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)

(;+,%,7 &

No. 12-1460
IN THE

Supreme Court of the United States

RYAN MCFADYEN, ET AL.,
Petitioners,
V.

CITY OF DURHAM, NORTH CAROLINA, ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
BRIEF IN OPPOSITION
TO A PETITION FOR A WRIT OF CERTIORARI

REGINALD B. GILLESPIE, JR.
WILSON & RATLEDGE, PLLC
4600 Marriott Drive, Ste. 400
Raleigh, NC 27612
Phone: [phone]
Attorney for Respondents
The City of Durham, et al.

MICHAEL A. VATIS
Counsel of Record
ROGER E. WARIN
MATTHEW J. HERRINGTON
LEAH M. QUADRINO
JILL C. MAGUIRE
STEPTOE & JOHNSON LLP
1114 Avenue of the Americas
New York, NY 10036
[e-mail]
Phone: [phone]
Attorneys for Respondents
The City of Durham, et al.

i
QUESTIONS PRESENTED
1. Should the Court issue a writ of certiorari to
address an issue that was neither raised by
Petitioners nor decided by either court below?
2. Is it unconstitutional to take DNA samples by
swabbing a suspect’s cheek and to examine and
photograph his body pursuant to a court order based
upon a finding of probable cause to believe a rape has
been committed and reasonable suspicion to believe
that the suspect committed the crime?

Table of Contents
Page
STATEMENT OF THE CASE .................................... 1
A. Background ....................................................... 2
B. North Carolina’s NTO Statute ......................... 3
C. Disposition Below ............................................. 6
ARGUMENT ............................................................... 7
A. The Issue Presented by the Petition
Was Never Raised Below, and Was Not
Decided by the District Court or the
Court of Appeals ............................................... 7
B. There Is No Circuit Split on the Issue
Raised by Petitioners...................................... 12
C. North Carolina’s NTO Statute Is
Consistent with This Court’s Precedents ...... 14
D. This Case Is an Especially Poor Vehicle
to Resolve the Constitutional Question
Raised by Petitioners...................................... 25
CONCLUSION .......................................................... 27
APPENDIX
Excerpts from Plaintiffs’ Opposition to the
City of Durham’s Motion to Dismiss
Plaintiffs’
Amended
Complaint,
McFadyen v. Duke Univ., 786 F. Supp. 2d
887 (M.D.N.C. 2011) (1:07-cv-953),
dated October 6, 2008 (filed October 10,
2008) (pages 1-21 in original) ........................... 1a

iii
TABLE OF CONTENTS—Continued
Excerpts from Plaintiffs’ Opposition to
Defendant Himan’s Motion to Dismiss
Plaintiffs’
Amended
Complaint,
McFadyen v. Duke Univ., 786 F. Supp. 2d
887 (M.D.N.C. 2011) (1:07-cv-953),
dated October 10, 2008 (pages 1-12 & 2224 in original) .................................................. 38a
Excerpts from Brief of Appellees, McFadyen v.
Baker, 703 F.3d 636 (4th Cir. 2012) (No.
11-1458) (consolidated as Evans v.
Chalmers),
dated September 21, 2011 (pages 1-3 & 655 in original) .................................................. 64a

TABLE OF AUTHORITIES
Page(s)
CASES
Arizona v. Grijalva,
533 P.2d 533 (Ariz. 1975) ................................... 13
Ashcroft v. al-Kidd,
131 S. Ct. 2074 (2011) ........................................ 27
Bhd. of Locomotive Firemen & Enginemen v.
Bangor & Aroostook R.R. Co.,
389 U.S. 327 (1967) (per curiam) ...................... 25
Bousman v. Iowa Dist. Ct.,
630 N.W.2d 789 (Iowa 2001).........................13, 21
Carrington v. Duke Univ.,
No. 1:08-cv-00119-JAB-WWD, slip op.
(M.D.N.C. Mar. 31, 2011) .................................... 9
Case of Hayburn,
2 U.S. 408 (1792) ................................................ 26
City of Springfield, Mass. v. Kibbe,
480 U.S. 257 (1987) ............................................ 12
Colorado v. Madson,
638 P.2d 18 (Colo. 1981) .................................... 13
Cupp v. Murphy,
412 U.S. 291 (1973) .......................................21, 22
Davis v. Mississippi,
394 U.S. 721 (1969) ..................................... passim
Delta Airlines, Inc. v. August,
450 U.S. 346 (1981) ............................................ 12
Dunaway v. New York,
442 U.S. 200 (1979) ...........................17, 18, 19, 21

v
TABLE OF AUTHORITIES—Continued
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.S. 251 (1916) ............................................ 25
Hayes v. Florida,
470 U.S. 811 (1985) ..................................... passim
In re Nontestimonial Identification Order
Directed to R.H.,
762 A.2d 1239 (Vt. 2000) ..............................21, 23
Kaupp v. Texas,
538 U.S. 626 (2003) .................................17, 19, 21
Maryland v. King,
133 S. Ct. 1958 (2013) .......................20, 22, 23, 24
Missouri v. McNeely,
133 S. Ct. 1552 (2013) ...................................21, 22
New Jersey v. Hall,
461 A.2d 1155 (N.J. 1983).................................. 13
Pa. Dep’t of Corrections v. Yeskey,
524 U.S. 206 (1998) ............................................ 12
Preiser v. Newkirk,
422 U.S. 395 (1975) ............................................ 26
Schmerber v. California,
384 U.S. 757 (1966) ............................................ 21
United States v. Ingram,
797 F. Supp. 705 (E.D. Ark. 1992)..................... 13
United States v. Meregildo,
876 F. Supp. 2d 445 (S.D.N.Y. 2012) ................. 13
United States v. United Foods, Inc.,
533 U.S. 405 (2001) ............................................ 11

vi
TABLE OF AUTHORITIES—Continued
United States v. Williams,
504 U.S. 36 (1992) .............................................. 12
Winston v. Lee,
470 U.S. 753 (1985) .......................................21, 22
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const. amend. IV ...................................... passim
Ariz. Rev. Stat. Ann. § 13-3905 (2010) ................... 16
Idaho Code § 19-625 (2011) ..................................... 16
Iowa Code Ann. § 810.3-810.6 (2003) ..................... 16
N.C. Gen. Stat. Ann. § 15A-271 (2011) ............3, 4, 16
N.C. Gen. Stat. Ann. § 15A-273 (2011) ............... 4, 16
N.C. Gen. Stat. Ann. § 15A-274 (2011) ............... 4, 16
N.C. Gen. Stat. Ann. § 15A-278 (2011) ............... 5, 16
N.C. Gen. Stat. Ann. § 15A-280 (2011) ............... 5, 16
N.C. Gen. Stat. Ann. § 15A-282 (2011) ............... 5, 16
N.C. Gen. Stat. Ann. § 15A-271-282 (2011)............ 16
Utah Code Ann. § 77-8-1 to 77-8-4 (2004) .............. 16
RULES
Alaska R. Crim. P. 16(c) .......................................... 16
Colo. R. Crim. P. 41.1 .............................................. 16
Vt. R. Crim. P. 41.1 ................................................. 16

vii
TABLE OF AUTHORITIES—Continued

BOOKS AND ARTICLES
4 Wayne R. LaFave, Search and Seizure
§ 9.8(b) (5th ed. 2012) ...................................14, 21
American Bar Association, ABA Standards for
Criminal Justice, DNA Evidence, Standard
16-2.3 (3d ed. 2007) ............................................ 14
Eugene Gressman et al., Supreme Court
Practice (9th ed. 2007) ..................................12, 25
Stephen M. Shapiro, Certiorari Practice: The
Supreme Court’s Shrinking Docket,
24 Litig., No. 3, Spring 1998 .............................. 12

In The

Supreme Court of the United States
RYAN MCFADYEN, ET AL.,
Petitioners,
V.

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

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit

BRIEF IN OPPOSITION
TO A PETITION FOR A WRIT OF CERTIORARI

Respondents the City of Durham, North Carolina;
David Addison; Patrick Baker; Steven W. Chalmers;
Beverly Council; Mark Gottlieb; Benjamin Himan;
Ronald Hodge; Jeff Lamb; Michael Ripberger; and
Lee Russ respectfully submit this brief in opposition
to the petition of Ryan McFadyen, Matthew Wilson,
and Breck Archer for a writ of certiorari to review
the judgment of the United States Court of Appeals
for the Fourth Circuit in this case.
STATEMENT OF THE CASE
Petitioners ask this Court to grant a writ of
certiorari to review an issue that they did not raise
in either the district court or the court of appeals,
and which neither court decided. They also claim

2
that there is a conflict in the circuit courts on this
issue, yet cite not a single case from another circuit
(or, for that matter, a federal district court or a state
court other than the North Carolina Supreme Court).
For these reasons alone, the petition should be
denied.
Moreover, North Carolina’s statute authorizing a
judge to issue a non-testimonial identification order
(NTO) permitting the police to examine and
photograph a suspect’s body and swab his cheek to
take a DNA sample is completely consistent with the
decisions of this Court and with those of numerous
state courts that have addressed this issue. This
case therefore does not warrant certiorari.
A. Background
In March 2006, Durham police investigated the
allegations of a young woman who claimed to have
been raped at a party.
The woman—Crystal
Mangum—had been hired as a stripper by Duke
lacrosse players to perform at a party in their house.
Durham police investigated her rape allegations—
meeting with witnesses and gathering evidence,
including DNA and photographic evidence from the
Petitioners.
State Prosecutor Michael Nifong became involved
in the case and eventually sought indictments
against three of Petitioners’ teammates.
Those
indictments were later dismissed. None of the
Petitioners, however, was ever arrested, charged, or
indicted with any crime.
Nevertheless, Petitioners subsequently filed a
428-page complaint (exclusive of exhibits), asserting

3
41 federal and state claims against 50 defendants
based on the conduct of the investigation.1 More
than half of the Petition is now devoted to
recapitulating what Judge Wilkinson described as
the “overwrought claims” in the complaint. Pet. App.
53a. But these allegations have nothing to do with
the single question Petitioners present to this
Court—whether the application of North Carolina’s
NTO statute in this case was unconstitutional.2
B. North Carolina’s NTO Statute
North Carolina’s NTO statute permits a court to
issue a “nontestimonial identification order” at the
request of a prosecutor. N.C. Gen. Stat. Ann. § 15A271 (2011). “‘[N]ontestimonial identification’ means
identification by fingerprints, palm prints, footprints,
measurements, blood specimens, urine specimens,
saliva samples, hair samples, or other reasonable
In what can only be characterized as an
understatement, the district court found that the Petitioners
“exceeded all reasonable bounds with respect to the length of
their Complaint and the breadth of claims and assertions
contained therein,” and that the Complaint contained “a mass
of legally unsupportable claims and extraneous factual
allegations.” Pet. App. 345a-346a. On appeal, Judge Wilkinson
also found that “there is something disquieting about the
sweeping scope and number of claims brought by” Petitioners.
Pet. App. 52a.
1

Respondents do not concede that Petitioners’ 14-page
Background section accurately characterizes the allegations in
the complaint. But it is unnecessary to respond to the
misstatements in that section because nearly all of the factual
allegations they recite are simply irrelevant to the issue they
now present.
2

4
physical examination, handwriting exemplars, voice
samples, photographs, and lineups or similar
identification procedures requiring the presence of a
suspect.” Id. The statute authorizes a court to issue
an NTO only if it finds:
(1) That there is probable cause to
believe that a felony offense, or a
[certain] misdemeanor offense has been
committed;
(2) That there are reasonable grounds
to suspect that the person named or
described in the affidavit committed the
offense; and
(3) That the results of specific nontestimonial identification procedures
will be of material aid in determining
whether the person named in the
affidavit committed the offense.
Id. § 15A-273 (2011).
If the court makes the requisite findings, it may
issue an order requiring the person “to appear at a
designated time and place and to submit to
designated nontestimonial identification procedures.”
Id. § 15A-274 (2011).
The NTO statute contains important procedural
protections.
For instance, absent exigent
circumstances, the order must be served at least 72
hours before the time designated for the
examination. Id. The suspect may request a change

5
in the time or place of the examination. Id. § 15A278(7) (2011).
Moreover, “[t]he extraction of any bodily fluid
must be conducted by a qualified member of the
health professions and the judge may require
medical supervision for any other test ordered.” Id.
§ 15A-279(a) (2011). In addition, “no unreasonable
or unnecessary force may be used” in conducting the
examination, and no suspect “may be detained longer
than is reasonably necessary to conduct the specified
nontestimonial identification procedures, and in no
event for longer than six hours.” Id. § 15A-279(b) &
(c).
The suspect is also “entitled to have counsel
present and must be advised prior to being subjected
to any nontestimonial identification procedures of his
right to have counsel present during any
nontestimonial identification procedure and to the
appointment of counsel if he cannot afford to retain
counsel.” Id. § 15A-279(d). In addition, the suspect
may not be subjected to interrogation or asked to
make any statement. Id. § 15A-278(6).
A copy of the exam results must be provided to
the suspect as soon as they are available. Id. § 15A282 (2011). The results must also be provided to the
court within 90 days. Id. § 15A-280 (2011). If, at
that time, probable cause does not exist to believe
that the person committed the offense under
investigation, that person can move the court to
direct that the products and reports of the
examination be destroyed, and the motion must be
granted unless good cause is shown. Id.

6
C. Disposition Below
On March 31, 2011, the district court granted in
part and denied in part Respondents’ motions to
dismiss, and denied the City of Durham’s motion for
partial summary judgment on governmental
immunity grounds. Pet. App. 339a.
On Respondents’ interlocutory appeal, the Fourth
Circuit, in an opinion authored by Judge Motz,
unanimously dismissed the remaining federal and
state common law claims against all Respondents.
Pet. App. 51a-52a. However, the court found that it
lacked appellate jurisdiction over the City’s appeal of
the district court’s decision to permit state
constitutional claims to proceed.
Those state
constitutional claims therefore remain pending
against Respondents.
Judge Wilkinson wrote a concurring opinion to
“underscore the overblown nature of this case,”
which he described as “on the far limbs of law and
one destined, were it to succeed in whole, to spread
damage in all directions.” Pet. App. 52a.
Judge Gregory also wrote separately to express
his view that the state common law claims against
the individual Respondents were barred by the
North Carolina doctrine of official immunity, since
the complaints did not sufficiently allege malicious
conduct on the part of Respondents. Pet. 67a.

7
ARGUMENT
A. The Issue Presented by the Petition Was
Never Raised Below, and Was Not
Decided by the District Court or the
Court of Appeals
Petitioners ask this Court to grant certiorari to
decide whether North Carolina’s NTO statute is
unconstitutional. They argue that their Fourth
Amendment rights were violated because their DNA
samples were taken by a cheek swab and their bodies
were examined and photographed based on a court’s
finding that there was probable cause to believe a
crime had been committed and “reasonable grounds
to suspect” that Petitioners committed that crime.
Petitioners assert that such identification procedures
may not be employed consistent with the
Constitution absent a finding that there was
probable cause to believe that they committed the
crime under investigation.
Petitioners never raised this argument below. In
both the district court and the court of appeals,
Petitioners argued that the statutory predicates for
an NTO were not met in this case because, in their
view, there was no probable cause to believe that
Mangum had been raped or reasonable suspicion to
believe that they committed the crime.
They
contended that two of the Respondents (investigators
Mark Gottlieb and Benjamin Himan) had succeeded
in persuading a judge to issue an NTO only because
they supplied false or misleading information to him.
But Petitioners never claimed that the statute was
unconstitutional because it permitted an NTO to be
issued on less than a full finding of probable cause.

8
Their briefs below make this plain beyond dispute.3
In fact, Petitioners expressly disclaimed the argument
they now make, telling the Fourth Circuit that “there
is no need for the Court to resolve those questions at
this stage.” Brief of Appellees at 28 n.12, McFadyen
v. Baker, 703 F.3d 636 (4th Cir. 2012) (No. 11-1458)
(consolidated as Evans v. Chalmers) (Resp’ts App. at
107a).4

See Brief of Appellees at 1-3, 6-55, McFadyen v. Baker,
703 F.3d 636 (4th Cir. 2012) (No. 11-1458) (consolidated as
Evans v. Chalmers); Plaintiffs’ Opposition to the City of
Durham’s Motion to Dismiss Plaintiffs’ Amended Complaint at
1-21, McFadyen v. Duke Univ., 786 F. Supp. 2d 887 (M.D.N.C.
2011) (1:07-cv-953); Plaintiffs’ Opposition to Defendant Himan’s
Motion to Dismiss Plaintiffs’ Amended Complaint at 1-12, 2224, McFadyen v. Duke Univ., 786 F. Supp. 2d 887 (M.D.N.C.
2011) (1:07-cv-953). The relevant sections of Petitioners’ briefs
are contained in an appendix to this brief at pages 80a-135a,
7a-37a, and 45a-63a, respectively. (Petitioners filed other briefs
in the district court in response to other defendants’ separate
motions to dismiss, but those briefs either did not address this
NTO issue or simply incorporated the arguments discussed in
the briefs opposing the City of Durham’s and Himan’s motions
to dismiss. Excerpts of those other briefs are therefore not
contained in the appendix.)
3

4 To quote this passage in the Petitioners’ Fourth
Circuit brief in full:

The District Court noted that the NTO statute
authorizes the searches and seizures it
contemplates upon a showing of less than
probable cause, and that the law is unsettled
regarding whether the statute would be subject
to a constitutional challenge on that basis, at
least as applied in some circumstances. In this
regard, the District Court rightly concluded that
(Continued . . .)

9
The district court and the Fourth Circuit both
discussed the issue briefly because it had been raised
in a related case, Carrington v. Duke University, No.
1:08-cv-00119-JAB-WWD (M.D.N.C. Mar. 31, 2011)
(Dkt. 164) (mem.), brought by some of their
teammates.5 But neither court decided the issue.
there is no need for the Court to resolve those
questions at this stage because Plaintiffs allege
that the affidavit Gottlieb and Himan submitted
to cause the NTO to issue against Plaintiffs was
intentionally
and
recklessly
false
and
misleading.
Id. at 28 n.12 (Resp’ts App. at 107a).
5 The court of appeals stated in a footnote that
“[p]laintiffs” challenged the constitutionality of the NTO
statute. Pet. App. 30a n.6. But this was clearly a reference to
the plaintiffs in the related case of Carrington v. City of
Durham, 703 F.3d 636 (4th Cir. 2012) (No. 11-1465)
(consolidated as Evans v. Chalmers) which was consolidated
with this case on appeal, as those plaintiff/appellees were the
only ones who mentioned this issue. (These cases were also
consolidated with a third case, Evans v. Chalmers, but that case
did not raise any claims related to the NTO.)

The district court did not formally consolidate the cases,
but it clearly considered them together. It issued its decisions
in the cases simultaneously, and the opinions in Carrington and
McFadyen contain large sections that are identical. The
relevant section of the opinion in the Carrington case dealing
with the NTO issue is repeated in the McFadyen opinion almost
verbatim, even though only Carrington raised the
constitutional issue. Compare Carrington v. Duke Univ., No.
1:08-cv-00119-JAB-WWD, slip op. at 113-25 (M.D.N.C. Mar. 31,
2011) (Dkt. 164) (mem.) with McFadyen v. Duke Univ., 786 F.
Supp. 2d 887, 924-30 (M.D.N.C. 2011). Thus, it seems the
district court simply overlooked the fact that the issue was not
(Continued . . .)

10
The district court specifically said that it “need not
resolve” this issue “because even if the procedure and
scope of the NTO process would otherwise pass
constitutional muster, here Plaintiffs have asserted a
claim that the affidavit submitted in support of the
NTO application was intentionally and recklessly
false and misleading.” Pet. App. 144a. It therefore
found that Petitioners had adequately stated a
Fourth Amendment claim even if the statute was
constitutional, and said it would consider the
constitutional arguments at the summary judgment
stage. Id. at 145a and n.16.6
Similarly, the Fourth Circuit discussed the issue
in a footnote but declined to decide it. It noted, as
the district court did, that there was “uncertainty as
to whether North Carolina courts would interpret
the state NTO statute ‘as authorizing a search and
seizure . . . on less than a full showing of probable
cause’ and whether ‘such an interpretation would
render the state NTO statutes unconstitutional.’”
raised in McFadyen. One can closely scrutinize all of the briefs
filed by Petitioners in the district court and still not find even a
trace of an argument challenging the constitutionality of North
Carolina’s NTO statute. (No oral argument was held in the
district court.) In any event, even if Petitioners had raised the
issue below, the district court and the court of appeals both
declined to decide it.
The district court also found that the police officers
were not entitled to qualified immunity on the NTO claim
because, in the court’s view, “no reasonable official could have
believed that it was permissible to deliberately or recklessly
create false or misleading evidence to present to a magistrate to
effect a citizen’s seizure.” Pet. App. 145a.
6

11
Pet. App. 30a n.6. Given this uncertainty in the law,
the court of appeals determined that, even if the
statute were unconstitutional, the police officers
would be protected by qualified immunity because
the unconstitutionality of the law was not “clearly
established.” Id. The court therefore reversed the
district court’s denial of qualified immunity. But it
did not decide whether the statute was
unconstitutional.7
Because the constitutional question presented
here was not raised below, let alone decided by the
court of appeals (or the district court), the petition
should be denied. See United States v. United Foods,
Inc., 533 U.S. 405, 417 (2001) (refusing to permit a
petitioner “to assert new substantive arguments
attacking . . . the judgment when those arguments
were not pressed in the court whose opinion we are
7 Petitioners repeatedly assert that the Fourth Circuit
“held” that the Constitution does not require “‘probable cause in
the traditional sense for the collection of DNA evidence,’ but
rather requires ‘only a minimum amount of objective
justification,’ and that ‘a significantly lower standard than
probable cause’ is sufficient.” Pet. 4 (citations omitted). See
also Pet. 32. But Petitioners are blatantly quoting the court’s
opinion out of context.
After declining to decide the
constitutional question of whether a full showing of probable
cause is required, the court went on to address Petitioners’
actual argument on appeal—that the affidavits submitted in
support of the NTO did not meet the statutory standards of
probable cause to believe that a crime had been committed and
reasonable grounds to suspect that the Petitioners committed
the crime. It was only in that context that the court stated that
the “reasonable grounds to suspect” standard was lower than
probable cause. See Pet. App. 34a-36a.

12
reviewing, or at least passed upon by it”); Pa. Dep’t of
Corrections v. Yeskey, 524 U.S. 206, 212-13 (1998)
(“‘Where issues are neither raised before nor
considered by the Court of Appeals, this Court will
not ordinarily consider them.’”) (quoting Adickes v.
S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970));
United States v. Williams, 504 U.S. 36, 41 (1992)
(“Our traditional rule . . . precludes a grant of
certiorari . . . when ‘the question presented was not
pressed or passed upon below.’”) (citation omitted);
City of Springfield, Mass. v. Kibbe, 480 U.S. 257, 260
(1987) (petition dismissed as improvidently granted
where petitioner failed to preserve the issue before
the courts below); Delta Airlines, Inc. v. August, 450
U.S. 346, 362 (1981) (“[The] petition for certiorari
presented [a] question . . . not raised in the Court of
Appeals and [thus] is not properly before us.”). See
also Stephen M. Shapiro, Certiorari Practice: The
Supreme Court’s Shrinking Docket, 24 Litig., No. 3,
Spring 1998, at 25, 26 (“A disappointed litigant
cannot raise a federal law issue for the first time in a
petition for certiorari.”); Eugene Gressman et al.,
Supreme Court Practice § 6.37(1)(3), at 506 (9th ed.
2007) (Failure to present the question to the court
below is a “defect . . . usually fatal to the petition.”).
B. There Is No Circuit Split on the Issue
Raised by Petitioners
Even if the issue presented here had been
presented and decided below, this case does not
merit certiorari. Petitioners assert that the Fourth
Circuit’s decision “creates a new conflict among the
circuits where none existed previously.” Pet. 24. See
also Pet. 32. Yet, they do not cite a single case from

13
any federal court of appeals, let alone one contrary to
the Fourth Circuit’s decision below. Nor do they cite
a single decision from a state court (other than North
Carolina Supreme Court decisions addressing the
NTO statute at issue here).
Petitioners’ failure to cite any supporting
authority is not surprising.
State courts have
repeatedly upheld NTO statutes like North
Carolina’s. See, e.g., Bousman v. Iowa Dist. Ct., 630
N.W.2d 789, 797-98 (Iowa 2001) (NTO requiring oral
swab could be based on “reasonable grounds”); New
Jersey v. Hall, 461 A.2d 1155, 1159-62 (N.J. 1983)
(investigative
detention
and
identification
procedures may be ordered based on less than
probable cause when appropriate procedures are
followed); Colorado v. Madson, 638 P.2d 18, 31-33
(Colo. 1981) (upholding constitutionality of NTO rule
allowing orders for saliva, fingerprints, photographs,
physical examination, and other nontestimonial
identification evidence based on “reasonable
grounds”); Arizona v. Grijalva, 533 P.2d 533, 534-37
(Ariz. 1975) (upholding constitutionality of NTO
requiring
hair
samples,
fingerprints,
and
photographs based on “reasonable cause”). See also
United States v. Meregildo, 876 F. Supp. 2d 445, 45052 (S.D.N.Y. 2012) (upholding grand jury subpoena
requiring examination and photographing of arms,
legs, and torso for tattoos and scars based on less
than probable cause); United States v. Ingram, 797
F. Supp. 705, 717 (E.D. Ark. 1992) (to justify order
for suspect to appear and provide hair samples,
prosecution “will only need to show a reasonable
suspicion, based upon specific and articulable facts
and the inferences rationally drawn from those facts,

14
that (1) [the suspect] has committed a crime, and (2)
that the taking of hair samples will provide evidence
connecting him to the crime that he allegedly
committed”) (footnote omitted); 4 Wayne R. LaFave,
Search and Seizure § 9.8(b), at 982-83 (5th ed. 2012)
(“As for the grounds needed to justify stationhouse
detention
[for
nontestimonial
identification
procedures], . . . [w]hat is not required . . . is full
probable cause that the particular person to be
detained committed the offense. Rather, a lesser
degree of suspicion . . . will suffice.”).
Moreover, the American Bar Association has
published standards on DNA evidence that approve
the use of NTO procedures like those used here.
Under those standards, DNA may be collected from a
suspect if there is “reasonable suspicion” that the
suspect committed the crime, and probable cause
that a serious crime has been committed. See
American Bar Association, ABA Standards for
Criminal Justice, DNA Evidence, Standard 16-2.3 at
3 (3d ed. 2007).
Thus, even if the Fourth Circuit had decided the
issue presented here, it would not merit certiorari.
C. North
Carolina’s
NTO
Statute
Is
Consistent with This Court’s Precedents
Petitioners also contend that the Fourth Circuit’s
decision conflicts with the decisions of this Court.
Once again, there is no Fourth Circuit decision on
this issue. But even if the court of appeals had
decided the issue in the way Petitioners claim, such a
decision would be entirely consistent with this
Court’s precedents.

