MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 361

Joint Supporting BRIEF re #360 Joint MOTION to Strike #351 Amended Document, by Defendants DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH filed by DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH. (Attachments: #1 Exhibit A- Redline Comparison of Plaintiffs Two Filings, #2 Exhibit B- Reply Br. Supp. Pet. Writ Cert., #3 Exhibit C- Resp. in Oppn to Pet. Writ Cert.)(SUN, PAUL)

EXHIBIT B

In The
Supreme Court of the United States
No. 12-1460

RYAN MCFADYEN; MATTHEW WILSON; BRECK ARCHER,
Petitioners,

v.
CITY OF DURHAM, NORTH CAROLINA, ET AL.,
Respondents.
AFFIDAVIT OF SERVICE
I, Bianca Gianfrate, of lawful age, being duly sworn, upon my oath state that
I did, on the 17th day of October, 2013, hand file with the Clerk's Office of the
Supreme Court of the United States forty (40) copies of this Reply Brief in Support
of Petition for Writ of Certiorari, and further sent, via, U.S. Mail, postage prepaid,
three (3) copies and one electronic copy of said Brief to:
Patricia P. Shields

D. Martin Warf

HEDRICK, GARDNER,
KINCHELOE & GAROFALO,

TROUTMAN SANDERS,

LLP

4011 Westchase Boulevard, Suite 300
Raleigh, North Carolina 27607
[phone]
[e-mail]

Counsel for Respondents Jeff Lamb,
Laird Evans, Lee Russ,
Michael Ripberger, Patricll Baher,
Ronald Hodge, Stephen Mihaich,
Steven Chalmers, and Beverly Council

LLP

Post Office Box 1389
Raleigh, North Carolina 27602
[phone]
martin. [e-mail]

Counsel for Respondents Jeff Lamb,
Laird Evans, Lee Russ,
Michael Ripberger, Patricll Baher,
Ronald Hodge, Stephen Mihaich,
Steven Chalmers, and Beverly Council

Joel Miller Craig
Henry W. Sappenfield
KENNON, CRAVER, BELO,
CRAIG & MCKEE, PLLC
Post Office Box 51579
Durham, North Carolina 27717
[phone]
[e-mail]
[e-mail]

David W. Long
Edwin M. Speas, Jr.
Eric P. Stevens
POYNER SPRUILL, LLP
Post Office Box 1801
Raleigh, North Carolina 27602
[phone]
[e-mail]
[e-mail]
[e-mail]

Counsel for Respondent Benjamin Himan

Counsel for Respondent Marh Gottlieb

James B. Maxwell
MAxWELL, FREEMAN & BOWMAN, P .A.
Post Office Box 52396
Durham, North Carolina 27717
[phone]
[e-mail]

Reginald B. Gillespie, Jr.
WILSON & RATLEDGE, PLLC
4600 Marriott Drive, Suite 400
Raleigh, North Carolina 27612
[phone]
[e-mail]

Counsel for Respondents David Addison,
James Souhup, Kammie Michael,
and Richard Clayton

Counsel for Respondent City of Durham
and Edward Sarvis

Roger E. Warin
Leah M. Quadrino
John P. Nolan
STEPTOE & JOHNSON, LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
[phone]

Michael A. Vatis
STEPTOE & JOHNSON, LLP
1114 Avenue of the Americas
New York, New York 10036
[phone]

Counsel for Respondent City of Durham

Counsel for Respondent City of Durham

I further certify that I also served courtesy electronic copies to interested

parties after service upon the parties as follows:
James Donald Cowan, Jr.
Richard W. Ellis
Jeremy Falcone
Grant W. Garber
Christopher W. Jackson
Thomas Hamilton Segars
Curtis J. Shipley
Paul K. Sun, Jr.
Meghan S. Thelen
James M. Weiss
Dixie Thomas Wells
ELLIS & WINTERS, LLP
Post Office Box 33550
Raleigh, North Carolina 27636
[phone]
Don. [e-mail]
[e-mail]
[e-mail]
[e-mail]
Chris.J [e-mail]
Tom. [e-mail]
[e-mail]
[e-mail]
Meghan. [e-mail]
James. [e-mail]
[e-mail]

