Welcome Guest [Log In] [Register]
Add Reply
McFadyen case appealed to whole bench
Topic Started: Jan 3 2013, 05:51 PM (1,800 Views)
Quasimodo

I confess to no understanding of what this means.




Quote:
 
USCA STAY OF MANDATE UNDER FED. R. APP. P. 41(d)(1), as to 196 Notice of Appeal filed by PATRICK BAKER, BEVERLY COUNCIL, RONALD HODGE, JEFF LAMB, LEE RUSS, MICHAEL RIPBERGER, STEVEN CHALMERS, 199 Notice of Appeal filed by BENJAMIN W. HIMAN, THE CITY OF DURHAM, NORTH CAROLINA, MARK D. GOTTLIEB, DAVID W. ADDISON. This court's mandate is stayed under Fed. R. App. P. 41(d)(1), which provides that "[t]he timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion." USCA Case Numbers 11-1458 and 11-1460. (Sheets, Jamie) (Entered: 01/03/2013)


Motions 196 and 199 were the appeals made a year ago by the defendants. Apparently (to my untutored brain) this seems to suggest
that the court's decision on those appeals is now on hold, because of "the timely filing of a petition [by somebody] for panel rehearing, petition for rehearing en banc, or motion for stay of mandate".

However, I am not a legal expert and so I may very well be misunderstanding what this is about.

Quote:
 

This court's mandate is stayed under Fed. R. App. P. 41(d)(1), which
provides that "[t]he timely filing of a petition for panel rehearing, petition for
rehearing en banc, or motion for stay of mandate, stays the mandate until
disposition of the petition or motion."


:confus: :confus:
Edited by Quasimodo, Jan 3 2013, 07:35 PM.
Offline Profile Quote Post Goto Top
 
Quasimodo

Quote:
 
http://www.heraldsun.com/news/x1898436052/Three-players-appeal-Duke-lacrosse-ruling

Three players appeal Duke lacrosse ruling
Jan. 03, 2013 @ 06:32 PM
By Ray Gronberg [email protected]; 919-419-6648

DURHAM —


Three former Duke University men’s lacrosse players want the full 4th U.S. Circuit Court of Appeals to overrule a panel decision so they can resurrect an obstruction-of-justice claim against Durham police.

Durham lawyer Bob Ekstrand filed the request Monday on behalf of 2005-06 Duke players Ryan McFadden, Breck Archer and Matt Wilson.

It basically appeals a Dec. 17 ruling by three 4th Circuit judges that rejected major parts of the lawsuits Ekstrand’s clients and two other groups of players filed against the city over its handling in 2006 of a stripper’s false rape allegation.

Ekstrand in targeting obstruction of justice confined the appeal to the full 4th Circuit to a single, common-law issue. He didn’t challenge the panel’s decision to toss claims from his clients that were based on federal civil rights law or common-law negligence.

The panel – judges Harvie Wilkinson, Diana Motz and Roger Gregory – “misapplied North Carolina law” because state courts “have squarely held” that police can face obstruction-of-justice lawsuits over their handling of investigations, Eckstrand wrote.

Writing for her colleagues, Motz said they couldn’t find any case from any state recognizing such a claim “against a police officer for his actions relating to a criminal proceeding.”

Were a majority of the full court’s 15 judges to side with Ekstrand, he and his clients would target former detectives Mark Gottlieb and Ben Himan, plus the detectives’ former captain, Jeff Lamb. The original claim didn’t target the city government as a whole.

Federal rules make a full-court review of the Dec. 17 decision discretionary. A majority of the 4th Circuit’s active judges have to agree to hear the matter before lawyers can even argue it.

The other two groups of players affected by the panel’s ruling didn’t file appeals requests by Monday, the nominal deadline for doing so in the 4th Circuit. They have until mid-March to ask the U.S. Supreme Court to step in.


Motz, Wilkinson and Gregory allowed three players who at one time faced criminal charges in the lacrosse case – David Evans, Collin Finnerty and Reade Seligmann – to pursue a common-law malicious prosecution claim against Gottlieb and Himan.

The ruling also allowed them, Ekstrand’s clients and 38 other unindicted players to continue a case against the city based on alleged violations of state-level due process and equal-protection rights.

The Dec. 17 decision didn’t affect the unindicted players’ related claims against Duke. Their lawyers and the university’s have been swapping evidence in anticipation of a trial.

Evans, Finnerty and Seligmann settled with the university out of court in 2007.