15
1. The Court has not ruled on the issue presented
here, but it has repeatedly suggested that a full
showing of probable cause to believe a suspect
committed the crime may not be required to obtain
the suspect’s fingerprints. The Court first made this
suggestion in Davis v. Mississippi, 394 U.S. 721
(1969). Although the Court there found that the
police violated the Fourth Amendment by seizing 24
youths and detaining them at the police station to
take their fingerprints, without probable cause or a
warrant, it suggested that “the requirements of the
Fourth Amendment could be met by narrowly
circumscribed procedures for obtaining, during the
course of a criminal investigation, the fingerprints of
individuals for whom there is no probable cause to
arrest.” Id. at 728. It also went out of its way to
explain why such procedures might be constitutional:
[B]ecause of the unique nature of the
fingerprinting process, such detentions
might,
under
narrowly
defined
circumstances, be found to comply with
the Fourth Amendment even though
there is no probable cause in the
traditional sense.
Detention for
fingerprinting may constitute a much
less serious intrusion upon personal
security than other types of police
searches
and
detentions.
Fingerprinting involves none of the
probing into an individual’s private life
and
thoughts
that
marks
an
interrogation or search.
Nor can
fingerprint detention be employed
repeatedly to harass any individual,

16
since the police need only one set of
each person’s prints.
Furthermore,
fingerprinting is an inherently more
reliable and effective crime-solving tool
than eyewitness identifications or
confessions and is not subject to such
abuses as the improper line-up and the
“third degree.” Finally, because there is
no danger of destruction of fingerprints,
the limited detention need not come
unexpectedly or at an inconvenient
time. For this same reason, the general
requirement that the authorization of a
judicial officer be obtained in advance of
detention would seem not to admit of
any exception in the fingerprinting
context.
Id. at 727-28 (citation omitted).
Based on this suggestion in Davis, numerous
states—including North Carolina—enacted NTO
statutes designed to provide the sort of “narrowly
circumscribed procedures” for obtaining various
forms of identification evidence that this Court
discussed, without requiring a full showing of
probable cause. See, e.g. Alaska R. Crim. P. 16(c);
Ariz. Rev. Stat. Ann. § 13-3905 (2010); Colo. R. Crim.
P. 41.1; Idaho Code § 19-625 (2011); Iowa Code Ann.
§ 810.3-810.6 (2003); N.C. Gen. Stat. Ann. § 15A-271282 (2011); Utah Code Ann. § 77-8-1 to 77-8-4 (2004);
Vt. R. Crim. P. 41.1. See also Hayes v. Florida, 470
U.S. 811, 817 (1985) (noting that states enacted such
statutes “in reliance on the suggestion in Davis”).

17
Since Davis, the Court has thrice repeated its
suggestion that such NTO statutes may satisfy the
Fourth Amendment, at least in the case of
fingerprinting. See Dunaway v. New York, 442 U.S.
200, 215 (1979) (noting that Davis held open the
possibility that narrowly circumscribed procedures
requiring suspect to appear for fingerprinting might
be constitutional); Hayes, 470 U.S. at 817 (“We . . . do
not abandon the suggestion in Davis and Dunaway
that under circumscribed procedures, the Fourth
Amendment might permit the judiciary to authorize
the seizure of a person on less than probable cause
and his removal to the police station for the purpose
of fingerprinting.”); Kaupp v. Texas, 538 U.S. 626,
630 n.2 (2003) (“We have . . . left open the possibility
that, ‘under circumscribed procedures,’ a court might
validly authorize a seizure on less than probable
cause when the object is fingerprinting.”) (citation
omitted).
Petitioners assert (Pet. 24-28) that three of these
cases (Davis, Dunaway, and Hayes) actually support
their argument because the Court found that the
seizures of the suspects in those cases violated the
Fourth Amendment. But Petitioners miss the point
of these cases entirely. None of them involved the
sort of circumscribed procedures—including judicial
authorization—that were employed here, which is
precisely why the Court in each case took pains to
make clear that the use of such procedures might
have resulted in a different outcome. Moreover, all
of them involved interrogation of the suspects, which
the Court considered a critical distinction.

18
The facts of those cases show just how different
they were from this case, and why their holdings are
simply inapposite. In Davis, police, without judicial
authorization, seized and detained petitioner and
other
youths
at
police
headquarters
for
fingerprinting and questioning. 394 U.S. at 722.
“[N]o attempt was made here to employ procedures
which might comply with the requirements of the
Fourth Amendment: the detention . . . was not
authorized by a judicial officer; petitioner was
unnecessarily required to undergo two fingerprinting
sessions; and petitioner was not merely fingerprinted
. . . but also subjected to interrogation.” Id. at 728.
It is for these reasons that the Court found that the
detention of the defendant in that case was
unconstitutional.
Similarly, in Hayes, police “forcibly remove[d]” a
suspect from his home and transported him to the
police station where, without his consent and
without a warrant, they interrogated and
fingerprinted him.
See 470 U.S. at 813-16.
Moreover, the Court emphasized that this detention
occurred “without authorization by a judicial officer.”
Id. at 814. See also id. at 816 (“such seizures, at
least where not under judicial supervision, are
sufficiently like arrests to invoke the traditional rule
that arrests may constitutionally be made only on
probable cause”).
In Dunaway, the police “seized petitioner and
transported him to the police station for
interrogation.” 442 U.S. at 216. “He was never
informed that he was ‘free to go’; indeed, he would
have been physically restrained if he had refused to

19
accompany the officers or had tried to escape their
custody.” Id. at 212. No court authorized the
detention. The Court said that this detention was
“in important respects indistinguishable from a
traditional arrest.” Id. Significantly, Dunaway did
not involve fingerprinting or any other identification
procedure, but interrogation. Indeed, in reaching its
holding, the Court emphasized “the distinctions
between taking fingerprints and interrogation,”
indicating that the latter requires probable cause,
while the former might not, at least when performed
under the sorts of procedures outlined in Davis. Id.
at 215 (emphasis added).
The identification procedures employed in this
case pursuant to North Carolina’s NTO statute are
precisely the sort of “circumscribed procedures” that
this Court suggested in Davis, Dunaway, Hayes, and
Kaupp might pass constitutional muster. Indeed,
the North Carolina procedures were based on this
Court’s suggestion in Davis.
Thus, as discussed above, North Carolina’s NTO
statute requires authorization by a court; the
detention occurs at a designated time and place,
which the suspect may request be changed; the
duration of the detention is limited; the suspect may
not be interrogated; no unnecessary or unreasonable
force may be used; bodily fluid must be extracted by
a medical professional; the suspect may have counsel
present; and the results of the exam will normally be
destroyed if probable cause is not established.
Petitioners have made no claim that any of these
protections was not afforded them here.

20
2. This case differs from the situations discussed
in this Court’s precedents only with respect to the
specific identification procedure at issue. In those
cases, the Court discussed fingerprinting. This case
involves a swabbing of the cheek for DNA evidence
and physical examination and photographing of
Petitioners’ bodies for evidence of injuries. But this
distinction is immaterial. Just last Term, this Court
stressed several times that taking a DNA sample is
closely
analogous
to
fingerprinting
and
photographing a suspect. See Maryland v. King, 133
S. Ct. 1958, 1976 (2013) (“the most direct historical
analogue” to DNA testing “is the familiar practice of
fingerprinting”); id. at 1972 (“[T]he only difference
between DNA analysis and the accepted use of
fingerprint databases is the unparalleled accuracy
DNA provides.”); id. at 1976 (“The additional
intrusion upon the arrestee’s privacy beyond that
associated with fingerprinting is not significant.”);
id. at 1980 (“taking and analyzing a cheek swab of
the arrestee’s DNA is like fingerprinting and
photographing”).
Like fingerprinting, a swab of a cheek, physical
examination, and photographing “involve[] none of
the probing into an individual’s private life and
thoughts that marks an interrogation or search.”
Davis, 394 U.S. at 727. Nor can these procedures “be
employed repeatedly to harass any individual, since
the police need only one” DNA sample and one
chance to examine a suspect’s body. Id. Moreover,
such examinations are “inherently more reliable and
effective crime-solving tool[s] than eyewitness
identifications or confessions and [are] not subject to
such abuses as the improper line-up and the ‘third

21
degree.’” Id. See also LaFave, supra, § 9.8(b), at 98990 (“As for DNA sampling, it has been forcefully
argued that such sampling should be deemed
permissible under Davis. And surely this is true
when the sample is acquired by swabbing the mouth
for saliva.”); Bousman, 630 N.W.2d 789 (Iowa 2001)
(“we do not think that saliva sampling involves a
significant intrusion into a person's bodily security”)
(citation omitted); In re Nontestimonial Identification
Order Directed to R.H., 762 A.2d 1239, 1244 (Vt.
2000) (exposing the inside of the mouth for a cheek
swab “does not entail . . . embarrassment and social
discomfort” and is unlike taking a blood sample
because there is no piercing of the skin).
3. Petitioners next suggest that this Court’s
decisions in Schmerber v. California, 384 U.S. 757
(1966), Cupp v. Murphy, 412 U.S. 291 (1973),
Winston v. Lee, 470 U.S. 753 (1985), and Missouri v.
McNeely, 133 S. Ct. 1552 (2013) indicate that
“intrusive bodily searches for evidence in a criminal
investigation require probable cause and a warrant
(or exigent circumstances).” Pet. 28-29. But these
cases did not involve the sort of narrowly
“circumscribed procedures” discussed in Davis,
Dunaway, Hayes, and Kaupp, so they are completely
irrelevant.
Moreover, those cases involved much more
intrusive procedures than those employed here. In
Schmerber and McNeely, police forced a suspect to
have a blood sample taken. As this Court said in
McNeely, taking a blood sample “involve[s] a
compelled physical intrusion beneath [the suspect’s]
skin and into his veins.” 133 S. Ct. at 1558. The

22
Court described this as “an invasion of bodily
integrity” that “implicates an individual’s ‘most
personal and deep-rooted expectations of privacy.’”
Id. (citation omitted).
In Cupp, police forcibly scraped underneath a
suspect’s fingernails to obtain evidence (including
skin and blood cells). And Winston involved the
surgical removal of a bullet lodged under a suspect’s
collarbone, which the Court said “implicates
expectations of privacy and security of such
magnitude that the intrusion may be ‘unreasonable’
even if likely to produce evidence of a crime.” 470
U.S. at 759. These procedures are clearly more
intrusive
than
visually
examining
and
photographing a suspect’s body or swabbing his
cheek for a DNA sample.
Indeed, in Maryland v. King (decided only a few
weeks after McNeely), this Court emphasized just
how different taking a cheek swab (also known as a
“buccal swab”) is from drawing blood:
A buccal swab is a far more gentle
process than a venipuncture to draw
blood. It involves but a light touch on
the inside of the cheek . . . and requires
no surgical intrusions beneath the skin.
The fact that an intrusion is negligible
is of central relevance to determining
reasonableness.
133 S. Ct. at 1969 (citations and internal quotation
marks omitted). See also id. at 1967-68 (“Buccal cell
collection involves wiping a small piece of filter paper
or a cotton swab similar to a Q-tip against the inside

23
cheek of an individual’s mouth to collect some skin
cells.
The procedure is quick and painless.”)
(citations and internal quotation marks omitted); id.
at 1977 (“the intrusion of a cheek swab to obtain a
DNA sample is a minimal one”); id. at 1979 (“a
buccal swab involves [a] . . . brief and . . . minimal
intrusion, . . . [a] gentle rub along the inside of the
cheek [that] does not break the skin, and . . . involves
virtually no risk, trauma, or pain”) (internal
quotation marks and citation omitted); id. at 1980
(cheek swab occasions only a “minor intrusion”); In re
Nontestimonial Identification Order Directed to R.H.,
762 A.2d at 1244 (“We do not believe that taking a
saliva sample by swabbing a pad on the inside of the
mouth involves the same intrusiveness as drawing
blood by piercing the skin with a needle.”).
4. Finally, Petitioners contend that King actually
supports their argument, because, in their view,
“[b]oth the majority and dissenting opinions proceed
from the same premise; that is, the Fourth
Amendment would not tolerate a search to collect
DNA if the justifying motive was the investigation of
crime.” Pet. 2. But neither the majority opinion nor
the dissent said any such thing. The issue in King
was whether any form of individualized suspicion
was required in order to take an arrestee’s DNA
sample. The majority held that it was not, because
the purpose of the sample was to identify the
arrestee as part of a routine booking procedure, not
to investigate whether he had committed crimes
other than the one for which he was arrested. See
133 S. Ct. at 1970 (“Here, the search effected by the
buccal swab of respondent falls within the category
of cases this Court has analyzed by reference to the

24
proposition that the touchstone of the Fourth
Amendment is reasonableness, not individualized
suspicion.”) (citation and internal quotation mark
omitted). The dissenters, however, believed that the
DNA was in fact taken for investigative purposes,
and that individualized suspicion therefore was
required. See id. at 1980 (Scalia, J., dissenting) (“It
is obvious that no . . . noninvestigative motive exists
in this case); id. (“Whenever this Court has allowed a
suspicionless search, it has insisted upon a justifying
motive apart from the investigation of crime.”).
Neither the majority nor the dissenters in King
addressed what standard of individualized suspicion
must be met in order to take DNA samples as part of
an investigation. And they certainly had no occasion
to consider whether the Fourth Amendment would
be satisfied by “narrowly circumscribed procedures”
allowing the taking of DNA samples, as part of an
investigation, based on reasonable suspicion that the
suspect committed the crime rather than a full
showing of probable cause.
In short, this Court has repeatedly stated that
narrowly circumscribed procedures like those
enacted by North Carolina and used in this case
might be a constitutional method to obtain
fingerprints, even without a full showing of probable
cause. And just last Term, this Court found that
taking DNA samples by swabbing a suspect’s cheek
is closely analogous to fingerprinting and
photographing a suspect, and results in only a
“negligible,” “minimal,” and “minor” intrusion. There
is thus nothing in this Court’s precedents that casts

25
a constitutional shadow on North Carolina’s NTO
statute or the use of it in this case.
D. This Case Is an Especially Poor Vehicle
to Resolve the Constitutional Question
Raised by Petitioners
Aside from the fact that the constitutional
question presented in the petition was never raised
or decided below, additional considerations make
this case an unsuitable one to resolve the issue.
First, no final judgment has been entered. The
absence of a final judgment alone is a “sufficient
ground for the denial” of the petition. HamiltonBrown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251,
258 (1916); see also Bhd. of Locomotive Firemen &
Enginemen v. Bangor & Aroostook R.R. Co., 389 U.S.
327, 328 (1967) (per curiam).
“[E]xcept in
extraordinary cases, [a] writ [of certiorari] is not
issued until final decree.” Hamilton-Brown Shoe Co.,
240 U.S. at 258; see also Eugene Gressman et al.,
supra § 4.18, at 280-81.
There are no such
extraordinary circumstances here.
Second, as both courts below noted, there is
“uncertainty as to whether North Carolina courts
would interpret the state NTO statute as
‘authorizing a search and seizure . . . on less than a
full showing of probable cause.’” Pet. App. 30a n.6.
See also Pet. App. 141a-142a. North Carolina courts
could thus make it unnecessary to decide the
constitutional issue presented here.
Third, Petitioners’ own complaint actually
concedes that, if there was probable cause to believe
that a rape was committed (as the Fourth Circuit

26
found, Pet. App. 35a), there would necessarily be
probable cause to believe Petitioners committed a
crime because their presence at the lacrosse party
would make them potential accomplices under North
Carolina law.
See C.A. App. 694 (para. 409)
(“[U]nder NC law, the team members who were
present at the party could be indicted and convicted
on the same charges—as accomplices—based solely
on an admission that they were present at the party.
In North Carolina, the accomplices to a crime are
punished no differently than its principals.”). A
decision by this Court that a full showing of probable
cause is required would therefore have no effect on
this case, and would thus be an advisory opinion,
something that this Court is without power to
render. See, e.g., Preiser v. Newkirk, 422 U.S. 395,
401-02 (1975) (“The exercise of judicial power under
Art. III of the Constitution depends on the existence
of a case or controversy. [Thus,] a federal court has
neither the power to render advisory opinions nor to
decide questions that cannot affect the rights of
litigants in the case before them. Its judgments must
resolve a real and substantial controversy admitting
of specific relief through a decree of a conclusive
character, as distinguished from an opinion advising
what the law would be upon a hypothetical state of
facts.”) (internal quotation marks and citations
omitted). See also Case of Hayburn, 2 U.S. 408
(1792) (no justiciable controversy exists when party
asks for advisory opinion).
Finally, even if this Court were to grant certiorari
and reverse, the officers who applied for the NTO
would still be entitled to qualified immunity, since it
was not clearly established that DNA samples and

27
physical examination and photographs require a full
showing of probable cause. For a right to be clearly
established, “existing precedent must have placed
the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083
(2011). Indeed, the Fourth Circuit has already said
that the officers are entitled to immunity on this
ground. Pet. App. 30a n.6.
CONCLUSION
For the reasons discussed above, the petition for
certiorari should be denied.
Respectfully submitted,

REGINALD B. GILLESPIE, JR.
WILSON & RATLEDGE, PLLC
4600 Marriott Drive,
Suite 400
Raleigh, NC 27612
Phone: [phone]
Attorney for Respondents
The City of Durham, et al.

OCTOBER 4, 2013

MICHAEL A. VATIS
Counsel of Record
ROGER E. WARIN
MATTHEW J. HERRINGTON
LEAH M. QUADRINO
JILL C. MAGUIRE
STEPTOE & JOHNSON LLP
1114 Avenue of the Americas
New York, NY 10036
[e-mail]
Phone: [phone]
Attorneys for Respondents
The City of Durham, et al.

APPENDIX

Appendix Table of Contents
Page
Excerpts from Plaintiffs’ Opposition to the
City of Durham’s Motion to Dismiss
Plaintiffs’
Amended
Complaint,
McFadyen v. Duke Univ., 786 F. Supp. 2d
887 (M.D.N.C. 2011) (1:07-cv-953),
dated October 6, 2008 (filed October 10,
2008) (pages 1-21 in original) ........................... 1a
Excerpts from Plaintiffs’ Opposition to
Defendant Himan’s Motion to Dismiss
Plaintiffs’
Amended
Complaint,
McFadyen v. Duke Univ., 786 F. Supp. 2d
887 (M.D.N.C. 2011) (1:07-cv-953),
dated October 10, 2008 (pages 1-12 & 2224 in original) .................................................. 38a
Excerpts from Brief of Appellees, McFadyen v.
Baker, 703 F.3d 636 (4th Cir. 2012) (No.
11-1458) (consolidated as Evans v.
Chalmers),
dated September 21, 2011 (pages 1-3 & 655 in original) .................................................. 64a

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF NORTH CAROLINA

RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
Civil Action No. 1:07-cv-953

PLAINTIFFS’ OPPOSITION TO THE CITY OF
DURHAM’S MOTION TO DISMISS
PLAINTIFFS’ AMENDED COMPLAINT

Dated: October 6, 2008
EKSTRAND & EKSTRAND LLP
Robert C. Ekstrand (NC Bar #26673)
Attn. Stefanie A. Sparks
811 Ninth Street, Suite 260
Durham, North Carolina 27705
Counsel for Plaintiffs Ryan McFadyen,
Matthew Wilson, and Breck Archer

2a
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................ i
STATEMENT OF THE CASE .................................. 1
NATURE OF THE CASE .......................................... 1
STATEMENT OF THE FACTS ................................ 2
QUESTIONS PRESENTED ..................................... 5
I.

STANDARD OF REVIEW ................................. 6

II.

THE AMENDED COMPLAINT STATES
ACTIONABLE
CLAIMS
UNDER
FEDERAL LAW AGAINST THE CITY. ........... 7
A. The
Amended
Complaint
States
Actionable Section 1983 Claims Against
the City. ........................................................... 7
1. The Amended Complaint States
Actionable Section 1983 Claims for
Searches and Seizures in Violation of
the Fourth Amendment. ........................... 9
a. The Franks Correcting Process
Applied ................................................. 9
b. The McFadyen Warrant Affidavit
............................................................. 17
1) Insufficient Nexus Between
Place to be Searched and
Things to Be Seized ...................... 19
2) Gottlieb Knew No Evidence of
a Crime Would Be Found in
McFadyen’s Dorm Room ............... 20

3a
2. The Third Cause of Action States an
Actionable Section 1983 Claim for
Abuse of Process Designed to Coerce
Plaintiffs
into
Submitting
to
Interrogation. .......................................... 21
3. The Fourth Cause of Action States a
Section 1983 Claim for Deprivation
of Property in Violation of the
Fourteenth Amendment. ......................... 23
4. The Sixth and Seventh Causes of
Action State a Section 1983 Claim
for Conduct that Shocks the
Conscience, in Violation of the
Fourteenth Amendment. ......................... 24
5. The Ninth Cause of Action States an
Actionable Section 1983 Claim for
Retaliation and Conspiracy in
Violation of Plaintiffs’ First, Fifth,
and Fourteenth Amendment Rights. ...... 25
6. The Tenth Cause of Action States an
Actionable Section 1983 Claim
Against the University Defendants
for Depriving Plaintiffs of the
Privileges and Immunities Afforded
to North Carolina Citizens in
Violation of 42 U.S.C. § 1983. ................. 27
B. THE
AMENDED
COMPLAINT
STATES
ACTIONABLE SECTION
1983 CLAIMS AGAINST THE CITY OF
DURHAM. ..................................................... 28
1. Summary of the Plaintiffs’ Monell
Claims ...................................................... 29

4a
2. The Twelfth Cause of Action
Sufficiently Alleges the Elements of
a § 1983 Claim Against the City of
Durham. ................................................... 30
a. The City of Durham and Duke
University are Liable Under §
1983 for Civil Rights Violations
Caused by Official Custom and
Policy. ................................................. 30
b. City of Durham and Duke
University
are
Liable
for
Constitutional Violations that
were Caused and Ratified by
Officials with Final Policymaking
Authority. ........................................... 31
c. The City of Durham and Duke
University are Liable for Civil
Rights Violations Caused by
Nifong pursuant to Delegated
Authority
over
the
Police
Investigation. ..................................... 32
d. The City of Durham is Liable for
the Duke Police/Durham Police
Supervising Defendants’ Failure
to Supervise the Duke/Durham
Police Defendants. ............................. 34
e. The City of Durham is Liable for
Civil Rights Violations Caused by
the City’s Failure to Train its
Police Officers. .................................... 34
III. THE AMENDED COMPLAINT STATES
ACTIONABLE
CLAIMS
FOR

5a
PARTICIPATION IN CIVIL RIGHTS
CONSPIRACIES. ............................................. 35
A. Conspiracies in Violation of 42 U.S.C. §
1983. .............................................................. 36
B. The
Amended
Complaint
States
Actionable Claims for Conspiracy in
Violation of 42 U.S.C. § 1985. ...................... 37
C. The Amended Complaint States a
Violation of 42 U.S.C. §1986. ....................... 39
D. Animus Based on State Citizenship is
Actionable Under § 1985. ............................. 39
E. The § 1985 Claims Allege Racial
Animus of Two Types. .................................. 39
1. Section 1985 Directs Itself to
Animus Toward Any Race. ..................... 39
2. Defendants Were Motivated by,
Fomented, and Took Advantage of
Racial Animus. ........................................ 40
IV. THE AMENDED COMPLAINT STATES
ACTIONABLE CLAIMS UNDER STATE
LAW AGAINST THE SUPERVISING
DEFENDANTS. ............................................... 42
A. The Amended Complaint States a
Common Law Obstruction of Justice
Claim. ............................................................ 42
B. The Amended Complaint States a
Common Law Abuse of Process Claim
Against the City. ........................................... 43

6a
C. The Amended Complaint States an
Intentional Infliction of Emotional
Distress Claim Against the City. ................. 44
D. The Amended Complaint States an
Aiding or Abetting the Breach of
Fiduciary Duty Claim Against the City. ...... 46
E. The Amended Complaint States a
Negligence Claim Against the City. ............. 47
V.

DEFENDANTS MAKE NO OTHER
ARGUMENTS
FOR
DISMISSAL;
PLAINTIFFS REQUEST LEAVE TO
COMMENCE DISCOVERY. ........................... 50

CONCLUSION ........................................................ 51

7a
STATEMENT OF THE CASE
The Amended Complaint describes a combination
of actors and entities referred to as the Consortium.
For thirteen months beginning in March 2006, the
Consortium’s ultimate objective was to railroad the
Plaintiffs and their 44 teammates into convictions as
either principles or accomplices to a horrific, violent
crime they knew never happened. The allegations
describe a willful, malicious, and calculating
conspiracy
of
multiple
dimensions.
Acting
individually and in concert, the City’s employees,
individually, in concert with others (some named as
codefendants and others not), and pursuant to the
City’s policies, customs, and its final policymakers’
directives,
concealed
exonerating
evidence,
manufactured inculpatory evidence, and stigmatized
the Plaintiffs by subjecting them to public outrage,
public condemnation, and infamy in the minds of
millions of people. The City’s policies, customs, and
policymaker directives caused the Plaintiffs to be
subjected to executive conduct that shocks the
conscience. Maybe the most unsettling of all are
those who knew of the wrongs conspired to be done
to Plaintiffs, and had the power to prevent or aid in
preventing them, and instead ‘turned a blind eye’
and did nothing.
NATURE OF THE CASE
Plaintiffs filed this action on December 18, 2007
and amended that filing on April 17, 2008. Pursuant
to a request from this Court regarding the location of
the audio and video exhibits embedded within the
First Amended Complaint (“AC”), Plaintiffs re-filed
the AC on April 18, 2008 with those embedded

8a
exhibits as separate documents. Except for the
location of the exhibits, the two “First Amended
Complaints” are identical. All Defendants filed
Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)
(6) on July 2, 2008. This Memorandum is filed
pursuant to the Court’s Order of October 7, 2008
[Document #72], granting Plaintiffs’ Motion for
Leave to File Opposition Briefs [Document #71], and
authorizing Plaintiffs to file their Responses on or
before October 10, 2008.1
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.
1 Plaintiffs' Opposition Brief is filed in response to City
of Durham's Motion to Dismiss [Document #61] and supporting
Memorandum [Document #62]. The City of Durham's
supporting brief is cited herein as "City Br." The individual
supporting briefs of the City’s co-defendants 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.”

9a
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.

•

Police ignored the Warrant requirement if
the home to be searched was leased by a
Duke Student. AC ¶¶ 116-128.

•

Police ignored the probable cause
requirement for the seizure of any person if

10a
the person to be seized was a Duke
student. AC ¶ 113.
•

Police fabrication of evidence (offered
directly by police officers in courts of law to
make baseless charges brought against
Duke Students stick.) AC ¶175.

•

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 ¶¶ 120-21.

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, from the
beginning of the “investigation,” Duke and Durham
had no evidence of a sexual assault save Mangum’s
recanted claim, and they certainly had clear proof
that Plaintiffs and their team had nothing to do with
one. A.C.§§VI- XL. They had nothing. AC ¶¶ 52, 5768, 69-79. Recall Nifong’s assessment of the evidence:
“You know, we’re f****d,” (AC ¶ 593) or Himan’s
reaction to the decision to proceed to indictment in

11a
April: “with what?” AC ¶816. And from that poisoned
field 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

12a
AC §§ XIII-XXV, XXIX-XXX, XXXIV. Much
of this was engineered through JointCommand 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.

