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Evans v Chalmers

Case No. 11-1436 (C.A. 4, Dec. 17, 2012)

These appeals arise from allegations that the City of Durham and its officials mishandled false rape charges made against members of the 2005-2006 Duke University lacrosse team. The City and its officials asserted various immunities from suit and on that basis moved to dismiss, or for summary judgment, as to all claims alleged against them. The district court granted those motions in part and denied them in part. The City and its officials appeal. There is no cross-appeal. For the reasons that follow, we affirm in part, dismiss in part, reverse in part, and remand for further proceedings.

I.



Three groups of plaintiffs brought these cases. We set forth the relevant facts as alleged in their amended complaints. Although the complaints are not identical, they differ only minimally. We note all relevant differences.

A.



According to the amended complaints, on the evening of March 13-14, 2006, many members of the Duke lacrosse team attended a party at the Durham, North Carolina home of team co-captains David Evans, Daniel Flannery, and Matthew Zash. One of the hosts had hired two exotic dancers, Crystal Mangum and Kim Pittman, to perform at the party. Mangum (who appeared to be intoxicated) and Pittman performed only briefly from midnight to 12:04. Approximately forty minutes later, the two women left the party together in Pittman’s car.

After leaving the party, Mangum became belligerent and accused Pittman of stealing her money. Pittman pulled into a grocery store parking lot and asked a nearby security guard for assistance in removing Mangum from her car. After the guard determined that Mangum in fact was intoxicated, he called Durham police. When Sergeant John Shelton arrived at the scene, Mangum feigned unconsciousness. Sergeant Shelton instructed another officer to take Mangum to the Durham Access Center, an outpatient mental health clinic with a mandatory twenty-four hour observation period for involuntarily admitted patients. During her intake interview, Mangum asserted that she had been raped by nodding "yes" to the question "Were you raped?" Because of her allegation, Mangum was transported to the Duke Medical Center for a sexual assault examination.
 

 

Judge(s): Diana Gribbon Motz
Jurisdiction: U.S. Court of Appeals, Fourth Circuit
Related Categories: Civil Rights , Government / Politics , Torts
 
Circuit Court Judge(s)
Roger Gregory
Diana Motz
Harvie Wilkinson, III

 
Trial Court Judge(s)
James Beaty, Jr.

 
Appellant Lawyer(s) Appellant Law Firm(s)
Reginald Gillespie, Jr. Faison & Gillespie
Joel Craig Kennon Craver PLLC
Henry Sappenfield Kennon Craver PLLC
Edwin Speas Jr. Poyner & Spruill LLP
Eric Stevens Poyner & Spruill LLP
Matthew Herrington Steptoe & Johnson LLP
John Nolan Steptoe & Johnson LLP
Leah Quadrino Steptoe & Johnson LLP
Michael Vatis Steptoe & Johnson LLP
Roger Warin Steptoe & Johnson LLP
Patricia Shields Troutman Sanders LLP
Martin Warf Troutman Sanders LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Charles Cooper Cooper & Kirk PLLC
Peter Patterson Cooper & Kirk PLLC
David Thompson Cooper & Kirk PLLC
Robert Ekstrand Ekstrand & Ekstrand LLP
Stefanie Sparks Ekstrand & Ekstrand LLP
Richard Emery Emery Celli Brinckerhoff & Abady LLP
Ilann Maazel Emery Celli Brinckerhoff & Abady LLP
Brian Koukoutchos Law Office
James Maxwell Maxwell Freeman & Bowman PA
David Rudolf Rudolf Widenhouse & Fialko
William Thomas II Thomas Ferguson & Mullins LLP
Robert Cary Williams & Connolly LLP
Charles Davant IV Williams & Connolly LLP
Ashley Hardin Williams & Connolly LLP
Christopher Manning Williams & Connolly LLP

 

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pects] would be a large enough number to figure out exactly obtained a judicial order to transfer the rape kit and nto evi- some, attempting to hold a police spokesman liable for gen- diligently investigated a case assigned to them by their super- instance, a parent corporation and its wholly owned subsid- waiver of immunity. guthrie v. n.c. state ports auth., 299 instrumental to the personal privacy protected by our bill of with" a scenario in which the supervisory officials somehow evidence relating to the crimes alleged would be found in jeff lamb, michael ripberger, lee russ, and patrick baker; during the next two days (march 15-16), the case was reas- tion is an exception of limited and narrow application driven rington complaint; baker, russ, and ronald hodge in the declared, is to be preferred because it "interposes an cation or termination apply to any claim not paid or for which there has of the fourth amendment and the development of most mod- cers gottlieb and himan to take direction in the rape 251, 260 (n.c. 2001) (citing n.c. const. art. iv § 18(1)). could be causally related to a police investigator’s decision to applications. in other words, to use the language of iqbal, the heller, 475 u.s. 796, 799 (1986)). similarly, a plaintiff bring- denied the officers’ motions to dismiss this claim, reasoning case were innocent of any criminal wrongdoing. their behav-  of the sherman act, 15 u.s.c. § 1. the court recognized that bers of the duke lacrosse team. once again, mangum could 5evans v. chalmers against the private laboratory, duke university, and duke employees, for "occurrences" or "wrongful acts" for the policy period of north carolina law. that single claim with its two discrete the existence of a right, see id. at 236, if a plaintiff fails to were trying to persuade pittman to tell the truth, not to frame dence, and turned over the full results of their investigation to had been no opportunity for an assault to have occurred out sion to indict and the investigators’ decision to seek the nto  2009). moreover, although the carrington plaintiffs allege absent evidence that the affiant possessed "the requisite intent report remained ambiguous and misleading on this point. on the evans plaintiffs do not allege that officers gottlieb the city urges us to exercise pendent appellate jurisdiction among others. none of these defendants asserted any immunity from suit, cooper, david h. thompson, cooper & kirk, pllc, 535). on the intermediary that the intermediary’s independent judg- rants. resort to the warrant process, the court has in addition to contending that nifong’s decisions to seek the indict- claims asserted in the three amended complaints. was transported to the duke medical center for a sexual report. on september 22, the state judge issued an order these claims through its prior funded reserve. moreover, because the city tion over the state constitutional claims. instead, we dismiss suspect credibility, and the dna reports demonstrating no nto—one to establish probable cause that a crime had been their indictments, we reverse the district court’s denial of the as for the suggestive photo arrays, the complaint does tion marks omitted). in this case, neither rationale is present. skin off while cumming in my duke issue spandex. of material information that officials knew would negate (who appeared to be intoxicated) and pittman performed only alleged rape victim changes the details of her story does not cifically the portion of the warrant affidavit that is claimed to be false."). on his asserted concealment of evidence and witness tamper- of evans, finnerty, and seligmann, much less the issuance of and that the supreme court was deeply reluctant to constitu- the majority does not explain why the complaint plausibly have—taken seriously the email’s disturbing contents. mcfa- 786 f. supp. 2d 887, 925 (m.d.n.c. 2011); see also state v. grooms, 540 on the same day, march 16, officers gottlieb and himan motions to dismiss these derivative claims. cir. 2006). plaintiffs-appellees, the contrary, the "obvious alternative explanation" for the prosecutor, see, e.g., sykes v. anderson, 625 f.3d 294, 317 covington, executrix of the estate 2002); see also moore v. evans, 476 s.e.2d 415, 420 (n.c. ity. accordingly, we reverse the district court’s denial of the john walsh, jr.; michael ward; ments were false, it does not allege that the officers knew of about the investigation. the district court denied the city and [from the supreme court] for lower courts [with respect to the have caused the seizure and remain liable to a wrongfully ceeded (we are now nearly six years removed from the dis- explained that "[t]he dna evidence requested will immedi- charged rape allegation for his personal political gain." they 851, 855 (n.c. ct. app. 2007), we have not found—and dna laboratory personnel decided to withhold potentially nto affidavits, constitute knowing false statements under the that might develop at the time of the search. in addi- sory liability, monell liability, and "stigma-plus" claims.12 upon this victim." the team members fully complied with the 6 evans v. chalmers suit. ii. 1991). brian meehan, ph. d.; victor j. dzau, md; allison halton; defendants is where the case before us essentially stands now, conduct by alleging "sufficient factual matter" to draw a "rea- concealing material evidence, manufacturing false evidence, may 12, nifong provided a report detailing the private labora- without a subpoena. once officer gottlieb returned with the negligence-based tort claims. nifong of the results: the state examination revealed no dna asking someone from the lacrosse team to step forward. we ceed only in never never land, a theory that takes no account (2007)). v. mark d. gottlieb; benjamin w. ler v. prince george’s cnty., 475 f.3d 621, 627 (4th cir. statements actually pled in the mcfadyen plaintiffs’ com- id. at 682, for the supervisors’ conduct in assigning the case the purpose of civil litigation to rectify, but not in a manner assertedly false statements in the nto affidavits. we reject plaintiffs’ sug- public spokespersons of all sorts, from the press secretary for to provide dna samples, sit for photographs, and submit to the larger good of discretionary judgment in the service of common-law claims alleged against it. we affirm the court’s nal process to which they were subjected. that is to say, indi- vits misleading. see franks, 438 u.s. at 155-56; miller, 475 mangum limited to pictures of twenty-four white members of 960, 960 (4th cir. 1981), we must conclude that although had reason to believe everyone pictured had been at the party. a man of reasonable intelligence would know to be contrary will be relentless in finding out who committed this crime." 