Monday’s filing by Ekstrand put a bit of a twist on his clients’ claim against police, arguing that the detectives and Lamb in 2006 “engaged in conduct designed and intended to hinder” the players “from obtaining civil remedies” in a post-investigation lawsuit.

His clients’ original lawsuit mostly focused on the possibility of the detectives manufacturing evidence against the players to support, procure or shore up rape indictments against team members.

It also briefly alluded to the possibility of continuing efforts in 2007 to “defeat or diminish the award of damages in civil actions [police] assumed would be brought against them.”

The trio of state-court decisions Ekstrand’s now pointing to as reason for the full 4th Circuit to override the panel ruling all involve alleged cover-ups of various sorts.

One, in 1983, led to the ouster of a state-court judge who tried to shut down a grand jury hearing about his conduct. Another, in 1984, concerned medical practitioners who allegedly altered or destroyed a patient’s records after the patient died.

The third, decided in 2007, also involved the Durham Police Department. A state appellate panel allowed an obstruction claim against the city because the in-car camera of an officer’s traffic accident had gone missing.


Edited by Quasimodo, Jan 3 2013, 07:39 PM.
Offline Profile Quote Post Goto Top
 
Joan Foster

God bless Bob Ekstrand.
Online Profile Quote Post Goto Top
 
sceptical

Interesting that Ekstrand was the only one of the three groups of attorneys to appeal by asking the entire Fourth Circuit to decide the matter. My prediction is that they will decline to do so.

Ekstrand may have learned his lesson by only appealing one issue involving state claims and not the findings against any federal civil rights claims. In the Fourth Circuit it is now clear that no matter what police and prosecutors do, they are immune from federal civil rights complaints unless, perhaps, the complainants are people of color.
Offline Profile Quote Post Goto Top
 
sceptical

So, as I thought, the lawyers in the Evans et al and Carrington et al are not appealing and will have to decide whether to go forward with the remaining state law counts (after the Fourth Circuit pruned the federal civil rights counts against Durham), as well as the remaining counts against Duke (Carrington only) and against Nifong, DNASI and Meehan (all of whom have minimal assets).

My prediction is that Evans et al will go forward, but I am not so sure about Carrington et al.
Edited by sceptical, Jan 3 2013, 10:16 PM.
Offline Profile Quote Post Goto Top
 
Quasimodo

Quote:
 
...and against Nifong, DNASI and Meehan (all of whom have minimal assets).


Well, maybe this depends on what kind of "assets" the plaintiffs want.

If the plaintiffs want information, then Nifong et all do indeed have "assets"; they are asset rich.





(MOO); for discussion purposes only)
Offline Profile Quote Post Goto Top
 
sdsgo

Local Rule 40.2: If a petition for rehearing is granted, the original judgment and opinion of the Court are vacated
and the case will be reheard before the original panel (or the full court en banc).

Ekstrand's petition is simply the hook to get the case reheard. Everything would be on the table.
Offline Profile Quote Post Goto Top
 
kbp

sdsgo
Jan 3 2013, 09:15 PM
Local Rule 40.2: If a petition for rehearing is granted, the original judgment and opinion of the Court are vacated
and the case will be reheard before the original panel (or the full court en banc).

Ekstrand's petition is simply the hook to get the case reheard. Everything would be on the table.
:)
Offline Profile Quote Post Goto Top
 
Quasimodo

Quote:
 


Nos. 11-1458, 11-1460
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________________________________
RYAN McFADYEN, et al.,
Plaintiffs-Appellees,
v.
PATRICK BAKER, et al.,
Defendants-Appellants.
_______________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF NORTH CAROLINA AT GREENSBORO
(HON. JAMES A. BEATY, JR., J.)
PETITION FOR REHEARING
EN BANC

PRELIMINARY STATEMENT

Appellees respectfully request rehearing en banc on their state law obstruction
of justice claim on the grounds that it presents a question of exceptional importance
because the panel decision conflicts with the authoritative decisions of the North
Carolina Supreme Court in Henry v. Deen, 310 S.E.2d 326 (N.C. 1984) and In re Kivett,
309 S.E.2d 442 (N.C. 1983), the North Carolina Court of Appeals decision in Jones v.
City of Durham, 643 S.E.2d 631 (N.C. Ct. App. 2007), and the decision of this Court in
Reed v. Buckeye Fire Equip., 241 Fed Appx. 917 (4th Cir. 2007).

Therefore,
consideration by the full Court is therefore necessary to secure and maintain
uniformity among this Court’s decisions and with the decisions of North Carolina’s
highest court on an exceptionally important question of North Carolina law.