Dan Johnson McLamb
Shirley Maring Pruitt
Ryan M. Shuirman
YATES, MCLAMB & WEYHER, LLP
Post Office Box 2889
Raleigh, North Carolina 27602
[phone]
[e-mail]
[e-mail]
[e-mail]

Counsel for Defendants Duhe University
Counsel for Defendants Duhe University,
Health Systems, Inc., Private Diagnostic
Duhe University Police Department,
Aaron Graves, Allison Haltom, Gary N.
Clinic, PLLC, Julie Manley, M.D.,
Smith, Greg Stotsenberg, James Schwab, Tara Levicy, R.N., and Theresa
Arico, R.N.
Jeffrey o. Best, John Burness, Joseph
Fle111ing, Kemel Dawhins, Larry Moneta,
ED.D., Leila Humphries, Matthew
Drummond,Peter Lange, PHD, Phyllis
Cooper, Richard H. Brodhead, PHD,
Robert Dean, Robert K. Steel, Stephen
Bryan, Suzanne Wasioleh, Tallman
Trash III, PHD, Victor J. Dzau, MD, and
William F. Garber, II

Thomas Carlton Younger, III
NELSON, MULLINS,
RILEY & SCARBOROUGH,

LLP

Glenlake One, Second Floor
4140 Parklake Avenue
Raleigh, North Carolina 27612
[phone]
[e-mail]

Counsel for Defendants Duke University
Health Systems, Inc., Private Diagnostic
Clinic, PLLC, Julie Manley, M.D., Tara
Levicy, R.N., and Theresa Arico, R.N.

Linwood Wilson
6910 Innesbrook Way
Bahama, North Carolina 27503
[phone]
[e-mail]

Pro Se

James B. Craven, III
Post Office Box 1366
Durham, North Carolina 27702
[e-mail]

Counsel for Defendant Michael Nifong

Affiant, B' an Gianfrate
THE LEX GROupDC
1825 K Street, N.W., Suite 103
Washington, D. C. 20006
[phone]
I

I am duly authorized under the laws of the District of Columbia to administer
oaths.

My Commission Expires:
To be filed for:
Samantha J. Ekstrand
Counsel of Record
Robert C. Ekstrand
Stefanie Sparks Smith
EKSTRAND & EKSTRAND LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[phone]
[e-mail]
Dated: October 17, 2013

In The
Supreme Court of the United States
No. 12-1460
RYAN MCFADYEN; MATTHEW WILSON; BRECK ARCHER,
Petitioners,

v.
CITY OF DURHAM, NORTH CAROLINA, ET AL.,
Respondents.
AFFIDAVIT OF COMPLIANCE
This Reply Brief in Support of Petition for Writ of Certiorari has been
prepared using:
Microsoft Word 2007;
Century Schoolbook;
12 Point Type Space.
As required by Supreme Court Rule 33.1(h), I certify that the Reply Brief in
Support of Petition for Writ of Certiorari contains 2,972 words, excluding the parts
of the Petition that are exempted by Supreme Court Rule 33.1(d).
I declare under penalty of perjury that the foregoing is true and correct.

A . nt, ianc Gianfrate
The LEX GroupDC
1825 K Street, N.W., Suite 103
Washington, D.C. 20006
[phone]

I am duly authorized under the laws of the District of Columbia to administer
oaths.

My Commission Expires:

To be filed for:
Samantha J. Ekstrand
Counsel of Record
Robert C. Ekstrand
Stefanie Sparks Smith
EKSTRAND & EKSTRAND LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[phone]
[e-mail]
Dated: October 17, 2013

No. 12-1460
1Ju~e

~upreme

QCourt of tbe Wniteb

~tate~

--------+-------RYAN MCFADYEN; MATTHEW WILSON;
BRECK ARCHER,
Petitioners,

v.

CITY OF DURHAM,
NORTH CAROLINA, ET AL.,
Respondents.

--------+-------ON PETITION FOR WRIT OF CERTIORARI To
THE UNITED STATES COURT OF ApPEALS
FOR THE FOURTH CIRCUIT

--------+-------REPLY BRIEF IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI

--------+-------Samantha J. Ekstrand
Counsel of Record
Robert C. Ekstrand
Stefanie Sparks Smith

LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[phone]
[e-mail]
EKSTRAND & EKSTRAND

THE LEX GROUPDC + 1825 K Street, N.W. + Suite 103 • Washington, D.C. 20006
(202) 955·0001 • (800) 856·4419 • Fax: (202) 955·0022 • www.thelexgroup.com

1

TABLE OF CONTENTS
Page
A.
B.
C.

