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Sydney Carton
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Nifong Pleads Immunity
« on: January 16, 2009, 03:51:47 PM »


Ex-DA Mike Nifong asks judge to dismiss lacrosse case lawsuit
By Ray Gronberg : The Herald-Sun
Jan 16, 2009

DURHAM -- Former District Attorney Mike Nifong on Thursday asked a federal judge to dismiss the civil-rights lawsuit three former Duke University lacrosse players falsely accused of rape have filed against him and other officials.

The three-page dismissal motion filed by Nifong lawyer James Craven III contends the former prosecutor is entitled to "absolute immunity" from civil claims under that doctrine that says government officials can't be sued for their official actions.

The motion was Nifong's belated answer to a lawsuit filed more than a year ago by former players David Evans, Collin Finnerty and Reade Seligmann.

Nifong secured grand-jury indictments of all three men in the spring of 2006 on charges that they'd raped a stripper, Crystal Mangum.

State Attorney General Roy Cooper abandoned the prosecution in the spring of 2007, saying the players were innocent.

The N.C. State Bar took away Nifong's license to practice law a couple months later after finding that he'd withheld exculpatory DNA findings from the players' defense lawyers.


    That's all we have so far.I will post a link to the com[lete motion as soon as it goes up on Justicia.
Sydney Carton
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Re: Nifong Pleads Immunity
« Reply #1 on: January 17, 2009, 01:08:05 PM »

   Well,here's the link and it is absolutely unbelievable.After all these months of stalling,Mike has filed exactly three pages.His attorney adds exactly eleven lines of new material.
   Otherwise the Nifong defense relies on the previous pleadings filed by Mike's  former investigator Linwood Wilson! The Nifong defense urges the judge to take the "pertinent parts " of Linwood's argument under consideration but even fails to the  portions to which they refer.
Apparently they are hoping the judge can find something they haven't as they send him Godspeed  after their promised potluck!

   We have run a lot of speculation on what Nifong could possibly plead but this beats any of them(save the one that he will call Crystal and her entourage as witnesses on his behalf).
Linwood is a fired city employee representing himself and the Nifong defense is now  relyinig on that expertise to bail Mike out of the pit which he himself dug.
Sydney Carton
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Re: Nifong Pleads Immunity
« Reply #2 on: January 29, 2009, 12:53:08 PM »

   It looks like Nifong is going to be forced  to fall back on his remaining alternative defense and call  the Mangums as his corroborating witness (or else flee to a non-extradictable country as we humanely advised both him and Crystal to do when we first came on to this board nearly three years ago).
   The Supreme Court ruled nine to zero on Monday the 26th(Van de Kamp et.al v.Goldstein) that "...absolute immuniity does not apply when a prosecutor gives advice to police during a criminal investigation...when the prosecutor makes statements to the press...or when a prosecutor acts as a complaining witness in support of an application..."
   It looks like Mike's already floundering immunithy claim has struck a hard rock.In fact,it should  be evident to even the most obtuse of the defendants that it is now up to each and every man to grab his own life preserver.
   Actually,Nifong does have a third alternative(apart from flight);he can shop around looking for a plaintiff who would be willing to accept  him as a witness against his co-defendants.
But,alas, as Mike lacks all credibility,no plaintiff will be willing to compromise an already tight case by utilizing his evidence.
Sydney Carton
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Re: Nifong Pleads Immunity
« Reply #3 on: January 29, 2009, 12:58:28 PM »

   Here's the link with full citations:
Sydney Carton
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Re: Nifong Pleads Immunity
« Reply #4 on: January 31, 2009, 01:35:39 PM »

  Here is the players' reply to Nifong.


Defendant Michael B. Nifong’s Motion To Dismiss (“Motion”) asserts three grounds for dismissal, incorporating by reference the arguments made by Defendant Linwood Wilson and by Defendants DNA Security, Inc. (“DSI”) and Richard Clark in support of their previously-filed motions to dismiss. Plaintiffs have already responded to the arguments advanced by Wilson and the DSI Defendants in the Consolidated Opposition to the previously-filed motions to dismiss, and in the interests of economy Plaintiffs incorporate those responses herein. Plaintiffs submit this brief memorandum to summarize their response to these arguments as they relate to Nifong, and to discuss a new Supreme Court decision that reconfirms that Nifong is not entitled to absolute immunity.

First, Nifong asserts that the Amended Complaint fails to state a claim against him upon which relief can be granted. See Motion, ¶ A. However, the Consolidated Opposition summarizes the detailed allegations against Nifong and the other Defendants—including Nifong’s involvement in the fabrication of false inculpatory evidence, the concealment of evidence of Plaintiffs’ actual innocence and the lack of probable cause against them, the intimidation of witnesses, and the making of false and inflammatory public statements regarding Plaintiffs’ supposed guilt—all of which resulted in the wrongful seizures of the three innocent Duke students and caused them to suffer substantial economic, emotional and physical harm, irreparable reputational harm, and millions of dollars in legal fees. See Consol. Opp. to Defs.’ Mots. To Dismiss the First Am. Compl. (Docket No. 51) (“Consol. Opp.”), at 2-17 (summarizing allegations against Nifong and other Defendants). As the Consolidated Opposition explains, these allegations satisfy the elements of the federal civil rights violations and state-law torts alleged against each of the Defendants, including Nifong. 1

Second, Nifong argues that he has absolute immunity from these claims because, he contends, all of the actions alleged in the Amended Complaint “were done in his role as District Attorney.” Motion, ¶ C. However, Plaintiffs’ Consolidated Opposition explains the relevant standards relating to absolute prosecutorial immunity and makes clear that, contrary to Nifong’s argument, the mere fact that a defendant holds a prosecutorial title or position at the time of his alleged misconduct does not mean that he is entitled to absolute immunity. See Consol. Opp. at 23-26. Rather, courts apply a “‘functional approach,’ which looks to ‘the nature of the function performed, not the identity of the actor who performed it.’” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal citations omitted); Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 230 (4th Cir. 1997) (“[T]he scope of absolute prosecutorial immunity has been narrowly drawn.”).