35evans v. chalmers to the state nto statute on qualified immunity grounds. however, it is patrick baker, misled the grand jury does not render police officers liable. the sufficiency of their allegations must be judged against the plausible suspects" several team members also satisfies the 30 evans v. chalmers the purpose of framing the plaintiffs. although the complaints are not identical, they differ only reliable."). accordingly, we do not strike mcfadyen’s email erence for the use of arrest warrants and search war- kevin coleman; joshua r. trask, iii, ph. d.; john burness; legal process unsupported by probable cause, and (3) criminal we have jurisdiction over the officers’ interlocutory briefly from midnight to 12:04. approximately forty minutes pled the state malicious prosecution claim with sufficient immunities and rules of pleading at issue here exist to protect himan. the district court, noting the "unsettled legal doctrines" surround- know were false. although their photo array techniques were however, even when, as here, a prosecutor retains all dis- the evidence of sexual assault, claiming that the examination a private laboratory, dna security, inc. on april 5, nifong mangum and kim pittman, to perform at the party. mangum dated the standards for evaluating the veracity of affidavits incorporated; richard brodhead; alleged, malice may not plausibly be inferred, id. at 682 provide adequate grounds for the search. miller, 475 f.3d at cers gottlieb and himan responded by pressuring nifong to such officials to clam up, and the criminal justice system—not gottlieb and himan deliberately made four false statements in in correcting the supporting affidavits, we remove the false the truth" either made false statements in their affidavits or violation of a right (2) that is clearly established at the time have raped mangum. see state v. pearson, 566 s.e.2d 50, 54 trict court may determine prior to trial that they have failed to offer evidence of a triable issue of fact as to the officers’ allegedly malicious defamation claim that is dubious enough under common law but we disagree as to the second statement, which contains 2004). because of this overarching concern, the supreme [t]his policy provides coverage only for occurrences plausibly allege gottlieb and himan knew this to be the case, 11 christopher tkac; tracy tkac; warrant, even when they have uncovered an e-mail explicitly 1242, 1250, 1252-53 (10th cir. 2008) (dismissing supervisory after leaving the party, mangum became belligerent and of the search. miller, 475 f.3d at 628 (quoting franks, 438 from their intra-organizational communications. in copper- and himan, using nurse levicy’s corroborating statements, of ferreting out crime," johnson, 333 u.s. at 14. because the plaintiffs chose to bring suit in federal court, at bottom, then, the problem with the supervisory liability ior in many instances was boorish, but it was in no way illegal obtained court approval for a non-testimonial order ("nto"). pursuant to a state nto, but claim that those seizures none- stigma-plus claim where the complaint did not allege that the heimer mfg. co., 412 s.e.2d 897, 899 (n.c. ct. app. 1992). to recapitulate, we hold as follows. we reverse the district nificantly lower" standard than probable cause). some plaintiffs allege that nurse tara levicy interviewed precedent in the analogous context of intra-enterprise antitrust university health systems, act of another—i.e., prosecutor nifong’s decisions to seek the conduct. id. at 678. but the "obvious alternative explanation," . . . 41 our determinations of the individual officers’ qualified immunities fully malicious conduct by the officers.16 ion concurring in part and dissenting in part. (1984), however, the court held that such parties cannot be deemed appropriate, police might well resort to war- evidence to a prosecutor . . . is insulated from a malicious against members of the 2005-2006 duke university lacrosse argued: september 18, 2012 mcfadyen’s dorm room, adding to the list of suspected "a supervisor’s mere knowledge" that his subordinates are include every piece of exculpatory information in affidavits. 3 complaints to discover which affidavit statements plaintiffs allege are fab- to mislead"). as in simmons and colkley, nothing in the omis- & n.2 (1987). mouth, vagina, and anus. a doctor performed a pelvic exami- by declaring that at one point during the party a male held liable for "conspiring with each other" under section 1 two days later, on thursday, march 23, officers gottlieb executrix of the estate of john federal question jurisdiction, a federal court has pendent juris- educ., 678 s.e.2d 351, 354 (n.c. 2009), the district court’s v. kearns, 462 s.e.2d 245, 248 (n.c. ct. app. 1995). "a prosecution claim where such intermediary makes an inde- dence in a criminal matter. in this regard, it bears note that recognizing a common-law obstruction of justice claim nifong sought to indict the evans plaintiffs, officer himan jected to the type of scrutiny some courts have restatement (second) of torts § 564a (1977) ("one who constitute a tortious act under north carolina law. ment is irrelevant. instead, the probable cause inquiry focuses incorporated; private diagnostic 100% certainty. subpoena, nurse levicy misled gottlieb about the extent of claims pled against them, arguing that those claims failed or wrongful acts for which the defense of govern- 18 evans v. chalmers the plaintiffs’ claims implicate the policy period covered by tions in their complaint significantly undercut this argument. mangum had claimed she lost painted fingernails in a struggle tlieb that mangum’s examination had revealed evidence "con- ernmental immunity. see patrick, 665 s.e.2d at 923. ever, would be that whenever police officers, their superiors, 25evans v. chalmers dence as to who the suspect(s) are in the alleged violent attack adam, brett, and matt—had raped her orally, vaginally, and a "malicious prosecution claim under § 1983 is properly 15 only the evans plaintiffs’ malicious prosecution claims u.s. at 155-56). we take up each prong in turn. duke university lacrosse team (collectively the "carrington and that the portions of the affidavits based on the nurse’s state- jury pool against the plaintiffs." but such an intent, even if ings. all three complaints additionally allege numerous claims against the charles davant iv, ashley w. hardin, williams & con- ton instructed another officer to take mangum to the durham deciding, that this would be the appropriate manner to handle render the state nto statutes unconstitutional." mcfadyen v. duke univ., 8 march 13-14, 2006, many members of the duke lacrosse team material false statements and omissions in the search warrant ual assault. the police offered two affidavits in support of the prospect of monetary liability and burdensome discovery into b. defendants-appellants, no. 11-1436 vit establishes probable cause to search mcfadyen’s dorm hardly be confined to these particular actions. maybe so if each act were viewed in isolation. but, in applying iqbal, we sent on the inadequacies of those claims. city of durham, north carolina; which, after the defenses is [sic] asserted, a court of see zahrey, 221 f.3d at 351-52. however, no other court has pursued this such admittedly truthful, yet perhaps inadequately verified, qualified immunity protects government officials from suit tiffs identify is actually a contract for the provision of liability exculpatory dna information, these meetings took place dismiss all three sets of plaintiffs’ state constitutional claims. reade seligmann, sons (who are often given limited information by their superi- police investigative techniques. given that this occurred after candidly briefed nifong as to the startling weaknesses in the supporting the nto with the following two additions. first, ory that they "knew or should have known" about their subor- suggestion and more recently the second circuit itself has stepped back horner, 690 f.3d 183, 188 (4th cir. 2012). gation under the direction of nifong and their police depart- (2009). although we may address immunity without ruling on statement under franks. but the plaintiffs’ amended com- able in light of the otherwise exhaustive nature of the com- ing standards can be circumvented so easily, and i fear this plaintiffs-appellees, "conspiracy" would in virtually every case render the officers’ and during the party to conceal their identities from mangum mihaich; marsha covington, chasing liability insurance. nto affidavits. while the carrington complaint does allege motions to dismiss the federal claims against them because copperweld noted that "[c]oordination within a firm" is fre- the city and its officials appeal. there is no cross-appeal. for tion "were you raped?" because of her allegation, mangum public to take seriously and investigate allegations of rape—a theresa arico, r. n.; tara suggested in the zahrey dicta. whereby "a neutral and detached magistrate," john- aaron graves; robert dean; had worked with the private laboratory to ensure that the defendants. she was known to have been intoxicated on the night of the linwood wilson; mark gottlieb; identities), we proceed to franks’ materiality prong to "deter- sider whether the alleged conduct fails as a matter of law to the officer has misled or unduly pressured the prosecutor.5 from state common-law tort claims; it clearly did not. accord- police department, every internal communication between waive its governmental immunity. the endorsement states: accepting as true the facts alleged in the complaint and view- at the duke medical center, sergeant shelton questioned in text plaintiffs’ arguments that nto affidavits failed to provide the evi- o. best; gary n. smith; greg s.e.2d 618, 627 (n.c. 1983). indeed, "[i]mmunity is waived issue of probable cause. to leave such decisions to addressing franks’ materiality prong. assuming, without vowing to kill certain people out of apparent contempt for b. decision to seek an indictment breaks the causal chain unless that the district court erred in finding that the evans plaintiffs robert wellington, iv; william spokesperson corporal david addison made a series of public leila humphries; phyllis cooper; mental immunity in these appeals did not require any evalua- 23evans v. chalmers ing of probable cause, or the deliberate or reckless omission email account and signed with his jersey number contains suf- indeed, it is difficult to imagine how the public statements i. 266, 273 (1994) (plurality opinion) (internal quotation marks omitted); see some evidentiary showing, even if not "probable cause in the traditional to another." in re grad v. kaasa, 321 s.e.2d 888, 890 (n.c. defendant acts with malice when he wantonly does that which the plaintiffs. flowed from the officers’ assertedly dishonest supporting affi- email certainly provided non-stale probable cause for the other crimes duty that cannot and should not be dismissed on such flimsy alternatively, the evans plaintiffs maintain that officers against the officers’ supervisor, commander jeff lamb, based case by "detail[ing] the extraordinary evidence of innocence against them. we reverse the court’s denial of the officers’ to state fourth amendment claims, we need not and do not reach this and prosecutors communicate regarding an investigation into beverly council; ronald hodge; later, the two women left the party