PETITION
Without waiving any rights with respect to Plaintiffs other claims dismissed by
the panel, Plaintiffs respectfully request rehearing en banc on the panel’s dismissal of
Plaintiffs state law obstruction of justice claim.


In their Complaint, Plaintiffs allege state common-law obstruction of justice
claims against Defendants Mark Gottlieb and Benjamin Himan, based on their
fabrication, concealment, and destruction of evidence and witness tampering, and
against their supervisor, Jeff Lamb, based on his participation in that misconduct.
(Id.
at 40.) The panel dismissed that claim, but did not do so on the basis of Defendants’
state law immunity.

To the contrary, the panel acknowledged that Plaintiffs allege
“many wrongful acts” by the Defendants, which, “certainly present plausible claims of
malice,” for which Defendants are not immune under state law. (Id. at 39, n.16.)

Rather, the panel held that police officers were exempt from liability on a state law
obstruction of justice claim for conduct in connection with a criminal investigation.
(Id. at 40-41.)

The panel’s holding on that issue is set out in Section III.B.2 (40-41) of
the panel decision, the relevant portion of which is reproduced below.


[T]he district court denied the defendants’ motions to
dismiss, explaining it could not "rule out the possibility that
a claim could exist for common law obstruction of justice
for creation of false evidence or destruction of evidence for
the purpose of impeding the justice system, even if the
conduct occurred as part of a criminal investigation."
McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 975

(M.D.N.C. 2011). We cannot affirm. Even though North
Carolina courts have interpreted common-law obstruction
of justice to include fabrication of evidence, Henry v. Deen,
310 S.E.2d 326, 334 (N.C. 1984), and destruction of
evidence, Grant v. High Point Reg’l Health Sys., 645 S.E.2d
851, 855 (N.C. Ct. App. 2007), we have not found—and
plaintiffs have not offered—any case from any jurisdiction
recognizing a common-law obstruction of justice claim
against a police officer for his actions relating to a criminal
proceeding. Thus, in forecasting whether North Carolina
would recognize such an action, see Wilson v. Ford Motor
Co., 656 F.2d 960, 960 (4th Cir. 1981), we must conclude
that although such a holding may be a remote "possibility,"
it is not a reality. Accordingly, we reverse the district court’s
denial of the officers’ motions to dismiss this claim.


(Op. 40-41.) To reach that holding, the panel misapplied North Carolina law and
adopted Defendants’ misrepresentation of the facts Plaintiffs alleged.

On the law, the North Carolina Supreme Court recognized an obstruction of
justice claim in connection with a judicial officer’s attempt to prevent the convening
of a grand jury. In re Kivett, 309 S.E.2d 442, 462 (N.C. 1983); see also State v. Wright,
696 S.E.2d 832, 835 (N.C. Ct. App. 2010) (“common law obstruction of justice extends
beyond interference with criminal proceedings
”) (emphasis added); Henry v. Deen, 310 N.C.
75, 86-87, 310 S.E.2d 326, 333-334 (N.C. 1984) (recognizing potential obstruction of
justice claim even if alleged conduct occurred while no legal proceedings were
pending or actually threatened).

Further, contrary to the panel’s rationale for exempting Gottlieb, Himan, and
Lamb
from liability for obstruction of justice, North Carolina’s courts have squarely
held that North Carolina’s obstruction of justice claim extends to the conduct of a
police officer for conduct in connection with an investigation.
In fact, the most recent
case addressing North Carolina’s obstruction of justice claim from the North Carolina
Court of Appeals involved a police officer employed by the City of Durham. Jones v.
City of Durham, et al., 183 N.C. App. 57 (N.C. Ct. App. 2007). In Jones, the court
rejected the defendants’ contention that they were entitled to summary judgment on
the plaintiff’s obstruction of justice claim that the defendant police officer destroyed
videotape evidence.


“Obstruction of justice is a common law offense in North
Carolina."
In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442,
462 (1983). "It is an offense to do any act which prevents,
obstructs, impedes or hinders public or legal justice."

Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20,
33, 588 S.E.2d 20, 30 (2003) (citing Burgess v. Busby, 142
N.C. App. 393, 408-09, 544 S.E.2d 4, 12 (2001)). In the
instant case, the evidence would allow a jury to conclude
that a camera in Kelly's police car had made a videotape
recording of the accident, and that the videotape was
subsequently misplaced or destroyed. We affirm the trial
court's denial of defendants' motion for summary judgment
on this claim.Id. at 59.

Thus, the panel’s decision is in direct conflict with the law of North
Carolina because it dismisses Plaintiffs’ obstruction of justice claim on the ground that
police officers cannot be held liable on that claim for conduct in connection with a
police investigation.


