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LAX suit: several (and joint) reasons to link Nifong, Durham

First, the usual disclaimer -- this is not a blog about the Duke lacrosse case, or one that even touches on it as usual practice. But we'll tackle news about the case, particularly in the current Federal civil rights suit, in the vein of analyzing politics and governmental news here in the Bull City. With that:

There's been plenty said about the case on the Internet and the blogosphere (including some examples from Barry of some other examples of travesties of justice that didn't see wronged persons make out like Powerball winners.) One thing that's intrigued me, though, is how a couple of items in the news interplay and point towards the plaintiffs' strategy in taking on Nifong and the City -- for whom our embattled, embittered, embarrassed and politically disemboweled former D.A. never worked, since he's an employee of the State of North Carolina.

Clue #1: A key claim of the filing is the claim by attorneys in filing the suit that a conspiracy occurred between City officials, notably the Durham P.D., and Mike Nifong to bring baseless indictments against the three men charged in the case. It's a bold assertion, and one which flies in the face of Durham officials' insistence (at least ex post facto, and if I recall, one made during the case's progress as well) that Nifong was "running" the case and the police were letting the then-D.A. run the case.

Clue #2: The N&O has the following interesting exchange in Matt Dees and Joseph Ness's Saturday piece:

Lumping the co-defendants together puts the city in an awkward position. City leaders have tried to pin the rush-to-accuse tag on the "rogue prosecutor" Nifong, while also saying that Nifong wasn't given carte blanche in the investigation.

But the suit alleges that the Police Department allowed Nifong to take over the case, apparently with little resistance.


[Charlotte attorney Luke] Largess said he would expect one of the defendants to file a motion to sever the suit so the city would be responding only to specific allegations against Durham.

"I don't think they have the grounds to do that," said David Rudolf, another of Seligmann's attorneys. "We've alleged a conspiracy in which they all acted together."

Now, I'm not a lawyer (and if I'm off-base on this one, I expect an actual lawyer, if not Messrs. Dees and Gronberg, will correct me.) But from my quite limited understanding of Federal civil rights practices, there are a couple of relevant points at play here:

  • States themselves are often (though not always) able to argue that they are immune from Federal civil rights suits and liability under the Eleventh Amendment to the U.S. Constitution. Officers of the State -- like Nifong -- can be sued individually, however. Also, notably, municipalities can be so sued.
  • Though suing an individual like Nifong is doubtlessly satisfying to the men wrongly accused in this case, it's not likely to be very remunerative, unless Mr. Nifong happens to win big in Vegas or turn out to be a long-lost descendant of the Duke family fortune between now and any penalty or settlement phase.

What does this all add up to? Nifong and the other individuals in the case probably can't pay a multi-million dollar judgment. But the City of Durham possesses a tax base, and the ability to tax it. In other words, deep pockets.

Which is likely why Largess suggests Durham might try to separate the suit in two, in order to shield itself from Nifong's liability. And which, in turn, would explain the conspiracy focus by the plaintiffs -- if they were all in cahoots, it wouldn't be prudent to separate the parties in the complaint.

I haven't been closely following the case, and certainly don't know if there's a smoking gun somewhere that shows there was indeed a conspiracy that took place, but it strikes me that this may be a difficult charge to stick. Heck, this may prove to be the ultimate silver lining to messes like the yard waste fire and lead-in-the-water -- Durham's government often appears to be the Gang That Can't Shoot Straight, making it a whole lot easier to allege sheer incompetence over malice in this one.

Like most of America, I'm convinced that the lacrosse players were set up by Nifong in this case. (Most of Durham seems to think this, too, given that a majority voted against returning him to office, though the Monks-Cheek dual opponent situation let him sneak back in.) And they deserve a fair judgment for what they went through -- at the very least, they should recoup their legal expenses for the case.

Just how big a payday this turns out to be, though, will seem to rest on whether Durham officials were canny conspirators or bumbling bureaucrats in the eyes of the justice system. For someone who loves the Bull City, as hard as it is to say, here's hoping the latter is the case.



I have three comments on this matter:

1) The amicus curiae filings ('friends of the court" briefs) from other municipalities and governments will surely be substantial -- who in the world wants this precedent to be set? And it is my understanding that the legal basis for the families holding Durham liable is being used in a creative fashion in that it is not usually applied in cases like this (as in, this is a first or close to it). There are systemwide reasons why a lot of people don't want this to stand.