13a
QUESTIONS PRESENTED
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 stigmaplus 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

14a
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?

15a
ARGUMENT
I.

STANDARD OF REVIEW

A motion to dismiss for failure to state a claim
may be granted “only in very limited circumstances.”
Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324,
325 (4th Cir. 1989). In examining a Rule 12(b)(6)
motion, “the court should accept as true all wellpleaded allegations and should view the complaint in
a light most favorable to the plaintiff.” Salami v.
Monroe, No. 1:07CV621, 2008 WL 2981553, at *5
(M.D.N.C. Aug. 1, 2008) (quoting Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). Though
the complaint is not required to encompass detailed
factual allegations, “a plaintiff’s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Id. (quotations and alterations in original)
(quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955,
1964-65
(2007)).
The
complaint’s
“[f]actual
allegations must be enough to raise a right to relief
above the speculative level.” Id. (quoting Twombly,
127 S.Ct. at 1965). “[O]nce a claim has been stated
adequately, it may be supported by showing any set
of facts consistent with the allegations in the
complaint.” Id. (quoting Twombly, 127 S.Ct. at 1969).
Further, where Plaintiffs have asserted a civil
rights action, the Court “must be especially solicitous
of the wrongs alleged and must not dismiss the
complaint unless it appears to a certainty that the
plaintiff would not be entitled to relief under any
legal theory which might plausibly be suggested by
the facts alleged.” Veney v. Wyche, 293 F.3d 726, 730

16a
(4th Cir. 2002) (internal quotations omitted). With
these standards in mind, this Memorandum will
identify the factual basis in the Amended Complaint
for the causes of action asserted against the City and
respond to their arguments for dismissal.
II. THE
AMENDED
COMPLAINT
STATES
ACTIONABLE
CLAIMS
UNDER FEDERAL LAW AGAINST
THE CITY.
A. The Amended Complaint States
Actionable Section 1983 Claims
Against the City.
The First through Fifteenth Causes of Action
allege violations of 42 U.S.C. § 1983 (the “§ 1983
Claims”). At this early stage, the Court must
determine whether each of these Causes of Action
alleges facts sufficient to state the elements of
Plaintiffs’ § 1983 claims against the City.2 See Green
v. Maroules, 211 F.App’x 159, 161 (4th Cir. 2006).
Based on statute's text, the Supreme Court held that
a Section 1983 claim requires only two essential
allegations:
2

Section 1983 provides:

[E]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proceeding for redress[.] 42 U.S.C. § 1983
(2000).

17a
By the plain terms of section 1983, two–
and only two–allegations are required
in order to state a cause of action under
that statute. First, the plaintiff must
allege that some person has deprived
him of a federal right. Second, he must
allege that the person who deprives
them of that right acted under color of
state or territorial law.
Gomez v. Toledo, 446 U.S. 635, 640 (1980). Section
1983 does not itself create or establish substantive
rights; it provides "a remedy" where a plaintiff
demonstrates a violation of a right protected by the
federal Constitution, or by a federal statute other
than §1983. Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 617 (1979). Analytically,
however, it may be more useful to understand a
Section 1983 action as having four elements of proof:
(1) a violation of rights protected by the federal
Constitution or created by federal statute or
regulation (2) proximately caused (3) by the conduct
of a "person" (4) who acted "under color of any
statute, ordinance, regulation, custom or usage, of
any State or Territory or the District of Columbia."
42 U.S.C. § 1983 (2000). See, e.g., Martinez v.
California, 404 U.S. 277 (1980). In addition, where a
plaintiff -as here- seeks to hold a municipality liable,
under § 1983, there is a fifth element: that the
violation of plaintiff's federal right was attributable
to the enforcement of a municipal policy or practice.
Monell v. Dep't of Social Servs. of N.Y., 463 U.S. 658
(1978).

18a
The Amended Complaint alleges claims of three
types against the City. First, the Plaintiffs § 1983
claims against the City for deprivations of federal
rights, including the First, Fourth, and Fourteenth.
These are the Monell claims, arising out of official
conduct, policy, and custom attributable either to the
City or its policymaking officials. Next, Plaintiffs
allege civil rights conspiracy claims under 42 U.S.C.
§§ 1983, 1985, and 1986. They are brought against
the City, either by naming the City directly or
indirectly by naming its employees or agents in their
official capacities. The City is the real party of
interest in these causes of action. Third, Plaintiffs
state several official capacity claims against the City
under North Carolina Law. Here, we respond to the
City’s arguments for the dismissal of Plaintiffs
municipal liability claims and summarize, briefly,
the other claims which the City has named.
1. The Amended Complaint States
Actionable Section 1983 Claims
for Searches and Seizures in
Violation
of
the
Fourth
Amendment.
The First and Second Causes of Action state §
1983 Claims against Gottlieb, Himan, and others for
unreasonable searches and seizures in violation of
Fourth and Fourteenth Amendments. AC ¶¶ 904-17,
918-28. Plaintiffs identify two discrete searches and
seizures: (1) the Non-Testimonial Identification
(“NTID Order”) (the First Cause of Action), id. ¶ 907,
and (2) the Search Warrant for Ryan McFadyen’s
dorm room (the “McFadyen Warrant”) (the Second
Cause of Action) id. ¶ 920. The McFadyen Search

19a
Affidavit adds only one new allegation; the two
Affidavits are nearly identical. Below, Plaintiffs
apply the Franks “correcting” analysis to these two
affidavits to make the showing required at this early
stage to demonstrate that the fabrications and
omissions
were
necessary
to
the
judicial
determination of probable cause.
a. The
Franks
Process Applied

Correcting

PART I
NTID ORDER
PROBABLE CAUSE TO BELIEVE A FELONY
WAS COMMITTED
AFFIDAVIT: On 3/14/06 at 1:22am, Durham City
Police Officers were called to the Kroger on
Hillsborough Road. The victim, a 27 year old
black female, reported to the officers that she
had been raped and sexually assaulted at 610
North Buchanan Blvd.
This statement fabricates and omits material
facts known to the affiant:
•

First, Mangum did not “report to the
officers” at Kroger that she was assaulted
at all; she nodded in response to a question
during her involuntary commitment
proceedings after she learned her children
may be taken away from her. AC ¶ 382.

•

Second, within the first 48 hours after her
initial false accusation, Mangum was
questioned by at least 8 different medical
providers and 3 Durham Police Officers,

20a
and, in those interviews, (a) Mangum
recanted when questioned by Sgt. Shelton,
A.C. ¶ 262; (b) in the 11 renditions of the
story, Mangum never gave the same story
twice, varying even on the question of
where she came from-Raleigh or Durham;
and (c) the only consistent element of
Mangum’s account was that Pittman had
stolen her money, her purse, her ID, and
her phone. AC ¶¶ 221, 271, 328.
•

Third, that the call was for a “10-56” (code
meaning “intoxicated pedestrian”); it was
placed not by Mangum but by a Kroger
security guard, Angel Altmon; and Altmon
reported that Mangum was “an intoxicated
lady, in someone else’s car,” and “the lady
won’t get out of the car.” AC ¶¶ 225-27,
Exh. 9. Third, that the Kroger security
guard’s opinion was that there “Ain’t no
way”
Mangum
had
been
sexually
assaulted, based on her observations.

•

Fourth, the reason Kim Pittman took
Mangum to the Kroger was to seek the
protection and aid of a security guard she
knew would be there; Pittman feared for
her own safety because Mangum’s behavior
in the car was bizarre and threatening;
that Mangum told Pittman, “go ahead, put
marks on me”; and that Pittman claimed
Mangum was “talking crazy.” AC ¶ 382.

•

Fifth, when police approached Mangum in
Pittman’s
car,
Mangum
“feigned
unconsciousness,” then fought being

21a
removed from the car by holding onto the
parking brake, which required Sgt. Shelton
to apply a “bent-wrist come-along.” AC ¶
233.
•

Sixth, the entire protracted period
Mangum was in the Kroger parking lot, she
did not say or suggest to any officer there
that she had been assaulted; Mangum gave
no indication nor any reason to believe that
Mangum had been sexually assaulted; and
Durham PD has dispatch audio of the
responding officer saying “she’s breathing,
appears to be fine, not in distress, just
passed out drunk.” AC ¶¶ 40-47, Exh. 10.

•

Seventh, that Mangum’s behavior became
so bizarre and dangerous that she met the
standards for involuntary commitment;
that Sgt. Shelton believed she needed
immediate psychiatric care; and that
Mangum was transported to Durham
Center Access, where she refused to
cooperate. AC ¶ 243.

•

Eighth, that Nurse Wright asked Mangum
a series of questions to which she did not
respond, but after Mangum overheard an
officer on the radio direct someone to
Mangum’s house to check on her children
and to call DSS if no one is supervising
them, Mangum nodded (yes) to Nurse
Wright’s question, “Were you raped?” AC
¶¶ 225-238; id. § VIII (“Mangum Nods
‘Rape’”).

22a
AFFIDAVIT: After a few minutes, the males
watching them began to get excited and
aggressive.
This statement fabricates and omits material
facts:
•

Police knew from Himan’s interview of
Pittman on March 22, 2006, that
Mangum’s behavior was bizarre and the
young men present quickly became
“uncomfortable and/or disinterested.” AC ¶
202.

AFFIDAVIT: “One male stated to the women
“I’m gonna shove this up you” while holding a
broom stick up in the air so they could see it.
This statement fabricates and omits material
facts known to the affiant:
•

Gottlieb and Himan learned of ‘the
broomstick exchange’ from the March 16th
interviews of Evans, Flannery, and Zash.
None of them said that anyone did that.
What was said was far different, and it was
Pittman’s first excuse for ending the
evening before Mangum’s behavior got any
more bizarre. Gottlieb and Himan twisted
the voluntarily given statements into a
complete fabrication. AC ¶¶ 421-422.

AFFIDAVIT: The victim and her fellow dancer
decided to leave because they were concerned
for their safety. After the two women exited the
residence and got into a vehicle, they were
approached by one of the suspects. He

23a
apologized and requested they go back inside
and continue to dance.
This statement fabricates and omits material
facts known to the affiant:
•

Pictures reveal Mangum following the
dance trying to get back into the house.
She had been locked out by the boys for
their own safety. She is just standing still,
smiling. There is no indication of fear for
her safety. AC ¶¶ 397.

•

Mangum’s cell phone records reveal that,
at that time, she called her agency,
Centerfold. Mangum was looking for more
work elsewhere. AC ¶¶ 204, 206-207.

AFFIDAVIT: The victim arrived at the
residence and joined the other female dancer
around 11:30pm on 3/13/2006.
This statement omits facts known to the affiant:
•

Mangum (1) was dropped off at the
residence around 11:40pm, (2) she was 40
minutes late, (3) that she was staggering
when she arrived, and (4) appeared to have
come from another event. AC ¶ 197.

AFFIDAVIT: Shortly after going back into the
dwelling the two women were separated. Two
males, Adam and Matt pulled the victim into
the bathroom.
This statement fabricates and omits material
facts:

24a
•

Kim Pittman told Inv. Himan in a
telephone
interview
that
Mangum’s
accusation was a “crock.” AC ¶ 385.

•

Even after Pittman was forced to add an
addendum to her written statement,
Pittman described Mangum as going back
into the house to make more money—
Pittman does not say that she went back
into the house with her and that they were
separated. AC ¶¶ 385-386.

•

The names Adam and Matt were never give
during her 11 renditions. AC ¶ 322.3

AFFIDAVIT: The victim stated she tried to
leave, but the three males (Adam, Brett, and
Matt) forcefully held her legs and arms and
raped and sexually assaulted her anally,
vaginally, and orally. The victim stated she was
hit, kicked, and strangled during the assault.
Medical records and interviews that were
obtained by a subpoena revealed the victim
had signs, symptoms, and injuries consistent
with being raped and sexually assaulted
vaginally and anally.
This statement fabricates and omits material
facts known to the affiant:
•

There was no swelling, edema, cuts or
abrasions (even microscopic) of the anus or

Note, Defendants Levicy’s account with the names
included is alleged to be a fabrication made to harmonize a
“contemporaneous” account with this affidavit).
3

25a
the exterior pelvic region. No cuts,
abrasions, or abnormalities on or around
Mangum’s vagina or anus were observed or
documented with the highmagnification
coloposcope. AC ¶ 308.
•

Doctors and nurses concluded that
Mangum was making false claims of pain
because their tests revealed no associated
symptoms of pain at all. AC ¶ 325.

•

The only documented injuries in the SAER
were injuries to Mangum’s knees and
ankles. However, digitally time-stamped
photos taken during the dance show the
exact same injuries were already present
on her knees and ankles before she arrived
at 610 N. Buchanan. AC ¶ 326.

•

Mangum denied receiving any physical
blows by the hand, AC ¶ 308, and in the
many ‘Systems Examinations’ that were
done by DUMC doctors and nurses on the
morning of March 14, 2006 (and the UNC
doctors and nurses the next day), all
concluded that Mangum’s head, back, neck,
chest, breast, nose, throat, mouth,
abdomen, and upper and lower extremities
were
‘normal,’
and
Mangum
was
consistently noted to be in ‘no obvious
discomfort,’ even when she was scoring her
pain as ‘10 out of 10.’ AC ¶ 309.

AFFIDAVIT: The victim reported that she was
sexually assaulted for an approximate 30
minute time period by the three males.

26a
This statement fabricates and omits material
facts known to the affiant:
•

During her initial 11 renditions of the
night, Mangum claimed that 1, 20, and 5
men raped her. A.C. ¶ 321. Mangum was
treated and evaluated at Duke University
Medical Center Emergency Room shortly
after the attack took place. Mangum was
not treated, merely kept for observation.

•

Long after she arrived, DUMC staff
initiated a Sexual Assault Examination
(SAE), which was abandoned in the middle
of the first exam. No pelvic exam was
conducted. No rectal exam was conducted.
No forensic toxicology tests were ordered.
No forensic blood drawn was taken.

•

The medical staff, Durham police officers
and Duke police officers who interacted
with her believed she was lying. AC ¶¶
302-06.

AFFIDAVIT: She claimed she was clawing at
one of the suspect’s arms in an attempt to
breathe while being strangled.
This statement fabricates a material fact known
to the affiant:
•

Mangum did not make this claim in any of
the multiple, varying accounts that she
gave police officers and medical providers
on March 14th, 15th, or 16th, or in her
written statement on April 6th. AC ¶ 424.

27a
AFFIDAVIT: The victim’s make up bag, cell
phone, and identification were also located
inside the residence totaling $160.00 consistent
with the victim claiming $400.00 cash in all
twenty dollar bills was taken from her purse
immediately after the rape.
•

$160.00 is not consistent with $400.00, and
she also claimed the amount “stolen” was
$2,000.00. Further, Mangum also claimed
that her money (1) was stolen, (2) was not
stolen, (3) was stolen by “Nikki,” (4) stolen
by one of several of “the attackers,” (5) was
deposited into a nearby ATM account, and
(6) left in the back seat of Officer Barfield’s
patrol car. AC ¶ 321.

AFFIDAVIT: A Forensic Sexual Assault Nurse
(SANE)
and
Physician
conducted
the
examination. Medical records and interviews
that were obtained by a subpoena revealed the
victim had signs, symptoms, and injuries
consistent with being raped and sexually
assaulted vaginally and anally. Furthermore,
the SANE nurse stated the injuries and her
behavior were consistent with a traumatic
experience.
This statement fabricates and omits material
facts known to the affiant:
•

Levicy was a “SANE-in-Training” and was
not qualified or competent to conduct an
SAE under accreditation standards or
DUHS’s internal policies.

28a
•

No qualified SANE conducted the exam; a
resident, Dr. Julie Manly did.

•

Levicy was also not competent to collect or
interpret forensic medical evidence. Levicy
agreed with Gottlieb and Himan to back up
their use of her “observations” in
Mangum’s SAE, in court as an “expert” if
necessary. AC ¶ 301. By signing the SAER
and failing to clearly document those facts
on the SAER, Levicy deliberately falsified a
forensic medical record in order to aid
Himan and Gottlieb’s attempt to obtain
search and seizure orders by defrauding
the Court. AC ¶ 299.

•

Fourth-year resident Julie Manly found no
injury
to
Mangum’s
pelvic
region
whatsoever, including the vaginal walls,
cervix, rectum, or anus. The only notation
Manly made was ‘diffuse edema of the
vaginal walls.’ Diffuse edema is not an
injury; it is a symptom. It is caused by
many things. Further diffuse edema cannot
be clinically identified to a reasonable
degree of medical certainty without a
baseline reference for comparison (e.g., a
prior observation of the vaginal walls at a
time when they were not edemic). AC ¶
306.

AFFIDAVIT: In a non-custodial interview with
Daniel Flannery, resident of 610 N. Buchanan
and Duke Lacrosse Team Captain; Mr.
Flannery admitted using an alias to make the

29a
reservation to have the dancers attend the
Lacrosse Team Party.
This statement fabricates and omits material
facts known to the affiant:
•

During Police questioning on March 16th,
Dan Flannery, told police that, when he
called the agency, he gave the name Dan
Flanagan. No witness ever said that Dan
identified himself as Adam, rather
everyone was calling him Dan. AC ¶ 432.

AFFIDAVIT: The victim and her fellow dancer
decided to leave because they were concerned
for their safety. After the two women exited the
residence and got into a vehicle, they were
approached by one of the suspects. He
apologized and requested they go back inside
and continue to dance.
•

Jason Bissey, a neighbor, told police that
he saw Mangum staggering around the
side of the house, heading toward the back
yard saying she was looking for her shoe.
AC ¶¶ 387-90. Kim Pittman told police she
was afraid of Mangum. AC ¶ 199.

AFFIDAVIT: During a search warrant at 610 N.
Buchanan on 3-16-2006 the victim’s four red
polished fingernails were recovered inside the
residence consistent to her version of the
attack.
•

This statement omits the fact that other
unpainted fingernails and nail polishing
and painting accessories were found in the
bathroom, inside Mangum’s purse, and on

30a
a computer component, which were seized
by police in the search of 610 N. Buchanan.
AC ¶ 425.
PART II
NTID ORDER
“REASONABLE GROUNDS” TO BELIEVE
THAT McFADYEN, WILSON, OR ARCHER
COMMITTED ANY FELONY LISTED
AFFIDAVIT: All of the parties named in this
application with the exception of the last five
were named by the three residents of 610 N.
Buchanan as being present at the party. Due to
the fact that the residents of 610 N. Buchanan
stated that all the attendees were their fellow
Duke Lacrosse Team Members and that there
were so many attendees, all of the white male
Duke Lacrosse Team Members were listed
since they were all aware of the party and
could have been present.
This statement raises the most glaring omission
of those which should have been included in this
section of the Gottlieb-Himan Affidavit:
•

On March 16, 2006, Crystal Mangum—
herself—ruled out McFadyen, Wilson, and
Archer as possible suspects. On that day,
Clayton, Himan, and Gottlieb showed
Mangum each of their pictures, and
Mangum did not recognize any of them. AC
¶¶ 383-84.

•

By March 21, 2006, additional photo
identification procedures coupled with

31a
Mangum’s “general descriptions” of her
“attackers” ruled out every other person at
whom the NTID Order was directed. The
failure to advise the judge of this fact is
sufficient—standing
alone—to
hold
Gottlieb and Himan liable for the harms
caused by their abuse of it. AC ¶¶ 92-100.
•

In the year 2006, a reasonable officer in
Gottlieb’s, Clayton’s, and Himan’s position
would know—even to a moral certainty—
that what they were doing violated clearly
established law. Further, a reasonable
officer would also know that leaking the
NTID Order they obtained by fraud to the
press to ignite a media firestorm and to
publicly vilify Plaintiffs not only violates
clearly established law, but is also
arbitrary and evinces corrupt, malicious,
depraved, and evil motives that shock the
conscience.

•

The AC alleges additional fabrications and
omissions, and this could continue on;
however, the foregoing allegations from the
AC sufficiently allege that the Affidavits
were designed to mislead, egregiously so.

AFFIDAVIT: Numerous persons who attended
this party are seniors at Duke University and
have permanent addresses outside of the State
of North Carolina, making it difficult if not
impossible to collect the DNA evidence in the
future when necessary.

32a
The Court may take judicial notice that this
statement is false, and, if not, the Affidavit
establishes its falsity. AC ¶ 757.
AFFIDAVIT: She stated one male identified
himself as Adam, but everyone as the party
told her they were members of the Duke
Baseball and Track Team to hide the true
identity of their sports affiliation—Duke
Lacrosse Team Members. In a noncustodial
interview with Daniel Flannery, resident of 610
N. Buchanan and Duke Lacrosse Team
Captain; Mr. Flannery admitted using an alias
to make the reservation to have the dancers
attend the Lacrosse Team Party.
Both Gottlieb and Himan were involved in the
search of 610 N. Buchanan, and, it was obvious that
no one who lived there sought to conceal their team
or school affiliation. To the contrary, the walls were
covered with ‘Duke Lacrosse’ posters, banners, and
other insignia. AC ¶ 436. Further, Dan Flannery had
already voluntarily provided a DNA sample, pubic
hair sample and everything else the police asked of
him. AC ¶ 432; Kim Pittman refers to Dan in her
statement and yet makes no reference to any alias.
AC ¶ 385.
b. The
McFadyen
Affidavit

Warrant

The only additional “fact” asserted in the
Affidavit for the McFadyen Warrant was text
claimed to be excerpted from an email provided by an
“anonymous source”. See Gottlieb Br. Exh. 3 at 94.
Because the Affidavit stated that the source of the
text allegedly extracted from an email was from an

33a
“anonymous source” the Affidavit needed to contain
some indicia of the anonymous source’s reliability to
be considered in the probable cause determination.
Florida v. J.L., 529 U.S. 266, 269-70 (2000). Six
years prior to the McFadyen Search Warrant, the
United States Supreme Court issued a unanimous
decision holding that an anonymous tip claiming
that a juvenile standing on an identified street
corner unlawfully possessed a gun was not sufficient
to satisfy the reasonable suspicion standard required
to justify the brief Terry stop of the individual when
police found him standing on the corner. Id. at 279.
The Court held that the anonymous tip, standing
alone, lacked sufficient indicia of the anonymous
informant’s reliability. See id. (“[u]nlike a tip from a
known informant whose reputation can be assessed
and who can be held responsible if her allegations
turn out to be fabricated, ‘an anonymous tip alone
seldom demonstrates the informant's basis of
knowledge or veracity,’” (internal citations omitted)
(quoting Alabama v. White, 496 U.S. 325, 329
(1990)).
Like the anonymous tip in J.L., Gottlieb and
Himan’s Search Warrant Affidavit contained no
factual material whatsoever relating to the
reliability of the “anonymous” source of the
disembodied text. See id. In addition, Gottlieb and
Himan’s “anonymous source” had taken affirmative
steps to ensure there would be no way for police to
discover his identity. Himan, in sworn testimony,
later admitted that the other officers tried to identify
the anonymous source through an inquiry with the
source’s email account provider (Google); however,
Google advised them that Gottlieb’s anonymous e-

34a
mailer created the email account used to send the
‘tip’ without providing Google any of his or her
identifying information. The source’s deliberate
effort to prevent police from discovering his or her
identity is devastating to the e-mailer’s reliability.
Cf. J.L., 529 U.S. at 276 (“If an informant places his
anonymity at risk, a court can consider this factor in
weighing the reliability of the tip.”). Gottlieb omitted
that material fact from the Search Warrant Affidavit
also. Gottlieb Br. Exh. 2.
Information from an anonymous source, be it the
location of a young man with a gun or disembodied
text alleged to have been sent from a person’s email
account, is presumptively unreliable, even as a basis
for a minimally intrusive Terry stop on the street.
J.L., 529 U.S. at 270. Therefore, standing alone, as it
must in the corrected Affidavit, Gottlieb’s
disembodied email text would not have justified even
a Terry stop of Ryan McFadyen under the Supreme
Court’s cases. See, e.g., J.L., 529 U.S. 266. It goes
without saying that “reasonable suspicion” is a far
cry from probable cause, and probable cause is what
Gottlieb was required to establish in his Affidavit for
a Warrant to Search Ryan McFadyen’s dorm room.
The corrected affidavit offers no indicia of the
reliability of the e-mailer. The disembodied e-mail
text is, therefore, unreliable as a matter of law, see
J.L., 529 U.S. at 271-73, and it could not be used to
support the probable cause determination at the time
Gottlieb applied for the McFadyen Search Warrant.
Gottlieb and Himan may not use it in this forum. No
reasonable officer would believe that supplementing
the corrected affidavit with the disembodied text of
an email sent by an unknown and unknowable

35a
“anonymous source” would establish probable cause.
See generally J.L, 529 U.S. 266, and the cases cited
therein; Illinois v. Gates, 462 U.S. 213, 239 (1983);
United States v. Tate, 524 F.3d 449, 457 (4th Cir.
2008) (officer’s affidavit “provided no details
regarding the source or context” of information, and,
as such, the information could not support issuance
of a search warrant); United States v. Wilhelm, 80
F.3d 116, 119-21 (4th Cir. 1996) (officer’s search
warrant affidavit failed to establish “anonymous”
caller’s reliability where caller provided information
that almost anyone who “occasionally watches the
evening news” could have given, reversing conviction
based on fruits of the search).
1) Insufficient
Nexus
Between
Place
to
be
Searched and Things to Be
Seized
Furthermore, the Affidavit fails to establish any
nexus between the place to be searched (a dorm room
on Duke’s Main Campus) and the crimes the
Affidavit alleges (rape, sexual offense, kidnapping at
610 N. Buchanan Blvd. and a “conspiracy to commit
murder” (via the internet)). See Gottlieb Br. Exh. 2.
Gottlieb submitted the McFadyen Search Warrant
two weeks after the alleged “conspiracy to commit
murder” was to be consummated, and included no
evidence tending to show that there was a conspiracy
to commit murder. Id. The “information” was
therefore fatally stale at the time Gottlieb included it
in the Affidavit. See, e.g., United States v. Mohn, No.
1:05CR319-1, 2006 WL 156878 *8 (M.D.N.C. Jan. 20,
2006) (quoting United States v. Gonzales, 399 F.3d

36a
1225, 1230 (10th Cir. 2005)). It is also unlikely that
any evidence of such a conspiracy would exist in
McFadyen’s dorm room two weeks later. AC ¶ 605.
Finally, there is no evidence of an “agreement” of any
kind. The AC alleges that Gottlieb could not include
any reply to the email suggesting agreement because
either, (1) he did not have them, or (2) he had them
and knew they provided the context that gave the lie
to any suggestion of a “conspiracy” to do anything
(lawful or unlawful). See id. ¶¶ 598-99, 603.
Informing all of those allegations is another, very
important one: the AC’s disquieting allegation that
Gottlieb and Himan made the McFadyen Search
Warrant Affidavit was within hours after Nifong
advised them that they were “f***ed”—his vulgar
assessment of their circumstances in light of what
Gottlieb and Himan had just told him about the state
of the evidence, the lies that were told in the NTID,
and the national firestorm it had ignited. See id. ¶¶
591-93, 598-99, 600, 610.
2) Gottlieb
Knew
No
Evidence of a Crime Would
Be Found in McFadyen’s
Dorm Room
In addition, the AC alleges ample proof that
Gottlieb and his co-conspirators knew the
disembodied email text was not evidence of any
crime. For example, Gottlieb did not seek a warrant
to search the room or home of the young man who
replied, “I’ll bring the Phil Collins.” See AC ¶¶ 603,
608. Upon the release of the Affidavit, the police
department advised Ryan’s counsel that Ryan was
free to go to his home in New Jersey because the

37a
police department had no plans on arresting him for
the conspiracy to commit murder. Id. ¶ 701. Finally,
many of the “things to be seized” were already in the
police department’s possession, including, for
example the “dancer’s white shoe.” Id. ¶ 606; Gottlieb
Br. Exh. 2 at 7.
Taken together, these allegations are sufficient to
establish an actionable §1983 Claim against Sgt.
M.D. Gottlieb for causing the Plaintiffs to be
subjected to NTID procedures without probable
cause to believe that the felonies alleged had been
committed, or “reasonable grounds” to believe that
Plaintiffs committed them. They are also sufficient to
state an actionable § 1983 claim against Sgt. M.D.
Gottlieb for causing Ryan McFadyen to be subjected
to searches and seizures of his home, papers and
effects without probable cause to believe a crime had
been committed or probable cause to believe that
evidence of any such crime would be found in his
dorm room two weeks hence. Gottlieb’s motion to
dismiss these causes of action must be denied.
***

38a
UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF NORTH CAROLINA

RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
Civil Action No. 1:07-cv-953

PLAINTIFFS’ OPPOSITION TO DEFENDANT
HIMAN’S MOTION TO DISMISS PLAINTIFFS’
AMENDED COMPLAINT

Dated: October 10, 2008
EKSTRAND & EKSTRAND LLP
Robert C. Ekstrand (NC Bar #26673)
Attn. Stefanie A. Sparks
811 Ninth Street, Suite 260
Durham, North Carolina 27705
Counsel for Plaintiffs Ryan McFadyen,
Matthew Wilson, and Breck Archer

39a
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................. i
STATEMENT OF THE CASE ................................... 1
NATURE OF THE PROCEEDINGS ......................... 1
STATEMENT OF THE FACTS ................................. 2
QUESTIONS PRESENTED ...................................... 2
ARGUMENT .............................................................. 3
I.

STANDARD OF REVIEW .................................. 3

II.

THE AMENDED COMPLAINT STATES
ACTIONABLE
CLAIMS
UNDER
FEDERAL
LAW
AGAINST
DEFENDANT HIMAN. ...................................... 4
A. The
Amended
Complaint
States
Actionable Section 1983 Claims Against
Defendant Himan. ........................................... 4
1. The First and Second Causes of
Action State Actionable Section 1983
Claims for Subjecting Plaintiffs to
Searches and Seizures Without
Probable Cause or Reasonable
Suspicion in Violation of the Fourth
and Fourteenth Amendments. ................... 6
a. Plaintiffs Do Not “Concede”
There Was Probable Cause for
the NTID or Search Warrant ............... 7
b. Himan’s
Fabrications
and
Omissions were Necessary to the
Judicial
Determination
of
Probable Cause ..................................... 8

40a
c. Eliminating the Fabrications and
Adding
Material
Omissions
Defeats Probable Cause ........................ 9
d. Rule 9(b) Does Not Impose a
Heightened Pleading Standard
Upon Plaintiffs’ First (or Second)
Cause of Action ................................... 11
e. Plaintiffs never asserted “a right
to be free of investigation.” ................. 12
2. The Third Cause of Action States an
Actionable Section 1983 Claim for
Abuse of Process Designed to Coerce
Plaintiffs
into
Submitting
to
Interrogation ............................................ 12
3. The Fourth Cause of Action States a
Section 1983 Claim for Deprivation
of Property in Violation of the
Fourteenth Amendment ........................... 13
4. The Fifth Cause of Action States a
Section
1983
Claim
Against
Defendant Himan for Stigmatizing
Plaintiffs in Connection with the
Deprivations of Their Rights and
Tangible Interests in Violation of the
Fourteenth Amendment. .......................... 16
5. The Sixth and Seventh Causes of
Action State a Section 1983 Claim
for Conduct that Shocks the
Conscience, in Violation of the
Fourteenth Amendment. .......................... 17

41a
6. The Ninth Cause of Action States an
Actionable Section 1983 Claim for
Retaliation and Conspiracy in
Violation of Plaintiffs’ First and
Fourteenth Amendment Rights. .............. 19
7. The Tenth Cause of Action States an
Actionable Section 1983 Claim
Against Defendant Himan for
Depriving Plaintiffs of the Privileges
and Immunities Afforded to North
Carolina Citizens in Violation of 42
U.S.C. § 1983. ........................................... 20
8. The Eleventh Cause of Action States
an Actionable Section 1983 Claim
Against Defendant Himan for
Failure to Prevent or Aid in
Preventing
the
Ongoing
Deprivations
of
Plaintiffs’
Constitutional Rights. .............................. 21
III. HIMAN IS NOT ENTITLED TO
QUALIFIED IMMUNITY. ............................... 22
A. The Qualified Immunity Standard ............... 22
1. Himan Does Not Have Qualified
Immunity for Fabricating Affidavits
That Cause NTID Orders and
Search Warrants to Issue Without
Probable Cause. ........................................ 23
2. Himan Does Not Have Qualified
Immunity for Abuse of Process
Designed to Coerce Plaintiffs into
Submitting to Interrogation. ................... 24

42a
3. Himan Does Not Have Qualified
Immunity for Causing Deprivations
of Plaintiffs’ Due Process Right to
§15A-282 Reports. .................................... 25
4. Himan is Not Entitled to Qualified
Immunity for Stigmatizing Plaintiffs
in Connection With Deprivation of a
Constitutional Right. ............................... 26
5. Himan is not Entitled to Qualified
Immunity for Retaliating Against
Plaintiffs for Exercise of First
Amendment Rights. ................................. 27
6. Himan is not Entitled to Qualified
Immunity for Discriminatory and
Abusive
Enforcement
of
the
Criminal Laws Because Plaintiffs
Were “Temporary” Residents of
North Carolina. ........................................ 28
7. Himan Does Not Have Qualified
Immunity for Engaging in Conduct
that Shocks the Conscience. .................... 29
8. Himan Does Not Have Qualified
Immunity for Failing to Intervene to
Prevent His Fellow Officers From
Violating Plaintiffs Constitutional
Rights in His Presence or Within His
Knowledge. ............................................... 30
IV. THE AMENDED COMPLAINT STATES
ACTIONABLE
CLAIMS
FOR
PARTICIPATION IN CIVIL RIGHTS
CONSPIRACIES. .............................................. 31

43a
A. Conspiracies in Violation of 42 U.S.C. §
1983. ............................................................... 31
B. The
Amended
Complaint
States
Actionable Claims for Conspiracy in
Violation of 42 U.S.C. § 1985. ....................... 32
C. The Amended Complaint States a
Violation of 42 U.S.C. §1986. ........................ 34
D. The Amended Complaint Alleges
Sufficient Direct and Circumstantial
Evidence To Establish an Unlawful
Conspiracy. .................................................... 34
E. The § 1985 Claims Allege Racial
Animus of Two Types .................................... 35
1. Section 1985 Prohibits Invidious
Animus Against Any Race. ...................... 35
2. Defendants Were Motivated by,
Fomented, and Took Advantage of
Racial Animus. ......................................... 35
V.

The
Amended
Complaint
States
Actionable Claims Under State Law
Against Defendant Himan. ............................... 38
A. Public Official Immunity Does Not Bar
Plaintiffs’ State Law Claims Alleging
Intentional Conduct. ...................................... 38
B. The Amended Complaint States a Civil
Conspiracy Claim Against Defendant
Himan. ........................................................... 40
C. The Amended Complaint States a
Common Law Obstruction of Justice
Claim Against Defendant Himan. ................ 40

44a
D. The Amended Complaint States a
Common Law Abuse of Process Claim
Against Defendant Himan. ........................... 43
E. The Amended Complaint States an
Intentional Infliction of Emotional
Distress Claim Against Defendant
Himan. ........................................................... 43
F. The Amended Complaint States an
Aiding or Abetting the Breach of
Fiduciary Duty Claim Against the
Supervising Defendants. ............................... 46
G. The Amended Complaint States a
Negligence Claim Against Defendant
Himan. ........................................................... 47
H. The Amended Complaint States a
Negligent Infliction of Emotional
Distress Claim Against Defendant
Himan. ........................................................... 48
VI. THE COURT MAY DISMISS OFFICIAL
CAPACITY CLAIMS WHERE THE CITY
IS ALSO NAMED AS A DEFENDANT
AND IS THE REAL PARTY IN
INTEREST. ....................................................... 49
VII. defendant himan makes NO OTHER
ARGUMENT FOR DISMISSAL and
PLAINTIFFS REQUEST LEAVE TO
COMMENCE DISCOVERY. ............................. 50
CONCLUSION ......................................................... 50

45a
STATEMENT OF THE CASE
The Amended Complaint describes a combination
of actors and entities referred to as the Consortium.
For thirteen months beginning in March 2006, the
Consortium’s ultimate objective was to railroad the
Plaintiffs and their 44 teammates into convictions as
either principles or accomplices to a horrific, violent
crime they knew never happened. The allegations
describe a willful, malicious, and calculating
conspiracy
of
multiple
dimensions.
Acting
individually and in concert, Defendants concealed
exonerating evidence, manufactured inculpatory
evidence, and stigmatized the Plaintiffs by subjecting
them to public outrage, public condemnation, and
infamy in the minds of millions of people.
Defendants’ conduct shocks the conscience. Perhaps
the most unsettling allegation of all is that those who
knew of the wrongs conspired to be done to Plaintiffs,
and had the power to prevent or aid in preventing
them. Instead, they ‘turned a blind eye’ and did
nothing.
NATURE OF THE PROCEEDINGS
Plaintiffs filed this action on December 18, 2007 and
amended that filing on April 17, 2008. Pursuant to a
request from this Court regarding the location of the
audio and video exhibits embedded within the First
Amended Complaint (“AC”), Plaintiffs re-filed the AC
on April 18, 2008 with those embedded exhibits as
separate documents. Except for the location of the
exhibits, the two “First Amended Complaints” are
identical. All Defendants filed Motions to Dismiss
pursuant to Fed. R. Civ. P. 12(b) (6) on July 2, 2008.

46a
This Memorandum is filed pursuant to the Court’s
Order of October 7, 2008 [Document #72], granting
Plaintiffs’ Motion for Leave to File Opposition Briefs
[Document #71], and authorizing Plaintiffs to file
their Responses on or before October 10, 2008.1
STATEMENT OF THE FACTS
Benjamin W. Himan has testified that when he
was assigned to the case that spawned this lawsuit,
he had never seen a DNA report in his life. AC ¶ 346.
Himan has since resigned from the Durham Police
Department. At all times relevant to this action,
Himan was employed by the City as a property
crimes investigator. Of the five property crimes
investigators in District Two, Himan was, in his own
words, “at the bottom of the list” in terms of
seniority, experience, training and skill. Gottlieb
personally assigned Himan as “lead investigator” in
this case. Himan had just become an investigator
when Mangum’s false allegations were made. AC ¶
63.
Himan, perhaps more so than any other person
besides Investigator Mark Gottlieb and District
Attorney Michael Nifong, had the greatest
opportunity to end the conspiracy to convict. Himan
1 Plaintiffs' Opposition Brief is filed in response to
Himan's Motion to Dismiss [Document #51] and supporting
Memorandum [Document #52]. Himan’s supporting brief is
cited herein as "Himan Br." Himan’s co-defendants’ supporting
briefs are cited herein as: “City Br.,” “Gottlieb Br.,” “City Super.
Br.,” “DNASI Br.,” “SANE Br.,” “Duke Univ. Br.” “DUPD Br.,”
“SMAC Br.,” “Hodge Br.,” and “Wilson Br.”

47a
was present at almost every critical meeting and
juncture, including the Special Prosecutors’
interviews of Mangum. Himan has testified that it
was only at this last meeting that he finally became
convinced Mangum was lying. AC ¶ 401. By this
time, it was too late, the damage was already done –
in large part, by Himan.
QUESTIONS PRESENTED
1.

Have the Plaintiffs stated actionable
claims against Defendant Himan under
42 U.S.C. § 1983? (§§ II.A.(1)-(8))

2.

Is Defendant Himan Entitled to
Qualified Immunity for Plaintiffs’ §1983
Claims? (§§ III.A.1-8)

3.

Have the Plaintiffs stated actionable
claims against Defendant Himan for
Conspiracy under 42 U.S.C. § 1983, 42
U.S.C. § 1985, 42 U.S.C. § 1986?
(§IV.A.-C.).

4.

Have the Plaintiffs stated actionable
claims against Defendant Himan under
State Law? (§V.A.–H.).
ARGUMENT

I.

STANDARD OF REVIEW

A motion to dismiss for failure to state a claim
may be granted “only in very limited circumstances.”
Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324,

48a
325 (4th Cir. 1989). In examining a Rule 12(b)(6)
motion, “the court should accept as true all wellpleaded allegations and should view the complaint in
a light most favorable to the plaintiff.” Salami v.
Monroe, No. 1:07CV621, 2008 WL 2981553, at *5
(M.D.N.C. Aug. 1, 2008) (quoting Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). Though
the complaint is not required to encompass detailed
factual allegations, “a plaintiff’s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Id. (quotations and alterations in original)
(quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955,
1964-65
(2007)).
The
complaint’s
“[f]actual
allegations must be enough to raise a right to relief
above the speculative level.” Id. (quoting Twombly,
127 S.Ct. at 1965). “[O]nce a claim has been stated
adequately, it may be supported by showing any set
of facts consistent with the allegations in the
complaint.” Id. (quoting Twombly, 127 S.Ct. at 1969).
Further, where Plaintiffs have asserted a civil rights
action, the Court “must be especially solicitous of the
wrongs alleged and must not dismiss the complaint
unless it appears to a certainty that the plaintiff
would not be entitled to relief under any legal theory
which might plausibly be suggested by the facts
alleged.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.
2002) (internal quotations omitted). With these
standards in mind, this Memorandum will identify
the factual basis in the Amended Complaint (“AC”)
for the causes of action asserted against Defendant
Himan and respond to his arguments for dismissal.

49a
II. THE
AMENDED
COMPLAINT
STATES
ACTIONABLE
CLAIMS
UNDER FEDERAL LAW AGAINST
DEFENDANT HIMAN.
A. The Amended Complaint States
Actionable Section 1983 Claims
Against Defendant Himan.
The Amended Complaint’s first fifteen Causes of
Action allege violations of 42 U.S.C. § 1983 (the “§
1983 Claims”). At this early stage, the Court must
determine whether each of these Causes of Action
alleges facts sufficient to satisfy the elements of §
1983.1 See Green v. Maroules, 211 F.App’x 159, 161
(4th Cir. 2006). Based on statute's text, the Supreme
Court held that a Section 1983 claim requires only
two essential allegations:
By the plain terms of Section 1983, two–
and only two–allegations are required
in order to state a cause of action under
that statute. First, the plaintiff must
1

Section 1983 provides:

[E]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proceeding for redress[.]
42 U.S.C. § 1983 (2000).

50a
allege that some person has deprived
him of a federal right. Second, he must
allege that the person who deprives
them of that right acted under color of
state or territorial law.
Gomez v. Toledo, 446 U.S. 635, 640 (1980); accord
West v. Atkins, 487 U.S. 42 (1988).
Section 1983 does not itself create or establish
substantive rights. Instead, § 1983 provides "a
remedy" where a plaintiff demonstrates a violation of
a right protected by the federal Constitution, or by a
federal statute other than § 1983. Chapman v.
Houston Welfare Rights Org., 441 U.S. 600, 617
(1979). The Amended Complaint adequately alleges a
factual basis for every element of a § 1983 claim
against Defendant Himan. The Amended Complaint
alleges that (1) Defendant Himan is a “person” for
purposes of § 1983, AC ¶¶ 905, 919, 930, 942, 969,
979, 993, 1003, 1021, 1148; (2) who, while acting
under color of state law, id . ¶¶ 905, 919, 930, 942,
969-70, 979, 993, 1003, 1021, 1149; (3) proximately
caused id. ¶¶ 916, 927-28, 939, 952, 976, 984, 1000,
1006, 1022- 23, 1154; (4) the deprivation of Plaintiffs’
federal rights, id. ¶¶ 916, 927-28, 934, 939, 952, 976,
984, 1000, 1006, 1022-23, 1154. The elements and
the supporting allegations detailed across more than
400 pages of the Amended Complaint are more than
sufficient to state § 1983 claims against Himan. See,
e.g., Gomez v. Toledo, 446 U.S. 635, 640 (1980).
Himan concedes that the Amended Complaint
sufficiently alleges he is a “person” for purposes of §
1983, and, at all relevant times, was acting under
color of state law. Of the § 1983 claims asserted

51a
against Himan, he argues that only the First Cause
of Action, arising out of his procurement of the NTID
Order, should be dismissed on the merits of the
violation alleged. Himan Br. at 13-21. Himan makes
no argument as to the merits of the remaining § 1983
claims asserted against him; he argues only that
they should be dismissed on the grounds that
qualified immunity shields him from liability
because the rights alleged were not “clearly
established” at the time of the violation. Himan Br.
at 21-33. His arguments fail because he misstates
the law governing the issuance of NTID Orders. He
also fails to acknowledge the facts alleged in the AC
showing all of the material allegations in the
Affidavits that support the claim that the NTID and
Warrant were fabrications, and he also fails to
acknowledge all of the material omissions alleged in
the AC, and the rights alleged in all of the § 1983
claims asserted in the Amended Complaint that were
clearly established at the time he violated them.
1. The First and Second Causes of
Action State Actionable Section
1983 Claims for Subjecting
Plaintiffs
to
Searches
and
Seizures
Without
Probable
Cause or Reasonable Suspicion
in Violation of the Fourth and
Fourteenth Amendments.
The First and Second Causes of Action state §
1983 Claims against Himan and others for
unreasonable searches and seizures in violation of
Fourth and Fourteenth Amendments. AC ¶¶ 904-17,
918-28. The First Cause of Action identifies the

52a
search and seizure caused by the issuance of the
Non-Testimonial Identification (“NTID Order”). The
Second Cause of Action identifies the search and
seizure caused by Himan’s Affidavit to procure a
Search Warrant for Ryan McFadyen’s dorm room.
The Amended Complaint alleges that Himan
procured the judicial authorization for both the
NTID Order and the McFadyen Warrant through
Affidavits in which Himan intentionally or with
reckless disregard for the truth made false
statements and made numerous omissions that were
material to the judicial determination. Id. ¶¶ 415-44.
With respect to the NTID Affidavit, taking the
Plaintiffs’ allegations as true, the Amended
Complaint establishes that every statement in the
NTID Affidavit was deliberately fabricated, id. ¶¶
416-18, and, further, that Himan deliberately
omitted from the NTID Affidavit all of the
overwhelming evidence of innocence that was known
to Himan, Nifong, Gottlieb, Levicy, and Arico at the
time, id. ¶¶ 223-37, 262-311, 321-31, 382-85. The
Amended Complaint documents Himan’s omissions
and fabrications, as well as Himan’s knowledge of
them, in rich detail. See id. ¶¶ 385, 414-435, 570-75.
Himan, Gottlieb, and the SANE Defendants are
incorrect when they contend that the only allegations
of fabrication are contained in the section of the AC
detailing the origins of the most sensational
fabrications. With respect to the McFadyen Search
Warrant, the only additional material included in the
Affidavit used to procure it (i.e., disembodied text
that an anonymous e-mailer claimed was sent by
Ryan McFadyen’s Duke e-mail account) was
unreliable as a matter of law, and, therefore, could

53a
not be considered in the judicial determination of
probable cause. See Illinois v. Gates, 462 U.S. 213,
239 (1983).
Himan makes no argument for dismissal on the
merits of Plaintiffs’ Second Cause of Action, which
alleges an unconstitutional search and seizure of
Ryan McFadyen’s room without probable cause in
violation of the Fourth Amendment, but because the
affidavits supporting the NTID and the warrant for
the search of the room are materially the same, the
arguments will be applicable to both causes for the
purposes of incorporated briefs. See generally Himan
Br. 1-43. He argues that the First Cause of Action
should be dismissed because, he contends, (1)
Plaintiffs “concede” that probable cause existed for
the NTID Order; (2) his fabrications were not
necessary to the finding of probable cause; (3)
“inconsistencies in the accuser’s statements” do not
defeat probable cause; (4) the Amended Complaint
fails to meet the heightened pleading requirements
of Fed. R. Civ. P. 9(c); and (5) Plaintiffs are asserting
a non-existent “right to be free from criminal
investigation.” Himan Br. at 13-21. The first, third,
and fifth arguments fail because they misrepresent
Plaintiffs’ allegations; the fourth fails because it
misapplies the law; and the second argument fails
because it misrepresents the law and the allegations.
a. Plaintiffs Do Not “Concede”
There Was Probable Cause for
the NTID or Search Warrant
Himan argues that his deliberate fabrications and
omissions were not necessary to the finding of
probable cause for two reasons. First, he contends

54a
that the Amended Complaint “concedes” that the
fabrications were not necessary to the finding of
probable cause. Himan Br. at 16. Of course, the
Amended Complaint does not “concede” probable
cause existed for the 610 N. Buchanan Search
Warrant. In fact, the very paragraph that Himan
cites to support his remarkable contention, AC ¶ 418,
states that the new “fabricated allegations in the
NTID order added a sinister dimension to the
already fabricated account of the evening in the [610
N. Buchanan] search warrant affidavit.” AC ¶ 418
(emphasis added). The point made in the Amended
Complaint is not that probable cause already existed
for the 610 N. Buchanan Warrant; the point is that
Himan and his co-conspirators had already
fabricated and omitted enough material facts to
mislead a judicial official into believing (wrongly)
that probable cause existed. Plaintiffs allege that the
purpose of the additional fabrications and omissions
was to maliciously vilify the plaintiffs in the eyes of
millions of people, and foment racial animus against
them. AC ¶¶ 414, 597-601. Therefore, Himan’s
contention fails because it misrepresents Plaintiffs’
allegations. The Amended Complaint may not be
dismissed based upon “concessions” that Plaintiffs
have not made.
b. Himan’s Fabrications and
Omissions were Necessary to
the Judicial Determination of
Probable Cause
Next, Himan argues that the First Cause of
Action should be dismissed because, he contends, the
NTID Order only required “reasonable grounds” and

55a
after correcting for the alleged fabrications, the
Affidavit still establishes “reasonable grounds.”
Himan Br. at 14-16 (citing State v. Pearson, 566
S.E.2d 50, 54 (N.C. 2002)). However, Himan
misstates the law. The “reasonable grounds”
standard applies only to the quantum of evidence
that is required with respect to the person to be
subjected to the NTID Order. State v. Pearson, 556
S.E.2d at 54; N.C. GEN. STAT. § 15A-282 (2008) (the
sworn affidavit must show that “… there are
reasonable grounds to suspect that the person named
or described in the affidavit committed the
offense[.]”). Himan skips a step. His Brief does not
mention once that the NTID statute requires, at step
one, a showing of probable cause to believe that a
felony has been committed. See id. (quoting § 15A282 (the sworn affidavit must show “(1) [t]hat there
is probable cause to believe that a felony offense ...
has been committed[.]” (emphasis added))). This is
also why Himan’s analogy to Torchinsky v. Siwinsky
942 F. 2d 257 (4th Cir. 1990), must fail: in
Torchinsky, while the victim changed his story it was
obvious a crime had been committed and that he had
been assaulted, in the instant case there was no
proof of an assault outside of Mangum’s own
statements. AC ¶¶ 293-309.
The NTID Affidavit—after correcting the
fabrications and omissions—does not establish
probable cause to believe that a felony had been
committed or “reasonable grounds” to believe that
Plaintiffs committed it. The McFadyen Search
Warrant
Affidavit
fails—after
correction—to
establish probable cause to believe that a crime had
been committed or that the items to be seized would

56a
be found in the place to be searched. The fabrications
and omissions were therefore necessary to the
judicial determination that that the Affidavits
contained a sufficient factual basis for both the NTID
Order and the McFadyen Search Warrant.
c. Eliminating the Fabrications
and
Adding
Material
Omissions Defeats Probable
Cause
Himan contends that, even if the alleged
fabrications are struck from the affidavit, what
remains is sufficient to establish the constitutionally
required factual basis for the NTID Order issued to
all Plaintiffs and the Search Warrant for McFadyen’s
dorm room. Himan Br. at 14-20. Himan is wrong for
several reasons. First, as is shown in Pls. Opp. City
Br., § II.A.(1), after eliminating all of the
fabrications, essentially no allegations remain.
Second, Himan’s argument completely fails to
account for the second dimension of the Franks
correction analysis: material omissions. Third,
Himan misapplies the Franks analysis by examining
the effect of each fabrication and each omission in
isolation, one fabricated or omitted fact at a time,
and concluding that each, in isolation, is not
“necessary” to the required judicial finding because it
does not defeat probable cause. The Franks
correction analysis is, of course, quite different.
Pursuant to Franks v. Delaware, 438 U.S. 154
(1978), the Court undertakes a “correction” analysis.
First, the Court “corrects” the fabrications by
striking the false statements from the affidavit.
Franks, 438 U.S. at 155-56. If the remaining

57a
allegations do not establish probable cause, the
Plaintiff has stated a claim. If the remaining
allegations are still sufficient after correcting the
fabrications, the Court then “corrects” the affidavit
by inserting the material omissions. The Fourth
Circuit considers an omission to be a false statement
for purposes of the Franks correction analysis when
it is “designed to mislead ” or “made ‘in reckless
disregard of whether [it] would mislead.’ ” United
States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008)
(alterations in original) (quoting United States v.
Cokley, 899 F.2d 297, 300 (4th Cir. 1990)).
Eliminating the fabrications from the NTID
Affidavit and the McFadyen Search Warrant
Affidavit defeats probable cause; and, if it did not,
inserting the omissions in the second step plainly
does. Himan argues that probable cause or
reasonable grounds still remain after correction, but
Himan reaches this conclusion by cherry-picking and
recasting Plaintiffs’ allegations. He only finds one
material omission in the pages and pages of alleged
facts that Himan knew and deliberately omitted
from the NTID and McFadyen Search Warrant
Affidavits. Himan Br. at 19 ("inconsistencies in the
accuser's statements" do not defeat probable cause).
To demonstrate the extent to which Himan and his
co-conspirators deliberately designed the Affidavits
to mislead, Plaintiffs apply the Franks analysis to
the NTID and McFadyen Search Warrant Affidavits
in responding to the City’s motion and incorporate
that analysis here. See Pls. Opp. (City), §II.A.(1).
Himan makes no argument for dismissal of the
Second Cause of Action on the merits. He does,

58a
however, generally plead qualified immunity as a
defense to all of Plaintiffs’ § 1983 claims. To the
extent that it is necessary to define the contours of
the right Plaintiffs allege was violated in the Second
Cause of Action, Plaintiffs incorporate by reference
the discussion the Second Cause of Action in
Plaintiffs’ Opposition to City of Durham’s Motion to
Dismiss. See Pls. Opp. Br. (City), §II.A.1. In Section
II of this Memorandum, Plaintiffs establish that, as
to Himan, the Fourth Amendment right alleged to
have been violated in the Second Cause of Action was
“clearly established” at the time Himan violated it.
d. Rule 9(b) Does Not Impose a
Heightened
Pleading
Standard Upon Plaintiffs’
First (or Second) Cause of
Action
Himan suggests that the heightened pleading
standard of Rule 9(b) applies to Plaintiffs’ allegations
of "essentially fraudulent behavior" and that
Plaintiffs have failed to meet this heightened
pleading rule. Himan Br. at 21. Rule 9(b) does not
impose heightened pleading requirements on
Plaintiffs’ Franks claim. The Supreme Court has
rejected a heightened pleading requirement for §
1983 municipal liability claims, and, in doing so, left
little room to doubt that the holding applied equally
to § 1983 individual and official capacity claims.
Leatherman v. Tarrant County Intelligence &
Coordination Unit, 507 U.S. 163 (1993). The
Leatherman Court reasoned that a heightened
pleading standard is simply “impossible to square . . .
with the liberal system of ‘notice pleading’ set up” by

59a
the plain language of Rule 8, as well as the Court’s
ruling in Conley v. Gibson, 355 U.S. 41 (1957), that
Rule 8 “meant what it said.” Leatherman, 507 U.S. at
168; see also Swierkiewicz v. Sorema N.A., 534 U.S.
506 (2002) (Court rejected heightened pleading rule
for Title VII and ADEA claims). The Court pointed
out that, although Rule 9 of the Federal Rules of
Civil Procedure imposes a particularity requirement
for claims of fraud or mistake, the Federal Rules do
not contain any special pleading requirement for
complaints alleging § 1983 liability. Leatherman, 507
U.S. at 168.
Notwithstanding the absence of § 1983 claims
from Rule 9(b)’s list of claims for which a plaintiff
must allege “with particularity the circumstances”
constituting the actionable conduct, even if Himan
was correct that Rule 9(b) applies to Plaintiffs’
claims based upon his fraudulent affidavits, the
Amended Complaint alleges the specific facts that
Rule 9(b) requires for claims for fraud. See Franks
Analysis in Pls. Opp. City Br., II.A.(1) (documenting
the fraud by demonstrating each averment in
Himan’s pleading is false, and detailing the list of
material facts Himan and his co-conspirators
omitted). To the extent that Himan’s argument for
additional specificity is based upon his assertion of
qualified immunity defense, Himan is free to move
for a more definite statement pursuant to Fed. R.
Civ. P. 12(e).

60a
e. Plaintiffs never asserted “a
right
to
be
free
of
investigation.”
Next, Himan, in unison with his co-defendants,
argues that all of Plaintiffs’ § 1983 claims should be
dismissed because, he contends, Plaintiffs are
“essentially” complaining that they have been
investigated, and that "there is no constitutional
right to be free of investigation." Himan Br. at 21-24.
Nowhere in all the pages of the Amended Complaint
do Plaintiffs allege that they have “a constitutional
right to be free of investigation.” The argument fails
because its premise is a fabrication.
***
III. HIMAN IS NOT ENTITLED
QUALIFIED IMMUNITY.

TO

A. The Qualified Immunity Standard
Qualified immunity does not apply to conduct
that violates “clearly established statutory or
constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). A right is “clearly established” if a
reasonable official would have been on fair notice
that the conduct at issue was unconstitutional at the
time he engaged in the conduct. Hope v. Pelzer, 536
U.S. 730, 739 (2002). The inquiry is an objective one;
it does not depend on “the subjective beliefs of the
particular officer at the scene, but instead on what a
hypothetical, reasonable officer would have thought
in those circumstances.” Owens ex rel. Owens v. Lott,
372 F.3d 267, 279 (4th Cir. 2004) (quoting Wilson v.

61a
Kittoe, 337 F.3d 392, 402 (4th Cir. 2003)). A
constitutional right is “clearly established” for
qualified immunity purposes when either (1) it has
been established by closely analogous case law; see,
id., or (2) “when the defendants’ conduct is so
patently violative of the constitutional right that
reasonable officials would know without guidance
from
the
courts
that
the
action
was
unconstitutional[.]” Clem v. Corbeau, 284 F.3d 543,
553 (4th Cir. 2002) (internal citations omitted). A
Defendant may not avail himself of qualified
immunity by ignoring the detailed facts alleged in
the Complaint or recasting them into broad general
propositions. Saucier v. Katz, 533 U.S. 194, 201
(2001). The inquiry “must be undertaken in light of
the specific context of the case, not as a broad
general proposition ...” Id. at 201. Therefore, to
determine whether Defendants have qualified
immunity at this preliminary stage the Court must
first describe the Himan’s alleged conduct in the
specific context of the circumstantial detail alleged in
the Amended Complaint and in the light most
favorable to the plaintiff, and then ask if pre-existing
law made the unlawfulness of Himan’s conduct
apparent. See, e.g., W.E.T. v. Mitchell, No.
1:06CV487, 2008 WL 151282, * 4 (M.D.N.C. Jan. 10,
2008).

62a
1. Himan Does Not Have Qualified
Immunity
for
Fabricating
Affidavits That Cause NTID
Orders and Search Warrants to
Issue Without Probable Cause.
The Amended Complaint documents the
extensive evidence known to Himan that Mangum’s
claims were demonstrably false, and that Plaintiffs
were innocent. The Amended Complaint catalogues
this evidence across dozens of pages. AC ¶¶ 262-71,
291-96, 321-31, 363-81, 382-85. Further, the
Amended Complaint documents the evidence known
to Himan that, if there was any plausible basis to
believe that Mangum had been sexually assaulted,
the Plaintiffs were no longer possible suspects. Id. ¶¶
363- 81. All of the evidence detailed in those pages of
Mangum’s fraud and Plaintiffs’ innocence existed
prior to the time Himan, Gottlieb, Nifong, Levicy,
and others conspired to fabricate the NTID Affidavit.
Himan knew he had no evidence at the time, and
admitted that he still did not have any weeks later:
when told he would have to present indictments in
the case, Himan asked “with what?” Id. ¶ 816. On
the day that Himan submitted the fabricated
McFadyen Warrant application, his co-conspirator,
Mike Nifong told Himan, “you know, we’re f***ed.”
Id. ¶ 593. Himan claims that these facts are alleged
in order to establish a new “right to be free from
criminal investigation.” See, e.g., Himan Br. at 22.
That is not the right Plaintiffs assert. In the First
and Second Causes of Action, Plaintiffs establish a
violation of their right to be free from searches and
seizures without probable cause. AC ¶¶ 907-14, 92027. That right includes the right to be free from

63a
searches and seizures authorized by warrants and
other legal process procured through fabricated
officer affidavits, which was established at least as
early as 1978, in Franks, 438 U.S. 154 (1978). A
“reasonable officer” would know that fabricating an
affidavit by making false statements and material
omissions designed to mislead a judicial official into
believing probable cause and reasonable grounds
exist violates clearly established rights.
***

64a
NO. 11-1458(L); 11-1460
In The
United States Court of Appeals
For The Fourth Circuit
RYAN McFADYEN; MATTHEW WILSON;
BRECK ARCHER,
Plaintiffs – Appellees,
v.
PATRICK BAKER; STEVEN CHALMERS;
RONALD HODGE; LEE RUSS; BEVERLY
COUNCIL; JEFF LAMB; MICHAEL
RIPBERGER;
Defendants – Appellants.
RYAN McFADYEN; MATTHEW WILSON;
BRECK ARCHER,
Plaintiffs – Appellees,
v.
THE CITY OF DURHAM, NORTH CAROLINA;
DAVID ADDISON; MARK GOTTLIEB;
BENJAMIN HIMAN,
Defendants – Appellants.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE
DISTRICT OF NORTH CAROLINA AT
DURHAM
(Hon. James A. Beaty, Jr., CJ)
CORRECTED
BRIEF OF APPELLEES

65a

Counsel for Appellees:
Robert C. Ekstrand
Ekstrand & Ekstrand, LLP
811 Ninth Street, Suite 260
Durham, NC 27705
[phone]
Stefanie A. Sparks
Ekstrand & Ekstrand, LLP
811 Ninth Street, Suite 260
Durham, NC 27705
[phone]
***

66a
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................ v
JURISDICTIONAL STATEMENT ............................. 1
SUMMARY OF THE ARGUMENT ............................ 1
ARGUMENT ............................................................... 4
THE STANDARD OF REVIEW ................................. 4
DISCUSSION OF THE ISSUES ................................ 6
I.

GOTTLIEB AND HIMAN HAVE NO
IMMUNITY FOR FABRICATING FALSE
AND MISLEADING AFFIDAVITS TO
CAUSE
PLAINTIFFS
TO
BE
SUBJECTED TO SEARCHES AND
SEIZURES
WITHOUT
PROBABLE
CAUSE ................................................................. 6
A. THERE WAS NO PROBABLE CAUSE
TO BELIEVE A FELONY OCCURRED.......... 7
B. THERE WERE NO REASONABLE
GROUNDS TO BELIEVE MCFADYEN,
WILSON, OR ARCHER COMMITTED
THE OFFENSES NAMED IN THE
NTO ................................................................. 20
C. THE RESULTS OF THE NTO DID
PROVE THAT NO CRIME OCCURRED
AT 610 N. BUCHANAN, AND
DEFENDANTS
CONSPIRED
TO
CONCEAL IT .................................................. 21
D. DEFENDANTS’ CONDUCT EVINCED
A RECKLESS DISREGARD FOR THE
TRUTH
AND
A
DELIBERATE

67a
INDIFFERENCE TO PLAINTIFFS
RIGHTS .......................................................... 21
E. DEFENDANTS ARE NOT IMMUNE
FROM PLAINTIFFS’ FIRST CAUSE
OF
ACTION
BECAUSE
THEY
VIOLATED RIGHTS THAT WERE
CLEARLY ESTABLISHED BY MARCH
OF 2006 ........................................................... 28
II.

THE SEARCH OF RYAN MCFADYEN’S
HOME AND VEHICLE VIOLATED HIS
CLEARLY ESTABLISHED FEDERAL
RIGHTS .............................................................. 32

III. THE FRANKS ANALYSIS ................................ 37
A. PLAINTIFFS ALLEGE MORE THAN A
“SHEER POSSIBILITY” THAT THERE
WAS NO PROBABLE CAUSE TO
BELIEVE
A
FELONY
WAS
COMMITTED ................................................. 38
B. PLAINTIFFS ALLEGE MORE THAN A
“SHEER POSSIBILITY” THAT THERE
WERE
NO
“REASONABLE
GROUNDS”
TO
SUSPECT
PLAINTIFFS
COMMITTED
THE
CRIMES
NAMED
IN
THE
AFFIDAVITS .................................................. 52
IV. DEFENDANTS’ STIGMATIZATION OF
PLAINTIFFS
VIOLATED
THEIR
CLEARLY ESTABLISHED RIGHTS ............... 55
A. ADDISON, GOTTLIEB, AND HODGE
MADE
FALSE
STIGMATIZING
PUBLIC
STATEMENTS
IN

68a
CONNECTION
WITH
THE
DEPRIVATION
OF
PLAINTIFFS’
FEDERAL RIGHTS........................................ 58
1. Addison’s
Stigmatization
of
Plaintiffs .................................................... 58
2. Hodge’s Stigmatization of Plaintiffs ......... 62
3. Gottlieb’s
Stigmatization
of
Plaintiffs .................................................... 66
4. Plaintiffs Allege the Requisite "Plus"
.................................................................... 69
5. Plaintiffs are not required to show
that Defendant’s False Statements
“Caused”
the
Deprivation
of
Plaintiffs’ rights......................................... 69
B. DEFENDANTS ARE NOT ENTITLED
TO
QUALIFIED
IMMUNITY
BECAUSE THE RIGHTS THEY
VIOLATED
WERE
CLEARLY
ESTABLISHED BY MARCH 2006 ................ 70
V.

THE SUPERVISORY DEFENDANTS
VIOLATED PLAINTIFFS CLEARLY
ESTABLISHED FEDERAL RIGHTS ............... 71
A. THE SUPERVISORY DEFENDANTS’
PARTICIPATION
IN
AND
INDIFFERENCE
TO
THE
CONSTITUTIONAL VIOLATIONS .............. 71
B. THE SUPERVISORY DEFENDANTS
ARE NOT ENTITLED TO QUALIFIED
IMMUNITY
BECAUSE
THEY
VIOLATED RIGHTS THAT WERE

69a
CLEARLY ESTABLISHED BY MARCH
2006 ................................................................. 77
VI. THE DISTRICT COURT CORRECTLY
DENIED THE CITY’S MOTION TO
DISMISS
PLAINTIFFS’
MONELL
CLAIMS ............................................................. 81
VII. GOTTLIEB, HIMAN, AND LAMB ARE
NOT IMMUNE FROM PLAINTIFF'S
OBSTRUCTION OF JUSTICE CLAIM ............ 81
VIII.THE CITY IS NOT ENTITLED TO
SUMMARY
JUDGMENT
ON
ITS
GOVERNMENTAL
IMMUNITY
DEFENSE .......................................................... 91
A. THE
CITY’S
MOTION
IS
PREMATURE AND SHOULD BE
DEFERRED PURSUANT TO FED. R.
CIV. P. RULE 56(F) ........................................ 91
B. THE
SUMMARY
JUDGMENT
STANDARD OF REVIEW.............................. 92
C. THE CITY WAIVED ITS IMMUNITY
BY PURCHASING INSURANCE .................. 94
1. The
“Governmental
Immunity
Endorsement” in the 2006 and 2007
Policies Expressly Covers (and
Therefore
Waives
the
City’s
Immunity from) the Misconduct
Plaintiffs Allege ......................................... 95
2. The Everest Policy Is Triggered by
the
Allegations
In
Plaintiffs’
Complaint (and Therefore Waives

70a
the City’s Immunity from) the
Misconduct Plaintiffs Allege ..................... 99
D. THE CITY WAIVED ITS IMMUNITY
BY PARTICIPATING IN A LOCAL
GOVERNMENT RISK POOL ...................... 100
E. THE CITY WAIVED ITS IMMUNITY
BY CREATING A FUNDED RESERVE ..... 101
IX. THE PUBLIC DUTY DOCTRINE DOES
NOT BAR PLAINTIFFS’ NEGLIGENCE
CLAIMS AGAINST THE CITY OR THE
SUPERVISORY DEFENDANTS .................... 104
X.

PLAINTIFFS STATE DIRECT CAUSES
OF ACTION UNDER ARTICLE I OF
THE
NORTH
CAROLINA
CONSTITUTION ............................................. 106
A. PLAINTIFFS’
STATE
CONSTITUTIONAL
CLAIM
IS
PARTICULARLY ILL-SUITED FOR
THIS
COURT’S
PENDENT
JURISDICTION ........................................... 106
B. IT IS PREMATURE TO DETERMINE
WHETHER
PLAINTIFFS
HAVE
“ADEQUATE
STATE
LAW
REMEDIES” ................................................. 108

CONCLUSION ........................................................ 111
REQUEST FOR ORAL ARGUMENT .................... 111
CERTICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

71a
TABLE OF AUTHORITIES
CASES
Albright v. Oliver,
510 U.S. 266, 114 S. Ct. 807, 127 L. Ed.
2d 114 (1994) ...................................................... 69
Amaechi v. West,
237 F.3d 356 (4th Cir. 2001) .............................. 78
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ...................................... 92, 93
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) .......................... 4, 5, 42, 71
Avery v. County of Burke,
660 F.2d 111 (4th Cir. 1981) .............................. 72
Barrett v. Harrington,
130 F.3d 246 (6th Cir. 1997) .............................. 56
Blackburn v. Carbone,
703 S.E.2d 788 (N.C. Ct. App. 2010) ................. 83
Blair v. County of Davidson,
No. 1:05-CV-11, 2006 WL 1367420
(M.D.N.C. May 10, 2006) ....................... 71, 72, 73
Braswell v. Braswell,
410 S.E.2d 897 (N.C. 1991)...................... 105, 106
Brooks v. City of Winston-Salem,
85 F.3d 178 (4th Cir. 1996) ........................ passim
Buckley v. Fitzsimmons,
509 U.S. 259 (1993) ................................ 56, 70, 81

72a
Burke v. Ocean County Prosecutor’s Office,
No. 07-3623, 2008 WL 346142 (D.N.J.
Feb. 6, 2008) ....................................................... 56
Carrington v. Duke Univ.,
No. 1:08-cv-119 (M.D.N.C. Feb. 21, 2008)......... 15
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ...................................... 91, 92
Cooper v. Dupnik,
924 F.2d 1520 (9th Cir. 1991) ................ 56, 57, 69
Corum v. University of North Carolina,
330 N.C. 761, 413 S.E.2d 276, cert. denied,
506 U.S. 985, 113 S. Ct. 493, 121 L. Ed.
2d 431 (1992) ........................................ 96, 98, 109
Craig v. New Hanover County Bd. of Educ.,
363 N.C. 334, 678 S.E.2d 351 (2009) ......... passim
Cranford v. Frick,
No. 1:05CV62, 2007 WL 676687
(M.D.N.C. Feb. 28, 2007) ................................... 73
Estate of Fennell v. Stephenson,
528 S.E.2d 911 (N.C. Ct. App. 2000),
rev’d in part on other grounds,
554 S.E.2d 629 (N.C. 2001).............................. 108
Evancho v. Fisher,
423 F.3d 347 (3d Cir. 2005) ......................... 76, 77
Florida v. J.L.,
529 U.S. 266 (2000) ............................................ 32
Franks v. Delaware,
438 U.S. 154 (1978) ............................................ 37
Giarratano v. Johnson,
521 F.3d 298 (4th Cir. 2008) ................................ 4

73a
Gobel v. Maricopa County,
867 F.2d 1201 (9th Cir. 1989) ............................ 56
Harris v. City of Virginia Beach,
11 Fed.Appx. 212 (4th Cir. 2001) ...................... 75
Henry v. Deen,
310 N.C. 75, 310 S.E.2d 326 (1984) ............. 82, 89
Hogan v. Forsyth Country Club Co.,
79 N.C. App. 483, 340 S.E.2d 116 (1986) .......... 82
Hope v. Pelzer,
536 U.S. 730 (2002) ...................................... 78, 79
In re Kivett,
309 S.E.2d 442 (N.C. 1983).......................... 88, 89
Jackson v. Blue Dolphin Commc’ns of N.C.,
L.L.C.,
226 F. Supp. 2d 785 (W.D.N.C. 2002) ............... 82
Jasinski v. Adams,
781 F.2d 843 (11th Cir. 1986) ............................ 73
Jones v. City of Chicago,
856 F.2d 985 (7th Cir. 1988) ........................ 73, 74
Jones v. City of Durham,
183 N.C. App. 57, 643 S.E.2d 631 (2007) .......... 82
Katz v. United States,
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d
576 (1967) ........................................................... 31
Lambert v. Williams,
223 F.3d 257 (4th Cir. 2000) .............................. 79
Lavender v. W. Va. Reg’l Jail & Corr. Facility
Auth.,

74a
No. 3:06-1032, 2008 WL 313957 (S.D.W.
Va. Feb. 4, 2008) ................................................ 73
Lawson v. Sheriff of Tippecanoe County,
725 F.2d 1136 (7th Cir.1984) ............................. 70
Leftwich v. Gaines,
521 S.E.2d 717 (N.C., Ct. App. 1999) .............. 106
Malley v. Briggs,
475 U.S. 335 (1986) ...................................... 29, 30
Marrero v. City of Hialeah,
625 F.2d 499 (5th Cir. 1980) .................. 56, 69, 70
Matvia v. Bald Head Island Mgmt., Inc.,
259 F.3d 261 (4th Cir. 2001) .............................. 93
Miller v. Prince George’s County,
475 F.3d 621 (4th Cir. 2007) ...................... passim
Moore v. Evans,
476 S.E.2d 415 (N.C. Ct. App. 1996) ................. 89
Moore v. Otero,
557 F.2d 435 (5th Cir.1977) ............................... 70
Mosrie v. Barry,
718 F.2d 1151 (D.C.Cir.1983) ............................ 70
Multiple Claimants v. N.C. Dep’t of Health
and Human Servs.,
646 S.E.2d 356 (N.C. 2007).............................. 105
Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc.,
591 F.3d 250 (4th Cir. 2009) ................................ 5
Nguyen v.CNA Corp.,
44 F.3d 234 (4th Cir. 1995) ................................ 92

75a
Owens ex rel. Owens v. Lott,
372 F.3d 267 (4th Cir. 2004) ........................ 78, 81
Paul v. Davis,
424 U.S. 693 (1976) ................................ 56, 57, 71
Presley v. City of Charlottesville,
464 F.3d 480 (4th Cir. 2006) ................................ 5
Pruitt v. Pernell,
360 F. Supp. 2d 738 (E.D.N.C. 2005), aff’d,
173 F. App’x 298 (4th Cir. 2006) .................. 73-74
Randall v. Prince George's County,
302 F.3d 188 (4th Cir. 2002) ........................ 72, 77
Reaves v. Fair Bluff,
No. 7:03-CV-103, 2005 U.S. Dist. LEXIS
43084 (2005) ....................................................... 75
Reed v. Buckeye Fire Equip.,
241 Fed. Appx. 917 (4th Cir. 2007) ................... 83
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000) ............................................ 93
Rehberg v. Paulk,
611 F.3d 828 (11th Cir. 2010) ............................ 58
Ridpath v. Bd. of Governors of Marshall Univ.,
447 F.3d 292 (4th Cir. 2006) ...................... passim
Rux v. Republic of Sudan,
461 F.3d 461 (4th Cir. 2006) ............................ 108
Scott v. City of Charlotte,
691 S.E.2d 747 (N.C. Ct. App. 2010) ............... 105
Shaw v. Stroud,
13 F.3d 791 (4th Cir. 1994) .......................... 72, 77

76a
Slakan v. Porter,
737 F.2d 368 (4th Cir.1984) ......................... 72, 73
Smith v. Jackson County Bd. of Educ.,
608 S.E.2d 399 (N.C. Ct. App. 2005) ....... 105, 106
State v. Wright,
696 S.E.2d 832 (N.C. Ct. App. 2010) ................. 89
Stephenson v. City of Raleigh,
232 N.C. 42, 59 S.E.2d 195 (N.C. 1950) ............ 93
Stevens v. Rifkin,
608 F. Supp. 710 (N.D. Cal. 1984) ..................... 56
Stone v. Univ. of Md. Med. Sys. Corp.,
855 F.2d 167 (4th Cir.1988) ......................... 70, 71
Strag v. Board of Trustees,
55 F.3d 943 (4th Cir. 1995) ................................ 92
Temkin v. Frederick County Comm’rs,
945 F.2d 716 (4th Cir. 1991), cert denied,
502 U.S. 1095 (1992) .......................................... 92
Torchinsky v. Siwinsky,
942 F.2d 257 (4th Cir. 1990) ................................ 7
United States v. Cokley,
899 F.2d 297 (4th Cir. 1990) .............................. 37
United States v. Dionisio,
410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67
(1973) .................................................................. 31
United States v. Gonzales,
399 F.3d 1225 (10th Cir. 2005) .......................... 33
United States v. Mohn,
No. 1:05CR319-1, 2006 WL 156878
(M.D.N.C. Jan. 20, 2006) ................................... 33

77a
United States v. Tate,
524 F.3d 449 (4th Cir. 2008) .............................. 37
Univ. Gardens Apartments Joint Venture v.
Johnson,
419 F. Supp. 2d 733 (D. Md. 2006) .................... 56
Unus v. Kane,
565 F.3d 103 (4th Cir. 2010) .............................. 24
Velez v. Levy,
401 F.3d 75 (2d Cir. 2005) ..................... 56, 57, 70
Ward v. Maloney,
No. 1:02-CV-467, 2004 U.S. Dist. LEXIS
10981 (M.D.N.C. June 14, 2004), aff’d,
2004 U.S. App. LEXIS 23435 (4th Cir.
Nov. 9, 2004) ...................................................... 93
Washington v. Wilmore,
407 F.3d 274 (4th Cir. 2005) ................................ 2
Weiner v. San Diego County,
210 F.3d 1025 (9th Cir 2000) ....................... 64, 65
Willis v. Town of Marshall,
426 F.3d 251 (4th Cir. 2005) .............................. 92
Wilson v. Kittoe,
337 F.3d 392 (4th Cir. 2003) .............................. 78
Wisconsin v. Constantineau,
400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d
515 (1971) ........................................................... 57
CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. IV ...................................... passim
U.S. Const. Amend. XIV.......................... 17, 55, 56, 57

78a
N.C. Const., art. I .................................................... 106
STATUTES
42 U.S.C. § 1983 ................................................ passim
N.C. Gen. Stat. § 14-221 ........................................... 82
N.C. Gen. Stat. § 14-222 ........................................... 82
N.C. Gen. Stat. § 14-223 ........................................... 82
N.C. Gen. Stat. § 14-224 ........................................... 82
N.C. Gen. Stat. § 14-225 ........................................... 82
N.C. Gen. Stat. § 14-226 ........................................... 82
N.C. Gen. Stat. § 14-227 ........................................... 82
N.C. Gen. Stat. § 15A-242 ......................................... 20
N.C. Gen. Stat. § 15A-273 ............................... 7, 20, 22
N.C. Gen. Stat. § 15A-273(2)..................................... 20
N.C. Gen. Stat. § 15A-274 ........................................... 7
N.C. Gen. Stat. § 15A-282 ......................................... 21
N.C. Gen. Stat. § 58-23-1 .......................................... 93
N.C. Gen. Stat. § 132-1(a) ....................................... 101
N.C. Gen. Stat. § 143-291.......................................... 94
N.C. Gen. Stat. § 153A-435 ....................................... 97
N.C. Gen. Stat. § 160A-485 ....................................... 93
N.C. Gen. Stat. § 160A-485(a)........................... 93, 102
N.C. Gen. Stat. § 160A-485.5 .................................... 94

79a
RULES
Fed. R. Civ. P. 12(b)(6) .................................... 4, 36, 42
Fed. R. Civ. P. 56 ....................................................... 92
Fed. R. Civ. P. 56(a)................................................... 93
Fed. R. Civ. P. 56(f) ............................................. 91, 92
OTHER
67 C.J.S. Obstructing Justice § 1 .............................. 82

80a

JURISDICTIONAL STATEMENT
Plaintiffs agree with Defendants’1 statement of
the District Court’s jurisdiction and this Court’s
appellate jurisdiction with the exception of
Defendants’ attempt to invoke this Court’s
jurisdiction over Plaintiffs’ direct claims under the
North Carolina Constitution. By definition, these
claims are not subject to any immunity at all, and
taking pendant jurisdiction over Plaintiffs’ state
constitutional claims would be premature because
the claims do not even arise until Plaintiffs’ state law
remedies can be deemed “inadequate” to compensate
Plaintiffs for the constitutional violations they allege.
Further, Plaintiffs’ state constitutional claims are
not inextricably intertwined with Plaintiffs other
state law claims (indeed, they are largely exclusive of
each other). Therefore, Plaintiffs respectfully request
that this Court decline the Defendants’ invitation to
exercise its pendent jurisdiction over Plaintiffs’ state
constitutional claims, thereby confining the scope of
this interlocutory appeal to its true purpose: to
review the sufficiency of claims for which immunities
are available.
SUMMARY OF THE ARGUMENT
This is an interlocutory appeal asserting only one
“substantial” right: the City Defendants’ immunities.
“Appellants”
is
interchangeably
used
with
“Defendants” to refer to Defendants-Appellants. PlaintiffsAppellees are primarily referred to as “Plaintiffs.”
1

81a
The only question before the Court is whether
Plaintiffs allege facts showing “more than a sheer
possibility” that the City Defendants are not immune
from this suit. They are not. Plaintiffs allegations
recount one of the most chilling episodes of police
and prosecutorial misconduct in recent memory, all
the more so because the City Defendants who are
now before this Court leveraged the national and
international media to cast Plaintiffs as “a bunch of
hooligans” and “racist rapists” who committed a
horrifying, racially motivated gang rape of a young,
African-American single mother and then closed
ranks in a “stone wall of silence.” But, all along, as
the Special Prosecutors concluded in their report on
the “reinvestigation” of the alleged sexual assault,
there was “no credible evidence” that any assault
took place in that house on that night.
As the District Court explained, Plaintiffs’ Second
Amended Complaint alleges “significant abuses of
power” and “there can be no question that the
Constitution is violated when government officials
deliberately fabricate evidence and use that evidence
against a citizen, in this case by allegedly making
false and misleading representations and creating
false and misleading evidence in order to obtain an
NTO against all of the lacrosse team members and
obtain a search warrant.” JA 1279 (Mem. Op. 222.)
The Court noted that, “if any concept is fundamental
to our American system of justice, it is that those
charged with upholding the law are prohibited from
deliberately fabricating evidence and framing
individuals for crimes they did not commit.” Id.
(citing Washington v. Wilmore, 407 F.3d 274, 285
(4th Cir. 2005)(Shedd, J. concurring)).

82a
Because the rights these Defendants violated are
all “fundamental” to our system of justice and long
since clearly established before the conduct Plaintiffs
allege, none of the City Defendants have qualified
immunity. Moreover, it appears that the only way
the City Defendants have found to present a cogent
case for immunity is to recast Plaintiffs’ allegations
and fabricate their own. For example, Defendants
claim that Plaintiffs allege that medical evidence
corroborated Mangum’s claims, but the Complaint
alleges the opposite: no medical evidence
corroborated the alleged sexual assault. Plaintiffs go
on to allege that, to solve that “problem,” Gottlieb,
Himan, and Levicy agreed to fabricate medical
evidence to corroborate sworn affidavits that Himan
and Gottlieb fabricated to mislead judicial officials
into issuing a non-testimonial order directed to the
entire men’s lacrosse team and a search warrant
directed to Ryan McFadyen.
Thus, Plaintiffs’ argument involves considerable
correction of Defendants’ recasting of the Complaint,
and identifying the “facts” that Defendants invented
out of whole cloth. While the Court should not
tolerate this conduct, it is difficult to conceive of a
plausible argument for immunity on the facts
Plaintiffs allege. Faced with the facts Plaintiffs
allege, Defendants could either abandon the appeal
or argue from facts Plaintiffs do not allege.
Defendants chose the latter, and, for that reason,
their immunity claims fail at the threshold.
***

83a

DISCUSSION OF THE ISSUES
I.

GOTTLIEB AND HIMAN HAVE NO
IMMUNITY
FOR
FABRICATING
FALSE
AND
MISLEADING
AFFIDAVITS
TO
CAUSE
PLAINTIFFS TO BE SUBJECTED TO
SEARCHES
AND
SEIZURES
WITHOUT PROBABLE CAUSE.

Plaintiffs’ First and Second Causes of Action state
42 U.S.C. § 1983 Claims against Gottlieb, Himan,
and the City of Durham, for unreasonable searches
and seizures in violation of Fourth Amendment. JA
851-56 (SAC ¶¶ 904-17, 918-28.)2 Plaintiffs identify
two discrete Fourth Amendment searches and
seizures: (1) the Non-Testimonial Identification
Order (“NTO”), addressed in Plaintiffs’ First Cause of
Action, JA 851-53 (SAC ¶¶ 904-17), and (2) the
Search Warrant for Ryan McFadyen’s residence,
which is addressed in Plaintiffs’ Second Cause of
Action. JA 854-56 (SAC ¶¶ 918-28). Plaintiffs discuss
their Second Cause of Action in Discussion§ II.
The NTO compelled Plaintiffs to surrender
themselves to the Durham Police and submit to
swabbings of their mouths, the extraction of DNA
samples, “mug shot” photographing of their face, and
to disrobe for purposes of close physical inspection of
The Second Amended Complaint (Dkt. No. 136) is
referred to as the “Complaint” or “SAC” and within citations as
“SAC.”
2

84a
their bodies. Plaintiffs allege that Gottlieb and
Himan, in concert with other defendants,
intentionally fabricated false and inflammatory
affidavits in order to mislead a judicial official into
incorrectly believing that probable cause existed to
issue the NTO and search warrant where there was
none and to stigmatize Plaintiffs in the eyes of
millions. JA 695-704, 752-59 (SAC ¶¶ 414-44, 591616). The Complaint alleges specific facts showing
that every material fact asserted in Gottlieb and
Himan’s Affidavit supporting the NTO and search
warrant was known to them to be false, and that
they omitted facts known to them that were highly
were material to the determination of probable
cause. Finally, Plaintiffs allege that as a result of
Gottlieb and Himan’s fabricated affidavits, Plaintiffs
were subjected to searches and seizures without
probable cause in violation of their clearly
established Fourth Amendment rights.
A. THERE
WAS
NO
PROBABLE
CAUSE TO BELIEVE A FELONY
OCCURRED
The NTO statute3 requires, at step one, a showing
of probable cause to believe that a felony has been
Pursuant to N.C. Gen. Stat. § 15A-274 (2011) the
affidavit must establish “[t]hat there is ‘probable cause’ to
believe that a felony offense … has been committed[,] that there
are ‘reasonable grounds’ to suspect that the person named or
described in the affidavit committed the offense[,] and that the
results of specific non-testimonial identification procedures will
be of material aid in determining whether the person named in
the affidavit committed the offense.” N.C. Gen. Stat. § 15A-273
(2011).
3

85a
committed. It is here that Himan and Gottlieb’s
arguments begin to unravel, particularly with
respect to their reliance on Torchinsky v. Siwinsky,
942 F.2d 257 (4th Cir. 1990). In Torchinsky, while
the victim changed some of the details of the events
over several statements, there was no question that
a crime had been committed: the victim bore the
injuries of a brutal assault.
But in this case, it was just as clear that no crime
was committed and there was no credible evidence to
the contrary. See JA 659-64 (SAC ¶¶ 293-309.) No
witness, no DNA, no medical evidence corroborated
Himan and Gottlieb’s claim that Mangum was raped.
See JA 651-64, 684-90, 766-69, 817-19 (SAC ¶¶ 262309, 382-85, 387-401, 641-46, 800-04.) And Mangum
did not make minor changes to her story. She made
sweeping revisions of the key events. The Special
Prosecutors concluded that, based on meetings with
Mangum, when “recounting the events of that night
[she] changed her story on so many important issues
as to give the impression that she was improvising as
the interviews progressed, even when she was faced
with irrefutable evidence that what she was saying
was not credible. … [She] attempted to avoid the
contradictions by changing her story, contradicting
previous stories or alleging the evidence had been
fabricated.”4 The Special Prosecutors also concluded
that “[t]his was apparently the first time these
questions of inconsistencies had been asked
See also N.C. Att’y General’s Office, Summary of
Conclusions
at
16
(April,
2007),
available
at
http://www.ncdoj.gov/Files/News/SummaryConclusions.aspx.
4

86a
formally” and “[w]hile prosecutors acknowledge that
rape and sexual assault victims often have some
inconsistencies in their account of a traumatic event,
in this case, the inconsistencies were so significant
and so contrary to the evidence that the State had
no credible evidence that an attack occurred in
that house that night.”5
Probable cause includes facts known to officers
that tend to negate probable cause, and the facts
Plaintiffs allege negate any possibility of probable
cause. Examples include Mangum’s nod to Nurse
Wright’s question, “Were you raped?” after Mangum
overheard an officer on the radio direct someone to
Mangum’s house to check on her children and to call
DSS if no one was supervising them, JA 647-49 (SAC
¶¶ 243-54); Mangum’s recantation of her false
allegation, JA 651-52 (SAC ¶¶ 262-65); Officer Gwen
Sutton’s interview of Mangum, JA 652-53 (SAC ¶¶
266-71); Investigator Jones’ interview of Mangum,
JA 658-59 (SAC ¶¶ 291-92); the clinical and medical
evidence collected at Duke University Medical
Center (“DUMC”), JA 659-65 (SAC ¶¶ 293-311);
Mangum’s visit to UNC Hospital seeking
prescription pain medications, JA 665-67 (SAC ¶¶
312-20); the body of evidence amassed in the first 48
hours showing that no crime occurred, JA 667-71
(SAC ¶¶ 321-32); Gottlieb and Himan’s first
interview of Mangum on March 16, 2006 and the
March 16th and March 21st photo identification
procedures, JA 679-86 (SAC ¶¶ 362-81, 383-84); the

5

Id. at 17, 21.

87a
second dancer’s description of Mangum’s claim as a
“crock,” JA 121 (SAC ¶ 385); and the fabricated NTO
and Search Warrant Affidavit JA 695-704 (SAC ¶¶
414-44.)
In response to these detailed allegations,
Appellants’ “probable cause” argument improperly
relies on facts that Plaintiffs do not allege (and which
Defendants could never prove). For example, first,
the Appellants’ assert that Mangum made "repeated
claims that she had been raped" and recast Plaintiffs’
claims as asserting “that police should have
immediately dismissed Mangum’s claims because her
claims were not consistent.” (Appellants’ Br. 24; see
also id. at 10.) In the first instance, Plaintiffs do not
allege that Mangum "claimed" she was raped in any
sense of the word. Rather, Plaintiffs allege that
Mangum merely "nodded, yes" when it was
suggested to her that she might have been assaulted.
JA 647-49 (SAC ¶¶ 243-54.) At the time of the “nod,”
Mangum was being involuntarily committed, and
had just overheard police radio communications
dispatching officers to proceed to her house to “check
on the children,” to take custody of them if they were
alone without supervision, and to contact the
Department of Social Services, all of which, Mangum
knew, would likely cause her to lose custody of her
children. JA 647 (SAC ¶¶ 243-44.) And Defendants
argument ignores the fact that, to the extent that
Mangum ever made the same claim twice, she knew
the claim was a lie, and with good reason, JA 651-53,
671 (SAC ¶¶ 262-71, 329-32.) (Sgt. Shelton, the
officer in charge of the investigation on March 13,
2006, interviewed Mangum after she “nodded, yes”
and unequivocally concluded that Mangum was

88a
“lying.” Additionally, Officer Gwen Sutton, who
interviewed Mangum after Shelton also concluded
that Mangum was lying and declared her report was
unfounded). The Appellants also do not account for
the dozens of pages of facts detailing Mangum’s
multiple contradicting accounts of the evening and
the wild variation among them. See, e.g., JA 667-71
(SAC ¶¶ 321-30)(providing summary of contradicting
accounts). Furthermore, while the Appellants
conceded that Mangum’s claims were not always
consistent and that at one time she told a police
officer that she had not been raped, they state that
“both before and after that, she repeatedly claimed—
over the course of several months—that she had been
raped at the party. (Appellants’ Br. 10.) The citations
the Appellants refer to involve the time period from
March 14, 2006 to March 21, 2006 – not several
months.6 See id.
6 The inconsistencies in Mangum’s version of the events
“several months” later are evidence of the efforts by Defendants
to fabricate false evidence to close gaps in the case and conceal
the proof of innocence, and otherwise frame Plaintiffs and their
teammates as principals and/or accomplices in the crimes
charges by the Grand Jury’s indictments. Examples of this are
Gottlieb’s transparent fabrication of notes of Mangum’s
description of her attackers that contradict Himan’s
contemporaneous handwritten notes and Wilson’s interview of
Mangum in which he brought pictures of the defendants in the
criminal case in anticipation of a hearing on their motion to
suppress Mangum’s identification of them, and to create a new
timeline of events with Mangum that Gottlieb, and Himan
(incorrectly) believed avoided the timeline of irrefutable digital
evidence that proved that the crime could not have occurred. JA
928 (SAC ¶ 1150(K).)

89a
Contrary to Defendants assertions, Plaintiffs are
not relying on mere inconsistency in Mangum’s
accounts of her “drunkenness” or “drug use.”
(Appellants’ Br. 24-25.) Plaintiffs allege that during
the time period when Mangum nodded “yes,”
Mangum was exhibiting signs of psychosis that
mimicked the symptomology of schizophrenia. JA
649-50 (SAC ¶¶ 256-58.) Mangum’s “nod,” was born
of duress, and, not coincidentally, she recanted it as
soon as the involuntary commitment proceedings
were terminated and the duress was removed. JA
651-52 (SAC ¶¶ 262-63.) Once ensconced in the
hospital’s protections afforded to anyone presenting
for a Sexual Assault Examination, Mangum
abandoned any notion of “rape” in exchange for
complaints of intolerable - yet unverifiable - pain and
her only plausibly consistent accusations were that
no condoms were used; the party was a “bachelor
party;” and she wanted her property back. JA 65963, 670 (SAC ¶ ¶ 291-306, 327.) These were the only
complaints that Mangum "repeated" in any sense of
the word and among these complaints, there were
still variations. JA 670 (SAC ¶¶ 327.)
Next, the Appellants assert that Plaintiffs do not
even hint that investigators were aware that
“Mangum would have had to lie about being raped.”
(Appellants’ Br. 25.) Plaintiffs do more than merely
hint, they clearly articulate such reason or motive
throughout their Complaint. For example, Plaintiffs
allege Mangum’s false claim of rape was the product
of duress caused by the threatened loss of her
children in the involuntary commitment proceeding
that was already underway . . and that Mangum
overheard the police radio exchange ordering a patrol

90a
unit to Mangum’s house to see if her children were
alone; the suggestive questioning that prompted
Mangum’s halfhearted false claim of rape; the
specious circumstances surrounding it; and
Mangum’s troubled psychiatric history revealed at
the Durham Center Access, including Mangum’s
previous involuntary commitments.” Plaintiffs also
allege that Defendants agreed to conceal the
evidence of the events at the Durham Center Access
on March 14th, knowing their obvious relevance to
Mangum’s credibility.” JA 650 (SAC ¶¶ 257-589); see
also JA 671 (SAC ¶¶ 329-32.) Furthermore, Plaintiffs
allege that Mangum’s healthcare providers
concluded that Mangum was a clinically unreliable
reporter of her own experience, particularly her
experience of pain and what was causing it. JA 668
(SAC ¶ 321(B).) Besides feigning unconsciousness in
her interactions with the police, JA 644 (SAC ¶¶ 23233), Mangum historically feigned symptoms of pain
in order to obtain prescription narcotics so frequently
that the clinic she regularly presented to with
somatic
complaints
placed
a
starting
recommendation in her chart not prescribing her any
form of narcotic. JA 664, 666, 668, 370 (SAC ¶¶ 309,
315(C)-(D), 321(C), 325).
Plaintiffs’ allegations also point to several
"reasons" why Mangum would acquiesce in the
suggestion of rape. For example, one “reason” was
Mangum’s expectation that, by nodding "yes," she
would improve the likelihood that she would have
access to the prescription medications to which she
was addicted, and another “reason” was Mangum’s
well-documented clinical history of breaks with
reality and other psychoses. JA 666-69, 763 (SAC ¶¶

91a
315(A)-(D), 321, 631(F)-(G).) Thus, contrary to
Defendants’ conclusory assertions, Plaintiffs allege
ample facts showing Mangum’s “motives” and
“reasons” for nodding “yes” to the suggestion of rape,
she would improve the likelihood she would have
access to the prescription medications to which she
was addicted, and another reason was Plaintiffs
allege ample facts showing Mangum’s "motives" and
"reasons" for nodding "yes" to the suggestion of rape,
and Plaintiffs’ allegations make it perfectly clear
that Defendants were well aware of her "motives"
and "reasons" to lie. JA 650, 665-67 (SAC § X.A
(“New Hospital, New Story, New Motive”), ¶¶ 25758, 312-20); see also JA 671 (SAC ¶¶ 329-32.)
Inexplicably the Appellants contend that
Plaintiffs "acknowledge" that Nurse Levicy’s reports
provided "corroborating medical evidence" of
Mangum’s rape claim. (Appellants’ Br. 25.) Plaintiffs
allege precisely the opposite. JA at 662-64 (SAC ¶¶
302-09.) The Appellants do not cite to any allegation
suggesting that Plaintiffs "acknowledge" any such
fact. (See Appellants’ Br. 25-26.) Rather, they cite
"facts," the fabricated allegations that Himan and
Gottlieb concocted in their NTO Affidavit, which
Plaintiffs clearly allege were fabricated by Himan
and Gottlieb to cause the NTO to issue, (Appellants’
Br. 25 n.11); JA 695-704 (SAC ¶¶ 414-44), and again
to obtain the search warrant for McFadyen’s room.
JA 855 (SAC ¶¶ 924-25). Defendants also ignore
Plaintiffs’ detailed allegations establishing that the
same claim was false and that no medical evidence
supported Mangum’s rape claim. See, e.g., JA 660-61,
663-64, 670, 814 (SAC ¶¶ 294-96, 306, 308-09, 32426, 791-92.) Defendants also disregard the factual

92a
allegations documenting Levicy, Himan, and
Gottlieb’s agreement to fabricate medical evidence to
bolster Gottlieb and Himan’s false claims, JA 813,
852 (SAC ¶ ¶ 786-89, 913); and the facts showing
that, after agreeing to conceal and fabricate medical
evidence, Levicy and others, in fact, did manufacture
medical evidence to provide false corroboration of
those claims. JA 811-816, 852 (SAC ¶ ¶ 785-99, 913);
see also JA 661-64 (SAC ¶ ¶ 302-09).
In fact, Plaintiffs allege that Levicy made
material changes to her Sexual Assault Examination
Report (“SAER”) to "fix" the SAER’s inconsistencies
with forensic evidence that later emerged, to prop up
Mangum’s false accusation and to cover up Himan
and Gottlieb’s fabrication of probable cause. JA 81116 (SAC ¶¶ 785-97.) Plaintiffs also assert that Levicy
acted in furtherance of the conspiracy right up to the
very last day that Durham Police controlled the
investigation, (JA 811-16 (SAC ¶¶ 785-98)), and,
when the Attorney General took control of the case,
Levicy claimed – for the first time – that the
"medical evidence" contradicted Mangum’s rape
claim. JA 816 (SAC ¶¶ 798-99). Defendants either
confuse the factual allegations about Levicy’s role in
this case with the factual allegations in Carrington v.
Duke Univ. or the Appellants have chosen to grossly
misrepresent Plaintiffs’ factual allegations, and as
such, mislead the Court.7

Cf. McFadyen, et al. v. Duke Univ., et al., No. 1:07-cv953, JA at 807-08, 811-16 (SAC ¶¶ 779, 785-97 )(M.D.N.C. Dec.
2007) (Dkt. No. 136) (asserting that Levicy, Gottlieb, and
Himan understood, agreed, and colluded to solve the physical
(Continued . . .)
7

93a
The Appellants contend that while Plaintiffs
“criticize investigators’
reliance
on
Levicy’s
statements, they do not dispute that investigators
did so rely.” (Appellants’ Br. 25-26.) Plaintiffs do not
dispute the fact that investigators relied on Levicy’s
statements because Plaintiffs contend that Levicy,
Himan, Gottlieb, Nifong, and Wilson (among other
Defendants) understood, agreed, conspired, and
colluded to testify to forensic medical evidence that
was not observed and did not exist. JA 813, 877, 929,
940-41 (SAC ¶¶ 788-89, 996, 1150(I), 1191, 1193.)
Additionally, it was agreed upon that Levicy would
not provide significant portions of the SAER until
April 5, 2006, weeks after the initial March 21, 2006
subpoena and production to Gottlieb. JA 811-16, 852,
870, 945 (SAC ¶¶ 785-97, 913, 970, 1207). During
this time interval in between March 21st and April
5th, Levicy would fabricate false and misleading
forensic medical evidence in order to either support
and lend credibility to Himan and Gottlieb’s
sensationalized version of Mangum’s accounts (or
lack thereof) which they falsified throughout factual
evidence problem of the case by manufacturing consistency and
fabricating proof of trauma, where none, in fact, existed); with
Carrington v. Duke Univ., No. 1:08-cv-119, 68 (M.D.N.C. Feb.
21, 2008) (Dkt. No. 145) (alleging that: “[w]ithout Levicy’s false
and misleading statements to the Duke Investigators... the
false rape charges would never have become public. If the
Durham Police had been advised truthfully by Levicy that the
physical and medical evidence was inconsistent with Mangum’s
multiple, ever-changing, conflicting stories, then the rape
investigation, which had been dropped by Durham Police
Investigator B.S. Jones, would not have been revived and
pursued”).

94a
sections of the NTO Affidavit, intentionally conform
to the pending results of the DNA evidence,
retroactively conform testimony to the most recent
national public statements made by Nifong
regarding the proof of “trauma,” where none, in fact,
existed, or fix the latest inconsistency with
Mangum’s evolving story. JA 807-16 (SAC ¶¶ 782-83,
785, 779-80, 786-97.) Plaintiffs do not object to the
reliance by investigators on Levicy’s statements
because
Plaintiffs
emphatically
underscore
throughout their Complaint, the conspiratorial and
colluding nature of Levicy and the investigators’
relationship. See, e.g., JA 811-16, 852, 870, 945 (SAC
¶ ¶ 785-97, 913, 970, 1207.)
In their Brief, the Appellants also challenge the
fact that although “Plaintiffs allege that Levicy’s
statements were false, they do not allege that any
Durham officials lied about Levicy’s account.”
(Appellants’ Br. 26 n. 12) Again, Plaintiffs do not
allege that Durham officials lied about Levicy’s
account because Durham officials and Levicy
understood the other to be deliberately proffering
false testimony, either through reports, notes,
identification procedures, or other means as a part of
their collective design to fill the chasms in Mangum’s
case and/or restore Mangum’s glaring credibility
problems. JA 776-79, 814-16, 852 (SAC ¶¶ 666-75,
791-97, 913.) As a result of this concerted conduct
and knowingly and intentionally disregarding the
truth, Plaintiffs were seized and searched in
violation of their Fourth and Fourteenth Amendment
rights. JA 853, 855 (SAC ¶¶ 914, 927.) This Court
has said it perfectly, “[a]n investigation need not be
perfect, but an officer who intentionally or recklessly

95a
flat out lies before a magistrate, or hides facts from
him violates the Constitution unless the untainted
facts themselves provide probable cause.” Miller v.
Prince George’s County, 475 F.3d 621, 627 (4th Cir.
2007); Brooks v. City of Winston-Salem, 85 F.3d 178,
183-84 (4th Cir. 1996).
The Appellants also claim that Plaintiffs allege
that Mangum complained of being "in pain," but they
mislead by omitting the facts Plaintiffs allege
documenting that Mangum’s treating physicians
concluded that Mangum’s reports of pain were also
lies. (Appellant’ Br. 26); JA 652-53, 659-64, 666-67
(SAC ¶¶ 66-69, 293-309, 315-19.) (alleging that
medical records include reports of tests conducted by
physicians the revealed that Mangum’s reports of
pain were plainly false). In the same sentence,
Appellants claim that “the medical evidence was
consistent” Mangum’s claim to have been raped and
“without any apparent motive to fabricate a story,
investigators had probable cause to believe that
Mangum was raped.” (Appellants’ Br. 26.) First,
Plaintiffs’ could not be clearer in their Complaint
and their specific allegations regarding the absence
of any medical evidence supporting Mangum’s
allegation of rape or for that matter, any medical
evidence even consistent with Mangum’s complaints
to medical staff. See, e.g., JA 662-64, 670, 813-14, 816
(SAC ¶¶ 302-09, 324-26, 789, 792, 799)(alleging the
lack of any medical evidence to support or even
consistent with Mangum’s claim of rape); JA 652-53,
659-64, 666-67 (SAC ¶¶ 66-69, 293-309, 31519)(alleging reports of pan were false). Plaintiffs also
allege a specific "reason or motive" for Mangum to lie
about her pain: a long history of abusing prescription

96a
narcotics. JA 665-66 (SAC ¶¶ 312-16.) Plaintiffs
allege that Mangum’s medical chart was rife with
documentation of her prescription drug abuse, and
even warned Mangum’s treating physicians of her
propensity to feign severe pain to obtain prescription
narcotics. JA 666-68 (SAC ¶¶ 315, 321(B)-(C).)8
Even more telling is Appellants’ “other evidence”
suggesting that “an incident involving Mangum had
occurred at the party.” (Appellants’ Br. 26.)
Appellants’ rely upon the fact that “a 911 call was
placed in the vicinity of 610 N. Buchanan at
approximately the same time Mangum claimed to
have been raped.” Id. However, 911 records reveal
and the Complaint alleges that at the time the call
referenced was placed - 12:53:17 AM – and completed
– 12:54:12 AM – Mangum was in the car on the way
to Kroger with Pittman. JA 640, 643 (SAC ¶¶ 217,
223-24.) Pittman immediately admitted to having
placed the call and this fact was consistently verified
throughout the initial days of the investigation and
prior to Himan and Gottlieb swearing out the NTO
8 The City also makes the unremarkable “connection”
that Mangum claimed she was robbed of $400, and that police
found "a pile of twenty dollar bills … inside the residence
totaling $160." (Appellants’ Br. 27.) This is not the stuff of
probable cause. Even if it were, Plaintiffs do not allege that
Mangum claimed the money was stolen "immediately after she
was raped." JA 669 (SAC ¶ 104); see infra p.48. In fact, this is
another one of the fabrications with which Himan and Gottlieb
laced their probable cause affidavits, and Plaintiffs allege facts
showing that this was another of their reckless falsehoods. (See
Appellants’ Br. 25) (quoting Gottlieb’s NTO Affidavit (not
Plaintiffs’ allegations)).

97a
Affidavit. JA 745-56 (SAC ¶¶ 572, 574(A)-(D).) If
Mangum was being raped at that time as Defendants
allege, then the rape would have had to have
occurred in the car with Pittman. A reasonable and
objective officer would recognize this inherent
conflict and lack of probable cause.
B. THERE WERE NO REASONABLE
GROUNDS
TO
BELIEVE
MCFADYEN,
WILSON,
OR
ARCHER
COMMITTED
THE
OFFENSES NAMED IN THE NTO.
Himan and Gottlieb misstate the second element
of the proof required before an NTO may issue under
the Constitution or under North Carolina statutes.
N.C. Gen. Stat. § 15A-273.9 Instead of correctly
reciting the requirement that the affidavit contain
reasonable grounds to believe the person named in
the affidavit “committed” the felony, Defendants
recast the requirement as the lesser showing that
the person named in the affidavit was merely
9

A non-testimonial order sworn affidavit must establish

that:
(1) [t]hat there is probable cause to believe that a felony offense
… has been committed;
(2) [t]hat there are reasonable grounds to suspect that the
person named or described in the affidavit committed the
offense; and
(3) [t]hat the results … will be of material aid in determining
whether the person named in the affidavit committed the
offense.
N.C. Gen. Stat. § 15A-273.

98a
“involved.” (Cf. Appellants’ Br. 27-28 (“reasonable
grounds to suspect that Plaintiffs were involved”
(emphasis added) with N.C. Gen. Stat. § 15A-273(2)
(“reasonable grounds to suspect that the person
named or described in the affidavit committed the
offense”
(emphasis
supplied)).
Neither
the
Constitution nor N.C. Gen. Stat § 15A-242 (2011)
tolerates the City’s slight of hand, nor should this
Court.
C. THE RESULTS OF THE NTO DID
PROVE
THAT
NO
CRIME
OCCURRED AT 610 N. BUCHANAN,
AND DEFENDANTS CONSPIRED
TO CONCEAL IT.
Defendants gloss over the uncomfortable fact that
the DNA tests and photo identification procedures
conducted with the fruits of the NTO (Plaintiffs’
DNA and photographs) proved that Plaintiffs and
their teammates could not have committed the
violent 30-minute gang rape that Himan and
Gottlieb fabricated in their Affidavit. They also
ignore the fact that Himan and Gottlieb assiduously
concealed those results from their subsequent
application for a warrant to search Ryan McFadyen’s
residence and vehicle. Defendants also ignore the
statute that compelled them to deliver a report of the
results of all tests conducted with the fruits of the
NTO “as soon as the results were available.” N.C.
Gen. Stat. § 15A-282 (2011).
D. DEFENDANTS’
EVINCED
A
DISREGARD FOR
AND
A

CONDUCT
RECKLESS
THE TRUTH
DELIBERATE

99a
INDIFFERENCE TO PLAINTIFFS’
RIGHTS
Defendants contend that Plaintiffs “do not
plausibly suggest that Gottlieb and Himan acted
deliberately or with reckless disregard for the truth”
in preparing their Affidavit in support of the NTO.
(Appellants’ Br. 28-30.) To support this assertion,
Defendants contend that Plaintiffs identify four false
statements in the NTO Affidavit. (See Appellants’ Br.
28-37.) But Plaintiffs allege facts showing that every
material fact Gottlieb and Himan asserted in their
NTO Affidavit was false. And to show that Gottlieb
and Himan fabricated the NTO affidavit
“deliberately or with reckless disregard for the
truth,” Plaintiffs allege scores of specific facts
showing that Gottlieb and Himan personally knew
that every material fact in their NTO Affidavit was
false. For example, in addition to the four material
facts that Gottlieb and Himan concede they
fabricated, Plaintiffs allege facts showing that
Himan and Gottlieb fabricated many, many others,
and omitted still more material facts from the
affidavits the submitted to support the NTO and
search warrant. See discussion infra § III.
Plaintiffs also allege facts showing that Gottlieb
and Himan had personal knowledge of the material
facts they deliberately omitted from the affidavit. For
example, Gottlieb and Himan knew that Mangum
eliminated Plaintiffs as plausible suspects when she
did not recognize any of them in the photo
identification procedures conducted before they
penned their NTO and search warrant affidavits. JA
680-86, 702-04 (SAC ¶¶ 363-84, 441-44) (Photo ID

100a
procedures eliminated Plaintiffs as plausible
suspects; Mangum was presented with clear, recent
photos of McFadyen, Wilson, and Archer and did not
recognize any of them; and Mangum’s physical
description of the “attackers” eliminated McFadyen,
Wilson, and Archer). These omissions were highly
material to the determination of whether “reasonable
grounds” existed to suspect that McFadyen, Wilson,
or Archer committed the sexual offenses described in
their affidavits. See N.C. Gen. Stat. § 15A-273.
Defendants’ repeated claim that there was
“corroborating medical evidence” provided by Tara
Levicy does not suffer for a lack of gall. Plaintiffs
allege exactly the opposite. As the District Court
explained, “Plaintiffs’ allege that she shared the goal
of violating Plaintiffs’ constitutional rights, and that
she agreed with Nifong, Gottlieb, and Himan to
provide the false evidence to them as part of this
agreement.” JA 1117 (Mem. Op. 60)(March 31, 2011).
The District Court identified Plaintiff ’s contention
that “Levicy participated in the NTO process and in
the subsequent “cover-up” of the constitutional
violations in the NTO proceeding.” JA 1116 (Mem.
Op. 59). For example, the Court notes that:
Plaintiffs allege that Levicy had several
meetings and interviews with Gottlieb,
Himan, and Nifong, and that during
those
meetings
she
“repeatedly
proffered false testimony that was
clearly designed to fill the chasms of
Mangum’s
case
and/or
restore
Mangum’s glaring credibility problems,”
and that this included altering forms

101a
and evidence as needed to fit the
investigators’ case. (JA 808-16 (SAC ¶¶
780-798, see ¶ 799).) Based on those
meetings, Plaintiffs allege that Levicy
“agreed to act in concert with Nifong,
Gottlieb, and Himan by falsifying
Mangum’s SAER to harmonize it with
the fabricated [NTO] Affidavit, and,
subsequently, further falsified the
SAER to harmonize it with Mangum’s
written statement and evidence they
hoped would emerge from the DNA
testing.” (JA 852 (SAC ¶ 913).)
Plaintiffs
set
out
specific
allegations that Levicy produced
falsified medical records and
proffered
false
testimony
to
corroborate the information in the
NTO application.
JA 1116 (Mem. Op. 59) (emphasis and parenthetical
notations supplied). Plaintiffs allege dozens of facts
showing that no medical evidence corroborated the
fabricated allegations in Himan and Gottlieb’s
Affidavits, and documenting Levicy’s fabrication of
medical evidence to fit the false allegations that
Himan and Gottlieb made in their Affidavits and to
conceal the evidence of their material omissions. See,
e.g., JA 659-664, 667-71, 807-08, 811-16, 852, 855,

102a
927 (SAC ¶ ¶ 293-309, 321-30, 779, 785-99, 913, 92426, 1150(I), 1150(K).)10
Defendants repeatedly cite to this Court’s
decision in Unus v. Kane, 565 F.3d 103 (4th Cir.
2010). But Unus is hardly instructive in this case. As
this Court explained, the plaintiffs in Unus attacked
a statement made in of a search warrant affidavit in
which the affiant “did not make a factual
misrepresentation, he made no factual representation
at all.” Unus v. Kane, 565 F.3d at 124 (emphasis
added).
Next, Defendants’ recycle the false assertion that
Plaintiffs somehow “concede [that] there was
probable cause to search [610 N. Buchanan].”
(Appellants’ Br. 38.) For support, Defendants cite ¶
415 of the Complaint, and hope that the Court will
take their word for it because ¶ 415 does not allege
that there was probable cause to search 610 N.
Buchanan. JA 696 (SAC ¶ 415.) To the contrary,
beginning with ¶ 415, in a section entitled “The
Fabricated NTO Affidavit,” the Complaint alleges:
1. The Fabricated NTO Affidavit
415. Immediately after Gottlieb and
Himan were advised that team
10 Respectfully, Defendants’ false claim that Plaintiffs
allege that Himan and Gottlieb’s Affidavits were supported by
“corroborating medical evidence” merits some response from
this Court, particularly in light of the fact that Plaintiffs’
briefing below and the District Court’s Order documented the
allegations showing that the characterization of Defendant’s
allegations is patently false.

103a
members
postponed
the
mass
interrogation, Gottlieb and Himan
retaliated against them by drafting an
entirely new Affidavit to request an
NTID Order. There was no need to
revise the Affidavit as a practical
matter. The existing Probable Cause
Affidavit was sufficient to obtain a
Search Warrant for 610 N. Buchanan.
To obtain an NTID Order, the only
modification required was an allegation
that each individual on the team was
present at the party (an allegation they
could not truthfully make).
416. Instead, for the NTID Order
Application, Gottlieb and Himan added
an array of new, fabricated allegations
to the original search warrant Affidavit.
The new allegations were designed to
ignite public outrage at the Plaintiffs.
417. The new scandalous allegations
were attributed to Mangum, but
Mangum did not provide them …
418. Gottlieb’s fabricated allegations in
the NTO affidavit added a sinister
dimension to the already fabricated
account of the evening in the Search
Warrant Affidavit. Among them was,
for example, the allegation that the
women were sexually threatened with a
broomstick, the accuser lost several
fingernails in the violent struggle, and

104a
the team members used each other’s
names to disguise their “true identity”
and to avoid identification. These facts
were demonstrably false, and they did
not come from Mangum or any witness.
Upon information and belief, they came
from Gottlieb’s brain.
Thus, ¶ 415 does not “concede” that there was
probable cause to search 610 N. Buchanan, and the
subsequent allegations allege exactly the opposite,
¶¶ 415-418, and then refer to the Affidavit Gottlieb
and Himan concocted to obtain the 610 Search
Warrant as “the already fabricated account of the
evening in the [610 N. Buchanan] search warrant
affidavit.” (emphasis added). By alleging that the
search warrant affidavit was “already fabricated,”
Plaintiffs mean exactly what they say: The search
warrant Affidavit was fabricated. Gottlieb and
Himan’s probable cause argument is therefore just as
baseless as their false assertion that Plaintiffs’ allege
that there was “corroborating medical evidence” to
support the Affidavit’s claim that Mangum was
violently raped. Not unlike the Affidavit itself,
Defendants argument proceeds by cherry-picking
and recasting the unambiguous facts alleged in the
complaint and fabricating entirely new facts of their
own making. Having no basis in the facts,
Defendants attempt to convince this Court by
misleading it. And, contrary to Defendants’
contention, it was not “error” for the District Court to
reject the tactic. Misrepresenting Plaintiffs’
allegations cannot save Defendants from liability for

105a
misleading magistrates into authorizing searches
and seizures without probable cause.
Defendants argue that the District Court declined
to engage in “the parsing of Plaintiffs’ Complaint,”
and that “this was error.” (Appellants’ Br. 37.) But
Defendants are confused. When the District Court
referred to Defendants’ “extensive parsing of pieces of
the Second Amended Complaint,” the District Court
was politely describing (and rejecting) Defendants’
persistent cherry picking recasting of Plaintiffs’
allegations. The District Court rejected Defendants
contentions in connection with the existence of
probable cause because they relied on facts that
Plaintiffs do not allege. JA 1111 (Mem. Op. 54) (“the
analysis suggested by Defendants requires factual
analysis beyond the allegations in the Second
Amended Complaint”). Because it was bound to
accept the truth of Plaintiffs’ allegations and all
reasonable inferences they permit, the District Court
refused to consider the “extensive factual
contentions” that Defendants conjured up to rebut
Plaintiffs’ allegations. As the District Court
explained:
Defendants raise extensive factual
contentions, with factual comparison
charts, to dispute these allegations and
to demonstrate that probable cause
existed even if the allegedly false
statements are removed and the
material omissions are included. This
analysis includes … contentions by
Himan as to what information he
provided to Nifong, and contentions by

106a
Gottlieb and the City as to what
information Mangum provided to
Gottlieb and Himan during her
interviews. However, the analysis
suggested by Defendants requires
factual
analysis
beyond
the
allegations in the Second Amended
Complaint,
and
…
any
consideration
of
Defendants’
factual contentions in response, is
more appropriate at summary
judgment after an opportunity for
discovery, when the factual record
is
before
the
Court
for
consideration. At this stage in the
case, the Court simply concludes that
where officers deliberately or recklessly
supply false or misleading information
to a magistrate judge to support a
warrant application, as alleged in the
present case, the officers may be liable
under § 1983 for violation of an
individual’s Fourth Amendment rights,
if their actions result in the seizure of
an individual without probable cause.
JA 1111-12 (Mem. Op. 54-55.) Thus, the District
Court rejected Defendants’ probable cause argument,
not because Plaintiffs’ allegations are voluminous or
because the Court declined to wade through them. To
the contrary, the District Court analyzed the
allegations in great detail, concluded that they
establish an obvious Fourth Amendment violation,
and rejected Defendants’ arguments to the contrary

107a
because they were based on facts Plaintiffs do not
allege.11
E. DEFENDANTS ARE NOT IMMUNE
FROM PLAINTIFFS’ FIRST CAUSE
OF ACTION BECAUSE THEY
VIOLATED RIGHTS THAT WERE
CLEARLY
ESTABLISHED
BY
MARCH OF 2006.
When officers deliberately or recklessly provide
false or misleading information to a magistrate judge
to support a warrant application, the officers may be
held liable under 42 U.S.C. § 1983 for violation of an
individual’s Fourth Amendment rights, if the officers’
actions result in the seizure of the individual without
probable cause.12 Plaintiffs explicitly allege in their
Complaint that Himan (the Affiant for the NTO) and
Gottlieb deliberately and recklessly provided false
Plaintiffs note that the “facts” Defendants conjure up
to rebut Plaintiffs’ allegations are demonstrably false, and
Plaintiffs look forward to presenting proof of that to the jury
(assuming Defendants do not abandon them in the evidentiary
phase of this case).
11

12 The District Court noted that the NTO statute
authorizes the searches and seizures it contemplates upon a
showing of less than probable cause, and that the law is
unsettled regarding whether the statute would be subject to a
constitutional challenge on that basis, at least as applied in
some circumstances. In this regard, the District Court rightly
concluded that there is no need for the Court to resolve those
questions at this stage because Plaintiffs allege that the
affidavit Gottlieb and Himan submitted to cause the NTO to
issue against Plaintiffs was intentionally and recklessly false
and misleading. JA 1108-11 (Mem. Op. 51-54.)

108a
and misleading information in support of the
application for the NTO. JA 695-704, 851-53 (SAC §
XVI, ¶¶ 904-17.) Furthermore, Plaintiffs’ rights were
clearly established and no reasonable police officer
could have believed that it was acceptable to
deliberately or recklessly fabricate and present false
or misleading evidence to a judge to effect Plaintiffs’
seizure. See Miller v. Prince George’s County, 475
F.3d at 631-32 ([T]he Supreme Court has long held
that a police officer violates the Fourth Amendment
if, in order to obtain a warrant, he deliberately or
‘with reckless disregard for the truth’ makes
material false statements or omits material facts …
No reasonable police officer … could believe that the
Fourth Amendment permitted such conduct.”
(internal citations omitted)); Brooks v. City of
Winston-Salem, 85 F.3d at 183-84.
Himan and Gottlieb contend that, even if they
violated
Plaintiffs’
constitutional
rights
by
manufacturing probable cause where no probable
cause existed by making false statements and
omitting material facts from their NTO Affidavit,
they are nonetheless entitled to qualified immunity,
because, they contend, an objective law enforcement
officer could reasonably have believed that probable
cause existed. (Appellants’ Br. § I(b), 39-41.) To
support their contention, Himan and Gottlieb rely on
Malley v. Briggs, 475 U.S. 335 (1986). (Appellants’
Br. 40-41.) They complain that the District Court’s
analysis was “inconsistent with Malley” because the
District Court somehow evaluated Himan and
Gottlieb’s “subjective beliefs or intentions” in its
qualified immunity analysis. (Appellants’ Br. 41.)
But they fail to explain how the District Court based

109a
its ruling on “Plaintiffs’ mens rea allegations” or
Himan and Gottlieb’s subjective beliefs. Nor could
they: The District Court expressly noted that, under
Malley, “in the context of a search or seizure
conducted pursuant to a warrant, qualified immunity
is analogous to the ‘good faith’ exception to the
exclusionary rule applied in criminal cases under
United States v. Leon … .” JA 1112 (Mem. Op. n.17)
(citing Malley, 475 U.S. at 344-45).
In connection with Gottlieb and Himan’s claim of
qualified immunity, the District Court first held that
“at the time of the alleged conduct, it was clearly
established that an officer’s fabrication of evidence
before a magistrate judge to effect a search and
seizure of a citizen without probable cause would
violate that citizen’s constitutional rights.” JA 1112
(Mem. Op. 55.) The Court went on to analyze
Himan’s and Gottlieb’s specific conduct in connection
with their fabricated affidavits and concluded that
the allegations showed each of them “knowing[ly] or
reckless[ly] present[ed] false or misleading evidence
that effected a seizure and search of Plaintiffs …
without probable cause.” Id. The Court concluded
that there is “no question” that such conduct violated
clearly established rights, and “no reasonable official
could have believed that it was permissible to
deliberately or recklessly create false or misleading
evidence to present to a magistrate to effect a
citizen’s seizure.” Id. (citing Miller, 475 F.3d at 63132 (“[T]he Supreme Court has long held that a police
officer violates the Fourth Amendment if, in order to
obtain a warrant, he deliberately or ‘with reckless
disregard for the truth’ makes material false
statements or omits material facts. ... No reasonable

110a
police officer ... could believe that the Fourth
Amendment permitted such conduct”); Brooks, 85
F.3d at 183-84).
The District Court also concluded that “Plaintiffs
have adequately alleged a seizure and a search of
their person implicating their rights under the
Fourth Amendment.” JA 1108 (Mem. Op. 51) (citing
United States v. Dionisio, 410 U.S. 1, 8 (1973) (noting
that “the obtaining of physical evidence from a
person involves a potential Fourth Amendment
violation at two different levels - the ‘seizure’ of the
‘person’ necessary to bring him into contact with
government agents... and the subsequent search for
and seizure of the evidence”)). In addition to the
Fourth Amendment “seizure” involved in being
compelled to appear at the police station, the District
Court concluded that Plaintiffs have raised a Fourth
Amendment challenge to the “search” Plaintiffs
allege, which required them to submit to DNA
sampling and “mug shot” photographing, and to
disrobe for close physical examination which invaded
a “reasonable expectation of privacy” and went
beyond what “a person knowingly exposes to the
public.” Katz v. United States, 389 U.S. 347, 351
(1967). Defendants make no argument to the
contrary on these points.
The alleged constitutional violations were “clearly
established” at the time Himan and Gottlieb
fabricated their NTO Affidavit. As the District Court
explained, “there is no question that these rights
were clearly established, and no reasonable official
could have believed that it was permissible to
deliberately or recklessly create false or misleading

111a
evidence to present to a magistrate to effect a
citizen’s seizure.” JA 1112 (Mem. Op. 55) (citing
Miller, 475 F.3d at 631-32 (“[T]he Supreme Court
has long held that a police officer violates the Fourth
Amendment if, in order to obtain a warrant, he
deliberately or ‘with reckless disregard for the truth’
makes material false statements or omits material
facts.... No reasonable police officer... could believe
that the Fourth Amendment permitted such
conduct.” (internal citations omitted)); Brooks, 85
F.3d at 183-84).
II. THE
SEARCH
OF
RYAN
MCFADYEN’S HOME AND VEHICLE
VIOLATED
HIS
CLEARLY
ESTABLISHED FEDERAL RIGHTS.
Plaintiffs’ Second Cause of Action asserts a
Fourth Amendment violation against Gottlieb,
Himan, and the City for an unreasonable search and
seizure of Plaintiff McFadyen’s home and vehicle.
This search and seizure was effected pursuant to a
search warrant based upon the same affidavit
Gottlieb and Himan fabricated to manufacture
probable cause for the NTO. They added only one
new “fact” to their search warrant affidavit -- text
that they claimed was in an email from Ryan
McFadyen, which their affidavit asserts was
provided by an “anonymous source.” JA 81. But their
affidavit does not articulate any facts relating to the
reliability of the source, the text could not be
considered in the determination of probable cause.
Florida v. J.L., 529 U.S. 266, 269-70 (2000). And
there is no question that, after the Supreme Court’s
2000 decision in J.L., no reasonable officer would

112a
believe that information from an anonymous source
could be considered in determining probable cause
without providing any information bearing on the
source’s reliability. See id. Thus, after striking the
email from Gottlieb and Himan’s search warrant
affidavit, what remains is the same fabricated NTO
Affidavit that no reasonable officer would believe to
be tolerated by the Fourth Amendment. See
discussion infra § III.
Furthermore, the Affidavit fails to establish any
nexus between the place to be searched (a dorm room
on Duke’s Main Campus) and the offenses named in
the affidavit (rape, sexual offense, kidnapping, and
“conspiracy to commit murder). JA 77-81. Gottlieb
and Himan applied for the search warrant two weeks
after the alleged “conspiracy to commit murder” was
to be consummated. Id. Thus, even if the
disembodied text could have been considered (which
it could not) any probative value the email may have
had was fatally stale when Gottlieb and Himan
injected it into their affidavit. See JA 756 (SAC ¶
605); see also, e.g., United States v. Mohn, No.
1:05CR319-1, 2006 WL 156878 *8 (M.D.N.C. Jan. 20,
2006) (quoting United States v. Gonzales, 399 F.3d
1225, 1230 (10th Cir. 2005)). Perhaps most telling of
all, however, is the disquieting fact that Gottlieb and
Himan prepared the Search Warrant Affidavit hours
after Nifong declared, “were f***ed” in response to
their report of the investigation, the overwhelming
evidence that no rape occurred, and the absence of
any credible evidence to the contrary. JA 752-57
(SAC ¶¶ 591-93, 598-99, 600, 610.)

113a
Based on the fabrications and material omissions
that doom the search warrant, the District Court
held that “where officers deliberately or recklessly
supply false or misleading information to a
magistrate to support a warrant application, as in
the present case, the officers may be liable under §
1983 for violation of an individual’s Fourth
Amendment rights if their conduct results in a
search without probable cause.” JA 1121-22 (Mem.
Op. 64-65); Miller, 475 F.3d at 631-32 (“The Supreme
Court has long held that a police officer violates the
Fourth Amendment if, in order to obtain a warrant,
he deliberately or ‘with reckless disregard for the
truth’ makes material false statements or omits
material facts.... No reasonable police officer... could
believe that the Fourth Amendment permitted such
conduct.”); Brooks, 85 F.3d at 183-84.
Here, too, the District Court analyzed the
allegations detailing Gottlieb and Himan’s specific
participation in causing the unconstitutional search
of McFadyen’s residence and vehicle. JA 1122 (Mem.
Op. 65.) Plaintiffs’ allege scores of facts evincing
Gottlieb and Himan’s participation in causing the
warrant to issue without probable cause. See. e.g., JA
752-57 (SAC ¶¶ 591-610.) Based on those specific
allegations, the Court concluded “that Gottlieb and
Himan were directly involved in the intentional or
reckless fabrication of evidence that was submitted
to obtain the search warrant that resulted in the
search of McFadyen’s dorm room,” and, as such,
“Plaintiffs have alleged plausible Fourth Amendment
claims as set out in Count 2, based on allegations of
deliberate or reckless submission of false and
misleading evidence.” JA 1122 (Mem. Op. 65.) The

114a
District Court correctly concluded that Himan and
Gottlieb were not entitled to qualified immunity
because those rights were clearly established at the
time they recycled their fabricated affidavit to obtain
a warrant to search Ryan McFadyen’s residence and
vehicle, JA 1122 (Mem. Op. 65) and “no reasonable
official would have believed that it was permissible
to deliberately or recklessly create false or
misleading evidence to present to a magistrate in
order to obtain a search warrant.” Id.
Here, again, Appellee’s assert that “the district
court declined to engage” in the Franks analysis, and
that Iqbal required the District Court to do so. But
that is not what the District Court “declined” to do.
The District Court declined to consider Defendant’s
parsing and recasting of Plaintiffs allegations or any
“facts” that Plaintiffs do not allege but which
Defendants conjured up to rebut Plaintiffs’
allegations. JA 1121 (Mem. Op. 64.) Here again,
because Appellants misrepresent the District Court’s
analysis, it is appropriate to report to the Court what
the District Court actually wrote:
In response, Defendants raise many of
the same contentions raised with
respect to Count 1, including the
extensive factual contentions, and
exhibits, to dispute these allegations
and to demonstrate that probable cause
existed even if the allegedly false
statements are removed and the
material
omissions
are
included.
Defendants’
discussion
includes
analysis of the contents of an e-mail,

115a
disputes regarding the source of that email, and additional factual discussion
regarding the allegations that were
repeated from the NTO affidavit.
However, as discussed with respect to
Count 1, the analysis suggested by
Defendants
requires
factual
analysis beyond the allegations in
the Second Amended Complaint,
and the cases cited by the Defendants in
support of this analysis involve
summary judgment determinations, not
determinations on a motion to dismiss.
Therefore, the Court finds that this type
of analysis is more appropriate at
summary
judgment
after
an
opportunity for discovery, when the
factual record is before the Court for
consideration. Id. (emphasis supplied).
Therefore, the District Court concluded that at
this stage in the case, the Court simply concludes
that where officers deliberately or recklessly supply
false or misleading information to a magistrate to
support a warrant application, as alleged in the
present case, the officers may be liable under § 1983
for violation of an individual’s Fourth Amendment
rights, if their actions result in a search without
probable cause. Id. Appellants argument recasts the
foregoing conclusions by asserting that “the district
court declined to engage in the requisite Franks
analysis, finding that ‘this type of analysis is more
appropriate at summary judgment after an
opportunity for discovery, when the factual record is

116a
before the Court for consideration.’” (Appellants’ Br.
42-43). The assertion does not suffer for a lack of
gall: It is obvious that the District Court did not
“decline to engage in the Franks analysis,” but,
instead, declined to engage in a “factual analysis
beyond the allegations in the Second Amended
Complaint.” JA 1121 (Mem. Op. 64.) In other words,
the District Court declined to accept as true
Defendants’ parsing and recasting of Plaintiffs’
allegations or the purported “facts” Defendants
assert to rebut the facts Plaintiffs allege. That is
precisely what Rule 12 requires, and to do otherwise
would stand the rule on its head.
III. THE FRANKS ANALYSIS
Gottlieb and Himan suggest that the analysis in
Franks v. Delaware, 438 U.S. 154 (1978) will not
show the want of probable cause and that Plaintiffs
do not allege facts to undermine the affidavit’s
allegations. (Appellants’ Br. 21-49.) Gottlieb and
Himan do not undertake a Franks analysis on their
own. Below, Plaintiffs analyze Gottlieb and Himan’s
affidavits pursuant to the analysis set forth in
Franks by applying the specific facts Plaintiffs allege
to the affidavits that Gottlieb and Himan fabricated.
The analysis demonstrates that the corrected
affidavits supporting the NTO and search warrant do
not establish probable cause (or reasonable grounds,
reasonable suspicion, or any lesser quantum of
proof).
Pursuant to Franks, 438 U.S. 154 (1978), the
Court undertakes a “correction” analysis, whereby
the Court “corrects” the affidavit first by striking the
false statements from the affidavit. Franks, 438 U.S.

117a
at 155-56. If the remaining allegations do not
establish probable cause, the Plaintiff has stated a
claim. Id. If the remaining allegations would
establish probable cause, the court must consider
any material omissions, which this Court explained
is any false statement that is “designed to mislead”
or “made ‘in reckless disregard of whether [it] would
mislead.’” United States v. Tate, 524 F.3d 449, 455
(4th Cir. 2008) (alterations in original) (quoting
United States v. Colkley, 899 F.2d 297, 300-301 (4th
Cir. 1990)). After “correcting” Gottlieb and Himan’s
affidavits pursuant to Plaintiffs’ allegations, it is
plainly obvious that “there is more than a sheer
possibility” that the NTO and search warrant lacked
probable cause and Gottlieb and Himan’s
fabrications and omissions were necessary to the
judicial determination that probable cause existed.
A. PLAINTIFFS
ALLEGE
MORE
THAN A “SHEER POSSIBILITY”
THAT THERE WAS NO PROBABLE
CAUSE TO BELIEVE A FELONY
WAS COMMITTED
Gottlieb and Himan’s false statements and
material omissions begin in earnest with their
opening passage. There, they assert:
On 3/14/06 at 1:22am, Durham City
Police Officers were called to the
Kroger on Hillsborough Road. The
victim, a 27 year old black female,
reported to the officers that she
had been raped and sexually
assaulted at 610 North Buchanan
Blvd. JA 57.

118a
Plaintiffs allegations are consistent with the first
sentence and the recitation of Mangum’s age and
race, but, beyond that, Plaintiffs’ allegations show
that Gottlieb and Himan knew that the remainder of
allegations in this opening passage were false and
they deliberately omitted many facts relating to what
Mangum “reported” that were highly relevant to the
probable cause determination. For example:
First, Mangum did not “report[] to the officers at
Kroger that she had been raped” or assaulted at 610
N. Buchanan or anywhere else. She did not even
remember where she had been, much less the
address. Rather, she feigned unconsciousness in an
effort to evade arrest. JA 644 (SAC ¶¶ 232-33.)
Later, while Mangum was being involuntarily
committed and moments after she overheard police
radio communications indicating that she was likely
to lose custody of her children, Mangum nodded in
response to a nurse who asked if she had been
assaulted. JA 647-51, 668, 684, 354 (SAC § VIII
(“Mangum Nods Rape”), ¶¶ 251, 321(G), 382(C),
1137(D).) And once the duress of her imminent
arrest, involuntary commitment, and loss custody
was removed, Mangum recanted. JA 647-48, 651
(SAC ¶¶ 243-52, 262-63.)
Second, within the first 48 hours after her initial
false accusation, Mangum was questioned by at least
8 different medical providers and 3 Durham Police
Officers. In the first interview, Mangum recanted. JA
651-52, 684, 763 (SAC § IX.A, ¶¶ 263, 382(D),
631(G).) Subsequently, Mangum gave 11 different
accounts of the events of the evening, and never gave
the same story twice. JA 658-59, 668, 670 (SAC ¶¶

119a
291-92, 321(E), 328.) Her accounts varied on
virtually every conceivable point, even as to the
municipality she came from (Raleigh or Durham). JA
668 (SAC ¶ 321(E).) Mangum’s only consistent
repeated claims were that no condoms were used; the
party was a “bachelor party”; she had an account
with police officers; and she wanted her property
back. JA 659-63, 670 (SAC ¶¶ 291-306, 327.)
Third, Mangum did not call the police. Rather,
the security guard on duty at Kroger, Angel Altmon,
placed the call. And Altmon did not call to report a
suspected sexual assault; she reported that Mangum,
who she described as “an intoxicated lady is in
someone else’s car,” and “won’t get out of the car.” JA
643-44 (SAC ¶¶ 225-27, Ex. 9) (audio exhibit). When
Altmon was asked whether there was any indication
that Mangum had been sexually assaulted, she
simply replied “Ain’t no way.” JA 646-47 (SAC ¶¶
239-42, Ex. 11) (audio exhibit).
Fourth, Kim Pittman was not at the Kroger to
report a sexual assault, Kim Pittman pulled over
there to obtain assistance in removing Mangum from
her car, which Mangum would not do voluntarily. If
there was any safety concern in the parking lot at
Kroger, it was Kim Pittman’s concern for her own
safety which arose from Mangum’s bizarre behavior
that began in the house and continued throughout
the short drive from 610 N. Buchanan to the Kroger.
Among other things, Pittman reported that Mangum
was “talking crazy,” repeatedly telling Pittman, “go
ahead, put marks on me, that’s what I want.” JA
643, 644, 684-85 (SAC ¶¶ 223, 231, 382(A).)

120a
Fifth, when police approached Mangum in
Pittman’s car, Mangum “feigned unconsciousness.”
JA 644 (SAC ¶¶ 232-33.) When police tried to remove
her from the car, Mangum sprang to life and resisted
their efforts by holding onto the parking brake,
which required Sgt. Shelton to apply a “bent-wrist
come-along” to remove her. After Sgt. Shelton finally
extracted Mangum from the car, she resumed
feigning unconsciousness. JA 644 (SAC ¶ 233.)
Sixth, the entire protracted period Mangum was
in the Kroger parking lot, she did not say or suggest
to anyone that she had been assaulted (sexually or
otherwise).
In
fact,
recorded
dispatch
communications show that, after Durham Police
finally got Mangum out of Pittman’s car and into
police custody in the back of one of the officer’s
vehicles, the dispatcher asks if she should call for an
ambulance. The Durham Police officer transporting
her in his vehicle responds, “no,” and reports to
dispatch that “she’s breathing, appears to be fine, not
in distress, just passed out drunk.” JA 644-45 (SAC
¶¶ 228, 234-36, Ex. 10) (audio exhibit).
Seventh, Mangum’s behavior was so bizarre
throughout her interactions with Durham Police that
Sgt. Shelton believed she needed immediate
psychiatric care and met the standards for
involuntary commitment; and directed officers to
transport her to Durham Center Access and initiate
the procedures to have Mangum involuntarily
committed. JA 645-48 (SAC ¶¶ 237, 245-47.)
Eighth, while Mangum was being involuntarily
committed at Durham Center Access, the admitting
nurse asked Mangum a series of questions to which

121a
she did not respond. JA 648 (SAC ¶ 247.) Then
Mangum overheard an officer on the radio request
that units be dispatched to Mangum’s house to
“check on her children” and directing those officers to
contact DSS if the officers found that no adult was
supervising them. Only then did Mangum begin to
respond, nodding in response to the nurse’s question,
“Were you raped?” JA 647-51 NC (SAC § VIII
(“Mangum Nods ‘Rape’”), ¶¶ 243-54.)
Thus, Gottlieb and Himan’s opening passage is
bleeding with false statements and material
omissions that require several pages for Plaintiffs to
merely recite. While this is more than sufficient to
overcome Gottlieb and Himan’s objections for
purposes of Fed. R. Civ. P. 12(b)(6), Plaintiffs will go
on (as Appellants insist they must) in the name of
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
Next, the Affidavit asserts that:
The victim arrived at the residence
and joined the other female dancer
around 11:30pm on 3/13/2006. JA 57.
While Plaintiffs allege that Mangum arrived at the
residence and joined Pittman, and that Pittman was
already there when Mangum arrived, Plaintiffs
allegations show that the remainder of the statement
is false and that Gottlieb and Himan omit several
material facts relating to Mangum’s arrival at the
residence. Among other things, the Affidavit omits
the fact that Mangum arrived 40 minutes late (at
around 11:40 p.m.); she was dropped off and her
driver drove off as soon as she left the car and never
returned; Mangum was not dressed in street clothes,

122a
did not bring street clothes, and there were other
indications that Mangum had been transported
directly from a previous engagement; and she was
incoherent and staggering when she arrived. JA 637
(SAC ¶ 197.)
Next, the Affidavit asserts that:
After a few minutes, the males
watching them began to get excited
and aggressive. JA 57.
This statement is false and the Gottlieb and Himan
both knew it to be false. Kim Pittman explained to
Himan on March 20, 2006 that she had heard of
Mangum’s claims and called Mangum’s claims “a
crock.” JA 686 (SAC ¶ 385.) On March 22, 2006, Kim
provided a more detailed written statement, leaving
no room in her timeline for the sexual assault to
have occurred. Id. Because Mangum’s behavior was
so bizarre and because she was so incoherent, the
young men watching quickly became uncomfortable
or disinterested, and, as a result, the “dance” ended a
few minutes after it began. JA 638 (SAC ¶ 202.)
Next, the Affidavit asserts that:
One male stated to the women “I’m
gonna shove this up you” while
holding a broom stick up in the air
so they could see it. The victim and
her fellow dancer decided to leave
because they were concerned for
their safety. JA 57.
Apart from the fact that Kim Pittman decided to
leave soon after the three-minute performance

123a
mercifully ended, this statement is false and Gottlieb
and Himan knew it to be false. Gottlieb and Himan
knew that no one at the party said anything even
approaching what they allege or anything
threatening in any way. They also knew that
Pittman used an off color joke to end the dance
minutes after it started, not due to any safety
concern, but instead because she was aware that
there was no interest in the performance among
those in attendance and she was aware that
Mangum’s behavior was becoming increasingly
bizarre. JA 638 (SAC ¶¶ 201-02.) Gottlieb and
Himan both knew that neither woman was ever
concerned for her safety, and that no one in
attendance threatened either of the women in any
way. JA 696-97 (SAC ¶¶ 418-22.)
Next, the Affidavit asserts that:
After the two women exited the
residence and got into a vehicle,
they were approached by one of the
suspects.
He
apologized
and
requested they go back inside and
continue to dance. JA 57.
The allegation is false in that Pittman and Mangum
did not exit the residence and get into a vehicle
together. Rather, Gottlieb and Himan knew that
Pittman left the residence and got into her vehicle.
Before she could leave, however, one of the residents
asked her to wait for Mangum, who was locked out of
the house and variously trying to get in through the
back door and staggering around the back yard and
repeating to no one in particular that she was “a
cop.” JA 639 (SAC ¶ 208.) Pittman reported most, if

124a
not all, of this to Himan on March 22, 2006, and
these facts are corroborated by time stamped
pictures showing Mangum, outside of the locked back
door, holding the screen door open, trying to get back
into the house, just standing there, and smiling. JA
638-39, 689-90 (SAC ¶¶ 206-10, 397-98.) There is no
indication whatsoever that she had any concern for
her safety. See id.
Indeed, the only “safety concern” expressed to
Gottlieb and Himan was Kim Pittman’s report to
them that she was afraid of Mangum, particularly
after Mangum fought with Pittman in the car and
told Pittman to “go ahead, put marks on me, that’s
what I want.” JA 684 (SAC ¶ 382(A).) Police also
knew that, shortly after she arrived at 610 N.
Buchanan, Mangum was calling her agency looking
for more work elsewhere. JA 638 (SAC ¶ 204.)
Gottlieb and Himan also knew that, consistent with
these facts, the next door neighbor, Jason Bissey,
reported to police that he saw Mangum staggering
along the side of the house, heading toward the back
yard saying she was looking for her shoe. JA 638,
687 (SAC ¶¶ 205, 388.)
Next, the Affidavit asserts that:
Shortly after going back into the
dwelling the two women were
separated. Two males, Adam and
Matt pulled the victim into the
bathroom. JA 57.
This statement is false and Gottlieb and Himan
knew it to be false. Kim Pittman told Inv. Himan in
a telephone interview that she never went back into

125a
the house, that she was with Mangum the whole
time, and that Mangum’s accusation was a “crock.”
JA 686 (SAC ¶ 385). No one – not Pittman or
Mangum -- ever reported that either of them ever got
back into the house after they left. Pittman did not
try to re-enter the house, and, although Mangum did
try, she was locked out. JA 638-39, 689 (SAC ¶¶ 20509, 397.) And in all of Mangum’s 11 varied accounts
of what occurred at 610 N. Buchanan, she never once
says that Adam or Matt were names used by anyone
in the residence while she was there. JA 659 (SAC ¶
292.)
Next, the Affidavit asserts that:
The victim stated she tried to leave,
but the three males (Adam, Brett,
and Matt) forcefully held her legs
and arms and raped and sexually
assaulted her anally, vaginally, and
orally. The victim stated she was
hit, kicked, and strangled during
the assault. Medical records and
interviews that were obtained by a
subpoena revealed the victim had
signs, symptoms, and injuries
consistent with being raped and
sexually assaulted vaginally and
anally. JA 57.
This statement fabricates and omits facts known to
the affiant that were highly material to the probable
cause determination:
There was no swelling, edema, cuts or abrasions
(even microscopic) of the anus or the exterior pelvic

126a
region. JA 664 (SAC ¶ 308(B).) No cuts, abrasions, or
any other abnormalities were observed or
documented even with the high-magnification
coloposcope. JA 664 (SAC ¶ 308(D).) Doctors and
nurses concluded that Mangum was making false
claims of pain because their tests revealed no
associated symptoms of pain at all. JA 659-60, 664,
670, 814 (SAC ¶¶ 293-96, 309, 325, 792.) The only
documented injuries in the SAER were injuries to
Mangum’s knees and ankles. However, digitally
time-stamped photos taken during the dance show
the exact same injuries were already present on her
knees and ankles before she arrived at 610 N.
Buchanan. JA 663-64, 670 (SAC ¶¶ 307, 326.)
Moreover, Mangum denied receiving any physical
blows by the hand, (JA 664 (SAC ¶ 308(A))), and in
the many ‘Systems Examinations’ that were done by
DUMC doctors and nurses on the morning of March
14, 2006 (and the UNC doctors and nurses the next
day), all concluded that Mangum’s head, back, neck,
chest, breast, nose, throat, mouth, abdomen, and
upper and lower extremities were normal, and
Mangum was consistently noted to be in ‘no obvious
discomfort,’ even when she was scoring her pain as
‘10 out of 10.’ JA 659-62, 664-68 (SAC ¶¶ 293-94,
296, see ¶¶ 304, 309, 312-21(C)).
Next, the Affidavit asserts that:
The victim reported that she was
sexually
assaulted
for
an
approximate 30 minute time period
by the three males. JA 57.

127a
This statement is false and omits the related and
highly material fact that, between March 13 and
March 15, 2006, Mangum “reported” 11 different
versions of the events of the evening in question. JA
659, 670 (SAC ¶¶ 292, 328.) In some versions, she
was assaulted, in others she was not. And among the
renditions of the events in which she did assert that
she was assaulted, the number of attackers involved
varied wildly, from 1 to 5 to 20 attackers. JA 645,
651, 659, 668 (SAC ¶¶ 234, 262-63, 292, 321(I).)
Gottlieb and Himan also omitted the related
material fact that Kim Pittman told them she had
been with Mangum throughout the brief period they
were there and Pittman was therefore certain that
any allegation that Mangum was raped or sexually
assaulted was “a crock.” JA 686 (SAC ¶ 385.)
Next, the Affidavit asserts that:
During a search warrant at 610 N.
Buchanan on 3-16-2006 the victim’s
four red polished fingernails were
recovered inside the residence
consistent to her version of the
attack. She claimed she was
clawing at one of the suspect’s arms
in an attempt to breathe while
being strangled. During that time
the nails broke off. JA 57.
Himan and Gottlieb knew that these allegations
were false, and they omitted facts that were highly
material to the probable cause determination.
Mangum never claimed that she had been strangled,
that she clawed at anyone’s arm for any reason, or
that her nails broke off in a struggle or for any other

128a
reason. JA 698 (SAC ¶ 424.) On March 14th, 15th,
and 16th, Mangum gave at least 11 different
accounts of what occurred at 610 N. Buchanan while
she was there, and not once did Mangum make any
of these claims, nor did she make them in her
written statement on April 6th. Id. And there is
more.
Not only do Himan and Gottlieb make this false,
incendiary allegation, they also omit from the
affidavit the highly material facts that the “polished
fingernails” that Gottlieb and Himan found had
obviously never been applied to anyone’s fingertips;
that they also found unpainted fingernails, nail
polish, and nail application accessories together with
the pre-painted fingernails that had never been
applied, JA 698 (SAC ¶¶ 425-26); that unpainted
nails were also found inside Mangum’s make up bag,
which Gottlieb and Himan seized in their search of
610 N. Buchanan Blvd. on March 16, 2006, JA 69899 (SAC ¶¶ 425-27); that Gottlieb and Himan failed
to collect the fingernails during the execution of the
search warrant; and that this allegation does not
appear in the affidavit they presented to obtain the
warrant to search 610 N. Buchanan.
Next, the Affidavit asserts that:
The victim’s make up bag, cell
phone, and identification were also
located
inside
the
residence
totaling $160.00 consistent with the
victim claiming $400.00 cash in all
twenty dollar bills was taken from
her purse immediately after the
rape. JA 57.

129a
While the presence of $160.00 in a home is
perhaps theoretically consistent with having a claim
that Mangum left $400.00 there three days prior, it
seems highly likely that one would find $160.00 in
any home that is shared by three adults. But, here,
too, Gottlieb and Himan omit the material facts that
Mangum also claimed that the money was not stolen;
that $2,000.00 was “stolen;” that Kim Pittman
(“Nikki”) stole it; that the money was deposited in a
nearby ATM as required by the escort agency; and
that she left the money in the back seat of Officer
Barfield’s patrol car. JA 669 (SAC ¶¶ 321(K)-(L).)
Next, the Affidavit asserts that:
Mangum was treated and evaluated
at Duke University Medical Center
Emergency Room shortly after the
attack took place. JA 57.
While it is true that Mangum was transported to
DUMC, the statements that she was “treated and
evaluated” there are false. Mangum was not treated
for anything; she was merely kept for observation.
See JA 660-61 (SAC ¶¶ 294-96.) And, while DUMC
staff initiated a Sexual Assault Examination (“SAE”)
long after she arrived, the SAE was promptly
abandoned. JA 662 (SAC ¶ 304.) No pelvic exam was
conducted; no rectal exam was conducted; no forensic
toxicology tests were ordered; no forensic blood draw
was taken. JA 663 (SAC ¶ 305.) The medical staff,
Durham Police officers, and Duke police officers who
interacted with Mangum at DUMC concluded that
she had not been sexually assaulted and that she
was lying about her pain to obtain the prescription
narcotics to which she was addicted. JA 652-53, 659-

130a
64, 674-75, 712, 846 (SAC ¶¶ 265, 269, 293-309, 343,
472, 891.)
Next, the Affidavit asserts that:
A Forensic Sexual Assault Nurse
(SANE) and Physician conducted
the examination. Medical records
and interviews that were obtained
by a subpoena revealed the victim
had signs, symptoms, and injuries
consistent with being raped and
sexually assaulted vaginally and
anally. Furthermore, the SANE
nurse stated the injuries and her
behavior were consistent with a
traumatic experience. JA 57.
These statements are false and Gottlieb and Himan
omit several facts that are highly material to
probable cause. First, Levicy was a “SANE-inTraining;” she was not qualified or competent to
conduct an SAE under accreditation standards or
DUHS’s internal policies. JA 661-62, 976 (SAC ¶¶
299, 301, 1321); no qualified SANE conducted the
exam, a resident, Dr. Julie Manly did, JA 661-63
(SAC ¶¶ 298, 302-06); Levicy was also not competent
to collect or interpret forensic medical evidence;
Levicy agreed with Gottlieb and Himan to back up
their claims that she observed corroborating medical
evidence in Mangum’s SAE, in court as an “expert” if
necessary. JA 661-62, 976-77 (SAC ¶¶ 299, 301,
1322); see also JA 246-51 (SAC ¶¶ 785-97).
By signing the SAER, failing to clearly document
the foregoing facts on the SAER, Levicy deliberately

131a
falsified a forensic medical record in order to aid
Himan and Gottlieb’s attempt to obtain search and
seizure orders by defrauding the Court. JA 661, 81116 (SAC ¶¶ 299, 785-99.) Fourth-year resident Julie
Manly found no injury to Mangum’s pelvic region
whatsoever, including the vaginal walls, cervix,
rectum, or anus. JA 663 (SAC ¶ 306.) The only
notation Manly made was ‘diffuse edema of the
vaginal walls.’ Id. But diffuse edema is not an injury;
it is a symptom. Id. It is caused by many things. Id.
Further diffuse edema cannot be clinically identified
to a reasonable degree of medical certainty without a
baseline reference for comparison that neither Levicy
nor Manly had (e.g., a prior observation of the
vaginal walls at a time when they were not edemic).
Id.
Next, the Affidavit asserts that:
In a non-custodial interview with
Daniel Flannery, resident of 610 N.
Buchanan and Duke Lacrosse Team
Captain; Mr. Flannery admitted
using an alias to make the
reservation to have the dancers
attend the Lacrosse Team Party. JA
58.
This statement fabricates and omits material facts
known to the affiant. During Police questioning on
March 16th, Dan Flannery, told police that, when he
called the agency, he gave the name Dan Flanagan.
No witness ever said that Dan identified himself as
Adam, rather everyone was calling him Dan. JA 701
(SAC ¶ 432.) The only aliases Mangum claimed were
used on March 13th-14th, 2006, were Mangum’s and

132a
Pittman’s aliases, “Precious” and “Nikki.” Pittman
identified herself with her real name when she
encountered authorities; Mangum continued to refer
to herself as “Precious” and also as “Honey”
throughout the morning of the 14th. JA 652-53, 658,
669-70, 686-87 (SAC ¶¶ 268, 291, 323, 386.)
B. PLAINTIFFS
ALLEGE
MORE
THAN A “SHEER POSSIBILITY”
THAT
THERE
WERE
NO
“REASONABLE GROUNDS” TO
SUSPECT
PLAINTIFFS
COMMITTED
THE
CRIMES
NAMED IN THE AFFIDAVITS
Gottlieb and Himan sought an NTO directed to
all 46 white members of the Duke men’s lacrosse
team. Instead of asserting specific, articulable facts
showing “reasonable grounds” to suspect that each
one of the 46 young men committed the crimes
identified in their affidavit, Gottlieb and Himan cut
the Gordian Knot by the following witness
statements:
All of the parties named in this
application with the exception of
the last five were named by the
three residents of 610 N. Buchanan
as being present at the party. Due
to the fact that the residents of 610
N. Buchanan stated that all the
attendees were their fellow Duke
Lacrosse Team Members and that
there were so many attendees, all of
the white male Duke Lacrosse
Team Members were listed since

133a
they were all aware of the party
and could have been present. JA 58.
Even if these statements were true (and they are
not), they do not establish “reasonable grounds” to
suspect that McFadyen, Wilson, or Archer committed
rape, sexual offense, or kidnapping. Moreover,
Gottlieb and Himan omit the fact that the three
residents also stated that the party began in the late
afternoon; thus, “being present at the party” at some
point says nothing about whether they were still
there over six hours later. But even more devastating
to Gottlieb and Himan’s claim of “reasonable
grounds” to suspect that Plaintiffs committed the
crimes they alleged is the highly material fact that
they conducted a photo identification procedure with
Mangum on March 16, 2006, (three days after the
party) in which they presented Mangum with recent
pictures of McFadyen, Wilson, and Archer and, as in
response to each one, Mangum told them that she
did not recognize them at all. JA 682, 685-86, 703
(SAC ¶¶ 372-73, 383-84, 441.) Gottlieb and Himan
also omit the highly material fact that Mangum’s
physical descriptions of her “attackers” that
eliminated McFadyen, Wilson, and Archer as
plausible suspects. Indeed, the cumulative effect of
the photo identification procedures and Mangum’s
description of her “attackers,” Mangum eliminated
every member of the lacrosse team as a plausible
suspect. JA 679-86 (SAC ¶¶ 362-84.) It is beyond
serious discussion that these facts – personally
known to Gottlieb and Himan – were material to any
judicial determination of whether there was

134a
reasonable grounds to suspect Plaintiffs committed
the sexual assault described in their affidavits.
Thus, Plaintiffs clearly allege specific facts
sufficient to show “more than a sheer possibility”
that Gottlieb and Himan presented affidavits to
judicial officers in which they deliberately or
recklessly fabricated evidence that was necessary to
the finding of probable cause and from which they
omitted material facts that they knew negated
probable cause, and, as a foreseeable result,
Plaintiffs were subjected to searches and seizures
without probable cause. See, e.g., Miller, 475 F.3d at
630-31 (“an officer who intentionally or recklessly
puts lies before a magistrate, or hides facts from him,
violates the Constitution”); JA 679- 86, 702-04 (SAC
¶¶ 362-84, 439-44.) In the year 2006, a reasonable
officer in Gottlieb’s, Clayton’s, and Himan’s position
would know—even to a moral certainty—that what
they were doing violated clearly established law.
Further, a reasonable officer would also know that
leaking the NTO they obtained by fraud to the press
to ignite a media firestorm and to publicly vilify
Plaintiffs not only violates clearly established law,
but is also arbitrary and evinces corrupt, malicious,
depraved, and evil motives that shock the conscience.
JA 695-96 (SAC ¶ 414.)
Next, Gottlieb and Himan assert that “everyone
at the party told [Mangum] they were members of
the Duke Baseball and Track Team to hide the true
identity of their sports affiliation—Duke Lacrosse
Team Members.” They also assert that Daniel
Flannery “admitted using an alias to make the
reservation to have the dancers attend the Lacrosse

135a
Team Party.” But to the extent that these “facts”
were material to whether there was probable cause
or reasonable grounds to suspect that these Plaintiffs
sexually assaulted Mangum, Gottlieb and Himan
knew they were not only false but also implausible.
Both Gottlieb and Himan spent considerable time
inside of the residence and participated in the search
of the residence on March 16, 2006. From that
experience it would have been plainly obvious to any
reasonable officer that residents did nothing to
conceal their team or school affiliation. To the
contrary, the walls inside the house were covered
with ‘Duke Lacrosse’ posters, banners, and other
lacrosse and Duke memorabilia that unmistakably
indicated their team and school affiliation. JA 701-02
(SAC ¶¶ 435-38.) Gottlieb and Himan also knew that
the only individuals using aliases at the party were
Mangum and Pittman; and they knew that Plaintiffs
and their teammates did not. JA 652-53, 658, 669-70,
686-87 (SAC ¶¶ 268, 291, 323, 386.)
Here, the litany is untenable Plaintiffs allege that
the purpose of the additional fabrications and
omissions was to maliciously vilify the plaintiffs in
the eyes of millions of people, and foment animus
against them within their community. JA 567, 69596, 754-55 (SAC ¶¶ 2, 414, 597-601.) The NTO
Affidavit—after correcting the fabrications and
omissions—does not establish probable cause to
believe that a felony had been committed or
“reasonable grounds” to believe that Plaintiffs
committed it.
***

136a
Dated: September 21, 2011
***