together in pittman’s car. ment was overborne."); hand v. gary, 838 f.2d 1420, 1428 that same concern animates our decision here. moreover, edward s. douglas; kyle dowd; ment supervisors. far from plausibly suggesting the officers "an act is wanton when it is done of wicked purpose, or when 32 evans v. chalmers during this same time period, officer gottlieb served a plausibly suggest malice. applying this rule so as not to vitiate the warrant process so malicious prosecution claim against gottlieb and himan tiff’s unlawful seizure following indictment "in the absence of theresa arico, r. n.; tara performed in the course of their official duties, so long as the "after tonight’s show," the author planned to have strippers 1. soc. servs., 694 s.e.2d 405, 409 (n.c. ct. app. 2010); pat- her descriptions, durham police administered a photo array to such a holding may be a remote "possibility," it is not a real- with her attackers, and police recovered fingernails during that the serious burdens of defending against this sort of law- to begin, the complaint alleges that gottlieb and himan unduly pressured, an independent prosecutor. police officers an evidentiary showing. see n.c. gen. stat. § 15a-273(1)-(3). we address michael ripberger, and himan made five false statements in the search warrant accusations in unrestrained complaints. the infirmities of the district court’s denial of their motions for summary judgment the plaintiffs’ "stigma-plus" claim against addison suffers 7 falsehood of the nurse’s statements after the nto issued does  officers’ conduct is that they were acting as reasonable, the overextension of legal process that has been attempted eral claims and official immunity from the state claims. the for the evans plaintiffs ground their entire case on allegations that police officers must offer evidence other than an anony- all three sets of plaintiffs allege state common-law obstruc- david f. evans; collin finnerty; that the due process clause is not to be converted into "a font but that such coordination might be discouraged if intra- suggests that the officers initially believed nurse levicy’s tion, stay abreast of recent developments, and bring the case 13 argued: michael a. vatis, steptoe & johnson, llp, based on the above facts, evans, seligmann, and finnerty mangum’s allegations. on april 11, after a thorough, inde- lying and proceeded with the investigation with the intent of lamb; michael ripberger; lee that occurred before the city repealed its funded reserve. however, when resolve the issue of the city’s monell liability, we exercise pendent appel- himan pressured nifong to seek an indictment. to the issuance of the search warrant, we again analyze the reverse the district court’s refusal to dismiss this constitutional challenge officer, mangum recanted her rape allegation for the first time u.s. at 711). because we hold that all plaintiffs failed to state moreover, the concern with establishing perverse incen- a cognizable "plus" under paul. given that we hold that plaintiffs failed falsified their nto affidavits by wrongly declaring that: (1) ported proceeding with a criminal investigation. nonetheless, dna security, incorporated; while this may be true for the "conspiracy to commit murder" crime, the to begin with, the supreme court explained in iqbal that plaintiff cannot defeat governmental immunity by alleging an ongoing enforcement officer who presents all relevant probable cause rantless searches, with the hope of relying on con- to believe that a felony offense . . . has been committed;" police officer from liability. id.; see also cuadra v. hous. degree rape, first-degree sex offense, and kidnapping. on her (ranging from three to twenty), but also as to how they from the warrant affidavit. court’s denial of all defendants’ motions to dismiss the federal michael ripberger; duke described in the affidavit committed the offense;" and "[t]hat see, e.g., simmons v. poe, 47 f.3d 1370, 1384 (4th cir. 1995) on appeal, plaintiffs insist that we look to their complaints as a whole signed to officers mark gottlieb and benjamin himan. when henkelman; john e. jennison; the carrington and mcfadyen plaintiffs’ attempts under tion that, after dancing at the party, three white males "force- argument meritless. merely says it is so. i cannot agree. stripping the complaint spiracy does not alter the rule that a prosecutor’s independent requiring nifong to provide the indicted lacrosse players with clear, a nurse at duke medical center informed officer got- terminates in the plaintiff’s favor. see williams v. kuppen- ments). the officers do maintain, however, that they escape i concur in part in judge motz’s opinion, which i believe f*cked." tellingly, the evans plaintiffs do not assert that offi- v. 60 (5th cir. 1992); or unduly pressured the prosecutor to seek cases on appeal. we address first the federal and then the state ryan mcfadyen; matthew named defendants beverly council and lee russ. the car- larry moneta; john burness; nicholas o’hara; lynnda nurses at the duke medical center performed a rape kit their class, and even where that e-mail identifies the exact because the plaintiffs have sufficiently pled that officers cooper & kirk, pllc, washington, d.c., for appellees. (9th cir. 1988); failed to disclose exculpatory evidence to the mihaich; edward sarvis; thus, we need only con- up to the event"; and that—because there were so many moved for summary judgment on the state common-law 263, 267 (n.c. ct. app. 1997), the city’s opinions and the existence and of the lower court to deny qualified immunity or (2) consider- ing due process claims based on asserted pre-trial fabrication of evidence, peter j. lamade; adam langley; 193, 206 (4th cir. 2009) (stamp, j., concurring) ("a law of creedmoor, 460 s.e.2d 899, 906 (n.c. ct. app. 1995), based on the same facts, the evans plaintiffs also allege a fourteenth franks itself was an exclusionary rule case, and the supreme required under the nto statute. the plaintiffs argue that the absence of specific allegations proceed would let litigation loose in such a fashion as to civil claim for damages—as opposed to the exclusion of evi- on december 21, in an interview with a durham police b. mangum regarding her rape allegations. mangum then denied exists as to whether the city waived its governmental immu- syth, 472 u.s. 511, 530 (1985). "we review de novo the however, the obvious explanation for the officers’ conduct is opinion. of course, constitutional torts, like their common law course, the truthfulness of a witness statement is irrelevant as defendant, through the official’s own individual actions, has as the court declared in determining whether a warrant was quently the hallmark of a business’s commonplace desire to hold that the officers’ qualified immunity barred this claim. given this united states v. jeffers, 342 u.s. 48, 51 (1951), they "misrepresented, withheld, or falsified evidence" that 2. remand the cases for further proceedings consistent with this defendants-appellants, suffolk u. l. rev. 445, 446 (2008). v. paulk, 611 f.3d 828, 853 (11th cir. 2010) (dismissing a 28 evans v. chalmers cers’ motion to dismiss this claim on official immunity claims against the city. the city moved for summary judg- duct and a plaintiff’s unlawful seizure. see zahrey v. coffey, stitute similar intervening acts. given our holding as to nifong, we need defendants. judgment, as to all claims alleged against them. the district ronald hodge; lee russ; rington complaint likewise fails to make particularized allega- claims. see gard, supra, at 446 ("th[e] absence of guidance outcome of the arbitration proceedings are irrelevant to the purely legal statements regarding the broomstick, mangum’s fingernails, without pleading any allegedly improper individual actions. in addition, the mcfadyen plaintiffs allege that officers enjoy qualified immunity from the claims alleged against him for his appealable under the collateral order doctrine. nonetheless, all of these claims require a predicate constitutional viola- part of certain individual defendants, there are numerous son told local and national reporters that the investigation had (unpublished). 9evans v. chalmers each [supervisory] defendant, through the official’s own indi- 39evans v. chalmers the next day, friday, march 24 (ten days after the alleged all plaintiffs argue that a genuine dispute of material fact david addison, carolina; david addison; mark 628 (internal quotation marks omitted). tion than an insidious conspiracy to violate the constitution. or to suspects—and i do not believe a reasonable police offi- mate causation. see murray v. earle, 405 f.3d 278, 289-90 on april 17, nifong sought and successfully obtained indict- recused himself from the criminal cases arising from for purposes of this appeal, the officers do not contend that cross "the line from conceivable to plausible." id. at 680. as under color of authority from suit in their individual capacity. the plaintiffs’ indictments, though not perfect, is consistent . . . evidence of a crime will be found in a particular place." moreover, the iqbal court explained that in order to state state of pennsylvania ("icop") waived its governmental establish probable cause." miller, 475 f.3d at 628 (internal lacrosse players just hours after the alleged attack stated that, police found some of mangum’s belongings during their ing. york, for appellee reade seligmann; robert m. cary, with sexual assault," but had refused to turn over the report court has instructed lower courts to eschew rulings that and the dna collected from the plaintiffs under the nto. by lacrosse team as a potential contributor of that dna. know- in their complaints, both the mcfadyen and carrington finally, the mcfadyen plaintiffs argue that the city waived 2. ments constitute intervening acts shielding them from liability, officers interviewed mangum’s fellow dancer, pittman, who asserted washington, d.c., for appellees carrington. stefanie a. the district court factual allegation, we are told, would be "pointless and ineffi- wilson; richard d. clayton; a. edward s. douglas; kyle dowd; 2007). three groups of plaintiffs brought these cases. we set forth carolina courts have held do preserve governmental immu- tallman trask; suzanne tiffs’ most inventive claims illustrate my concerns with although the evans and mcfadyen plaintiffs allege an ongoing con- against various durham police officers, to which the officers over these claims because, it argues, the issue of governmen- cases. however, i dissent from parts iii-b and iii-b.1. unlike appeal, mcfadyen maintains that a search of his car violated the constitu- incorporated; richard clark; accounts of the alleged attack and pittman’s initial denial, and himan engaged in the tort of malicious prosecution by pleading standard articulated by the supreme court in ash- held unconstitutional without such a showing. accordingly, we must allege that the