A couple of weeks late on this. The Fourth Circuit held that all the Fourth Amendment claims by the Duke lacrosse players against the investigating police officers should have been dismissed on qualified immunity grounds.The court did allow state law malicious prosecution claims by the three indicted players, but not by the 30+ players who never were indicted, to proceed. Some thoughts follow.
1) The claim by the three indicted players for a Fourth Amendment malicious prosecution violation failed because the independent decision of the prosecutor to seek and indictment (and the independent decision of the grand jury to indict) broke the causal chain between the officers' conduct and the unconstitutional prosecution. Absent allegations that the officers affirmatively misled or unduly pressured the prosecutor to seek that indictment, his acts insulate the officers from liability. The court further rejected the argument that the police and Nifong conspired to seek an unconstitutional indictment and prosecution, emphasizing the duty of police and prosecutors to work together in seeking to establish probable cause and to seek indictments; a "conspiracy" thus could be alleged in every case. On a related point, the court in a footnote rejected an overlapping Fourteenth Amendment substantive due process claim against the officers for fabricating evidence. Substantive due process is not available when there is an "explicit textual source" for a constitutional claim; because the claim could be brought under the Fourth Amendment, the Fourteenth Amendment could not provide the basis for a claim.
This result seems correct, although it illustrates well the difficulty (if not impossibility) of using § 1983 to challenge misconduct in the criminal justice system. A prosecutor enjoys absolute immunity in seeking and obtaining an indictment, while his conduct insulates police officers from liability, at least absent affirmative lies or concealment of evidence. The court was a bit too dismissive of the possibility of a conspiracy to indict, although that may have been because the complaint itself showed Nifong as the bad actor, taking weak evidence, which the officers themselves insisted was weak, and moving forward with an indictment. On the other hand, because police never themselves initiate a prosecution, perhaps the Fourth Amendment is the wrong source; perhaps cases of fabricated evidence should be handled under substantive due process--after all, it is hard to imagine what misconduct could be more "outrageous" than fabricating evidence.
2) The claims against the City of Durham had to be dismissed once the court held that there was no underlying violation. The same for the "stigma-plus" S/D/P claims against police officers who made public statements suggesting the players' guilt. The DA's independent decision to seek the indictment broke any causal connection between the statements and the indictment, eliminating any "plus" necessary to state a claim. The latter was an unfortunate way to resolve it--I would have liked to hear the court take on whether "stigma-plus" was a valid theory of liability.
3) Judge Wilkinson wrote a strongly worded concurrence, criticizing the e plaintiffs' lawyers for overreaching, both in the dramatic numbers of claims asserted (23, 32, and 40, among the three complaints--and the unindicted players, who never got dragged into the system, actually brought more claims than the indicted players), the "sweeping scope" of the litigation, and the "overwrought" nature of the claims and the allegations. Wilkinson had a stronger position against "stigma-plus" claims as inconsistent with SCOTUS precedent; he also read Iqbal to require particular allegations of precisely what each supervisor did to cause the violations alleged; simply naming names, without identifying their conduct, is insufficient.
4) The state-law malicious prosecution claims remain alive against the officers, as do the claims against Duke University (who could not appeal at this non-final stage) and Nifong (who did not appeal the denial of his motion to dismiss. And despite Wilkinson's point that this case continues more than six years after the criminal charges against the three players were dismissed and coming up on seven years since the infamous party, the case goes on.
Fourth Circuit on Duke Lacrosse
Richard Sherman successfully appeals drug test result: Did NFL avoid StarCaps II?
Seattle Seahawks corner back Richard Sherman, who threatened to sue the NFL if they suspended him for a positive drug test result, successfully appealed the result on grounds the test was corrupted. Had Sherman been suspended and sued, he likely would have relied on the StarCaps litigation - where Minnesota state law was viewed as protecting NFL players in spite of conflicting CBA provisions (the players ultimately lost the case but succeeded in showing state law applied).
I discuss the legal impact of Sherman's appeal with Seattle's NBC TV Affiliate, King TV:
NCAA Investigators: are they like prosecutors or cops?
Geoff Rapp has some thoughtful comments on this question in a story in today's Los Angeles Times. Here's an excerpt:
"The NCAA does not operate like a prosecutor's office or a police department where there are clearly understood constitutional limits," said Geoffrey C. Rapp, a University of Toledo law professor and editor of the Sports Law blog. "They don't have a structure in place to ensure consistency."For more, click here.
Lance Armstrong and what constitutes fraud
ESPN reports that Britain's Sunday Times has sued Lance Armstrong, seeking to recover more than 1 million pounds (more than $ 1.6 million) that the paper paid to Armstrong to settle a prior defamation action that Armstrong brought against the paper for repeating allegations that Armstrong doped. The theory is that Armstrong initiated "baseless and fraudulent" proceedings by alleging that doping allegations were false and insisting in settlement negotiations that he had never doped.
