Fantastic Allegations

Defending the Police Supervisors in the Duke Lacrosse Lawsuits

Tricia Shields

Hedrick Gardner Kincheloe & Garofalo LLP

pshields@hedrickgardner.com

Introduction:

On March 25, 2006, a story that would soon consume the community and fascinate the

nation appeared on the front page of the local newspapers in Raleigh and Durham, North

Carolina. Both reported that a young woman – an exotic dancer – had been raped and sodomized

by three members of the Duke University lacrosse team, when performing at a party. The dancer

was described as the mother of two and a student at North Carolina Central University, a

historically African American university in Durham. A neighbor reported that he had seen the

woman and another dancer entering the house where the party was held, and when she left a

short time later, he heard a man yell at her, "’Thank your grandpa for my cotton shirt.' " Samiha

Khanna, Dancer Gives Details of Ordeal, News & Observer, March 25, 2006, at A1.

In the following weeks, protests, vigils, and rallies were held on the Duke and NC Central

campuses. The lacrosse season was cancelled, and the coach forced to resign. The national

media descended onto Durham, where District Attorney Michael Nifong stepped into the

limelight, making dozens of inflammatory statements about the case and the players. Nifong

subsequently recused himself from the prosecution amidst a State Bar proceeding that resulted in

his disbarment, was convicted of criminal contempt for failing to turn over critical evidence in

the case, and filed for bankruptcy. Three players were indicted, but were ultimately declared

innocent by the North Carolina Attorney General. The dancer – Crystal Mangum - was later

convicted on charges arising from her setting a boyfriend’s clothes on fire in the bathtub, and

now serving a prison sentence for the second degree murder of another boyfriend.

For ten years, this story has continued to fascinate. Numerous books and articles have

been written about these events, and it has been featured on television shows. This past March,

the case was the subject of ESPN’s 30 for 30 series, on an episode entitled “Fantastic Lies.” 60

Minutes has aired several segments relating to the case, most recently in April, 2015. Crystal

Mangum discussed her perspective on the night, and her other life events, in 2012 on an episode

of “Wives with Knives.”

Despite all the attention on the case, the story of the efforts of Durham police officers to

investigate the horrific rape allegations has not been told – at least not fully or accurately.

Beginning in October, 2007, the City of Durham, the investigators, and their supervisors, were

defendants in three civil lawsuits filed by the Duke lacrosse players. While these cases pended

for years, these “City Defendants” did not participate in discovery in those actions: Nearly all of

the claims were dismissed under Rule 12(b)(6), and the remaining state malicious prosecution

claims against two investigators and state constitutional claim against the City were resolved.1

Thus, the police officers may never share the full account of the investigation with the public.

Obviously, I cannot “tell all” here – that story belongs to the officers, and is only theirs to tell.

However, I will share an overview of the investigative perspective of the case based on the

publically available information, and how the law justly operated to exonerate our clients from

the claims asserted against them.

I. The Facts

A. The Night of March 13-14, 2006

In 2006, David Evans and two other co-captains of the Duke University lacrosse team

lived at an off-campus home located at 610 N. Buchanan Boulevard in Durham. On March 13,

they decided to host a party for the team, and called an agency to request two white strippers for

the evening’s entertainment.

Crystal Mangum and Kim Pittman, the two African American “exotic dancers” sent to

the party, had never met before that night. After a brief planning session in the bathroom, they

began their performance at midnight. The dance ended only four minutes later: When Pittman

declined the suggestion to incorporate sex toys into the act, one man held up a broomstick as an

alternative. The women retreated back into the bathroom. Soon thereafter, both women left in

Pittman’s car.

As the women drove away, racial slurs were shouted at them. Pittman placed a 911 call

at 12:53 a.m., and said that men had come out of 610 N. Buchanan, “and me and my black

girlfriend are walking by, and they called us 'n-----s.'” Sergeant Shelton of the Durham Police

Department responded to the call, but found no one at the house.

Pittman could not find out where Mangum lived, because she was incoherent. She drove

to a grocery store, where a security guard called Durham police. Sergeant Shelton responded to

the call. Pittman told Shelton that she had placed the 911 call, and that she had stopped and

picked Mangum up because she had seen a group of white males yelling racial slurs at her while

she was walking down Buchanan.

Shelton instructed another officer to take Mangum to an outpatient mental health clinic.

During her intake interview, Mangum had difficulty communicating and nodded “yes,” when

asked by the intake nurse if she had been raped. Mangum was then taken to Duke Medical

Center for a sexual assault examination.

1 The players received no monetary compensation. At their request, the City made a $50,000

grant to the NC Innocence Inquiry Commission.