procedures violated police department policy. cluded its examination of evidence from mangum’s rape kit of the violation. see pearson v. callahan, 555 u.s. 223, 231 opinion gottlieb; bejamin himan, laird evans; james t. soukup; officer b.s. jones, who was initially assigned to investi- the everest policy. that policy explicitly provides coverage in "his or her own misconduct." id. at 681, 677 (emphasis apply to their claims and cannot function as a waiver of gov- of the real and brutal rampages by disturbed individuals on done needlessly, manifesting a reckless indifference to the (2012). anthony mcdevitt; glenn nick; plaintiffs"), and thirty-eight other members of the 2005-2006 "probable cause exists when there is a fair probability that governmental immunity by purchasing an insurance policy as being present at the party; that "no strangers . . . showed dinates’ conduct. this directly contradicts iqbal’s holding that produced "really, really strong physical evidence" of rape. in among police and prosecutors that takes place every day. quence given that they have used the term "supervisory defen- greer; irene greer; erik s. competent jurisdiction determines the defense of the rape kit. nifong, along with officers gottlieb and himan, the plaintiffs also allege state common-law tort claims the north carolina nto statute requires "probable cause being raped and sexually assaulted vaginally and anally." a as corrected, the affidavit still contains significant evi- 55evans v. chalmers even crediting mcfadyen’s allegation that his email the elements of the federal and north carolina claims appear 44 evans v. chalmers many defendants, including the city of durham and city offi- 17evans v. chalmers visors, not that they sought to frame the plaintiffs. consistent of mind for all of the named supervisors. requiring repetition tion and prosecution. understood as a fourth amendment claim for unreasonable defendants-appellants, officers’ supposed witness tampering, use of suggestive photo the state trial judge regarding the private laboratory’s dna dismiss this claim, relying on its reasoning with respect to the officers’ motions to dismiss the evans plaintiffs’ § 1983 mali- three white men at the party; that the team captains had identi- contained pictures of all forty-six white members of the duke proceeding, without probable cause and with malice, which rights. indeed, in part because of concerns with the holding’s functions. patrick v. wake cnty. dep’t of human servs., 655 nifong denied prior knowledge that the private laboratory test durham, north carolina, for the city of durham; edwin m. from § 1983 claims, owen v. city of independence, 445 u.s. 622, 638 cious prosecution claims against them. in this case repeatedly allege that the so-called supervisory christopher loftus; daniel no. 11-1453loftus; barbara loftus; michael ripberger, ingly, we reverse the district court’s denial of the city’s public officials from personal liability for discretionary acts plaintiffs first contend that the city’s purchase of two lia- patory information at this early stage—either to the grand jury pect’s guilt from an affidavit "was not an attempt to mislead asserted that she had been raped by nodding "yes" to the ques-  we therefore decline to exercise pendent appellate jurisdic- even been secured. neither the constitution nor any law i am application. the district court denied the officers’ motions to the officers added that during the party "[t]he players . . . used though not perfect, police officers would to investigate payton; john bradley ross; diction over their state law claims. 28 u.s.c. § 1367. simi- for signs of rape, and provided dna and hair samples. the duke lacrosse team. mangum did not identify any of the defendants-appellants, pendent review, the attorney general of north carolina, not- for assistance in removing mangum from her car. after the waive the city’s governmental immunity in these cases.15 mihaich; david addison; marsha indep. sch. dist., 626 f.3d 808, 813 (5th cir. 2010), cert. "would know to be contrary to [their] duty," for the purpose mangum told police she had been raped and gottlieb was their performance of governmental, as opposed to proprietary,  the damage that the plaintiffs’ theory of the case would dards governing even state claims brought in federal court. pursue the case. rather, they allege that the officers continued sion alleged by the mcfadyen plaintiffs plausibly suggests an question. unduly pressured nifong to seek the indictment. the allega- tara levicy; theresa arico; j. larly, we have appellate jurisdiction under the collateral order coveleski; edward j. crotty; guard, 673 f.3d 308, 315 (4th cir. 2012) (quoting paul, 424 commonalities" with the immunity issues, "nevertheless pre- bryan; matthew drummond; from another shortcoming. even if addison’s general state- claims adjusting services, not a contract for the provision of the argument offered in the mcfadyen complaint—that the "occurrence" or "wrongful act" they allege occurred in december 2006. a 2007) (extending franks to § 1983 claims). franks provides b. brethren, require a demonstration of both but-for and proxi- gations were alleged to have occurred in mcfadyen’s apart- richard gibbs fogarty; zachary 2000). to state such a claim, a plaintiff must allege that the himan were present during the meetings in which nifong and for example, apart from general references to name, rank, and v. mississippi, 394 u.s. 721, 727 (1969); see also hayes v. florida, 470 matthew drummond; duke wilson; breck archer, david f. evans; collin finnerty; it cannot be emphasized too often that the plaintiffs in this nation on mangum and noted only one abnormality—diffuse chain of causation unless it can be shown that the delibera- question of law for the court," daniel v. city of morganton, 479 s.e.2d the email. mcfadyen argues that, because the affidavit indi- (n.c. ct. app.), review denied, 705 s.e.2d 361 (n.c. 2010); (n.c. 2002) (stating that "reasonable grounds" requires only theresa arico; j. wesley "material." therefore, we reverse the district court’s denial of investigatory actions. because nifong did not note an appeal of that rul- by march 28, the state bureau of investigation had con- ing the inconsistency in mangum’s statements, mangum’s stated differently, a police officer is not liable for a plain- ments against collin finnerty and reade seligmann for first- to take one example, the complaints lodge a fourteenth c. constitutional claims, although "sharing certain wholesale decided: december 17, 2012 plaintiff ryan mcfadyen individually alleges a § 1983 ii. diana gribbon motz, circuit judge: complaints fly in the face of the supreme court’s admonition mark gottlieb; benjamin himan; law" under craig. id. 5 her accounts differed not only as to how many men had raped meets this standard. the north carolina state bar subsequently filed an ethics furtherance of a police investigation. allowing these claims to administered a third photo array to mangum. this photo array dismiss this claim. mon law obstruction of justice for creation of false evidence a state malicious prosecution claim—causation of a criminal first franks prong. we agree with respect to the first state- standably) appeared to be an entirely credible threat to perpe- make "informed and deliberate determinations," the officers’ reliance in the nto affidavits on nurse levicy’s committed, the other to establish reasonable grounds that the according to the amended complaints, on the evening of with the conduct of reasonable police officers assigned a rape a. from that broad dicta. see wray, 490 f.3d at 195. as explained in text 1. framing duke lacrosse players. this is simply implausible. ysis as to whether asserted material false statements and omis- ments could somehow be considered defamatory with respect the partial dissent contends that there is an "obvious alternative claims. dent decision-makers (e.g., prosecutors, grand juries, and allison halton; kemel dawkins; no plaintiff cross-appeals. we have consolidated the three iqbal condemned, the complaints assay. what is more, the complaint’s "bare assertions" of malicious conduct are not "crock," and to create a fictional window of opportunity in her over again and to murder them. given the facts alleged in the thus, we hold today that an alleged officer-prosecutor con- mangum was lying. but leveraging an outstanding warrant 1 any actual indications of individual malfeasance that would wayne r. lafave, 2 search and seizure § 3.1(c) (4th ed. edwards, 629 f.3d 415, 427 (4th cir. 2011) (internal quota- defendants-appellants, against various officials who had made public statements illinois v. gates, 462 u.s. 213, 236 (1983) (internal quotation richard h. brodhead, ph. d.; mangum rape investigation. on january 12, 2007, nifong well the central flaws in the plaintiffs’ contentions. v. because the evans plaintiffs do not allege that officers got- officers gottlieb and himan interviewed mangum for the complaint "plausibly suggest[s]" that the supervisor engaged ment, as the record lends it no support. u.s. at 526, and make discovery the rule, rather than the also grubbs, 547 u.s. at 95. based on the content of mcfa- both the mcfadyen and carrington plaintiffs allege § 1983 defendants. patrick baker; steven chalmers; co-captains david evans, daniel flannery, and matthew john walsh, jr.; michael ward; do something they were under no obligation to do does not admitted patients. during her intake interview, mangum dants" as shorthand to allege the collective actions and state plaints: combined, the three complaints weigh in at a craig, henry w. sappenfield, kennon, craver, pllc, the police chain of command. plaintiffs seek monetary dam- dentiary showing required in the nto statute. north carolina courts have interpreted common-law obstruc- schoeffel; robert schroeder; nor can the plaintiffs rest their allegations of malice on the nity. see owen v. haywood cnty., 697 s.e.2d 357, 359-60 covington; kate hendricks; § 1983 context—that prosecutor nifong’s decision to seek of citizenship. although the mcfadyen plaintiffs only pled acted maliciously to frame the plaintiffs, the "obvious alterna- d. ones—outside of the limited claim we have allowed to with nifong to obfuscate the results of its dna analyses. by considerations of need, rather than of efficiency." rux v. fied immunity to extend personal liability to police officers id. at 679-80. as outlined in the dissent itself, plaintiffs allege many having resolved the city and officials’ appeals of the dis- to determine whether officers gottlieb and himan alleged numerous other a. the court erred. the due process clause does not constitute a catch-all see moore, 476 s.e.2d at 421. plaintiffs may avoid dismissal statements. attendee, holding a broomstick in the air, told mangum and ration with the prosecutor. cause and seek indictments; such collaboration could always grounds. 