Robert Eckstrand has filed a five hundred and ninety-five page brief in answer to the ten separate pleas recently entered by the defendants.This is obviously going to take some long, slow reading,(I do not yet have the cross- reference to the complete file.) over a week or so but it appears to be as well documented-- and vitrolic-- as the original brief.
Here is an excerpt(courtesy of Baldo who is transcribing the entire kit and kaboodle!) from the Durham section.
From the response to the City of Durham
STATEMENT OF THE FACTS
The CITY OF DURHAM (the “City”) is a municipal corporation formed under the laws of the State of North Carolina. The City is believed to have waived its immunity from civil liability pursuant to N.C.G.S. § 160A-485 by, among other things, procuring a liability insurance policy or participating in a municipal risk-pooling scheme. The City of Durham operates the Durham Police Department, which shares law enforcement authority in the City of Durham with the Duke University Police Department, pursuant to a statutory grant of authority and an agreement between the City of Durham and Duke University. AC ¶ 58.
The City of Durham and its employees played a critical role in the grave miscarriage of justice that became known as the “Duke Lacrosse Rape Case.” The allegations involving the City and its employees are detailed throughout Plaintiffs’ Amended Complaint; however, the most significant allegations with respect to the City relate to its Zero-Tolerance for Duke Students Policy (“Zero-Tolerance”). The City is not alone in pursuing the policy, and Plaintiffs have pointed directly to their collaborator: Duke University itself. Pursuant to Duke-Durham Zero-Tolerance Policy, virtually every clearly established constitutional protection was lifted in police interactions with Duke Students. Specifically, Zero-Tolerance meant:
•Durham Police and Duke Police abused the power to enforce, disproportionately and unconstitutionally, the criminal laws against Duke Students. A.C. ¶¶ 111, 115.
•Duke students were charged and incarcerated for “alleged” criminal violations of the local ordinance called “Noise. Generally” or the open container ordinance banning open containers on sidewalks adjacent to homes which are not enforced against “permanent residents.” AC ¶ 108.
•The use of police power, generally, to intimidate, threaten, and coerce the out of state students into leaving the homes they leased in the Trinity Park neighborhood off of their University’s East Campus. AC ¶¶ 113-15.
•Perhaps the Policy’s most characteristic feature since its inception has been the Police Department’s purposeful violation of the constitutional prohibition upon stigmatization in connection with any deprivation of rights, particularly a seizure or search, AC ¶¶ 120-2 1.
Zero-Tolerance was a moving force behind the conspiracy to convict the Plaintiffs that is documented in the Amended Complaint. And perhaps the most disturbing fact alleged in the Amended Complaint is the fact that all of the acts alleged is that, from the beginning of the “investigation,” Duke and Durham had no evidence of a sexual assault, and they certainly had no evidence that Plaintiffs or their teammates had anything to do with one. A.C.§§VI- XL. They had nothing. AC ¶¶ 52, 57-68, 69-79. Recall Nifong’s assessment of the investigation: “You know, we’re f****d,” (AC ¶ 593) or Himan’s reaction to the decision to proceed to indictment in April, “with what?” AC ¶816. And from there nothing emerged but a parade of horrors:
•Fraudulent investigation: Durham Police oversaw an investigation that it should never have had in the first place: the allegations of rape occurring at 610 N. Buchanan. AC § XVIII (discussion on jurisdiction). Durham Sergeant Mark D. Gottlieb seized control of this case as soon as he could, not surprising given his particular interest and history of abusing Duke Students. AC ¶ 171. The investigation was a sham, laden with conspiracies. Defendant knew all of this and “turned a blind eye;” this failure to intervene ratified all of the bad acts. AC §IV(F).
•Retaliation – Public Stigmatization: Defendant engaged in numerous egregious acts of retaliation for Plaintiffs’ exercise of constitutional rights, including searches and seizures based on lies and fabricated allegations. AC § XIV(C). Defendant did not do all of this quietly either, but rather launched a national media campaign resulting in the vilification of Plaintiffs and enduring public stigmatization.
•Multiple conspiracies: Defendant was a primary actor in several conspiracies throughout this case, the most outstanding include: the NTID order, the search warrant abuse, the Photo ID sham, the DNA Cover-Up, the SANE fabrications. See AC § § XIII-XXV, XXIX-XXX, XXXIV. Much of this was engineered through Joint-Command Meetings between Duke and Defendant. AC § XXVI.