D.

The Issue Actually Presented by the
Petition Was Raised and Decided Below ........
The Decision Below is Incorrect ......................
The Decision Below Creates a Circuit
Split on a Significant and Recurring
Issue .................................................................
This Case Is an Excellent Vehicle to
Resolve the Question Presented, and
Respondents' Arguments to the
Contrary Have No Merit .................................

1
4

6

8

11

TABLE OF AUTHORITIES
Page(s)

CASES
Anderson v. Creighton,
483 U.S. 635 (1987) .......................................... 9
Davis v. Mississippi,
394 U.S. 721 (1969) ........................... .4, 5, 6, 12
Dunaway v. New Yorh,
442 U.S. 200 (1979) ............................... .4, 6, 12
Franhs v. Delaware,
438 U.S. 154 (1978) .......................................... 6
Friedman v. Boucher,
568 F.3d 1119 (9th Cir. 2009) ..................... 8, 9
Hartman V. Moore,
547 U.S. 250 (2006) .......................................... 9
Hayes

V. Florida,
470 U.S. 811 (1985) ............................... .4, 6, 12

Kaupp

Texas,
538 U.S. 626 (2003) .......................................... 6
V.

Kohler V. Englade,
470 F.3d 1104 (5th Cir. 2006) .......................... 7
Maryland V. King,
133 S. Ct. 1958 (June 3, 2013) ............... passi177,
Pace

City of Des Moines,
201 F.3d 1050 (8th Cir. 2000) .......................... 7

V.

111

State v. Welch,
342 S.E.2d 789 (N.C. 1986) ............................. 9
United States v. Askew,
529 F.3d 1119 (D.C. Cir. 2008) ........................ 7
United States v. United Foods,
533 U.S. 405 (2001) ......................................... 2
United States v. Williams,
504 U.S. 36 (1992) ........................................... 2
Virginia Bankshares, Inc. v. Sandberg,
501 U.S. 1083 (1991) ....................................... 2
Virginia v. Moore,
553 U.S. 164 (2008) ......................................... 9
Wilkie v. Robbins,
551 U.S. 537 (2007) ......................................... 9

CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. IV ......................................passim
U.S. CONST. amend. XlV ............................................ 3

STATUTE
42 U.S.C. § 1983 ............................................... 3, 8, 11

IV

MISCELLANEOUS
Appellees' Brief, McFadyen v. Baller,
No. 11-1458 (4th Cir. Sept. 21, 2011)
(ECF 69) ........................................................ 3, 4
Def. Gottlieb's Mem. Supporting Mot. to Dismiss,
McFadyen v. Dulle University,
1:07-CV-953 (M.D.N.C. July 2,2008)
(ECF 64) .......................................................... 10

1

REPLY BRIEF FOR THE PETITIONERS
The court of appeals held that probable cause is
no longer required to justify station-house detentions
of citizens to collect their DNA and compel them to
disrobe to search their bodies for investigative
purposes. Pet. App. 36a. The court replaced the
Fourth Amendment's probable cause requirement
with "reasonable grounds" which, the court
explained, is "a significantly lower standard than
probable cause." Id. That decision contradicts over
four decades of this Court's settled precedent; it
conflicts with the unanimous authority of the other
circuits; and it creates a circuit split on a significant
issue that arises every time a law enforcement
officer is investigating a crime but lacks probable
cause to arrest. Thus, the decision strips the Fourth
Amendment's core protection from "the sole group
for whom the Fourth Amendment's protections ought
to be most jealously guarded: people who are
innocent of the State's accusations." Maryland v.
King, 133 S. Ct. 1958, 1989 (June 3, 2013) (Scalia, J.,
dissenting). The decision is too important to leave
unreviewed. Respondents' arguments to the contrary
lack merit. The Petition should be granted.

A.

The Issue Actually Presented by the
Petition Was Raised and Decided Below.