21evans v. chalmers viduals would be pulled into the coercive proceedings of in other words, would inhibit the exchange of information break the causal chain between a defendant-officer’s miscon- tomorrow night . . . ive decided to have some strip- tory had conclusively eliminated every member of the duke the evans plaintiffs allege that officers addison, gottlieb, 40 evans v. chalmers durham, north carolina; kemel dawkins; suzanne must mention each defendant by name some particular num- listed in the warrant application—sexual assault and kidnapping. against evans, finnerty, and seligmann. on june 16, nifong wilson; breck archer, aware of requires police officers to disclose potentially excul- or to dismiss the state law claims. federal jurisdiction over ern civil rights law."). though this court has previously amendment, not the more generalized notion of substantive due process, need to search, and the limits of his power to search. sent quite distinct factual and legal issues at the retail level"— iary) on the theory that wrongful conduct may be inferred logic would seem to compel this conclusion, the district court support for a magistrate’s finding of probable cause, we can- has not waived its governmental immunity, we need not reach the issue arrested pursuant to an indictment that was obtained by the kenneth sauer, iii; steve tions against council, russ, and michael ripberger. the sistent with sexual assault." and an email sent by one of the of course, all plaintiffs’ tort claims against the city rest on conduct thus, i could not agree more with judge motz’s statement supposed fourth amendment violations of which these plain- plaintiffs also challenge the constitutionality of the north carolina based on the above § 1983 claims, all three sets of plain- question of whether the city waived its governmental immunity by pur- dna security, incorporated; o’hara; daniel oppedisano; sam sexual assault examination report. some plaintiffs allege that dismiss for lack of appellate jurisdiction the city’s appeal of in part: nonetheless, the investigation continued. later that morn- immunity. but a "governmental immunity endorsement" pres- finally, the city asks us to exercise pendent appellate juris- denied, 131 s. ct. 2972 (2011); wray v. city of new york, claims here is that, like those at issue in iqbal, they fail to affidavit (four from the nto affidavits and the additional to the extent that mcfadyen’s co-plaintiffs, matthew wilson and certain suspects, that very act of communication would ther, the affidavit contains mcfadyen’s email, which specifi- wesley covington, discretion to decide whether to prosecute. see state v. ward, 555 s.e.2d f.2d 297, 299-301 (4th cir. 1990) (holding affiant’s omission called durham police. when sergeant john shelton arrived at full showing of probable cause" or that the state nto statute would be as the district court explained, the plaintiffs sufficiently pled law tort." lambert v. williams, 223 f.3d 257, 261 (4th cir. not yet been a final decision of a court of competent jurisdiction." because provides "an explicit textual source" for § 1983 malicious prosecution a court-ordered nto would be compounded by penalizing also allege a state common-law obstruction of justice claim tiously in light of the supreme court’s lack of direction in this three consolidated cases, it is implausible to infer that gottlieb nor do the plaintiffs’ contentions that the city waived its insurance contract from liability for the acts alleged." combs men in the photographs as her attackers, though she did iden- rick, 655 s.e.2d at 923-24. thus, we must hold that the city being raped, but contended that someone had stolen her seizure which incorporates certain elements of the common claims are not barred. because the majority disposes of the kammie michael; david addison; coordination among various actors within a company is often hoods as to effectively eliminate its "support[ ] by oath or levicy, r. n.; the city of and dna without probable cause. the district court correctly noted the if the affidavits submitted by police officers are sub- justice system, even if the conduct occurred as part of a crimi- ment. as one treatise explains: sibly allege that any of his statements caused the indictments moreover, it seems contrary to the very purpose of quali- of requiring a plaintiff to identify how "each [supervisory] allegations that "every material fact" in the affidavits was fabricated do damages for a search even when they request and possess a richard clark; brian meehan, complaint against nifong based on his conduct in the by three white men –- adam, brett, and matt -– and provided pled a state-law malicious prosecution claim as to officers court granted those motions in part and denied them in part. gottlieb and himan conspired with nifong to fabricate and ment status must have resulted from publication of the rea- no. 11-1438and  twelve years ago, the second circuit questioned in dicta why "reason- place in the chain of command, the evans complaint does not franks v. delaware, 438 u.s. 154 (1978), guides our anal- creating the funded reserve in 2004, "[t]he city reserve[d] the right to 38 evans v. chalmers testimonial order and a search warrant for standard investiga- plaintiffs have utterly failed to heed. 8 evans v. chalmers in short, the complaints here are wholly indiscriminate. statement as to the players’ use of jersey numbers to hide their steven w. chalmers; beverly its governmental immunity by purchasing liability insurance c. s.e.2d 920, 923 (n.c. ct. app. 2008). just as clearly, the pro- alleging on this basis that the detectives knew mangum was peter lange; larry moneta; 20 evans v. chalmers duke university; duke ultimately influenced the grand jury. this argument fails sized that "the rule announced today has a limited scope." id. occurred; (2) the lacrosse team members used aliases before allege when that conspiracy began. indeed their complaint not perfect, a mere deviation from departmental policy, by ticularized suspicion" that the parties named in the nto may defendants. may 15, based partly on the private laboratory’s misleading hendricks; victor j. dzau; denied the defendants’ motions to dismiss, explaining it could croft v. iqbal, 556 u.s. 662 (2009). under that standard, a of these cases—indeed, before plaintiffs even filed their original nal investigation." mcfadyen v. duke univ., 786 f. supp. 2d circuit judges. bility requirement is not a probability requirement, id., where have been implicated, some damage to [plaintiff’s] employ- the department of state to the spokesperson for a local school proceed—are much too steep. the plaintiffs seek to thrust the larry moneta, ed. d.; duke college campuses and elsewhere in recent years. as it turned the individual whose property is searched or seized levicy, r. n.; michael nifong; stephen mihaich; edward sarvis; f.3d 317, 325 (4th cir. 2004) ("the central point in those nto. claim. 2007). read, these allegations do not allege that officers gottlieb and (collectively the "evans plaintiffs"), ryan mcfadyen, mat- for the middle district of north carolina, at durham. to his duty and which he intends to be prejudicial or injurious schwab; joseph fleming; jeffrey lacrosse team as a potential contributor of the dna found in maintained that she had been assaulted. nifong dismissed the investigation from nifong. tiffs allege derivative claims of supervisory liability against plaintiffs’ allegations regarding this meeting do not "plausibly city of durham; mark gottlieb; franks rule should be implemented in the context of § 1983 "necessary if a business enterprise is to [operate] effectively," 662 (2009), however, the supreme court issued several cau- devon sherwood; daniel also id. at 286-91 (souter, j., concurring). because the fourth amendment [anonymous tip] cases is that courts must ensure, one way or exception, see anderson v. creighton, 483 u.s. 635, 639-40 constraints of the fourth amendment," and that the constitution requires during this photo array, mangum identified three team mem- beverly council; jeff lamb; requirement generally. peter j. lamade; adam langley; doctrine to hear the city’s appeal of the monell claims. however, because exotic dancer, specifically contemplated other brutally violent review of the qualified immunity question." bellotte v. magistrate’s" authorization of the search. miller, 475 f.3d at belief that the named persons committed the rape. the cor- information under franks, we nonetheless find mcfadyen’s to further investigate mangum’s claims, which they did not clearly, north carolina municipalities enjoy governmental plaints discuss at length a meeting occurring on or around 15evans v. chalmers identities, school, and team affiliations. even so, the corrected o. best; gary n. smith; greg cnty. of sacramento v. lewis, 523 u.s. 833, 848 (1998). rather, "[w]here had ruled out all lacrosse team members as contributors of based on the officers’ asserted fabrication and concealment of wolcott; michael young, discovery the rule, rather than the exception." ante at 24. potential effects on the incentives of police, the court empha- as well as the glacial pace at which this litigation has pro- that to allow § 1983 claims "to proceed on allegations of such himan conspired to prolong the investigation, they do not d. 13evans v. chalmers in this area, therefore, we must heed the supreme court’s tion." wray, 490 f.3d at 195; see also snider v. lee, 584 f.3d represented facts or [2] brought such undue pressure to bear tionary holdings with respect to such liability—lessons that area and its steadfast commitment to preserving the warrant john burness; tallman trask; actions of the defendant."). cer would believe such a duty exists. the officers’ failure to examination for injuries consistent with struggle during a sex- nicholas o’hara; lynnda to a search warrant.8 to justify imposition of monetary liability on the basis of a defendants. ing that the private laboratory’s results would prevent an defendant’s acts were malicious or corrupt." schlossberg v. tunate life of its own. a few examples of the pitfalls in plain- council; ronald hodge; jeff davits. the district court agreed and so denied the officers’ william f. garber, ii; james of its conclusory allegations, it does not plausibly suggest the rape), district attorney michael nifong took over the investi- laboratory’s initial report—finding no dna from anyone in the parties dispute whether a fourth amendment violation constitutes anonymous tip. for the email sent from mcfadyen’s duke the majority, i would dismiss all state common law claims zash. one of the hosts had hired two exotic dancers, crystal plaintiffs-appellees, asserted official immunity. in north carolina, official immu- richard h. brodhead, ph. d.; accordingly, the everest policy does not its officials’ motions to dismiss these claims. breck archer, also attempt to bring this claim, we hold that they lack pa, durham, north carolina, for david addison. david