On the facts, the panel adopted the Defendants’ distortion of Plaintiffs’ claim
as one grounded solely in conduct in connection with a criminal investigation. But
Plaintiffs allege that the Defendants engaged in conduct designed and intended to
obstruct, hinder, and prevent Plaintiffs from obtaining civil remedies for their conduct
in civil actions. As the District Court explained:

Moreover, even if the state courts would ultimately require
that the alleged obstruction of justice occur in connection
with a civil proceeding, Plaintiffs assert that the obstruction
of justice alleged in this case included destruction and
fabrication of evidence to prevent its use in future lawsuits

or to “cover-up” misconduct and hinder Plaintiffs' ability
to bring a future claim. Defendants contend that Plaintiffs
have not alleged facts to state a claim that Defendants'
alleged conduct actually obstructed, impeded, or hindered
any aspect of the claim, but the Court concludes that
Plaintiffs have alleged significant misconduct in the
creation of false and misleading evidence and destruction
or alteration of potential evidence … . Therefore, the Court
concludes that Plaintiffs have stated a state tort claim for
obstruction of justice at this stage.
McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 975 (M.D.N.C. 2011).


CONCLUSION
Plaintiffs respectfully request a rehearing en banc to remedy the panel’s
misapplication of state law and its adoption of Defendants’ misrepresentation of the
facts Plaintiffs allege.

December 31, 2012 Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
Counsel for Plaintiffs
/s/ Robert C. Ekstrand
Edited by Quasimodo, Jan 4 2013, 01:30 PM.
Offline Profile Quote Post Goto Top
 
abb
Member Avatar

Quasimodo
Jan 4 2013, 01:29 PM
...based on their fabrication, concealment, and destruction of evidence and witness tampering, and
against their supervisor, Jeff Lamb, based on his participation in that misconduct.
In other words a Frame-Up. It never was and never will be a "hoax." It was deliberate and it was premeditated.
Offline Profile Quote Post Goto Top
 
MikeZPU

kbp
Jan 4 2013, 12:24 AM
sdsgo
Jan 3 2013, 09:15 PM
Local Rule 40.2: If a petition for rehearing is granted, the original judgment and opinion of the Court are vacated
and the case will be reheard before the original panel (or the full court en banc).

Ekstrand's petition is simply the hook to get the case reheard. Everything would be on the table.
:)
Thanks for the clarification sdsgo!
Online Profile Quote Post Goto Top
 
sdsgo

MikeZPU
Jan 4 2013, 06:09 PM
kbp
Jan 4 2013, 12:24 AM
sdsgo
Jan 3 2013, 09:15 PM
Local Rule 40.2: If a petition for rehearing is granted, the original judgment and opinion of the Court are vacated
and the case will be reheard before the original panel (or the full court en banc).

Ekstrand's petition is simply the hook to get the case reheard. Everything would be on the table.
:)
Thanks for the clarification sdsgo!
Local Rule 35. En Banc Proceedings.

(a) Petition for Rehearing En Banc. A petition for rehearing en banc must be made at the
same time, and in the same document, as a petition for rehearing. The request for en banc
consideration shall be stated plainly in the title of the petition. Petitions for rehearing en banc will
be distributed to all active and senior judges of the Court, and to any visiting judge who may have
heard and decided the appeal.


(b) Decision to Hear or Rehear a Case En Banc. A majority of the circuit judges who are in
regular active service and who are not disqualified may grant a hearing or rehearing en banc. A
poll on whether to rehear a case en banc may be requested, with or without a petition, by an active
judge of the Court or by a senior or visiting judge who sat on the panel that decided the case
originally. Unless a judge requests that a poll be taken on the petition, none will be taken. If no poll
is requested, the panel's order on a petition for rehearing will bear the notation that no member of
the Court requested a poll. If a poll is requested and hearing or rehearing en banc is denied, the
order will reflect the vote of each participating judge.
A judge who joins the Court after a petition
has been submitted to the Court, and before an order has been entered, will be eligible to vote on the
decision to hear or rehear a case en banc.