1. Respondents' contention (Opp. 7-12) that the
question presented was not raised or passed upon in
the court of appeals is incorrect. An issue is properly
before this Court if it was either "pressed in" or

2
"passed upon by" the court whose opinion is under
review. United States v. United Foods, 533 U.S. 405,
417 (2001). The rule "operates (as it is phrased) in
the disjunctive, permitting review of an issue not
pressed so long as it has been passed upon." United
States v. Williams, 504 U.S. 36, 41 (1992); accord
Virginia Banhshares, Inc. v. Sandberg, 501
U.S. 1083, 1099 n. 8 (1991) ("It suffices for our
purposes that the court below passed on the issue
presented ..."). The question presented here meets
that standard on both counts.
2. Respondents misstate the issue presented by
the petition to argue (Opp. 7) that it was not raised
or decided in the court of appeals, recasting it as a
challenge to the constitutionality of North Carolina's
NTO statute. But that is not the question this
petition presents. The petition asks (Pet. i):
Is "a significantly lower standard than
probable cause" sufficient under the
Fourth Amendment to justify a court
order authorizing police to detain 46
young men at a police station to collect
their DNA, compel them to disrobe, and
submit to close examination and
photographing of their bodies for
evidence in a criminal investigation.
3. The court of appeals squarely decided that issue
(Pet. App. 36a) by dismissing Petitioners' Section
1983 claim for searches and seizures in violation of
the Fourth Amendment, holding that:
These facts might not demonstrate
probable cause, but certainly meet the
NTO "reasonable grounds" standard.
For these facts state more than an
'unparticularized suspicion' that the

3

parties named in the NTO may have
raped Mangum. "[R]easonable grounds"
requires only "a minimal amount of
objective justification, something more
than an 'unparticularized suspicion or
hunch,'" and is a «significantly lower"
standard than probable cause
Therefore, we reverse the district
court's denial of defendants' motions to
dismiss these § 1983 unlawful seizure
claims.
Pet. App. 36a (emphasis supplied) (internal citations
and parenthetical marks omitted).
4. Petitioners raised the issue from the outset by
asserting it in their complaint's first cause of action
(C.A. App. 851-53 ~~ 904-17) which states a § 1983
claim for search and seizure without, probable cause
in violation of the Fourth and Fourteenth
Amendments pursuant to an NTO Respondents
obtained by making false statements and concealing
material facts to mislead a judicial official into
authorizing the station-house detentions and
searches Petitioners allege, knowing that "the
requisite grounds did not exist." C.A. App. 852 ~ 910;
see also id. at 858 ~ 939.
And Petitioners pressed the issue in the court of
appeals by arguing that Respondents violated their
Fourth Amendment rights by subjecting them to
searches and seizures for investigative purposes
without either "probable cause or reasonable
grounds, reasonable SuspICIOn, or any lesser
quantum of proof." Brief of Appellees' at 53,
McFadyen v. Baller, No. 11-1458 (4th Cir. Sept. 21,
2011) (ECF 69) (reproduced at Opp. App. 116a)

4
(parenthetical marks omitted); see also id. at 69
(reproduced at Opp. App. 134a).

B.

The Decision Below is Incorrect.

1. Respondents do not contend that the court of
appeals' decision is correct, nor could they, for three,
very good reasons. First, the decision contradicts
nearly a half-century of this Court's precedent
requiring probable cause to justify station-house
detentions and searches of citizens for investigative
purposes. See Pet. 24-29 (documenting the conflict
between the decision below and Davis v. Mississippi,
394 U.s. 721 (1969), Dunaway v. New York, 442 U.S.
200 (1979), and Hayes v. Florida, 470 U.S. 811
(1985». Each of those decisions hold that
individualized probable cause is required under the
Fourth Amendment to subject citizens to stationhouse detentions to conduct searches of their persons
for investigative purposes. Pet. 24-29. Indeed, this
Court has never required anything less than
probable cause to justify such detentions and
searches for evidence of ordinary criminal
wrongdoing. King, 133 S. Ct. at 1978-80 (majority);
id. at 1980-81 (Scalia, J., dissenting).
Second, the decision contradicts the Court's
decision in Maryland v. King,l decided after entry of
the judgment below, authorizing a State to collect
DNA profiles of inmates charged with committing
"serious crimes" because the justifying purpose of the
searches was not investigative. 133 S. Ct. at 1980
1 Because King was decided after the court of appeals
entered the judgment below, the Petition suggests (Pet. 33)
that the Court may wish to grant the petition, vacate the
judgment, and remand for reconsideration (GVR) in light of its
decision in King.

