out.
abb,

The statute of limitations is no longer in play once suit is filed. A plaintiff is only required to file a lawsuit before the statute of limitations expires. This holds true through all proceedings, including appeals and retrials. Thus, e.g., if the case is disposed of on the merits -- i.e., a final judgment is entered -- and an appeal is taken, the plaintiffs could then appeal or cross-appeal the dismissal of their claims by Judge Beaty. If the court of appeals reversed on that point, the claims would be reinstated and remanded to the District Court for trial; the statute of limitations still would not apply because it is a continuation of the legal proceeding that was commenced before the statute of limitations expired.
Edited by Acc Esq, Apr 1 2011, 04:09 PM.
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retiredLEO
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I was really happy to see this, go forward, especially concerning police matters. Prior to my retirement from my PD, I saw a lot of incompetent officers working in police departments. Some just like this case, pick a target and manufacture evidence. I am waiting for the rats to out the other rats.
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kbp

A question for legal minds here:
The ruling mentions no punitive damages against Durham, but in my brief reading of the ruling parts related to this limit on damages, I did not notice the employees of Durham having that limit. Could Durham be held liable for punitive damages if an employee is found liable for them, or does the “Durham” cover all employees also?

I borrowed a list from a post here. Looking it over, it seems hard to imagine that someone held liable for damage under a few issues in this list would not be subject to punitive damages, so in turn the entity responsible for paying their liabilities would be. The intentional acts involved to create the damage required in a few listed sure inflicted what I’d classify as punitive damage in the first place.

-CONCEALMENT OF EVIDENCE
-FABRICATION OF FALSE EVIDENCE
-MAKING FALSE PUBLIC STATEMENTS
-MALICIOUS PROSECUTION AND CONSPIRACY
-OBSTRUCTION OF JUSTICE AND CONSPIRACY
-NEGLIGENCE BY DURHAM POLICE
-NEGLIGENT SUPERVISION, HIRING, TRAINING, DISCIPLINE, AND RETENTION BY DURHAM POLICE
-FRAUD


ADD:

The claims asserted in Counts 1, 2, 3, and 4 are also going forward against the City based on the additional allegations contained in Count 5 setting out claims for municipal liability. However, to the extent that there are claims proceeding against the City, Plaintiffs may not recover punitive damages from the City. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616 (1981).31 Therefore, the claim for punitive damages against the City will be dismissed.
Edited by kbp, Apr 1 2011, 03:32 PM.
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kbp

An observation of what I see as an absurd complaint from Beaty;
There was quite a bit of ‘Beaty whining’ (& Jmoo’s “boo hoo” added!) over the amount he had to go through in the complaint(s), which sounds rather absurd when you look at how much he puts out in his rulings.

Beaty wrote 223 pages in the ruling for McFadyen’s case, so any reader should anticipate finding a complaint much larger than that if it required such a lengthy ruling ...or that was just some weak excuse for taking so long to rule on the case.
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kbp

I am having trouble recalling where we stood on what and who led Gottleib into re-opening the investigation. I keep thinking we needed something more there that discovery would provide, but it has been so long ago since I last thought about it.

It’s just that those details are what resulted in this mess to begin with.
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Acc Esq

kbp,

On your question on punitive damages, Durham cannot be held vicariously liable for the acts of their employees in the course and scope of employment. My understanding of the law is that the employees can be held individually liable for punitives; this creates regular counseling problems when representing municipalities and frequently results in reservation of rights letters to the employee and sometimes even leads to the hiring of separate counsel.
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Acc Esq

While I have not read the full opinions, I have closely read the excerpts and ultimate rulings and I can make some preliminary observations.

First and foremost, these rulings cannot be characterized as anything short of a major victory for the players. Both lawsuits were overpled with cumulative causes of action and I have almost no problem with Judge Beaty’s legal analysis and rulings. He followed the law. Most of the claims he dismissed were duplicative. The parties he dismissed in Carrington were trivial players and their absence does not weaken that case one whit. As the judge pointed out on the overlapping claims issue, because the 1983 claims were viable, then the conspiracy to violate 1983, which requires proof of 1983 violations, were superfluous. One legal point that may not be apparent from the rulings – plaintiffs are only entitled to recover one set of damages for all related or derivative counts. So, for example, the defendants can be found liable on 20 related counts, but the plaintiffs will not be awarded their proven damages times 20. Basically, the final damages award in these situations would be the highest damages amount assessed on any one count. It is for this reason that Judge Beaty’s pruning of the counts is essentially immaterial to the strength of the players’ legal position or their likelihood of success.

For the most part, I was impressed with Judge Beaty’s sound legal analyses. I concur with Quasi in disagreeing with the disposition of the key card privacy claim. But that is about it. That issue is relatively minor in comparison with the big picture. His ruling on punitive damages was absolutely correct under controlling precedent.

