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KC analysis on Beaty's decisions
Topic Started: Mar 31 2011, 08:56 PM (535 Views)
Quasimodo

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Beaty Decision (Evans Lawsuit): Key Passages, I


Counts 1-3: alicious prosecution, concealment of evidence, and fabrication of false evidence—upheld
City had argued for dismissal based on grand jury indictment—Beaty says no

The D.C. Circuit recently concluded that in a civil case for malicious or retaliatory prosecution, a grand jury indictment is only prima facie evidence of probable cause that may be rebutted by evidence that the indictment was “produced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.” Moore v. Hartman, 571 F.3d 62, 69 (D.C. Cir. 2009).

The Fourth Circuit has likewise recognized that when police officers effect a “seizure” by arresting an individual pursuant to an arrest warrant, the officers are liable under the Fourth

Amendment if the officers “intentionally lie in warrant affidavits, or recklessly include or exclude material information known to them.” Miller, 475 F.3d at 630.

the Fourth Circuit has also recognized that even when a probable cause determination has been made by a neutral third party, “an officer who intentionally or recklessly puts lies before a magistrate, or hides facts from him, violates the Constitution unless the untainted facts themselves provide probable cause.” Miller, 475 F.3d at 630-31.

(snip)

Nifong and Wilson claimed absolute prosecutorial immunity, but “the Supreme Court [in Buckley v. Fitzsimmons] ultimately concluded that the prosecutor was not entitled to absolute immunity for his investigative work, including his alleged efforts to fabricate evidence prior to initiation of judicial proceedings.” And “based on the allegations . . . Nifong was acting far outside his prosecutorial role and was instead assuming an investigatory role in this matter, going so far as to assume supervision of an investigation that had just begun.”

Counts require demonstration of individual actors committing specific acts that violated the plaintiffs’ constitutional rights—clear in the case of Nifong, Gottlieb, Himan, shakier in the case of Meehan, Wilson, but still enough to move forward.
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Quasimodo

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THURSDAY, MARCH 31, 2011

Beaty Decision (Evans Lawsuit): Key Passages (Updated)


Beaty complains about the filing’s length, but then adds a strong conclusion: “The Court is also compelled to note that the allegations in the Second Amended Complaint that are going forward, particularly as to Counts 1-3, set out allegations of significant abuses of government power. Indeed, the intentional use of false or misleading evidence before a grand jury to obtain an indictment and arrest without probable cause is exactly the type of “unreasonable” search and seizure that the Fourth Amendment was designed to protect against, and would violate the most fundamental concepts of due process. In this regard, it has been noted that “‘if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction).’” . . . Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause. This Court cannot take such a restrictive view of the protections afforded by the Constitution." [emphasis in KC original]

Counts 8-12—conspiracy under § 1985—dismissed

Beaty holds that the counts could apply only if the lacrosse players were a protected class, which they are not (in other words, municipalities can’t be held liable under § 1985 for deciding

Count 13: conspiracy to commit malicious prosecution

Very high standard, but enough to go forward at this stage: “Defendant Nifong enjoys absolute prosecutorial immunity for the decision to prosecute, but that immunity does not extend to investigatory acts by Defendants Nifong and Wilson, particularly the creation of false and misleading evidence during the investigation.” [emphasis in KC original]

Count 15: emotional distress—dismissed

Very high standard under North Carolina law, yet “Plaintiffs do not include any specific allegations of emotional or mental disorders or severe and disabling emotional or mental conditions suffered by any of the Plaintiffs individually.”

Counts 18-22: negligence claims against Durham, DNA Security

Beaty dismissed the claims against DNA Security, noting that the company had no specific obligation to the lacrosse players. (Its “client”—to use Brian Meehan’s term—was Durham.) He allowed the claims against the city to proceed, but strongly hinted he would dismiss them at summary judgment.