2) If the people of Durham are being asked to pay for damages to the reputations of these boys, it i time for us to see exactly what those reputations were. We have yet to see any evidence against them that wasn't released by their lawyers and if they expect huge settlements - the families should expect that people will feel they have a right to know what their sons' actions were that entire night and if those actions might have contributed to a reasonable initial belief they could have committed a crime of that nature. Something tells me there is a whole lot we haven't heard in that arena. And if it was deemed reasonable for the defense attorneys to examine the accuser's reputation in the press (which is what they did) then it is certainly reasonable for us to closely the reputations of these young men -- especially if they expect big bucks for damage to those reputations.

3. Kevin, you really don't think you can start a topic on this case and not expect all hell to break loose, do you?


based on some of the comments over at my place, i admit that i am shocked that the lawsuit has not asked for a 30 foot statue of the Duke lacrosse team to be erected in the CCB Plaza and entitled "Martyrs of Injustice."


Come on Barry, why stop at merely specifying 30ft statues? I think the lawsuit should demand 50ft statues with balls at least three times as big as those of the bull statue. Additionally, we need tiny statues of every single Durham resident pleading forgiveness, kneeling in front and kissing the feet of those glorious pillars of justice representing the infinite wisdom of those saintly lacrosse boys.

Michael Bacon

Yet another piece that started as a comment, and got so big it had to go on my own blog:


Mike John

Better a statue of the Duke boys than your proposed Victoria Peterson statue, durhamfood.

Kevin Davis

Michael: your piece is an interesting read; I'll touch more on it -- and what it has to do with Mike John's comment -- on BCR Tuesday morning.


I adore these accusations. Any particular reason you lump me in the Victoria Peterson crowd, Mike John? Surely, it depends on the sculptor, not merely the scupltee?

While we're on the personal attacks, what kind of name is Mike John anyway? Is it Mike or John? Pick a side, dammit, we're at war!


Kevin - I was hoping that you, or somebody else, could clarify something for me. Isn't the City's insurance company ultimately going to pay whatever amount is awarded to the lacrosse players? I would really like to know more details about Durham's umbrella policy, because as citizens, we might need to demand better coverage for the future. If you can shed some light on this, I would appreciate it.

Ray Gronberg

Kevin, your understanding of the situation as expressed in Clue #1 is off. In fact, it's exactly backwards. Steve Chalmers said earlier this year that the Police Department retained full control over the investigation at all times, and Nifong said basically the same thing in his deposition to the State Bar. See http://wral.com/news/local/story/1440974 for the Chalmers comments.

Moreover, the players' legal argument is that even if Nifong tried to hijack the investigation, the DPD command had both a professional and legal obligation to stop him. So it's not a question of going after deep pockets -- it's a matter of going after the people who were in charge.

Bear in mind that the lawsuit isn't necessarily the city's biggest lacrosse-related legal problem. State AG Roy Cooper is still considering Jim Hardin's request that his office conduct a criminal investigation of anyone who acted "under the color of law enforcement" in the lacrosse case. That phrasing covers lot of ground other than just Nifong's role in the thing.


I actually have far less of a problem with criminal prosecutions than with the civil suit. It's the financial damage to the community that matters to me, be it in a direct charge or in the insane insurance premium increases that will follow.


Chris @ 7:03 PM,

I assumed Durham's liability insurance would cover either a settlement or judgment, but when I asked a City Council member whether or not this was the case, the answer was "no, insurance does not cover this." Don't know the details as to why or why not, and didn't have a chance to ask, but the answer was clearly no. So, unless this person was mistaken, any money paid to the families will come right out of Durham's pockets... and out of our parks and rec and arts budget... and all the way down the line.


"when I asked a City Council member whether or not this was the case, the answer was "no, insurance does not cover this." "

that doesn't make sense to me. i thought the reason that the city's investigation into the actions of the DPD was halted because of the insurance company's concerns that it might uncover evidence damaging to the city that would force the insurance company to pay out? if they have no liability, then why would they be able to dictate terms of the city's investigation?


I don't know Barry. Maybe liability insurance doesn't cover willful wrongdoing by a city employee? Is it possible the reason you heard as to why the investigation was halted is just more spin by the families? Or maybe the insurance company wanted to wiggle out of paying and they subsequently informed the city they would not pay because of x, y or z? They certainly wiggle out of paying smaller claims all the time. Or maybe my source was wrong or misunderstood what I was asking. I can only tell you what I was told. I thought it was kind of odd myself. Not to mention depressing.

But hasn't this been covered by the papers? I've been out of town for four days, but surely someone has looked into it.