5

(majority). This case presents the mirror image of
the issue in King. Both cases involve Fourth
Amendment seizures and searches to collect
identification evidence, including DNA profiles,
without probable cause. But in King, the justifying
purpose of collecting DNA was not "to detect
evidence of ordinary criminal wrongdoing." 133 S.
Ct. at 1978-80 (majority). Here, the only justifying
purpose of the detention and searches of Petitioners
was to detect evidence of ordinary criminal
wrongdoing. And in the Fourth Amendment
analysis, that distinction makes all the difference.
Id. at 1978 (majority opinion); id. at 1980 (Scalia, J.,
dissenting). Thus, in King, not one justice suggested
that Maryland's DNA collection program could be
squared with the Fourth Amendment unless its
justifying purpose was something other than to
investigate crime. 133 S. Ct. 1978-80 (majority); id.
at 1980-81 (Scalia, J., dissenting).
Third, the decision conflicts with the unanimous
authority of the other circuits. See discussion infra
§ C.
2. Respondents do not even try to argue that the
court of appeals' decision is supported by any
holding of this Court. Instead, they pluck phrases
from dicta amounting to a mere "suggestion" and
contend (Opp. 15-17) that the judgment below is
"consistent with" it. For example, Respondents rely
on Davis' dictum:
We have no occasion in this case,
however, to determine whether the
requirements of the Fourth Amendment
could be met by narrowly circumscribed
procedures for obtaining, during the
course of a criminal investigation, the

6

fingerprints of individuals for whom
there is no probable cause to arrest.
394 U.S. at 728 (emphasis supplied to indicate text
Respondents omit). Likewise, Respondents' assertion
(Opp. 17) that this Court has "thrice repeated" that
dictum is unpersuasive since the Court thrice refused
to hold that anything less than probable cause
justified the investigative, station-house detentions
at issue in those cases. See Dunaway, 422 U.S. at
215-16, Hayes, 470 U.S. at 817, and Kaupp v. Texas,
538 U.S. 626, 630 (2003) ("we have never sustained
against
Fourth
Amendment
challenge
the
involuntary removal of a suspect ... to a police
station and his detention there for investigative
purposes
absent probable
cause")
(internal
quotations omitted).
3. Respondents' attempt (Opp. 17) to distinguish
Davis, Dunaway, and Hayes on the ground that they
obtained "judicial authorization" is unavailing
because Respondents obtained that judicial
authorization by making false statements and
concealing material facts to mislead a judge into
giving it. See Pet. App. 144a-145a. A police officer
violates the Fourth Amendment if, in order to obtain
judicial authorization to search or seize a citizen, the
officer knowingly makes material false statements or
omits material facts to obtain judicial authorization
to search or seize a citizen. Franhs v. Delaware, 438
U.S. 154, 155, 164-65 (1978).

C.

The Decision Below Creates a Circuit
Split on a Significant and Recurring
Issue.
1. Respondents concede that they cannot identify

a court of appeals' decision, other than the decision

7
below, holding that a station-house detention to
search a citizen for DNA or other evidence for
investigative purposes was justified under the
Fourth Amendment by anything less than probable
cause. But that does not mean, as Respondents
contend (Opp. 12-13), that "there is no circuit split
on the issue." To the contrary, it confirms
Petitioners' point (Pet. 24, 32) that the court of
appeals' decision has created a circuit split by
contradicting the unanimous authority in the other
circuits on the question presented in this petition.
The court of appeals' decision conflicts with the
settled precedent of, for example, the D.C., Fifth,
Eighth, and Ninth Circuits. See United States v.
Ashew, 529 F.3d 1119, 1134 (D.C. Cir. 2008) (en
bane) (declining the government's invitation to
create an "investigative identification search
exception" to the probable cause requirement, noting
that "[t]here is no Supreme Court or federal
appellate case law" authorizing an investigative
search of a person "only on reasonable articulable
suspicion after a pat down of that individual has
produced no evidence of a weapon"); id. (holding
police violated Fourth Amendment by unzipping
suspect's jacket solely to facilitate a "show-up
identification procedure"); Kohler v. Englade, 470
F.3d 1104, 1109-13 (5th Cir. 2006) (probable cause
required to collect DNA from man suspected of being
"a serial killer who terrorized south Louisiana ...
over the span of a year"); Paee v. City of Des Moines,
201 F.3d 1050, 1053-54 (8th Cir. 2000) (even
"assum[ing] arguendo" that officer had "reasonable
suspicion" to believe suspect committed violent
assault, the officer nevertheless "violated clearly
established law" by ordering suspect, without

8

probable cause, "to take off [his] shirt" to search for a
tattoo matching one the victim saw on her
assailant's torso); and Friedman v. Boucher, 568
F.3d 1119 (9th Cir. 2009) (reversing dismissal of
plaintiffs Section 1983 claim for search and seizure
in violation of the Fourth Amendment, holding
probable cause is required to collect a suspect's
DNA).

D.

This Case Is an Excellent Vehicle to
Resolve the Question Presented, and
Respondents' Arguments to the Contrary
Have No Merit.
1. This case is a particularly good vehicle to

squarely answer the important and recurring
question presented. There is no dispute that
Petitioners were seized and searched without
probable cause. Nor is there any dispute that the
sole purpose of the searches and seizures Petitioners
allege was to collect evidence of ordinary criminal
wrongdoing. Thus, this case squarely presents the
question whether dragnet station-house detentions
of citizens to collect their DNA and search them for
investigative purposes still requires individualized
probable cause. The Fourth Circuit held that it does
not. But that is not all. Respondents add (Opp. 2)
that "[n]one of the Petitioners ... was ever arrested,
charged, or indicted with any crime," which helpfully
underscores the absence of probable cause and
places Petitioners within "the sole group for whom
the Fourth Amendment's protections ought to be
most jealously guarded: people who are innocent of
the State's accusations." King, 133 S. Ct. at 1989
(Scalia, J., dissenting). Thus, this case provides an

9
excellent vehicle to answer the important question
presented.
2. Respondents' arguments to the contrary have
no merit:
a. Respondents' various contentions (Opp. 13, 2527) that this is not a suitable case to address the
constitutionality of North Carolina's NTO statute all
come to nothing because the question presented (Pet.
i) does not challenge the statute's constitutionality.
Nor are Petitioners required to challenge the NTO
statute's constitutionality to state a claim for
violation of their Fourth Amendment rights.
Virginia v. Moore, 553 U.S. 164, 168 (2008) ("We are
aware of no historical indication that those who
ratified the Fourth Amendment understood it as a
redundant guarantee of whatever limits on search
and seizure legislatures might have enacted.");
Friedman, 568 F.3d at 1125 ("adherence to a state
statute does not guarantee compliance with the
Fourth Amendment"). Indeed, North Carolina's
Supreme Court has held NTOs unconstitutional
without declaring the NTO statute unconstitutional.
See, e.g., State v. Welch, 342 S.E.2d 789, 794 (N.C.
1986) (holding NTO complied with the NTO statute
but violated Fourth Amendment).
b. Respondents' assertion (Opp. 25) that "no final
judgment has been entered" is no basis to deny the
petition. The Court has repeatedly decided issues
raised in interlocutory appeals. See, e.g., Willlie v.
Robbins, 551 U.S. 537, 549 (2007); Hartman v.
Moore, 547 U.S. 250, 256-57 (2006). Otherwise, the
Court could not review important questions that
often arise only in interlocutory appeals, such as
qualified immunity. See, e.g., Anderson v. Creighton,
483 U.S. 635, 646 n.6 (1987) ("qualified immunity

10
questions should be resolved at the earliest possible
stage of a litigation"). Moreover, as to the claims at
issue here, the court of appeals' decision is final.
c. The petition does not seek an advisory opinion,
and Respondents' contention (Opp. 26) to the
contrary has no merit. For the first time in this
litigation, Respondents claim (Opp. 26) that, even
though there was no probable cause to believe
Petitioners committed the crimes listed in the NTO,
they may have been accomplices. In all the
proceedings below, Respondents conceded that the
NTO lacked probable cause; arguing instead that the
Fourth Amendment requires mere "reasonable
suspicion" to justify the searches and seizures
Petitioners allege. See, e.g., Def. Gottlieb's Mem.
Supporting Mot. to Dismiss at 8, McFadyen v. Duhe
University, 1:07-CV-953 (M.D.N.C. July 2, 2008)
(ECF 54) ("[T]he Fourth Amendment governs
[Petitioners'] claim, and the constitutional standard
governing their claim is the (reasonable suspicion'
standard.") (emphasis supplied). Respondents' new
contention is also contradicted by the facts
Petitioners allege, which they must accept as true,
and Respondents' own NTO Affidavit, which asserts
that "reasonable grounds exist" to subject "all [46] of
the white male Duke Lacrosse Team Members" to
station-house detentions and searches of their bodies
for DNA and other evidence solely because they were
"aware of the party and could have been present."
C.A. App. 58 (emphasis supplied). Further,
Respondents do not explain how DNA testing and
close examination of Petitioners' bodies could
possibly produce evidence of accomplice liability.
Moreover, the court of appeals did not pass on
Respondent's new theory, finding only "reasonable

11
grounds" to believe that "the parties named in the
NTO may have raped Mangum." Pet. App. 36a
(emphasis supplied).
d. Respondents' contention (Opp. 26-27) that
summary reversal of the court of appeals' judgment
would not affect the outcome of the case is incorrect.
Summary reversal would change the outcome in at
least three ways. First, a summary reversal based on
Davis would restore Petitioners' Section 1983 claim
against the individual Respondents by clarifying
that the right they violated has been clearly
established since Davis was decided in 1969. Second,
summary reversal would restore Petitioners' Section
1983 claim against the City of Durham, which the
court of appeals dismissed based on its holding (Pet.
App. 36a, 40-42a) that the searches and seizures
Petitioners allege did not violate the Fourth
Amendment. Third, summary reversal would restore
Petitioners' Section 1983 claim against the private
parties who conspired with Respondents to violate
Petitioners' Fourth Amendment rights by, for
example, fabricating medical evidence and altering
medical records to corroborate the false rape
allegation and mislead a judicial official into issuing
the NTO.
e. Finally, Respondents' contentions (Opp. 19)
regarding the NTO statute's "circumscribed
procedures" are unpersuasive because Respondents
honored them only in the breach. For example,
contrary to the requirement that an NTO be served
at least 72-hours before any procedures take place,
Petitioners were notified of the NTO less than one
hour before the station-house detention and searches
were ordered to commence. Nor were the detentions
"circumscribed" in duration; the NTO authorized

12
police to detain Petitioners at the police department
for one hour, and, as it happened, Respondents
detained Petitioners there far longer than that. C.A.
App. 49; Pet. 20. And contrary to the statute's
requirement that Respondents provide Petitioners
with reports of all tests conducted with their DNA
and photographic evidence as soon as they are
available, to this day, more than 7 years later,
Respondents have still not done so. C.A. App. 803 ~
764; see also id. 801-805 ~~ 758-72. Further,
Respondents violated the Court's admonition in
Davis, 394 U.S. at 726, that such procedures must
never be used to subject citizens to "harassment and
ignominy" by circulating their fabricated NTO
affidavit to representatives of the media so they
could broadcast the station -house detentions and
searches of Petitioners and their teammates to their
local and national television audiences. C.A. App.
696 ~ 414(c); Pet. 17. As a result, within hours,
Petitioners were subjected to public ignominy so
ubiquitous that this Court could take judicial notice
of it.

*****
For the foregoing reasons, and those stated in the
petition for a writ of certiorari, the petition should be
granted. In the alternative, the Court may wish to
grant the petition and summarily reverse the
judgment of the court of appeals based on the Court's
decisions in Davis, 394 U.S. 721, Dunaway, 442 U.S.
200, and Hayes, 470 U.S. 811; or grant the petition,
vacate the judgment of the court of appeals and
remand the case for further consideration in light of
Maryland v. King, 133 S. Ct. 1958 (June 3, 2013).

13
Respectfully submitted,
Samantha J. Ekstrand
Counsel of Record
Robert C. Ekstrand
Stefanie Sparks Smith
EKSTRAND & EKSTRAND LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[phone]
SJE@ninthstreetlaw .com
October 17, 2013