Count 4—false public statements--upheld

(snip)

Count 5: city liability because of poor policies, insufficient supervision—upheld in part

(snip)

Count 6: supervisory liability—upheld.
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Walt-in-Durham

KC, like all of us is trying to work through an almost 500 page ruling. Thus, I do not want to be too critical of his work. However, I must point out that just because Larry Moneta has been dismissed as a party defendant does not mean he cannot be deposed. In fact, Federal Rule 30 (a)(1) holds: "A party may take the testiomony of any [emphasis added] person, including a party, by deposition upon oral examination without leave of court except as provided in paragraph (2)." Paragraph (2) sets out some limits including a 10 depositions by the plaintiffs or defendants. Given the complexity of the case including Judge Beaty's opus of a ruling, we can expect the 10 dep limit to be waived.

Walt-in-Durham
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genny6348
Genny6348
Walt-in-Durham
Apr 1 2011, 11:38 AM
KC, like all of us is trying to work through an almost 500 page ruling. Thus, I do not want to be too critical of his work. However, I must point out that just because Larry Moneta has been dismissed as a party defendant does not mean he cannot be deposed. In fact, Federal Rule 30 (a)(1) holds: "A party may take the testiomony of any [emphasis added] person, including a party, by deposition upon oral examination without leave of court except as provided in paragraph (2)." Paragraph (2) sets out some limits including a 10 depositions by the plaintiffs or defendants. Given the complexity of the case including Judge Beaty's opus of a ruling, we can expect the 10 dep limit to be waived.

Walt-in-Durham
Thanks Walt for that clarification, I was wondering if those released could still be deposed.
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teddy bear

Discovery is what Duke paid millions, perhaps 100 million, to avoid. Now every email, note,tele call is fair game. One can just imagine the incendiary comments contained in emails from the crazy 88 and Duke administration. Walt is right: being dismissed from the suit will not be a shield against discovery. There are enough counts and defs left that it will all come out. All that $ to Duke attorneys, like Jamie Gorelick(who fed herself well at the Fannie Mae trough) is down the drain. This all could have been settled for a fraction of the cost by an apology and some form of reprimand to the 88. How can the trustees of a charity permit this abuse of funds. Where is the Atty Gen (who has a duty to oversee charities), the alumnae, the students, and even the faculty protests. Brodhead & friends make the Fiesta bowl folks look like children.
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cks
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My guess is that we will see movement in the very near future on a number of fronts seeking to settle this all as quickly as possible. My hope is that the players and their families insist that first depositions be taken and be made public so that those whose reputations that should be tarnished (and that is too nice a word to use) are and in a most very public way so that it will be evident to any and everyone who the real criminals are.

Linwood Wilson will continue in his belief that he has been victimized so he can be counted on (IMHO) to continue his case. As for the others, it will not surprise me to see them run quickly to see how fast this can be put to rest without them having to say anything that could possibly be damaging to their reputations. It will be interesting to see how quickly the Duke BOT jettisons Brodhead - or how quickly he resigns - the same is true for Wausiolek. Frankly I hope that Trask, Moneta, and Alleva are served with notice quickly that they must present themseleves for questioning.

One thing for certain, it was probably not a happy day at the Nifong estate, the Brodhead domain, the Wausiolek manse, the Alleva plantation, or Tara's cabin.
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Payback
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http://fragmentsfromawritingdesk.blogspot.com/

On my blog I just posted a piece on Brodhead's facing the charge of "constructive fraud" and the pattern of "constructive fraud" over his career.

I copied it to Facebook but Twitter is down for the moment (and apologizing, unlike RHB!).

RICHARD H. BRODHEAD: FACING THE CHARGE OF "CONSTRUCTIVE FRAUD"--An habitual crime?

P.S. a few minutes later. I Googled:
Brodhead "constructive fraud" and got a lot of hits already, starting with my piece in my blog. Does my telling the truth about him hurt anything like his lies hurt me? I think it's might good to have someone reminding the world that there a pattern in his behavior, that he is who some of us always knew he was. He did not Go South and Go Bad.
Edited by Payback, Apr 1 2011, 01:09 PM.
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Payback
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Apr 1, 2011 ... One is “obstruction of justice.” The other is a term I did not know, ... As readers of this blog know, Richard H. Brodhead lied in the most ...
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