Chaz - If what you say is true, then I find it to be very troubling. The city is constantly at risk of being sued by individuals. No matter how well the city is managed, one bad mistake by a police officer, or other public servant, could cost citizens incredible sums of money. Prior to this Duke Lacrosse debacle, Durham must have done some sort of risk assessment/risk mitigation studies. To be honest, this Duke Lacrosse scenario is a pretty simple risk to identify. I'd like to hear more details on the proactive measures the city took with regards to risk management. All of this must be documented somewhere.


I'm not really sure why it matters: surely in the long-run, premiums would go much higher, Durham's image would suffer even more and the financial damage will likely be similar.



durhamfood - I think that your question about rising premiums is a good one, but remember that there is a reason you buy insurance. Crazy "stuff" happens sometimes. When you buy insurance, you are transferring the risk to a large corporation that can better absorb the financial risk. In this Duke Lacrosse case, since the risk has been (or should have been) transferred, it's really a matter of the lacrosse players trying to get money out of some large insurance corporation, and that corporation is going to work hard in court to make sure that an excessive judgement isn't rewarded. In my opinion, this isn't such a bad thing, and it takes a bit of the emotion out of the issue. I just hope that our leaders have exercised good stewardship in the realm of risk management and insurance.


Well, insurance is a way to spread risk over time, saving the reputations of politicians and bureaucrats, rather than the taxpayers' money.

In the end, the poor end up handing over money to the rich either way.

Kevin Davis

Ray: Thanks for the comment. Interestingly, though as of the embattled May report on the case Baker and others insisted the police had been in charge of the investigation, the theme of most discourse before the report suggested that Nifong was really running the show. From the N&O a few days before the report was released:

"The three players have not yet decided whether they will file civil lawsuits against Nifong, the investigators or the city of Durham. If they do, the lawsuits would likely focus on whether the players were identified through a flawed procedure and whether an investigator created false evidence.

The police department's problems can all be traced to one fundamental error -- letting Nifong take over the case -- according to Jim Cooney, defense lawyer for Seligmann. Cooney has represented the Charlotte Police Department on several occasions, including on charges of malicious prosecution brought by a doctor accused of murdering his wife.

"The police let Nifong usurp the chain of command, and this is unforgivable," Cooney said. "The police work for the chief, who works for the city manager, who works for the City Council. The police do not work for the DA."

It is unusual for a prosecutor to take command of an investigation; gathering evidence and investigating crimes is the province of police.

Nifong took over the case on March 24, 2006, the day news broke that the lacrosse team had been ordered to the police station to give DNA samples. Sgt. Mark Gottlieb, the senior investigator on the case, wrote that he was told by his boss, Capt. Jeff Lamb, that Nifong would be running the case. Lamb instructed Gottlieb to "go through Mr. Nifong for any directions how to conduct matters in this case." Lamb also instructed Gottlieb to keep him up to date on the case."

All that said, if the City does in fact hew to the line that it was in charge of the investigation and not Nifong, there's certainly (to a non-legally trained outsider) grounds for some liability there. The question is, does it rise to the level of being a conspiracy with Nifong to deprive three men of their civil rights?

I still suspect that there are likely other practical reasons at stake as well in the attorneys' linking Durham and Nifong together -- like the matter of how they'd collect from Mr. Nifong.

If it turns out that there was indeed a legal conspiracy between City officials and the D.A. -- well, that's a dark day for Durham. At this point, I'm still inclined to chalk this one up to incompetence over willful malice. I pray I'm not wrong.

Frankly, it's for that reason that I'm more interested in some ways in the criminal investigation than the civil one. It's one thing for Durham to be financially liable for what it did here; but if Durham officials violated criminal law in their pursuit of the case, I care much more deeply that those individuals no longer have jobs in the city.


Re insurance, I read in the paper when this started that the city's liability insurance had a cap -- I believe it was $10 Million, which leaves $20 Million or so to come out of our pockets.


Damn. The cap on the city's liability insurance is only $10 million??? I just don't get it. I have a standard umbrella policy with a $1 million cap, and I'm just one (fairly young) person. Does anybody know if Durham had the option to purchase more insurance, or is this some kind of standard municipal policy?

Hypothetically, what happens if the city is negligent in the future and ends up killing a number of individuals? Does the city just go bankrupt due to the massive settlements? Even if the citizens have to finance the payout over a large number of years, it would seem that an event like this could basically ruin the city. In that case, I guess we all move somewhere else . . . .


