Duke lacrosse players ask for Supreme Court review

From the Durham Herald-Sun:

A trio of former Duke University lacrosse players has asked the U.S. Supreme Court to reverse a lower-court ruling and reinstate their federal civil-rights case against the city and its police.
Lawyers for David Evans, Colin Finnerty and Reade Seligmann filed their request for a Supreme Court review on Thursday, telling the justices they should settle a question of governmental immunity that’s divided the country’s appellate courts.
The 4th U.S. Circuit Court of Appeals in tossing the players’ civil-rights claims against the city last December deepened a conflict with similar courts about “whether intervening prosecutorial action immunizes investigating officers from liability,” their petition said.
The brief played to the high court’s preference for taking cases that potentially can settle doctrinal quarrels among lower-level tribunals.
But a Florida law professor who’s written about the lacrosse case, Howard Wasserman, said Friday it’s still an against-the-odds play because the Supreme Court takes only a handful of cases each term.
“They get so many thousands of petitions every year, but they take 70 to 80 cases a year,” said Wasserman, who works at Florida International University. “They’ve identified a split, certainly. Whether it’s important enough that the court will take it really is just a crapshoot. It’s really impossible to predict one way or another.”
Justices have given lawyers for the city a June 17 deadline for filing an answering brief that would argue why they shouldn’t take the case.
The deadline implies the nine justices will be a while in deciding whether they’ll take the case. The final conference – the closed-door meetings they hold to discuss cases – of the court’s 2012-13 term is scheduled for June 20.
The justices will take a three-month break before resuming work in early October, at the start of the court’s 2013-14 term.
Evans, Finnerty and Seligmann were the three players charged with and later exonerated of having raped stripper Crystal Mangum at a lacrosse-team party in the spring of 2006.
They argue that police conspired with former District Attorney Mike Nifong to frame them, by among other things rigging a photo lineup with Mangum and hiding test results that showed the only male DNA on her was from men who weren’t at the party.
Siding with the city, a three-judge panel from the Richmond, Va., based 4th Circuit ruled that the city wasn’t liable because Nifong and a grand jury had independently decided there was probable cause to think the players had committed a crime.
In the judges’ view, that “broke the chain” of responsibility because the players never alleged that police somehow misled or pressured Nifong to bring charges against them.
But the players and their lawyers said two other federal appeals courts, the 2nd Circuit and 6th Circuit, have held there’s a much wider window to entertain liability claims against police.
The 6th Circuit, based in Cincinnati, Ohio, considered a very similar case involving identification procedures and DNA evidence in 2007 and held that police could be held liable for a civil-rights violation if it appears a false prosecution was among the “natural consequences” of their actions.
The 2nd Circuit, based in New York City, likewise held that a prosecutor who fabricated evidence could be liable despite having much higher governmental-immunity protections if it was “reasonably foreseeable” that he or she would use the evidence at trial.
Another tribunal, the San Francisco-based 9th Circuit, generally agrees that prosecution decisions “break the chain” for police but nonetheless sometimes allows lawsuits against them when it seems police acted “maliciously or with reckless disregard for the rights of an arrested person,” the petition said.

And even among the circuits that generally agree with the 4th’s view of the immunity issue, there’s a willingness to open the door for a lawsuit.
The Atlanta-based 11th Circuit says the independent decision rule holds only on the assumption that court officials have “acted without malice”; the 5th Circuit, based in New Orleans, has said responsibility can fall on police if their actions “in some way tainted” the deliberations of prosecutors.
The players’ legal team also argued the lacrosse case is similar to one from Pottawattamie County, Iowa, the justices took on in 2009 only to have their deliberations aborted when the parties involved settled out of court for $12 million.
That case was to have given the justices a chance to weigh in on when a prosecutor could lose immunity for having procured false testimony. The lacrosse case “is the flip side of the same coin” and “an easier one” to decide because police don’t have the same level of immunity, lawyers for the players argued.
The allusion to the Iowa case was an obvious attempt to entice the justices to take the appeal.
Post-Iowa, “any other case which credibly presents the same issue will have an enhanced chance of being granted [a review] because the court has a demonstrated interest,” Washington, D.C., lawyer and legal blogger John Elwood said in 2010.
But Wasserman on Friday said the lacrosse case is “sufficiently different” from the earlier one the justices might not want to step in.
The high court is waiting on a similar petition from another, three-man group of former lacrosse players, never charged in the case, who are being represented by Durham lawyer Bob Ekstrand. Their filing is due at the end of the month.
A third, 38-man group of former players opted against appealing the 4th Circuit ruling but could be drawn back into the case if the Supreme Court decides to review it. The 4th Circuit considered all three lawsuits simultaneously last year and the normal practice would be for the Supreme Court to follow suit.

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