s. in particular, what constitutes an "adequate remedy at state hold addison liable for allegedly defamatory statements, the kammie michael; linwood whether plaintiffs’ well-pleaded, non-conclusory allegations collectively v. smithers, 939 f. supp. 1256, 1274 (s.d. w. va. 1995), supporting warrants. see stephen w. gard, bearing false 1984) (citing givens v. sellars, 159 s.e.2d 530 (n.c. 1968)). defendants (patrick baker and steven chalmers in the car- dence used before the grand jury that was necessary to a find- russ; patrick baker, health systems, incorporated; expose them to a risk of monetary liability should the suspects mcfadyen’s argument that the affidavit fails to establish a complaints’ sweeping allegations mirror the sweeping nature as to whether the city waived its governmental immunity officers acted without malice or corruption. collins v. n. car- cient." this contention sorely misses the mark. the purpose with their official duties, the officers interviewed mangum, f.3d 194, 207 n.10 (4th cir. 2003). carroll; michael p. catalino; incorporated; richard clark; university health systems, gative conduct unless the plaintiffs "allege and prove that the stotsenberg; robert k. steel; suspect in a photo array did not satisfy the first franks prong cates that the email was provided by a "confidential source," affidavits clearly contain sufficient factual bases to establish the nto supporting affidavits, we proceed to franks’ materi- ing police officers to personal liability. i do not believe the a witness has changed her statement could subject investigat- leila humphries; phyllis cooper; no. 11-1458william f. garber, iii; james assertion by officer gottlieb that he received the email from patrick baker; steven chalmers; michael ripberger; lee russ; stat. § 15a-273(1)-(3).6 aff’d, no. 95-2837, 1996 wl 420471 (4th cir. july 29, 1996) to closure on a reasonable timeline. that, after all, is their job. bulk of state common law claims on other grounds, allowing showing of probable cause" and whether "such an interpretation would process claims under paul v. davis, 424 u.s. 693 (1976), these appeals arise from allegations that the city of dur- on qualified immunity grounds, a plaintiff must (1) allege a publishes defamatory matter concerning a group or class of ultimately be exonerated. the plaintiffs’ theory of conspiracy, the other, that an anonymous informant’s tip was sufficiently the state common-law malicious prosecution claims alleged wasiolek; stephen bryan; officers and their supervisors liable by repeatedly asserting where an officer faces, as here, personal pecuniary loss in a north carolina doctrine of official immunity or federal plead- payton; john bradley ross; again to hide their identities." second, the officers added the bility insurance policies from the insurance company of the the scene, mangum feigned unconsciousness. sergeant shel- them for attempting to investigate what initially (and under- nearly two weeks after he sent the email renders its information stale. 22 evans v. chalmers were it to succeed in whole, to spread damage in all direc- clear that seizures pursuant to the nto statute are "no less subject to the conclusion that there is particular reference to the member."). recorded on a sexual assault examination report. franks v. delaware, 438 u.s. 154 (1978), to hold officers fishing expedition, the broader implications of which could explaining the scope of the nto, corporal addison told one ent in both icop policies establishes that the city did not every meeting between supervisor and subordinate within a defendants falsified or omitted. contrary to plaintiffs’ arguments, general although franks held that a warrant so grounded in false- contain so much as a single individualized allegation against ronald hodge; lee russ; concurred except as to parts iii-b and iii-b.1. judge wilkin- they seek to sweep in everyone and everything, heedless of provision that provides a remedy whenever a state actor causes harm. see missal of the last charges against the three duke lacrosse of the allegedly false nto and mcfadyen search warrant we note that one or more of the three complaints also allege claims with protecting the community—and who must be simulta- the source, we must strike the email from the affidavit before brian s. koukoutchos, mandeville, louisiana; charles j. gottlieb and himan’s omission from the nto affidavits of room.9 and the suggestions that team members attempted to hide their the results of specific nontestimonial identification procedures 54 evans v. chalmers cretion to seek an indictment,4 officer could have—and given the circumstances here, should 7evans v. chalmers staggering eight hundred-plus pages. schwab; joseph fleming; jeffrey cers’ asserted unlawful seizures of evidence pursuant to a plaintiff mcfadyen’s franks challenge to the search war- trate a gruesome murder. to hold policemen liable for and thus none could file appeals from the district court’s interlocutory rul- minimally. we note all relevant differences. hardly in need of any immunity and the analysis ends right ronald hodge; lee russ; party. the three residents—evans, flannery, and zash— estate of earley ex rel. earley v. haywood cnty. dep’t of himan; linwood wilson; richard 266-68 (9th cir. 1981), overruled on other grounds by beck v. city of upland, 527 f.3d 853, 865 (9th cir. 2008); rhodes more than a fair probability that evidence relating to the rape doctrine of official immunity. i cannot agree that the com- added), is not to erect some formalistic rule that a complaint reporter: "you are looking at one victim brutally raped. if that 33evans v. chalmers raleigh, north carolina, for appellant mark gottlieb; joel m. meet to discuss a high-profile criminal case is far more often the city manager, chief of police, and various members of on monday morning, march 27, officers gottlieb and indicative of a desire to foster communication and coopera- u.s. 693, 701 (1976). yet plaintiffs seek that result and then 16 mark gottlieb; benjamin himan; the obvious alternative explanation is that gottlieb and himan being raped and sexually assaulted vaginally and anally." fur- affirmed in part, was discussed is that they wanted to facilitate the investiga- grounds" standard. for these facts state more than an "unpar- rand, llp, durham, north carolina; peter a. patterson, notions of conspiracy, suggesting that the defendants colluded city and its supervisory officials moved to dismiss the federal participated in their subordinates’ allegedly unconstitutional 14 evans v. chalmers indictments against the evans plaintiffs broke the causal chain unlawful search and seizure of his apartment and car pursuant greer; irene greer; erik s. named in the affidavit committed the offense." n.c. gen. tasteless—indeed, ominous—e-mail stands on the shakiest of id. at 164-65, the supreme court stressed the importance of deen, 310 s.e.2d 326, 334 (n.c. 1984), and destruction of constitution, craig ex rel. craig v. new hanover cnty. bd. of proceedings terminated in plaintiff’s favor. see durham v. miss the state constitutional claims. the district court granted of the fact that six eyewitnesses failed to identify a criminal march 29, 2006, allegedly attended by specific supervisory reverse in part, and remand for further proceedings. attendees—all white members of the lacrosse team were listed nto claims. because mcfadyen alleges that officers got- henkelman; john e. jennison; vision of police services constitutes a governmental function to certain investigators and attending meetings where the case the mcfadyen complaint does not even mention the attended a party at the durham, north carolina home of team monetarily liable for seeking from the state courts a non- (5th cir. 2005); townes v. city of new york, 176 f.3d 138, of john wesley covington, nurse levicy previously had indicated to officer gottlieb that nolly, llp, washington, d.c., for appellees david f. inflict upon the criminal justice system is evident in a related the affidavit supporting the search warrant mirrors those supported by probable cause: cers’ qualified immunity from suit ‘effectively lost’ and make did not waive its governmental immunity through the icop mangum told numerous people, on numerous occasions, that of whether the public duty doctrine immunizes the city from plaintiffs’ could have been present." these facts might not demonstrate mine whether or not the ‘corrected’ warrant affidavit would the corrected affidavits also state "reasonable grounds" for thew wilson, and breck archer (collectively the "mcfadyen 57evans v. chalmers against a police officer for his actions relating to a criminal there is an "obvious alternative explanation" for the conduct clinic, pllc; julie manly, md; roger e. warin, matthew j. herrington, leah m. quadrino, dyen’s email, there is no question that the corrected affidavit a particular amendment provides an explicit textual source of constitu- aaron graves; robert dean; in short, no genuine dispute as to any material fact exists u.s. at 171; colkley, 899 f.2d at 301. to determine material- theory of supervisory liability. in ashcroft v. iqbal, 556 u.s. conduct by officer addison that plausibly could be construed conspiracy without any specific factual pleadings of a covered action dur- the endorsement is clear and none of the plaintiffs’ argu- tive explanation" for their conduct is that they were doing victor dzau; city of durham; gottlieb and himan used an outstanding arrest warrant and a two-prong test. first, plaintiffs must allege that defendants rape by the indicted men, dismissed the remaining charges officers gottlieb and himan’s motions to dismiss this claim, both probable cause that a rape was committed and "reason- ber of times. the requirement is instead designed to ensure claims, asserting governmental immunity, and moved to dis- the supreme court has long expressed a strong pref- tions of that intermediary were in some way tainted by the from the private laboratory met with nifong and officers got- affidavits and applied for and executed a search warrant on pers over to edens 2c. all are welcome.. however liability coverage itself. further, because the city repealed its plaintiffs") filed three separate complaints in the middle dis- their search of the house where the party (and alleged rape) motions to dismiss all other state common-law claims. we all plaintiffs maintain, however, that the city has waived 47evans v. chalmers 41evans v. chalmers trask, iii, ph. d.; john burness; goins, 540 s.e.2d 49, 56 (n.c. ct. app. 2000) (citing jones lends any support for these four statements; accordingly, they alleged acts certainly present plausible claims of malice. of course, plain- to such wide-ranging liability is supported by supreme court can reasonably be understood to refer to the member, or (b) the north carolina doctrine of official immunity protects of the wrongs of which plaintiffs complain. it is, of course, officers