This is not the way cities and universities react to patently false accusations, particularly when they are recanted as soon as the accuser is removed from the commitment proceedings in which she made them. The arrogance of the City’s policymakers, leaders, administrators, police officers, and employees (and all of their counterparts at Duke) that played out over the course of thirteen months did not just appear on March 14, 2006. It was not the natural consequence of a false allegation made by a drug-addled woman who, at the time, was in the midst of an apparent psychotic break, in police custody, and in the process of being involuntarily committed. It was the product of a well-worn policy and custom of police to deprive “temporary residents” of their constitutional rights in all encounters with law enforcement. So ingrained was Zero Tolerance in the police apparatus that, six months into the “fiasco,” when news reports unmistakably documented Sgt. Gottlieb’s miserable record of deliberate, inhumane violations of Duke students’ rights, the Durham Police Department’s Internal Affairs Chief reflexively held a press conference to say that Sgt. Gottlieb was following his “orders.” AC ¶ 181. This was true, he said, when Gottlieb raided “temporary residents” homes without a warrant, arrested and charged “temporary residents” students with no evidence of a crime, and maintained a record of arresting roughly seven “temporary residents” students for every “permanent resident.” AC § IV.
The questions presented by the City’s Motion to Dismiss are:
•Have the Plaintiffs stated a Fourth Amendment violation actionable under 42 U.S.C. § 1983?
•Have the Plaintiffs stated a § 1983 claim for violations of constitutionally protected property rights created by a state-created entitlement statute?
•Have the Plaintiffs stated § 1983 stigma-plus claim?
•Does the absence of a charge, prosecution, or conviction bar Plaintiffs’ § 1983 claim for conspiracy to convict, where it is alleged that multiple conspirators engaged in overt acts that deprived Plaintiffs of constitutional rights?
•Is the right not to speak protected by the First Amendment from state action that includes fabricating an affidavit to secure orders authorizing seizures and searches of Plaintiffs?
•Is the right to be free from state-sponsored coercion designed to force the waiver of an asserted constitutional right protected by the First Amendment and Fourteenth Amendments?
•Whether Plaintiffs adequately state a claim under the Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment, when Plaintiffs do allege that officers treated the Plaintiff who is a North Carolina citizen differently from those who are not?
•Whether the alleged policy of “Zero Tolerance” for “temporary residents” is a moving force behind the deprivations Plaintiffs allege, including the conspiracy to convict 47 “temporary residents” for a sexual assault that the City’s policymakers directed and agreed with Duke University policymakers to pursue when they knew no sexual assault occurred, such that the City may be held liable under Monell v. Dep't of Social Servs. of N.Y., 463 U.S. 658 (1978);
•Whether the City of Durham may be held liable for acts of an interim District Attorney to whom the City’s policymakers delegated their policymaking authority over the investigation of Mangum’s bogus claims?
•Whether “Race” means “any race” or some undefined subset of races?
•Whether “fomenting racial animus” applies to § 1985 claims in the same way it applies to its companion statutes in the Civil Rights laws.
•Have Plaintiffs stated actionable state law claims against the City?
•Have Plaintiffs stated actionable obstruction of justice claims against the City?
•Have Plaintiffs stated an intentional infliction of emotional distress claim against the City?
•Have Plaintiffs stated an abuse of process claim against the City?
•Have Plaintiffs stated a breach of fiduciary duty claim against the City?
1 Plaintiffs' Opposition Brief is filed in response to City of Durham's Motion to Dismiss (Document #61) and supporting Memorandum (Document #62) which were filed on July 2, 2008 and pursuant to the Court's Order of April 30, 2008, which authorizes Plaintiffs to file up to a 50 page response no later than 90 days after the date all Defendants' Motions or Answers are filed. City of Durham's supporting brief is cited herein as "City Br." City of Durham's co-defendants also filed their Motions to Dismiss and supporting Briefs on July 2, 2008. The individual supporting briefs are cited herein as: “Gottlieb Br.,” “City Super. Br.,” “DNASI Br.,” “SANE Br.,” “Duke Univ. Br.” “DUPD Br.,” “Himan Br.,” “SMAC Br.,” “Hodge Br.,” and “Wilson Br.”