On the discovery issues, Judge Beaty’s rulings are more favorable than meets the eye. I have been concerned for some time that the governmental immunity defense could be deployed to delay discovery another 12-18 months. I posted a somewhat lengthy legal analysis of this problem some time ago – probably on the old board. A dispositive ruling that denies governmental immunity is one of those rare interlocutory orders that is immediately appealable. When such an appeal is pursued, a stay of discovery normally follows as a matter of course. Judge Beaty very deftly finessed this obstacle to immediate discovery. He denied the governmental immunity motions for summary judgment without prejudice as premature. In other words, there is no dispositive order; he neither found the existence or non-existence of immunity. He went on to characterize the final resolution of the immunity as “factually intensive” and thus incapable of disposition until the close of discovery. This shrewd ruling all but eliminates the ability of any defendant to appeal and delay discovery. There is nothing to appeal because the judge made no finding one way or the other. If an appeal is nonetheless attempted, it will undoubtedly be short-lived and is not the type of appeal that justifies a stay of discovery in any event. Give Judge Beaty a lot of credit for his thoughtful handling of this issue.

Timing of discovery. It will not proceed immediately, but its commencement is imminent. Under Federal Rule of Civil Procedure 26(d)(1), discovery is held in abeyance until there is a case management conference of counsel pursuant to Rule 26(f). Discovery is authorized after the conclusion of this conference. Recall that Judge Beaty previously entered an order deferring the Rule 26(f) conference pending his rulings on the motions to dismiss. I anticipate some gamesmanship by defense counsel – I am sure they have a lot of scheduling conflicts that will make it difficult to find a time in the near future when everyone is available – in an attempt to delay discovery an extra few days or weeks. Given the substance and tone of Judge Beaty’s opinions, and especially his emphasis on the need for discovery, the defendants do not have much room to maneuver without risking the ire of the Court. I am also confident that the players’ counsel have already aggressively started the process of coordinating the Rule 26(f) conference.

There is another discovery nuance in play. Under Fed.R.Civ.P. 26(a)(1)(A), defendants are under a mandatory duty and obligation to make certain voluntary discovery disclosures without formal discovery requests. These disclosures are due under the Federal Rules within 14 days of the Rule 26(f) conference of counsel. These disclosures include the identification of every person “likely to have discoverable information” that may support defendants’ case; and copies or descriptions by category and location of all documents and electronically stored information that may support their case. The defendants’ obligations to make these disclosures are not excused because the case has not been fully investigated, because they challenge the sufficiency of another party’s disclosures, or because another party has not made its disclosures. If they do not fully comply with these voluntarily disclosures, the courts are close to consensus on precluding the use of any undisclosed witnesses or documents at trial. Since the obligation is to produce information supporting a party’s case, the likely preclusion of undisclosed information creates a powerful incentive for a party to show its full hand early.

A certain extemporaneous exclamation uttered by D.A.M.N. is probably echoing through the offices of defense counsel and their clients today.
Edited by Acc Esq, Apr 1 2011, 04:24 PM.
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Joan Foster

Thank you so much, ACC.

:bd: :bd: :bd:
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cks
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Joan Foster
Apr 1 2011, 04:14 PM
Thank you so much, ACC.

:bd: :bd: :bd:
Ditto, Acc. Esq.

For those of us non-legal schooled individuals, some of the findings were difficult to fully understand. Your clear explanations are a godsend!
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Walt-in-Durham

I agree that by finessing the governmental immunity rulings, Beaty has probably saved us from a year of delay.

I have, off and on, looked at some of the rulings. Officially, I am not supposed to use the company PACER account, or computers for that matter for personal matters. It's a good thing my boss was gone all day. But, giving credit where it is due, an iPad connected to a public wifi is a cool tool. Unfortunately, I had to do some work today so I couldn't get all the rulings read. All told there are almost 500 pages to Judge Beaty's opus.

My view though is like ACC's, it's a big win for the good guys. I feel certain that Steptoe is sitting down with AIG to figure out a settlement strategy. AIG isn't going to waste any more money on this case if they don't have to. They took their best shot and lost. The issue for AIG is how to get Durham out without the oversight board that Barry Schek wants. While that is not strictly speaking an insurable interest, they do have a duty to get their client a release if possible.

The bad news is, Nifong is on the hook for his own damages. He's penniless and unemployed. The state has washed their hands of him and apparently he didn't have umbrella liability coverage on his homeowners insurance. Dumb move on his part. Of course, that means that AIG's payment won't be getting Nifong off the hook. And, Judge Beaty seemed to take umbridge at Nifong's conduct regarding falsifying testimony. Not going to be fun in the Nifong defense camp.

Duke has already tipped its hand by blaming Nifong. I expect Durham to join in once the shock wears off. Beaty leaving them in the litigation on the negligent hiring, negligent supervision and constitutional violations has to be a shock to the system. Further, the Connick v. Thompson decision 563 U.S. ___ (2011) has to be causing some consternation at police headquarters. Even Justice Thomas says a pattern can lead to liability. Scalia and Alito don't find constitutional violations in concealing evidence, so don't count on any help from them. It has to be a substantial pattern for Thomas though. However, look at the lineup on the dissenting side. The most pro-police justice, Sotomayor dissented from Connick and the most pro-government justice, Elana Kagan also dissented. Peel Kennedy or Roberts away with a much more clear pattern and the case goes against the police. And Durham is building quite a pattern.

Overall, a great ruling for the plaintiffs.

Walt-in-Durham
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