Lacrosse detectives seek dismissal of lawsuit

March 06--DURHAM -- Two former Durham Police Department detectives say a 2013 N.C. Supreme Court decision should trigger the dismissal of a malicious-prosecution lawsuit against them in the Duke lacrosse case.

The ruling changed state law on the question of whether cops and other people can be liable when a prosecutor decides to charge someone with a crime, attorneys representing former Sgt. Mark Gottlieb and former Investigator Ben Himan said.

It also aligned state doctrine with the federal doctrine that in late 2012 prompted the 4th U.S. Circuit Court of Appeals to reject all of the federal civil-rights claims former Duke players David Evans, Colin Finnerty and Reade Seligmann had lodged against police and the city, they said.

The subsequent state Supreme Court decision created "a new standard of proof" for common-law malicious-prosecution claims that didn't exist when the 4th Circuit weighed in, the legal team for Gottlieb and Himan said.

Their dismissal request, dated Feb. 28, was directed to U.S. District Court Judge James Beaty Jr., the federal jurist who'd preside over a trial of the players' lawsuit.

Evans, Finnerty and Seligmann were the three members of Duke University's 2005-06 men's lacrosse team indicted in 2006 on rape charges after a stripper, Crystal Mangum, alleged she'd been attacked at a team party.

They were exonerated a year later, after N.C. Attorney General Roy Cooper determined that Mangum's story simply didn't match the known facts. He said the players were the innocent victims of a "tragic rush to accuse."

The players sued later in 2007, alleging police and city officials conspired with former District Attorney Mike Nifong to frame them.

Although the 4th Circuit tossed the players' federal-law claims, Beaty retains jurisdiction over the lawsuit because they live in other states. But he's obliged to follow the lead of North Carolina's appellate courts on the common-law doctrines that define malicious prosecution.

City officials were able to get the federal civil-rights claims thrown out by the 4th Circuit because Nifong, it said, made his own, independent decision to pursue the rape charges even though the detectives had briefed him on the weaknesses of the evidence.

Police would've been liable under federal law only if they'd "misled or unduly pressured the prosecutor," an allegation the players never made, the 4th Circuit said.

But the 4th Circuit declined to halt the malicious-prosecution suit because at the common-law level, a series of N.C. Court of Appeals cases allowed such claims against people who'd been "a significant motivating force behind a failed prosecution," where charges wouldn't have been filed without their involvement.

Last July's state Supreme Court ruling stemmed from a Wilson, N.C., arson investigation.

The justices overruled a state Court of Appeals opinion that leaned on the previous standard, and said the lower court hadn't "accounted for the roles played by police and prosecutorial discretion."

Significantly, the case was one a Court of Appeals panel had decided unanimously. That meant a Supreme Court review wasn't automatic; the justices had no obligation to weigh in.

The case focused on allegations that an investigator from the N.C. Farm Bureau Mutual Insurance Co. had given a Wilson police detective information to gain leverage for his employer against the former owner of the burned building, who'd sued because the insurer wouldn't pay off on its policy.

The information suggested the former owner hadn't told the Farm Bureau the building was collateral for an outstanding debt. The detective took it to a magistrate, who OKed lodging a charge of obtaining property by false pretenses.

But Wilson County's district attorney declined to pursue the case, so the charge was quickly dismissed. The trial judge who handled the lawsuit later found that while the former owner's since-deceased husband was the most likely culprit in the arson, the attempt to prosecute her on the false-pretenses charge made the Farm Bureau liable for malicious prosecution.

The Court of Appeals agreed; the Supreme Court did not.

Speaking through Justice Robert Edmunds Jr., it said "a private person" can't be successfully sued for giving information to "a prosecuting officer" who, believing it to be true, uses his or her "uncontrolled discretion" to launch criminal proceedings.

That "balances and protects important public interests," allowing "citizens to make reports in good faith to police and prosecutors without fear of retaliation if the information proves to be incomplete or inaccurate," Edmunds said.

The court's seven justices were unanimous on the point, two dissenting from the decision only to say it should have sent the case back to the trial judge for more work. The other justices disagreed, opting to resolve it without further lower-court involvement.

The decision left an opening for the lawyers representing Evans, Finnerty and Seligmann to argue it shouldn't apply to the lacrosse case, as police detectives aren't "private persons" under the usual understanding of the law.

But Gottlieb's and Himan's attorneys noted Edmunds had quoted legal guidelines from the American Law Institute that in other places say public officials should have greater protection from malicious-prosecution claims than private citizens.

That suggests the Supreme Court's decision "now supplies the causation standard for anyone -- public officer or private citizen -- accused of malicious prosecution," they said.

A response from the players is pending.

___

(c)2014 The Herald-Sun (Durham, N.C.)

Visit The Herald-Sun (Durham, N.C.) at www.heraldsun.com

Distributed by MCT Information Services