Indeed, in Buckley, the Supreme Court refused to extend absolute immunity to prosecutors who were alleged to have engaged in similar misconduct, including the fabrication of inculpatory evidence during an investigation and the making of false and defamatory statements at a press conference. See 509 U.S. at 273-78. Here, as in Buckley, Nifong is not being sued because of prosecutorial functions “‘intimately associated with the judicial phase of the criminal process.’” Id. at 270 (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Rather, like Wilson, the allegations concerning Nifong relate to investigative functions and other non-prosecutorial acts that are not entitled to absolute immunity. These non-prosecutorial acts include the manufacturing of the phony “identification” of Plaintiffs during the April Photo Array (AC ¶¶ 175-97); the fabrication of the false May 12 DSI forensic report and concealment of DNA evidence showing Plaintiffs’ actual innocence and the lack of probable cause against them (AC ¶¶ 198-242); the efforts to intimidate witnesses into providing false inculpatory statements and disavowing prior exculpatory statements (AC ¶¶ 245-54; AC ¶ 264); and the publication of false and inflammatory public statements regarding Plaintiffs’ supposed guilt (AC ¶¶ 144-55). Nifong is liable even for the wrongful investigative acts that occurred after Plaintiffs were indicted: as the Supreme Court held in Buckley, “a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.” 509 U.S. at 274 n.5. In short, Nifong is liable for his investigative misconduct and false public statements in the same manner as any other law enforcement officer. 2

The Supreme Court’s decision earlier this week in Van de Kamp v. Goldstein, ___ S. Ct. ___, No. 07-854, 2009 WL 160430 (Jan. 26, 2009), reaffirms this functional immunity analysis and reconfirms that Nifong is not entitled to absolute immunity for his investigative misconduct and public statements. Van de Kamp involved claims that supervisory-level prosecutors had failed to properly train and supervise lower-level prosecutors to disclose impeachment material in their criminal trials, and to create a database of information relating to trial informants. As the Court explained, the allegations in Van de Kamp addressed an entirely different situation from a prosecutor’s “investigative . . . tasks,” “advice to police during a criminal investigation,” or “statements to the press,” to which “absolute immunity does not apply”:

The Court made clear [in Imbler] that absolute
immunity may not apply when a prosecutor is not acting as
“an officer of the court,” but is instead engaged in other tasks,
say, investigative or administrative tasks. To decide whether
absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of the
“functional” considerations discussed above. . . .


In the years since Imbler, we have held that absolute
immunity applies when a prosecutor prepares to initiate a
judicial proceeding, or appears in court to present evidence in
support of a search warrant application. We have held that
absolute immunity does not apply when a prosecutor gives
advice to police during a criminal investigation, when the
prosecutor makes statements to the press, or when a
prosecutor acts as a complaining witness in support of a
warrant application. This case, unlike these earlier cases,
requires us to consider how immunity applies where a
prosecutor is engaged in certain administrative activities.

Id. at *6 (quoting Imbler, 424 U.S. at 431 n.33; citing Burns v. Reed, 500 U.S. 478, 492, 496 (1991); Buckley, 509 U.S. at 277; Kalina v. Fletcher, 522 U.S. 118, 126 (1997); id. At 132 (Scalia, J., concurring)). Ultimately, the Court held that the tasks at issue in Van de Kamp were “directly connected with the prosecutor’s basic trial advocacy duties” and, therefore, entitled to absolute immunity: “The management tasks at issue, insofar as they are relevant, concern how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor’s basic trial advocacy duties.” Id. at *8. As previously noted, however, Nifong’s liability arises not from a failure of “trial advocacy duties,” but from misconduct during the investigation of Plaintiffs and false public statements that “have no functional tie to the judicial process.” Buckley, 509 U.S. at 277. As Van de Kamp reconfirms, Nifong is not entitled to absolute immunity for such acts.

Finally, Nifong argues that Plaintiffs lack standing to seek the Injunction requested in the Amended Complaint. See Motion, ¶ B. However, Plaintiffs do not seek injunctive relief against Nifong. Therefore, Nifong himself lacks standing to make this argument. 3


For the aforementioned reasons, the Court should deny the Motion.

Dated: January 29, 2009

Respectfully submitted,


1. See Consol. Opp. at 30-46 (42 U.S.C. § 1983 claims); id. at 82-98 (42 U.S.C. §§ 1985 & 1986 claims); id. at 98-114 (state-law tort claims).

2. Nor can Nifong rely upon the DSI Defendants’ absolute immunity claim. As the Consolidated Opposition explains, an expert is not entitled to absolute immunity for his or her forensic analysis and reporting in support of a police investigation. See Consol. Opp. at 27-29; Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006).

3. See also Consol. Opp. at 116-18 (discussing Plaintiffs’ standing to seek Injunction and explaining why the City of Durham’s and DSI Defendants’ requests to dismiss prayer for Injunction are premature).


   Thanks ssdgo.
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