Saturday, January 31, 2009

Nifong's Options Running Out

The Plaintiff's attorneys wasted little time in filing a response to Nifong's January 15 terse motion for dismissal with this filing of January 29.

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.”).

Noting a recent Supreme Court decision they stated,

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.


As for what's next for the disgraced, disbarred, and former DA Nifong may we suggest the fetal position sucking his thumb.

Also see LieStoppers Forum for discussion of Motion

Hat Tip: sdsgo, Tidbits, and Quasi


Anonymous said...

Nifong made it in Wikipedia for a reason. A disgruntled lawyer using his every play like a game of chess, knowing he is fighting a losing battle, but is such a selfish little man that he just languishes in the time this has taken and the attention he has received.

To even say his name leaves a foul taste, and to see the picture above just makes me cringe. What a mockery of the courts, and just proves to me and the world of how much of a weasel he truly is.
The fact of the matter is this troll used race as a way to win an election, and what he did as District Attorney is much worse than the pathetic one day sentence, and more of a spit in the face to the public.

He is as guilty as sin, so just say so and carry on. This has dragged out too many years and he needs to be finally charged. Also, again a Federal Investigation into the DA's office, and the DPD as well.

The story does not end here folks, the saga just continues. The corruption steadfastly still erodes the publics trust, and Nero watches Rome burn.

Anonymous said...

Stick a fork in him he is done I say and call it a day finally.

Anonymous said...

His thumb is all he has to suck.

Anonymous said...

He should be sucking his prison rations through a straw between the bars. One friggen day in jail?
Durham has got to be the MOST corrupt state in the nation!

Anonymous said...

Unfortunately innocent men are persecuted on bogus rape charges every day in America, and there is NOWHERE in this country that they can find justice.

Anonymous said...

The DOJ and Supreme Court are not blameless, but are shameless to watch and do nothing.

Anonymous said...

Why aren't we hearing about all this on national news? Seems like feminist groups have more influence than they would like to admit.

Now on CNN, the Innocence Project, which has cleared thousands of innocent men of false rape convictions, doesn't mention "rape" anymore when reporting about the Innocence Project.

Anonymous said...

And Men's Rights groups are little more than feminist groups that sometimes talk about false rape accusations.