Shelton met Mangum at Duke Medical Center. According to Shelton, Mangum told him

that she had been raped, and then denied it. Shelton did not believe her, and expressed that

opinion to Duke University officers at the hospital. Mangum told a female police officer with

the Durham Police Department that there had been approximately twenty men at the party, and

that five of them raped her in the bathroom.

Mangum was examined by Nurse Tara Levicy and Dr. Manly. Nurse Levicy spent six

hours with her, and believed she had been assaulted. Mangum told her that she had been

sexually assaulted by three men – Adam, Matt, and Brett – in the bathroom. She was

complaining of pain in her vagina, and her examination had revealed several scratches and

lacerations, and “diffuse edema of the vaginal walls.”

At 1:58 a.m. on March 14, Ryan McFadyen, one of the players in attendance sent an

email to his teammates:

tomorrow night ... ive decided to have some strippers over to edens 2c. all are

welcome.. however there will be no nudity. i plan on killing the bitches as soon

as they walk in and proceeding to cut their skin off while cumming in my duke

issue spandex.... 41

McFadyen lived in Room 2c of Edens dormitory, and his lacrosse team number was “41.”

B. The Police Investigation: the First Ten Days

On March 15, 2006, the investigation of the charges was transferred to the district of

Sergeant Mark Gottlieb for investigation. He assigned the case to Officer Benjamin Himan.

After calling Mangum to arrange an interview, Himan called Nurse Levicy, who told him that

she could not divulge patient information, but “there were signs consistent with sexual assault

during her test.” Gottlieb received the medical records with Levicy’s notes pursuant to a

subpoena a week later.

Himan and Gottlieb met with Mangum on the morning of March 16. She appeared to be

in significant pain. She told them about the brief dance that ended with the showing of a

broomstick. She then described a brutal sexual assault by three white men – identified as Adam,

Brett and Matt - which she said occurred in the bathroom. She also told them that some of her

artificial fingernails were broken off in the struggle.

Later that day, and again on March 21, other officers showed Mangum photo arrays

containing pictures of lacrosse players obtained from the team website. These photos had been

taken months earlier, and the players were all in uniform. Mangum could not identify any as her

attackers.

After meeting with Mangum, Officers Gottlieb and Himan executed a search warrant at

610 N. Buchanan. There they found Mangum’s make-up bag, identification and cell phone, and

artificial fingernails in the bathroom trashcan. The three residents consented to police

interviews, and named approximately 40 attendees at the party, most of whom were on the

lacrosse team. They all agreed that the dance stopped when a player held up a broomstick.

While their details of events after that point were inconsistent, they all said that Mangum was

intoxicated and denied that any assault had occurred. One of them reported that when cleaning

up after the party, he found some painted artificial nails in the bathroom, which he put into the

trashcan.

On March 20, Himan called Pittman to arrange for an interview. When Pittman told him

that the rape allegations were a “crock,” he surmised she was trying to avoid talking to police

because she had an outstanding warrant. Himan and Gottlieb met with her on March 23. She

told them that she saw no indication that Mangum was intoxicated until they began their act.

After the broomstick incident, she and Mangum went to the bathroom. Mangum wanted to

continue the dance, but she wanted to leave. Pittman then went outside to her car, and she and

Mangum were separated at that point. Some of the men told her that Mangum was passed out in

the backyard, and she agreed to take her if they would bring her to the car.

On March 20, Himan called the lacrosse team coach, Mike Pressler. Pressler wanted the

players to meet with police to clear the matter up, and arranged interviews for March 22. On the

scheduled morning, an attorney for the players called to move the interviews back a week.

Ultimately, none of the players ever agreed to talk to police, other than the initial interviews of

the captains.

Sergeant Gottlieb believed it important to obtain current photographs of the players

before any wounds scratches healed, and so that recent photos could be shown to Mangum. On

March 23, he and Himan obtained a non-testimonial order (“NTO”) from the court. The players

complied with the order, and provided DNA samples and sat for photographs.

C. Nifong Becomes Involved in the Investigation

On Friday, March 24, Durham Police Commander Jeff Lamb told Gottlieb and Himan

that the investigation would be coordinated through District Attorney Michael Nifong, who was

an elected State official and not an employee of the City. Gottlieb and Himan met with him

about the case the following Monday. They briefed him on the investigation to date, and

provided him with a copy of the McFadyen email that Himan had received that morning. During

the briefing, Nifong stated that “we’re f-cked”; he later testified that that remark was in response

to learning of Shelton’s statements that he did not believe Mangum. After this meeting, the

officers met Nifong regularly and apprised him of all developments in the case.

At Nifong’s request, Gottlieb showed Mangum a power point presentation containing

pictures of the players obtained in the NTO process. Nifong explained that this was intended to

see if Mangum could recognize people from the party to narrow the number they needed to

interview, rather than to identify suspects. As she viewed the photos, however, Mangum

identified three team members as her attackers—David Evans with 90% certainty, Collin

Finnerty with 100% certainty, and Reade Seligmann with 100% certainty.