Well, I think one point relevant to your concerns, Chris, is that this lawsuit is being brought on very new (and some say, shaky) grounds when it comes to the rationale used to argue that the City is liable. I believe they are evoking a legal point only used previously in civil rights cases to prevent, say, white supremacy conspiracies, for example, and trying to apply it here (I'm not positive on the specific application of this point previously, however). But since no one has really argued this application of that law before, this sort of exposure to risk is new and unanticipated, and there was no way for the City to know someone might try it. But as I mentioned in the very first post above -- the idea that an entire city could be held liable for the actions of a state-hired prosecutor working in concert with the police force would be a terrible precedent from all local government's perspectives, in part because of the very reasons you mention, i.e., the huge liability exposure for all municipalities. Just think of all the past wrongly convicted people who could conceivably file suit across America. A lot of legal experts think that part of the lawsuit will not stand because of that.


Chaz - Thanks for the response. Those are interesting points. I was under the impression that cities could always be sued for police misconduct. I'm thinking of examples like the Rodney King verdict. In any case, I'd really like to learn all the details regarding the legal precedents and insurance safeguards for these sorts of scenarios. My main fear is that this case will never go to court, and the citizens will pay for a settlement, and we will never know whether any of this would have stood-up in a court of law, or whether insurance should have covered it. I wish I had time to do the investigative work, because unfortunately, I don't think anybody else is ever going to do it.


I've just finished reading this thread through Chris's 6:12PM entry of yesterday. I'm a former Tarheel who grew up in Black Mountain. I live in Texas now but NC is still home to me.
There are a couple of things you should get caught up on 1) Durham's insurance provider (I should say former insurance provider, I don't know the current company's name) is AIG, the American Insurance Group. AIG has an upper limit on its' payout of $5 million. That $5 million figure goes to cover all expenses related to a claim while the policy was in force. That means it covers legal fees as well as any other charges. The city has hired a K Street (Wash DC insider's term meaning big, politically connected and very expensive) legal firm to represent it. They won't be cheap.
The new/novel legal theories aren't. At least I haven't found anything to indicate that new theories are being followed.
The complaint alleges 22 causes of action. It is interesting reading. As one of the prior posters noted, it really is hard to comment reasonably on the case without first having read the complaint (about 160 pages long by the way.
There are a couple of other interesting things on the horizon. The first issue arises about 30 days after the date of the filing of the suit - the defendants have to respond. If they don't a default judgment could be entered against the city. That won't happen but the city and its' outside law firm have to decide whether to formally fight the case. This is a tough decision to make. If the city fights, it has to turn over all it records on the case (this is called discovery). Discovery can be embarrassing. For example the News & Observer just publicized a previously secret meeting between the DPD investigators and the mayor held just before the indictments. There is no telling what will turn up when the process starts.
Another issue deals with how many incidents are actually involved. Is it one, as the insurance company alleges, or is it three. In the former AIG is on the hook for $5 million. If the latter is correct, AIG is on the hook for $15 million.
Again, we can all agree the case was a travesty. Truth did not seem to be the object of the investigation. The city of Durham has denied culpability with the city manager's report on the DPD's handling of the investigation.
This is going to be an interesting year or two.

Ray Gronberg

To Mike: The Herald-Sun, not the N&O, publicized the meeting between the lead investigator and the mayor.

mike rayfield

Thanks for pointing out the error. The mistake was unintentional. You really can't tell the players without a score card can you? I don't think that error changes the sense of what I was trying to say. The bottom line of what I was trying to say is that this is going to be expensive, very expensive. In a trial, the case could go either way. That's why attorneys have a strange rubric: a bad settlement is better than a good victory. You know what a settlement means when you agree to it.
Even with Perry Mason representing you, you can't be sure of what a jury will "decide". Remember the $10 million award against McDonald's for selling coffee that was "too hot". There is more to that story than most people know, but it does go to prove the attorneys' rubric.


Interesting that Dwayne Allen Dail, who was actually convicted of a rape he didn't commit, who actually served 18 years in prison, and who was just pardoned by the governor, only stands to recoup $360k from his adventures with our justice system. Seems a little uneven to me. Hasn't Dail's reputation been sullied a bit more dramatically than the LAX players?

Jonathan Jones

That figure for Dwayne Allen Dail is the max on what he can get from the state, I believe, for his wrongful conviction.

Darryl Hunt got a similar cash payout from the state and then managed to negotiate a much larger settlement from the City of Winston-Salem for his wrongful conviction.


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