may be liable when they have lied to or misled the explanation" for the officers’ allegedly malicious acts. see ashcroft v. v. bd. of governors marshall univ., 447 f.3d 292, 306 (4th prosecutor breaks the causal chain, the fact that the prosecutor against the duke players despite mounting evidence of their murder of exotic dancers. patricia dowd; daniel flannery; 34 evans v. chalmers tions. gottlieb and himan. however, plaintiffs fail to allege any drummond; aaron graves; were "intended to inflame the durham community and grand ferguson & mullins, llp, durham, north carolina; joyce koesterer; fred krom; rial" under the second franks prong. therefore, we reverse 24 evans v. chalmers which the defendants assert immunities "from suit." gray- the examination of mangum had revealed "signs consistent as "institut[ing], procur[ing], or participat[ing]" in a criminal fied all but five of the white team members named in the nto plaints sufficiently allege malicious conduct such that the prosecutor, see, e.g., dominguez v. hendley, 545 f.3d 585, exercise of pendent appellate jurisdiction "is proper only was disbarred for his conduct during the mangum investiga- justify the personal burdens that litigation can impose. what ments undermine its clarity. indeed, the endorsement is mate- ing them in the light most favorable to the plaintiff." ridpath (emphases added); see also robbins v. oklahoma, 519 f.3d evidence that [the officer] misled or pressured the prosecu- email that a lacrosse team member, ryan mcfadyen, had sent beverly council; jeff lamb; on appeal, the officers urge us to hold—as we do in the 716 s.e.2d 410, 414 (n.c. ct. app. 2011). plaintiffs expressly allege that, from the outset, the officers from everest insurance company fare any better. for none of claims asserted against them, we turn to their appeals of the since the night of the alleged rape. mangum, however, still plaintiffs have not offered—any case from any jurisdiction court has done a disservice to both by denying gottlieb and a few additional observations may underscore the over- in north carolina, state district attorneys, like nifong, have the sole michael nifong; linwood theodoridis; bret thompson; specificity to survive a motion to dismiss under the iqbal stan- beverly council; jeff lamb; and himan misled or misinformed nifong. indeed, the evans damages for expressing a departmental position in the most ben koesterer; mark koesterer; ages from these so-called "supervisory defendants" under a 46 evans v. chalmers iii. pittman if she did not recant her earlier statement that appeals from the united states district court tify men who she believed had attended the party. affirmation" could give rise to a fourth amendment violation, grounds, finding the plaintiffs properly pled the elements of for the fourth circuit and 14 against police officers to proceed on allegations of such a excluded with 100% certainty every member of the duke or outside the scope of [his] official duties." id. notwithstand- indictment, neither nifong nor the officers disclosed the jeff lamb; stephen mihaich; joyce koesterer; fred krom; responded, "you know, we’re f*cked." wolcott; michael young, nity from suit. the district court denied the motion. diction over the district court’s denial of the city’s motions to imity and substantive similarity to the rape allegations provide (n.c. ct. app. 2005). given this language, we cannot hold "occurrences" or "wrongful acts" during the everest policy’s only to the extent that the city or town is indemnified by the established" constitutional right. see harlow v. fitzgerald, mangum’s accusations were baseless, the complaint does not immunity from state common-law tort claims arising out of accused pittman of stealing her money. pittman pulled into a lacrosse team; the police officers informed mangum that they team. the city and its officials asserted various immunities quate support for a magistrate’s authorization of the nto, we henkelman; steven w. the nto or mcfadyen search warrant. see johnson v. morris, cers, nifong noted the lack of exculpatory evidence: "we’re of such claims on official immunity grounds simply by plead- 58 evans v. chalmers not "rule out the possibility that a claim could exist for com- son wrote a concurring opinion. judge gregory wrote an opin- prosecutor nifong, candidly briefing him on the case. the "material, that is, necessary to the neutral and disinterested sented and misstated material facts to opposing counsel and durham, north carolina, for appellant benjamin himan; against all individual defendants based on the north carolina the individual police officers moved to dismiss all claims schoeffel; robert schroeder; 37evans v. chalmers ham and its officials mishandled false rape charges made u.s. at 171. and that the officers may have learned of the the city’s motion for summary judgment as to the state against a recalcitrant witness is hardly beyond the pale of the falsity when applying for the nto, or acted with reckless pursuant to n.c. gen. stat. § 160a-485(a). well-established ated view of causation espoused by the plaintiffs; but north plaintiffs-appellees,  10 evans v. chalmers slip op. at 29-30 (m.d.n.c. mar. 31, 2011). blown nature of this case. plaintiffs have sought to raise every tional protection against a particular sort of government behavior, that evans, and collin finnerty. william j. thomas ii, thomas, theless violate the fourth amendment because the nto gregory, circuit judge, concurring in part and dissenting o’hara; daniel oppedisano; sam cers detailed the exculpatory evidence, including contradic- missing the complaints in large part, but preserving the state search warrant application. see united states v. perkins, 363 protected by governmental immunity. arrington v. martinez, thus, in forecasting whether north carolina would recog- because mcfadyen sufficiently pled that officers gottlieb wasiolek; matthew drummond; of the lawful authority of the executing officer, his nity protects public officials performing discretionary acts tal immunity is relevant to the existence of a state constitu- olina parole comm’n, 473 s.e.2d 1, 3 (n.c. 1996). thus, a be inferred from their allegation that addison’s statements lin finnerty with 100% certainty, and reade seligmann with and reverse the court’s denial of officer addison’s motion to mcfadyen alleges that the officers made plaintiffs-appellees, physical descriptions of the attackers. later that day, based on indictments—caused the seizures.3 frankly responded, "with what?" no matter how generously the result is a case on the far limbs of law and one destined, contents of the email mcfadyen sent to his teammates and the sions in the nto supporting affidavits offered by officers assertedly occurred. the email stated: reversed in part, gate mangum’s allegations, believed that no evidence sup- correspond with the truth. police officers owe a duty to the 51evans v. chalmers suzanne wasiolek; matthew tives to circumvent the warrant process is all the more critical pleadings portended what was sure to become an extended from april 7 through april 10, the private laboratory ana- republic of sudan, 461 f.3d 461, 475 (4th cir. 2006). our "knowingly and intentionally or with a reckless disregard for innocent of any wrongdoing from being swept up by baseless franks rule generally] is especially acute because franks pre- tlieb and himan made false statements or omissions material further, plaintiffs allege "stigma-plus" due and lished by allegations that the defendant "instituted, procured, but does not articulate any facts relating to the reliability of dyen’s email, sent only hours after the alleged rape of an gottlieb and himan state a constitutional claim. see also mil- at issue here. "his or her own misconduct." id. at 677. yet the complaints officers’ motions to dismiss this claim. a second example of the complaints’ overreach lies not so prosecutor, michael nifong. the district court held that nifong did not report, nifong sought and obtained an indictment against claims. the city repealed its funded reserve policy before a final decision in any able foreseeability" would not suffice to preserve the causal chain between edward carrington; casey j. finally, although the complaint alleges that gottlieb and money. soon after this recantation, mangum told another offi- allege that an official has violated any right, the official "is north carolina, richard d. emery, ilann m. maazel, emery would be found in mcfadyen’s apartment.10 late jurisdiction over these claims. see altman v. city of high point, 330 and (3) contain nurse levicy’s corroborating statement that tion of the state constitutional claims. indeed, the state (1980), we do not have appellate jurisdiction under the collateral order but we cannot ascribe instant clairvoyance to those charged general of terms. think of the implications of such a rule for north carolina law holds that courts may not lightly infer a patrick baker; steven chalmers; because the corrected nto affidavits would provide ade- although i appreciate the able and well-intentioned efforts often communicated goal of preserving the warrant require- celli brinckerhoff & abady llp, new york, new however, the report excluded the fact that the private labora- tions in mangum’s allegations and the negative results of the the evans plaintiffs allege a § 1983 malicious prosecution denial of officers gottlieb and himan’s motions to dismiss on brief: patricia p. shields, d. martin warf, trout- ing the officers’ vigorous appellate arguments to the contrary, ation of the additional issue is necessary to ensure meaningful investigators should have somehow realized that the e-mail 221 f.3d 342, 351 (2d cir. 2000). such "intervening acts of the city itself.11 rected affidavits state mangum’s allegations of gang-rape by alleged assault. further, as the other two complaints make rape case where a victim has given inconsistent accounts and uncertainty, we cannot conclude that clearly established law mandated "a claims alleged against them. we reverse the court’s denial of claims, the fourteenth amendment provides no alternative basis for those plaintiffs allege that officers gottlieb and himan deliberately 4 between their acts and the indictments. 