On March 30, Nifong was told that the State Bureau of Investigation testing had revealed

no DNA in Mangum's rape kit. On April 5, Nifong obtained an order to transfer the evidence to

a private laboratory, DNA Security, Inc., to obtain a more sensitive analysis. Nifong and Dr.

Meehan of DNA Security had several meetings to discuss the testing. Gottlieb and Himan were

present, but later testified that they did not follow the technical details discussed. These tests

revealed no match between the rape kit items and the players’ DNA, but there was DNA from

another source.

Gottlieb and Himan later learned that Nifong expected them to testify at grand jury

proceedings concerning Collin Finnerty and Reade Seligmann. They were concerned because

Seligmann was not on the lists of party attendees provided by the team captains, and the only

evidence that placed him at the party was Mangum’s identification. They discussed this with

Lieutenant Ripberger and his superior, Commander Jeff Lamb. They explained their concerns

with Nifong, who disagreed that there was a problem.

Both before and after the grand jury proceedings, attorneys representing the players had

offered exculpatory evidence to Nifong, which he had reportedly refused to consider. They did

not, however, offer that information to the police. In the days before the grand jury hearing,

Himan tried to obtain that evidence from Seligmann’s defense attorneys, because he did not want

an innocent man indicted. One did not return his calls, and another refused to provide the

information to him.

On April 17, Nifong presented the case against Finnerty and Seligmann to the grand jury.

Both were indicted on charges of rape, first-degree sexual offense, and kidnapping.

Subsequently, DNA Security reported that DNA under one of the artificial fingernails found in

the house matched the DNA of David Evans. On May 15, Nifong sought and obtained an

indictment against Evans.

During the investigation, Nifong made many statements concerning the case to the media,

and as a result, the North Carolina State Bar filed an ethics complaint against him on in

December, 2006. In January, 2007, Nifong recused himself from the cases, and the matter was

referred to the North Carolina Attorney General. The players were interviewed by the Attorney

General, and their attorneys provided them with photos and other documentation that had not

been provided to Durham police. On April 11, the Attorney General dismissed the remaining

charges against Evans, Finnerty, and Seligmann.

II. The Civil Lawsuits

A. The Complaints

1. Evans, Finnerty and Seligmann v. City of Durham, et al

On October 10, 2007, the first of the three “Duke Lacrosse Lawsuits” was filed by the

three players who had been indicted. Having reached a confidential settlement with Duke

University, they sued Nifong and his investigator, Linwood Wilson, DNA Security, Inc., and two

of its employees, and defendants associated with the City of Durham.

The “City Defendants” include the City; Gottlieb and Himan; Officer David Addison,

who was described as a police spokesman; and our clients, the seven “Supervisory Defendants.”

The Supervisory Defendants included Lieutenant Ripberger; Commander Lamb; Beverly

Council, Commander of the Uniform Patrol Bureau; Lee Russ, the Executive Officer to the Chief

of Police; Deputy Chief Ronald Hodge; Chief Steven Chalmers; and the City Manager. Six

different law firms were engaged to represent groups of defendants, and the defense was

coordinated by Senior Assistant City Attorney Kimberly Rehberg.

The Evans complaint contained 572 numbered paragraphs and twenty-three separate

causes of action, including claims under 42 U.S.C. §§ 1983, 1985, 1986, as well as state

common law claims, including a claim for malicious prosecution. The overall theme of the

allegations was that all involved should have seen the innocence of the Duke lacrosse players

from the beginning, and Mangum’s allegations should have discounted as not credible. The

plaintiffs’ federal claims fell into two general categories: an alleged constitutional malicious

prosecution for initiating and continuing prosecutions without probable cause in violation of the

Fourth and Fourteenth Amendments, and an alleged constitutional defamation or “stigma plus”

claim arising out of public statements made about the investigation. The plaintiffs included a

Monell claim against the City and §1983 “supervisory liability” claim against the supervisors,

seeking to impose individual liability on each of them based on their supervisory role in the

Durham Police Department.

The Evans plaintiffs alleged that Nifong led the investigation and was intimately familiar

with the evidence. They specifically alleged that the investigators briefed him on “the

extraordinary evidence of innocence and the fatal defects in Mangum’s claims,” and that he

nevertheless sought indictments to use the “high-profile, racially charged rape allegation for his

personal political gain.”

In contrast, the Evans complaint did not allege that any supervisor collected or evaluated

the evidence. Rather, the complaint alleged that, as a group, they were aware of exculpatory

evidence that they ignored. Despite its remarkable length, the complaint contained very little in

the way of specific conduct of any of the individual police supervisors. In fact, other than

allegations designating their rank, two of these defendants were not mentioned at all.

2. McFadyen, Wilson, and Archer v. Duke University, et al

On December 18, 2007, three unindicted players filed suit against Duke University, a

number of University officials and employees, including its President, Duke University Health

Systems, and the physician and nurse who attended to Ms. Mangum at the hospital, along with

all defendants in the Evans action and four additional Durham police officers. The McFadyen

complaint alleged that all defendants were members of a conspiratorial “Consortium,” whose

objective was to “railroad” the lacrosse team into convictions of a crime that they knew had

never happened. The plaintiffs described their 446-page, 1300-allegation, complaint, containing

forty-one causes of action and hyperlinks to documents and video and audio recordings, as “a

reckoning.”

As in the Evans case, the plaintiffs alleged both state common law claims and federal

claims pursuant to 42 U.S.C. §§ 1983, 1985, 1986 against the City Defendants, including a

supervisory liability claim against the supervisors and a Monnell claim against the City. The

McFadyen plaintiffs alleged that being required to provide buccal swabs pursuant to the NTO

violated their constitutional rights, based on allegations that affidavits used to obtain the NTO

contained false testimony. Plaintiff Ryan McFadyen also alleged a § 1983 claim for the search

of his apartment and car pursuant to a search warrant issued after the investigators obtained a

copy of his email. Similarly to the Evans plaintiffs, all plaintiffs in McFadyen alleged that they,

too, had been deprived of liberty interests by public statements made about the case.

While little additional factual detail was alleged concerning the conduct of the

Supervisory Defendants, the McFadyen complaint contained significant allegations, including

“the broomstick exchange.” The complaint also acknowledged that McFadyen sent the March 14

email, but alleged that it should have been recognized as an obvious parody of the novel

American Pyscho. The complaint further alleged that Nifong took over the investigation on

March 24, after investigators briefed him of all details of the case, and that Nifong made the

decision to indict the plaintiffs’ teammates, fully aware of the state of the evidence.

3. Carrington, et al v. Duke University, et al.

On February 21, 2008, thirty-seven plaintiffs, including unindicted lacrosse team

members and some parents, filed suit against many of the same defendants as McFadyen, with

the exclusion of Nifong and the DNA Security defendants. The Carrington complaint, at 225

pages, was modest in length compared to the others, and contained thirty-two separate causes of

action. Much of the Carrington complaint was focused on state tort claims against the Duke

Defendants, but included many of the claims against the City Defendants alleged in McFadyen,

based on similar allegations. This complaint similarly had little factual detail concerning the

supervisors, and similarly alleged that as a group, “the Durham Supervisors” “knew or should

have known” about the “abuses” of the investigators.

The Carrington complaint added important details concerning information available to

the investigators. The investigators were alleged to have relied on information supplied by

Nurse Levicy in asserting in the NTO application that medical evidence suggested symptoms and

injuries consistent with rape, and that the medical evidence in “Duke’s exclusive possession”

demonstrated that these assertions were false. The complaint further alleged that if Levicy had

truthfully told the police that the medical evidence was inconsistent with Mangum’s claims,

“then the rape investigation . . . would not have been revived and pursued.”

B. The Motions to Dismiss and an Evolving 12(b)(6) Standard

Four months before Evans was filed, the Supreme Court issued its decision in Bell Atl.

Corp. v. Twombly, 550 U.S. 544 (2007), altering traditional notions of what Rule 8 required of

pleadings. The Court held that “a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do,” Id. at 555, and affirmed the dismissal of a complaint

because the plaintiffs had not “nudged their claims across the line from conceivable to

plausible.” Id. at 570.

This newly-stated standard, especially in conjunction with the doctrine of qualified

immunity, appeared tailor-made for the Supervisory Defendants 12(b)(6) motions to dismiss,

because of the paucity of factual allegations about any of them. Any doubt as to Twombly’s

application to these claims were erased when the Supreme Court decided Ashcroft v. Iqbal, 129

S. Ct. 1937 (2009). In Iqbal, the Court detailed how to plausibly plead supervisory liability:

“Because vicarious liability is inapplicable to Bivens and §1983 suits, a plaintiff must plead that

each Government-official defendant, through the official’s own individual actions, has violated

the Constitution.” 129 S. Ct. at 1948 (emphasis added).2 In light of this decision, the District

Court directed additional briefing on the defendants’ pending 12(b)(6) motions.

C. The District Court Decisions

The District Court’s much-awaited orders on the defendants’ motions to dismiss were

filed on March 31, 2011. In all three cases, the Court dismissed the §1985 and §1986 conspiracy

claims, and many of the state tort claims alleged against the City Defendants. In McFadyen, the

Court also dismissed a number of additional purported federal claims, including claims for “by-

stander liability,” “concealment of exculpatory evidence,” “retaliation,” and violations of the

privileges and immunities clause. Significant federal claims remained, however.

In Evans, the Court declined to dismiss the §1983 claims, concluding that claims arising

out of arrests without probable cause were potentially cognizable under the Fourth and

2 This substantive interpretation of the requirements of supervisory liability has been described

as “a nuclear weapon had gone off.” William N. Evans, Supervisory Liability in the Fallout of

Iqbal, 65 Syracuse L. Rev. 103, 105 (2014). The requirement that a supervisor could only be

liable for her own conduct was arguably already a requirement in the Fourth Circuit. See, Shaw

v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).

Fourteenth Amendments. The Court rejected the argument that the grand jury indictments were

determinative of the issue of probable cause, because the plaintiffs had alleged the indictments

were obtained by fabricated evidence. Evans v. City of Durham, 1:07CV739, 2011 WL

10619638, at *14 (M.D.N.C. Mar. 31, 2011). However, the Court did not address defense

arguments that Nifong’s decision to indict intervened to bar the plaintiff’s claims. The Court

further held that arguments that the plaintiffs had not sufficiently alleged facts with regard to

particular defendants would be more appropriately addressed at summary judgment.

Similarly, in McFadyen and Carrington, the Court denied the motions to dismiss the

§1983 claims arising out of the NTO and the warrant for McFadyen’s room, concluding that the

allegations that the officers supplied false information to the magistrate to support a warrant

application, could constitute a Fourth Amendment violation, if the plaintiffs were seized without

probable cause. McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 926 (M.D.N.C. 2011). The

Court declined to “parse” the allegations of the complaint to evaluate Defendants’ arguments that

probable cause existed even if the allegedly false statements were disregarded.

In all three cases, the Court declined to dismiss the “stigma-plus” claims, concluding that

the complaints alleged that the false public statements were made in connection with the alleged

Fourth and Fourteenth Amendment violations. McFadyen, supra, at 941.

III. The Fourth Circuit Decision

The City Defendants took an interlocutory appeal to the Fourth Circuit, based on the

individual officers’ assertion of qualified immunity, while the remaining defendants moved

forward with discovery. In an opinion that has since been cited in 150 cases, the Fourth Circuit

reversed the District Court’s decision allowing the federal claims to proceed. Evans v.

Chalmers, 703 F.3d 636 (4th Cir. 2012), cert. denied, 134 S. Ct. 617 (2013). The majority held

that only the state tort claims for malicious prosecution against the two investigators alleged

sufficient facts to state a claim for relief.

Each judge on the panel authored a separate opinion. Each expressed their concern that

imposing liability under the plaintiffs’ theories would impair the ability of police officers to

investigate crime and to work effectively with prosecutors.

A. The Majority Opinion

The Court reversed the District Court’s denial of the City Defendants’ motions to dismiss

the § 1983 claims, concluding that the plaintiffs had not alleged cognizable constitutional

violations. Without the required constitutional underpinning, the Court further concluded that

the plaintiffs’ derivative claims of supervisory liability against the Supervisory Defendants and

the “stigma-plus” claims necessarily failed as well.

1. The Investigators Did Not Proximately Cause the Indictments

Writing for the majority, Judge Motz noted that a “’malicious prosecution claim under §

1983 is properly understood as a Fourth Amendment claim for unreasonable seizure which

incorporates certain elements of the common law tort.’” Evans, 703 F.3d at 647, citing, Lambert

v. Williams, 223 F.3d 257, 261 (4th Cir.2000). To state such a claim, the plaintiffs were required

to plausibly allege that the defendants “(1) caused (2) a seizure of the plaintiff pursuant to legal

process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's

favor.” Id.3

In perhaps its most significant holding, the Court concluded that Nifong’s independent

decision to seek an indictment, particularly in light of the officers’ candid assessment to him of

the weakness of the case, constituted an intervening superseding cause that broke the causal

chain between any misconduct by the officers and the indictment of the plaintiffs. 4 The Court

noted that constitutional torts “like their common law brethren, require a demonstration of both

but-for and proximate causation,” and “intervening acts of other participants in the criminal

justice system insulate a police officer from liability.” Id. The Court stated that where it is

alleged that an officer misled or pressured a prosecutor so as to overbear the prosecutor’s

independent judgment, then an officer does not enjoy the same immunity from suit for malicious

prosecution.

Here, however, the plaintiffs had not alleged that the officers misled or pressured Nifong.

In fact, the allegations of the complaint indicated that the officers conveyed to Nifong their belief

that the case had many weaknesses; that they openly questioned his decision to pursue an

indictment; and that Nifong chose to pursue the case for his own political gain despite receiving

the officers’ candid assessment. In response to Plaintiffs’ argument that the officers had

“conspired” with Nifong to procure Plaintiffs’ indictments, the Court observed:

3 Extended by: Johnson v. City of Fayetteville, 91 F. Supp. 3d 775, 805 (E.D.N.C. 2015)

(warrantless arrest was not a “seizure of the plaintiff pursuant to legal process.”)