UK law is obviously quite different than US law. Still, I cannot imagine this suit can work. By bringing the suit, Armstrong simply put the paper to its burden of proving its allegations were true (a key difference between UK and US defamation law, where the plaintiff must prove falsehood). He was free to deny the truth of those allegations, both in bringing the suit and engaging in settlement negotiations.
Given my First Amendment views, I am no fan of British defamation law or of worthless defamation suits that are designed to intimidate the press. But the notion that such suits, and their settlement, constitute actionable fraud seems equally wrong.
Mutual Options in MLB Player Contracts
Wendy Thurm over at FanGraphs has written an interesting story looking at the use of mutual options in MLB player contracts. As she notes, the mutual option only vests if both the player and the team agree to extend the contract for another season. Not surprisingly, Wendy finds that these clauses have rarely been exercised by both parties, as usually one of the two sides determines it would be more advantageous to walk away from the agreement. Nevertheless, she identifies several reasons why it may make sense for such a provision to be included in a player's contract.
Check out the full piece here.
A Good Week for Sports Law
Second, Aaron Zelinsky, author of two excellent sports law-related Yale Law Journal articles -- The Supreme Court (of Baseball) and The Justice as Commissioner: Benching the Judge Umpire Analogy -- has been chosen to become a United States Supreme Court clerk. Aaron is also a contributor to Sports Law Blog, having authored Three Strikes for the National Labor Relations Act, among other contributions.
For those of you who don't know, it's almost impossible to become a Supreme Court clerk. I don't know the exact percentage of applicants who get a slot, but it's probably less than 1%. Just as revealing: many of whom that are not picked are themselves outstanding candidates. To have a sports law author in this truly distinguished group is a positive sign for the scholarship we produce. Aaron is possibly/probably the first sports law author to become a U.S. Supreme Court clerk. It was only a matter of time and it's great that Aaron is the one to do it.
And of course, this good week of sports law news follows The Summer of Sports Law, as penned by the estimable Warren Zola.
And if by chance the Mayans prove right on Friday, at least sports law is going out with a bang!
Not just balls and strikes (redux)
I have returned to writing about the infield fly rule, an expansion of the short defense I wrote in October. Thinking about particular examples of infield fly situations (or non-examples) in the context of the full baseball rulebook brought me back to the judge/umpire/calling balls-and-strikes analogy. In particular, I come back to the argument (which I have made before) that one problem with the analogy is that it understates the complexity of the decisions that umpires have to make. And I keep returning to one historic play that demonstrates this complexity.
The Situation: (sorry not to have video to embed--it's really hard to find baseball footage online): Game 4 of the 1978 World Series between the Dodgers and Yankees; Dodgers leading 2 games to 1 and 3-1 with the Yankees batting in the bottom of the sixth. Reggie Jackson on first, Thurman Munson on second, one out; Lou Piniella batting. Piniella hits a low (ankle-high) line drive up the middle, to the left of Dodgers shortstop Bill Russell. Russell moves to his left, catches the ball at his shoe tops, drops it, picks it up as his body is continuing to move left, steps on second for the force out, then throws to first. Jackson had stopped running when he saw Russell initially catch the line drive and he is standing between first and second. As Russell's relay is coming, Jackson (imperceptibly) sticks out his right hip; the ball hits his hip and caroms into right field. Munson scores, Piniella is safe at first.
Several separate columns labeled this one of the five worst (or at least most controversial) calls in World Series or postseason history. Maybe. But look at the rules and facts the umpires had to determine on the fly:
1) Infield Fly: This is a potential infield fly situation (runners on first and second, less than two out). So the second-base umpire first had to determine that the ball hit was a line drive, to which the IFR does not apply, rather than a fly ball. Easy enough decision to make here--the ball clearly is a line drive and not easily playable--but the umpire at least must consider the rule in passing.
2) Intentionally Dropped Ball: Rule 6.05(l) provides that a batter is out and the ball is dead if an infielder intentionally drops a fair fly ball, including a line drive, where any force out is in effect. So the second base umpire had to determine whether Russell had intentionally dropped the ball to get a double play. He concluded it was not deliberate, presumably by reading where the ball was hit, how quickly and far Russell had to move to his left, and Russell's body language suggesting he was scrambling to pick the ball back up rather than being in control.
3) Interference: This is the one for which this play is remembered. Rule 7.09(f) provides that both the base runner and the batter are out and the ball is dead if a base runner "willfully and deliberately interferes" with a fielder in the act of fielding a batted ball with the "obvious intent to break up a double play." So the question is whether Jackson "willfully and deliberately" interfered with Russell's relay throw. The first base umpire decided he was not, presumably because Jackson was genuinely hung-up on the play. The runner need not move all the way out of the baseline as the throw is coming (they usually do as a matter of self-preservation). It appears on slow-motion that Jackson did stick his right hip out as the ball approached, but the umpires did not have that luxury of breaking the play down that much.
Whether you think the call was right or wrong probably depends on your rooting interests--I was 10 years old and living in northern New Jersey at the time. My point is that the umpires actually had a huge amount to watch, process, and interpret. And it is far from a simple or robotic task.
Update: Someone found the play on YouTube for me. Here it is: