Lax case defendants file to dismiss civil suit

Duke and Durham defendants filed a total of 11 motions July 2 to dismiss a civil lawsuit on behalf of three unindicted members of the 2005-2006 men's lacrosse team.

The defendants say allegations of conspiracy, denial of a fair trial and others-brought forth against them by Ryan McFadyen, Trinity '08, Matt Wilson, Trinity '06 and Breck Archer--lack legal and factual merit, particularly because the players were only investigated and not indicted.

Their nearly 400-page complaint was filed in December 2007 and amended in March by the players' attorney, Bob Ekstrand, Law '98, against 45 defendants-including the University, city of Durham, former Durham district attorney Mike Nifong, the Durham Police Department and others-accusing them of conspiring against Duke students during the lacrosse case. All defendants except Nifong have responded through the motions.

"In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor.... No legal system in this country supports such a claim," the motion filed by the University reads.

The brief, submitted on behalf of the University and several senior administrators, including President Richard Brodhead and Board of Trustees Chair Robert Steel, Trinity '73, states that though the now-discredited case was an "outrage," the University did not play any part in pushing it forward.

Professor of Law Thomas Metzloff said some of the case's injurious claims could indeed be questioned on the grounds that none of the plaintiffs were arrested or suffered the same extent of negative publicity as did the three indicted players in the lacrosse case-Dave Evans, Trinity '06, Collin Finnerty and Reade Seligmann.

"Most of the civil rights law this is based on starts with the fact that something happened to you," Metzloff said. "A lot of what the Duke defendants are saying is [that] this doesn't fit the model."

He added that he felt the facts of the case do not seem to support the accusation that Duke conspired with Durham against the players, though he said the allegation was "within reach."

In legal terms, however, members of the University can use their private-party status in protecting themselves against the conspiracy theories that stem from an active involvement in the government-led investigation, Metzloff said.

The Duke defendants also argue that they were neutral parties in the investigation simply replying to the requests of DPD and the district attorney's office, which they noted was headed by a "rogue prosecutor."

Although all facts presented in the motions cannot be called into question at this time, as per legal proceedings, an inquiry into the previous investigations to establish accountability may be initiated if the unindicted players deny the motions.

Metzloff said the players' suit may help establish accountability on the part of the DPD and district attorney's office, though he said it may be less successful in proving conspiracy charges on Duke's behalf.

"[Establishing accountability] always hit me as the most significant case and the most potentially meritorious case," he said. "I have no doubt that every person on the team suffered in some way, but when we talk about legal injuries that are compensable in the legal system, that's a different thing."

The unindicted players' original complaint mentions that at some point in their Duke careers, they were each suspended for different reasons. McFadyen was placed on interim suspension from Duke in April 2006 after he sent an e-mail to his team members in which he made graphic references to killing strippers. The e-mail was meant to be a joke parodying fictional serial killer Patrick Bateman from Bret Easton Ellis' novel "American Psycho."

Wilson was suspended indefinitely from the team that month when Crystal Mangum, who falsely accused three players of raping her, identified Wilson as a potential attacker, though he was not later indicted.

Archer was also placed on forced, "failure to comply" leave in Fall 2005 when he failed to turn in a form for completing community service, which he was required to do for causing damage to his dorm room.

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