4 Followed by: McEntyre v. Greene, 2015 WL 5124175, at *4 (W.D.N.C. Sept. 1, 2015)(grand

jury indictment broke causal chain); Bryant v. Oaks, 2014 WL 7330787, at *5 (W.D. Va. Dec.

19, 2014), aff'd sub nom. Bryant v. Carico, 616 F. App'x 84 (4th Cir. 2015)(while deputy sheriff

may have misled magistrate to obtain a warrant, subsequent prosecution and indictment broke

the causal chain, in absence of evidence that he misled the prosecutor or grand jury); Phatisis v.

Clark, 2013 WL 4098488, at *6 (E.D. Va. Aug. 13, 2013). Declined to extend: R.M.B. v.

Bedford Cty. (Virginia) Sch. Bd., 2016 WL 1058199, at *4 (W.D. Va. Mar. 11, 2016)(disclosing

to fellow officer does not cut causal chain).

Moreover, it seems contrary to the very purpose of qualified immunity to

extend personal liability to police officers who have assertedly conspired with,

but neither misled nor unduly pressured, an independent prosecutor. Police

officers and prosecutors often work together to establish probable cause and

seek indictments; such collaboration could always be characterized as a

“conspiracy.” Allowing § 1983 claims against police officers to proceed on

allegations of such a “conspiracy” would in virtually every case render the

officers’ qualified immunity from suit “effectively lost,” Mitchell, 472 U.S. at

526, and make discovery the rule, rather than the exception, see Anderson v.

Creighton, 483 U.S. 635, 639-40 & n.2 (1987).

Evans, 703 F.3d at 648-49.

2. The Alleged False Statements Were Not Material to the NTO or Warrant.

In considering the McFadyen and Carrington claims that the alleged false statements in

the affidavits filed by the officers in support of the NTO stated a constitutional claim, the Fourth

Circuit employed the two-part test set out in Franks v. Delaware, 438 U.S. 154 (1978). The first

prong of the Franks test required the plaintiffs to allege that the defendants “knowingly and

intentionally or with reckless disregard for the truth,” either made false statements in their

affidavits or omitted facts from those affidavits, thus rendering the affidavits misleading. Evans,

703 F.3d at 650, quoting, Franks, 438 U.S. at 155-56. The second prong required a

demonstration that those “false statements or omissions [are] ‘material,’ that is, ‘necessary to’” a

neutral and disinterested magistrate’s authorization of the search. Id.5

The Court determined that the plaintiffs had sufficiently alleged that several statements

contained in the affidavits satisfied the first prong of the Franks test as deliberate falsehoods. In

determining materiality, the Court removed the allegedly false statements to determine whether

the “corrected” affidavit would provide adequate grounds for the search. Evans, 703 F.3d at 651.

Using this analysis, the Court found that the affidavits, as revised, were adequate to support a

finding of probable cause.

Specifically, the Court found that the remaining statements concerning Mangum’s

allegations of rape, the presence of Mangum’s belongings at the house where the rape was

alleged to have occurred, and the corroborating statement of Nurse Levicy that Mangum showed

signs, symptoms, and injuries consistent with being raped and sexually assaulted, were sufficient

to support the issuance of the NTO. The Court concluded that, regardless of any misstatements

5 Followed by: White v. Marsh, No. 2:13-CV-30533, 2014 WL 4418193, at *6 (S.D.W. Va.

Sept. 8, 2014).

by the officers in the affidavits in support of the NTO, “[a] rape allegation, paired with

corroborating medical evidence, undoubtedly establishes probable cause that a rape was

committed.” Evans, 703 F.3d at 652, citing Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir.

1991).

Plaintiff McFadyen had relied on the same alleged misstatements in arguing that the

search warrant for his room and vehicle supported his individual § 1983 claim. He also argued

that the officers’ inclusion of his email in the affidavit had been misleading, contending that it

had been insufficiently corroborated. The Court disagreed, finding that “the email sent from

McFadyen's Duke email account and signed with his jersey number contains sufficient indicia of

reliability to support its inclusion in the search warrant application.” Evans, 703 F.3d at 653. As

with the NTO, the Fourth Circuit found that the warrant for Plaintiff McFadyen, with the

deletion of the alleged misstatements, was sufficient to establish probable cause for the search:

Even crediting McFadyen's allegation that his email spoofed the novel and

film, American Psycho, a reasonable officer could have—and given the

circumstances here, should have—taken seriously the email's disturbing

contents. McFadyen's email, sent only hours after the alleged rape of an exotic

dancer, specifically contemplated other brutally violent behavior toward exotic

dancers. The email's temporal proximity and substantive similarity to the rape

allegations provide more than a fair probability that evidence relating to the

rape would be found in McFadyen's apartment.