(c) Decision of Cases Heard or Reheard En Banc. An en banc hearing will be before all
eligible, active and participating judges of the Court. An en banc rehearing will be before all
eligible and participating active judges, and any senior judge of the Court who sat on the panel that
decided the case originally. An active judge who takes senior status after a case is heard or reheard
by an en banc Court will be eligible to participate in the en banc decision. A judge who joins the
Court after argument of a case to an en banc Court will not be eligible to participate in the decision
of the case. A judge who joins the Court after submission of a case to an en banc Court without oral
argument will participate in the decision of the case. Granting of rehearing en banc vacates the
previous panel judgment and opinion; the rehearing is a review of the judgment or decision from
which review is sought and not a review of the judgment of the panel. (The circuit takes the position
that the change of wording in 28 U.S.C. § 46(c) referring to participation in en banc decisions does
not alter the long-standing rule that the en banc court reviews the decision from which review is
sought in this Court, not the decision of a panel.)


<snip>

Rule 40a(3) Answer. Unless the court requests, no answer to a petition for panel rehearing is permitted.
But ordinarily rehearing will not be granted in the absence of such a request.
(Be on the lookout for such a request.)

http://www.ca4.uscourts.gov/pdf/rules.pdf
Offline Profile Quote Post Goto Top
 
Quasimodo


Same story; but a different news outlet uses a different headline:


Quote:
 
Offline Profile Quote Post Goto Top
 
sceptical

While Bob Ekstrand tends to be long-winded (like many attorneys), his succinct summary why the obstruction of justice charges against Gottlieb, Himan and Lamb should stand is well-spoken and to the point:

"fabrication, concealment, and destruction of evidence and witness tampering"
Edited by sceptical, Jan 6 2013, 11:52 AM.
Offline Profile Quote Post Goto Top
 
sdsgo

Sceptical,

It takes a bit of reading, but the story behind Jones v. City of Durham, et al., 183 N.C. App. 57 (N.C. Ct. App. 2007) is truly fascinating. Judge A. Leon Standback Jr. of Durham issued the initial ruling back in January 2004. The case would be appealed to the North Carolina Court of Appeals, which issued an opinion on February 15, 2005, which dropped the obstruction of justice count. However, based on strong dissent by Judge Levinson, the NC Supreme Court took up the case in December 2005, but they eventually sided with the majority in the appeals court panel in a ruling issued December 16, 2005. However, another strong dissent by Justices Martin and Brady opened the door for a rehearing the next year. This time the court overturned its previous ruling and sent the case back to the NC Court of Appeals, and with great fanfare we got - Jones v. City of Durham, et al., 183 N.C. App. 57 (N.C. Ct. App. 2007).

I don’t have a link to Judge Stanback’s original ruling, but this is what he concluded:

(1) that plaintiff's ordinary negligence claim was dismissed as a matter of law; (2) that there were issues of fact as to whether Officer Kelly was grossly negligent in his emergency response to assist and apprehend the suspect threatening Officer Fox; (3) that there were issues of fact concerning plaintiff's spoilation claim; (4) that plaintiff's claim for violation of the prohibition of exclusive emoluments based on Section 1, Article 32 of the N.C. Constitution, was dismissed (See footnote 1) as a matter of law; and lastly, (5) defendants' assertion of sovereign immunity violates the guarantees of due process and equal protection under Section 1, Article 19 of the N.C. Constitution as a matter of law.

Here are links to the rest of the story:

1. NC Court of Appeals, 15 February 2005
http://appellate.nccourts.org/opinions/?c=2&pdf=MjAwNS8wNC02NjItMS5wZGY=

2. NC Supreme Court, 16 December 2005
http://appellate.nccourts.org/opinions/?c=1&pdf=MjAwNS8xMzdBMDUtMS5wZGY=

3. NC Supreme Court, 20 December 2006
http://appellate.nccourts.org/opinions/?c=1&pdf=MjAwNi8xMzdBMDUtMi5wZGY=

4. NC Court of Appeals, 1 May 2007
http://appellate.nccourts.org/opinions/?c=2&pdf=MjAwNy8wNC02NjItMi5wZGY=

[2] Plaintiff brought a claim for obstruction of public justice. "Obstruction of justice is a common law offense in North Carolina." In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983). “It is an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice.” Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 33, 588 S.E.2d 20, 30 (2003) (citing Burgess v. Busby, 142 N.C. App. 393, 408-09, 544 S.E.2d 4, 12 (2001)). In the instant case, the evidence would allow a jury to conclude that a camera in Kelly’s police car had made a videotape recording of the accident, and that the videotape was subsequently misplaced or destroyed. We affirm the trial court’s denial of defendants’ motion for summary judgment on this claim.

:clean:
Offline Profile Quote Post Goto Top
 
1 user reading this topic (1 Guest and 0 Anonymous)
ZetaBoards - Free Forum Hosting
Fully Featured & Customizable Free Forums
Go to Next Page
« Previous Topic · DUKE LACROSSE - Liestoppers · Next Topic »
Add Reply