Evans, 703 F.3d at 653-54.

3. The Remaining State Claims

The individual officers also appealed the decision on those state tort claims that the

District Court had declined to dismiss. The majority rejected the arguments that all of those

claims were barred by official immunity provided by North Carolina common law, finding that

the plaintiffs had “sufficiently pled malicious conduct.” Evans, 703 F.3d at 657. (emphasis

original).

The Court found that the Evans plaintiffs had sufficiently alleged the elements of a

malicious prosecution claim under North Carolina law against the two investigators. The Court

declined to hold that Nifong’s decision to indict broke the causal chain for this state tort claim as

it had for the § 1983: “Certainly, no North Carolina court has adopted the attenuated view of

causation espoused by the plaintiffs; but North Carolina courts have generally held causation can

be established by allegations that the defendant ‘instituted, procured, or participated in’ a

criminal proceeding.” Id. (citations omitted).

The Court dismissed the common law obstruction of justice claims alleged by all

plaintiffs, because “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. Id. at 658. Thus, in considering whether North

Carolina would recognize such a claim, the Court concluded that while “such a holding may be a

remote ‘possibility,’ it is not a reality.” Id.6

Finally, the Fourth Circuit declined to exercise pendent appellate jurisdiction over the

District Court's denial of the City's motions to dismiss the plaintiffs' state constitutional claims

alleged pursuant to Craig ex rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 678

S.E.2d 351, 354 (2009). The Court concluded that its review of the issues of qualified, official,

and governmental immunity had not required the evaluation of the state constitutional claims.

The Court therefore dismissed the appeal on this issue for lack of jurisdiction.

B. Judge Wilkinson’s Opinion

Despite concurring entirely with the majority’s substantive analysis, Judge Wilkinson

authored a concurring opinion. He expressed his purpose in writing separately:

A few additional observations may underscore the overblown nature of this

case. Plaintiffs have sought to raise every experimental claim and to corral

every conceivable defendant. The result is a case on the far limbs of law and

one destined, were it to succeed in whole, to spread damage in all directions.

Evans, 703 F.3d at 659 (Wilkinson, J., concurring).

Judge Wilkinson singled out the “stigma plus” Due Process claim alleged against police

spokesperson David Addison as an example of dangerous overreaching. He noted that in

attempting to hold Addison liable for allegedly defamatory statements, the complaints “fly in the

face of the Supreme Court's admonition that the Due Process Clause is not to be converted into

‘a font of tort law to be superimposed upon whatever systems may already be administered by

the states.’” Evans, 703 F.3d at 660, quoting Paul v. Davis, 424 U.S. 693, 701 (1976). Judge

Wilkinson expressed gave concern about the implications of potential liability on police

spokespersons:

6 Followed by Massey v. Ojaniit, 759 F.3d 343, 358 (4th Cir. 2014); Houck v. Howell, 2016 WL

1599806, at *9 (W.D.N.C. Apr. 21, 2016); Haynes v. City of Durham, N.C., No. 1:12CV1090,

2014 WL 2864470, at *10 (M.D.N.C. June 24, 2014) (still no civil claim in NC for obstruction

of justice).

Moreover, the plaintiffs' position would expose spokespersons (who are often

given limited information by their superiors on a need-to-know basis) to the

threat of monetary damages for expressing a departmental position in the most

general of terms. Think of the implications of such a rule for public

spokespersons of all sorts, from the press secretary for the Department of State

to the spokesperson for a local school board. The threat posed by litigation of

this kind would cause such officials to clam up, and the criminal justice

system—not to mention government generally—would become less

transparent than it already is.

Id., at 660.

Judge Wilkinson also admonished the plaintiffs’ attempt to impose supervisory liability

on individual supervisors, without articulating any specific unconstitutional actions on the part of

any one of them. He opined that the plaintiffs had “utterly failed to heed” the holdings of the

Supreme Court that “’a plaintiff must plead that each [supervisory] defendant, through the

official's own individual actions, has violated the Constitution.’” Id. at 661, citing Ashcroft v.

Iqbal, 556 U.S. 662, 676 (2009).7 He noted that several defendants were not mentioned at all in

the factual allegations of the complaints, and that the “absence of individualized allegations is all

the more remarkable in light of the otherwise exhaustive nature of the complaints: combined, the

three complaints weigh in at a staggering eight hundred-plus pages.” Id.

Judge Wilkinson further noted that the allegations about the supervisors that were

contained in the complaint did not plausibly support claims of unconstitutional conduct: “the

‘obvious alternative explanation,’ . . . for the supervisors' conduct in assigning the case to certain

investigators and attending meetings where the case was discussed is that they wanted to

facilitate the investigation, stay abreast of recent developments, and bring the case to closure on

a reasonable timeline. That, after all, is their job.” Id. at 662, citing Iqbal, 556 U. S. at 682.

Judge Wilkinson concluded his concurrence by explaining what he perceived to be the

threat to the criminal justice system posed by the plaintiffs’ theories of the case. He reiterated

the concern raised by Judge Motz that claims grounded in communications between investigators

and prosecutors would have a chilling effect on the ability, and willingness, of investigators and

prosecutors to engage in open communication with one another. He noted that the imposition of

monetary liability on officers for warrant deficiencies could discourage resort to judicial process.

7 Followed by: Evans v. Griess, 2013 WL 5817239, at *6 (E.D.N.C. Oct. 23, 2013); Freeland v.

Ballard, 6 F. Supp. 3d 683, 693 (S.D.W. Va. 2014)

Judge Wilkinson found that that it would be “outrageous” to hold policemen liable requesting a

search warrant based upon the threatening McFadyen email:

The argument offered in the McFadyen complaint—that the investigators

should have somehow realized that the e-mail was meant to be a joke or

parody—is a theory that could succeed only in Never Never Land, a theory

that takes no account of the real and brutal rampages by disturbed individuals

on college campuses and elsewhere in recent years. As it turned out, the e-mail

was a highly vulgarized expression of fancy. But we cannot ascribe instant

clairvoyance to those charged with protecting the community—and who must

be simultaneously encouraged to seek judicial sanction in doing so.

Evans, 703 F.3d at 663.

C. Judge Gregory’s Opinion.

Judge Gregory concurred in the majority’s opinion to dismiss the plaintiff’s federal

claims. He dissented, however, from the portion of the opinion declining to dismiss all state tort

claims based on the North Carolina doctrine of official immunity. He reasoned that under North

Carolina law, “a police officer is protected from personal liability for investigative conduct

unless the plaintiffs ‘allege and prove that the defendant's acts were malicious or corrupt.’”

Evans, 703 F.3d at 665 (Gregory, J., concurring in part and dissenting in part), citing Schlossberg

v. Goins, 141 N.C.App. 436, 540 S.E.2d 49, 56 (2000).

Noting that the plaintiffs had chosen to file suit in federal court, Judge Gregory

concluded that the pleadings requirements of Iqbal applied, and found the plaintiffs factual

allegations of malice or corruption wanting. Without their conclusory allegations, he found that

the complaints did not plausibly suggest the officers acted “wantonly”: “On the contrary, the

‘obvious alternative explanation’ for the officers' conduct is that they were acting as reasonable,

though not perfect, police officers would to investigate Mangum's rape allegations, which they

did not know to be false.” Id. at 666.

Judge Gregory concluded that allowing the malicious prosecution claims to proceed, on

the allegations presented in Evans, could endanger legitimate law enforcement efforts to

investigate allegations of rape:

Although in retrospect it may be clear to some that Mangum's accusations were

baseless, the complaint does not plausibly allege Gottlieb and Himan knew this

to be the case, particularly in light of the corroborating medical information

they possessed. Rather, their investigative conduct leading to the plaintiffs'

indictments, though not perfect, is consistent with the conduct of reasonable

police officers assigned a rape case. If a complaint of this kind can proceed, I

fear that every rape case where a victim has given inconsistent accounts and a

witness has changed her statement could subject investigating police officers to

personal liability. I do not believe the North Carolina doctrine of official

immunity or federal pleading standards can be circumvented so easily, and I

fear this Court has done a disservice to both by denying Gottlieb and Himan

official immunity.

Evans, 703 F.3d at 667.

Conclusion:

The notoriety surrounding the “Duke Lacrosse” case created a cultural cacophony of

race, class and power that had the potential to overwhelm the truth. Ultimately, however, the

criminal system worked as it should. The rogue District Attorney was disciplined and convicted

for his misconduct, and the charges against the indicted players were dismissed.

The civil justice system worked here as well. The Fourth Circuit fairly applied

established standards to the federal claims alleged against the police officers who attempted to

investigate allegations of a brutal rape. As Judge Wilkinson observed:

In sum, we run the risk here of replicating in civil litigation the very maladies

that plaintiffs complain infected the criminal process to which they were

subjected. That is to say, individuals would be pulled into the coercive

proceedings of courts when they have no business being there. To prolong the

overextension of legal process that has been attempted here would portend a

sorry end to a sorry saga.

Evans, 703 F.3d at 665 (Wilkinson, J., concurring). Under the Fourth Circuit’s decision, police

officers remain able to investigate crimes, to seek warrants, and to communicate with

prosecutors without the threat of personal liability, even in the most controversial cases.

91 F.Supp.3d 775