49evans v. chalmers dence to the private laboratory. benjamin himan; david addison, to investigate and prosecute the duke players despite the evi- rudolf, rudolf widenhouse & fialko, charlotte, evidence, grant v. high point reg’l health sys., 645 s.e.2d entitled to the assumption of truth. see iqbal, 556 u.s. at 680- laird evans; james t. soukup; absence of individualized allegations is all the more remark- these motions in part and denied them in part. allegations and nurse levicy’s corroborating statement that cally identified his apartment as the location of a planned edema of the vaginal walls—which nurse levicy then incorporated; private diagnostic for lack of jurisdiction the city’s appeal of the district court’s the same as those applicable to plaintiffs’ § 1983 claims. mine whether or not the corrected warrant affidavit would" amendment substantive due process claim against officers gottlieb and made. for instance, both the carrington and mcfadyen com- ment as to these claims on the ground of governmental immu- asserted local government risk pool that the mcfadyen plain- police officers may be held to aaron graves; robert dean; ments and arrest), aff’d on other grounds, 132 s. ct. 1497 officers threatened to enforce an outstanding warrant against as we have previously noted, "[p]endent appellate jurisdic- the fact that in the first photo array mangum "ruled out as tiffs nonetheless insist that the officers remain liable because u.s. 811, 816-17 (1985). on its face, the state nto statute requires such linwood wilson; stephen of the names of specific defendants within the context of each 48 evans v. chalmers richard gibbs fogarty; zachary at 165-67. and since franks, the court itself has never eluci- its governmental immunity by participating in a local govern- university police department; judges) may constitute intervening superseding causes that defendants’ motions to dismiss these § 1983 unlawful seizure bers as her attackers—david evans with 90% certainty, col- tion. this argument fails because in his complaint mcfadyen never alleges suit are visited upon a departmental supervisor only when the sion does not satisfy the first franks prong. problems with the individualized allegations that are actually to lengthy police interviews, submitted to physical inspections but only if, (a) the group or class is so small that the matter stotsenberg; robert k. steel; probable cause, but certainly meet the nto "reasonable because "[t]he meaning of language used in an insurance contract is a marks omitted). this court has specifically acknowledged this although in retrospect it may be clear to some that case, the email itself supplies evidence in addition to the of a spokesperson about the status of a rape investigation ance on the nurse’s corroborating statements constituted a duke police defendants; patrick v. town of belhaven, 415 s.e.2d 91, 92 (n.c. ct. app. 1992). and kidnapping. against them. they asserted qualified immunity from the fed- 1187, 1195 (11th cir. 1989); smiddy v. varney, 665 f.2d 261, tation marks omitted). we conclude that the corrected affida- s.e.2d 713, 728 (n.c. 2000). nonetheless, the district court refused to carroll; michael p. catalino; defendants violated plaintiffs’ constitutional rights on the the-  2 evans v. chalmers for these reasons, i dissent from parts iii-b and iii.b.1 of against gottlieb and himan to proceed, i focus my partial dis- ing a "stigma-plus" claim under paul must allege both a stig- quotation marks omitted). claims against officers gottlieb and himan based on the offi- a confidential source. mcfadyen contends that both of these break the causal chain. cf. cuadra, 626 f.3d at 813; barts, out, the e-mail was a highly vulgarized expression of fancy. speas, jr., eric p. stevens, poyner & spruill llp, james a. beaty, jr., chief district judge. hard cases can and do make bad law, and the costs of these plaintiffs’ complaint) satisfy the first franks prong.7 above, we believe good reasons counsel against following the approach spiracy among several defendants until april 11, 2007, the last specific baker; steven w. chalmers; the improvidence of subjecting law enforcement officers police officer is protected from personal liability for investi- nurse’s statements when detailing the false statements in the for these reasons, we cannot agree that the officers’ reli- time, durham police arranged a second photo array of mem- on whether the affidavit demonstrates a "fair probability" that employees from the private laboratory admitted to conspiring ricated or misleading. a complaint must specify the facts plaintiffs allege rially indistinguishable from similar provisions that north the evans plaintiffs have failed to allege illegal seizures (i.e., beverly council; jeff lamb; for damages when their conduct does not violate a "clearly united states court of appeals aff’d in part, rev’d in part on other grounds, 481 s.e.2d 14 amendment "due process stigma-plus" claim against corporal four days later, on monday, march 20, officer himan 43evans v. chalmers her anally, vaginally, and orally;" (2) include the fact that peter lange, ph. d.; tallman datory twenty-four hour observation period for involuntarily under the nto because "they were all aware of the party and and prosecutors often work together to establish probable mangum’s allegations, nifong continued pursuing the case. statements regarding the case. on march 24, corporal addi- maintain that the officers deliberately falsified the affidavits fully held her legs and arms and raped and sexually assaulted overbroad manner. see united states v. colkley, 899 f.2d liability claim where complaint failed to "isolate the allegedly 2 rape allegation, paired with corroborating medical evidence, motions to dismiss these claims. a police officer’s actions and an unlawful seizure by way of indictment. iv. complaints—the city has not waived its governmental immunity as to complied with the execution of the search warrant, consented 29evans v. chalmers nize such an action, see wilson v. ford motor co., 656 f.2d seek evidence or a prosecutor’s decision to pursue an indict- who have assertedly conspired with, but neither misled nor the indictments) or that criminal proceedings failed to termi- 146 (2d cir. 1999). accordingly, subsequent acts of indepen- ing at a bachelor party. over the course of that night and the nonetheless denied the officers’ motions to dismiss this claim. in doing so, extinguished’" his legal status. shirvinski v. u.s. coast c. dna in mangum’s rape kit. however, on december 15, lants steven w. chalmers, beverly council, ronald hodge, that the police officers were attempting to identify a suspect 903 f.2d 996, 999 (4th cir. 1990) ("[f]or a liberty interest to we note that on appeal, plaintiffs vigorously contend that sory liability. the sexual assault and kidnapping charges. denial of the city’s motions to dismiss these claims. dence that a rape was committed, most notably mangum’s pittman "i’m going to shove this up you." no record evidence d. clayton; dna security, 12 evans v. chalmers no. 11-1460the city of durham, north david addison, the durham police spokesman. in seeking to tion of justice to include fabrication of evidence, henry v. "the victim had signs, symptoms, and injuries consistent with 81. rather, the complaint must plausibly suggest malicious the nto required the forty-six white lacrosse team members less, nifong sought a second, more sensitive dna analysis at police officer and prosecutor, every statement by a police over the next few months, nifong intentionally misrepre- robert wellington, iv; william further allege that from his very first meeting with the offi- conceal evidence from the grand jury and thus somehow in sum, we run the risk here of replicating in civil litigation wilson; steven w. chalmers; 9 16 evans v. chalmers 4 evans v. chalmers to whether affiants’ statements were truthful. see franks, 438 richard brodhead; peter lange; trict of north carolina alleging a myriad of claims against ity, we "excise the offending inaccuracies . . . and then deter- all three officers argue that, in north carolina, criminal particularly in light of the corroborating medical information claim against officers gottlieb and himan for the assertedly and himan knew mangum was lying and therefore acted hardly a month into the investigation, before indictments had conspiracy doctrine. as with the present case, that doctrine because acts of either the prosecutor or the grand jury may 865 f.2d at 1195. in other words, if the independent act of a false. private laboratory analyses. after complying with the order, must be the guide for analyzing these claims." albright v. oliver, 510 u.s. there will be no nudity. i plan on killing the bitches "a minimal amount of objective justification, something more claim against officers gottlieb and himan.2 trict court’s denial of their motions to dismiss the federal players). with all of these overwrought claims disputed over new york, new york, for appellants. christopher nicholas (5th cir. 1988) ("an independent intermediary breaks the proceeding. accordingly, we must affirm the court’s denial of violated the constitution," iqbal, 556 u.s. at 676 (emphases and the fatal defects in mangum’s claims" and "convey[ing] temporal scope.14 defendant’s media statements "caused" the plaintiff’s indict- sons for his demotion." (emphasis added)); see also rehberg kevin coleman; joshua r. manning, williams & connolly, llp, washington, department of social services, 436 u.s. 658 (1978), against taken as true, is far too removed from the prosecutor’s deci- ing, officer gottlieb obtained from a confidential source an predicate § 1983 claims against the individual officers, we their job and investigating a case assigned to them, in collabo- spoofed the novel and film, american psycho, a reasonable suspects (like the plaintiffs) cannot allege a common-law funded reserve on june 18, 2007, the funded reserve does not thus, we reverse the district court’s denial of the defendants’ mangum’s rape kit—was released to the public later that day. must also hold that all plaintiffs have failed to state supervi-  university police department; tion of justice claims against officers gottlieb and himan, tion to proceed. for "supervisors and municipalities cannot be obtained a search warrant and an nto, collected dna evi- corroborating statements constitutes another deliberately false mcfadyen’s individual § 1983 unlawful search and seizure "effort to stifle competition." id. at 769. that caution rings mcfadyen’s dormitory address was edens 2c, and his clinic, pllc; julie manly, md; tlieb and himan to report the results of the analyses. although that showing is demonstrably absent here. in addition to duke university; duke experimental claim and to corral every conceivable defendant. nto statute, contending that it authorizes searches and seizures of blood the search warrant also authorized the search of mcfadyen’s car. on ing that an official’s tortious actions were "malicious, corrupt had also revealed physical evidence of "blunt force trauma" affirmed in part, dismissed in part, reversed in part, and the state constitutional claims alleged against it. finally, we added). innocence. but that meeting has no logical relevance to the search of the house where the alleged rape was committed; because governmental immunity does not shield north james b. maxwell, maxwell, freeman & bowman, to liability; instead, a supervisor can be held liable only for disregard for the truth in relying on the nurse’s statements. of  able grounds" that the named persons committed the rape, as not identify any attacker. when an issue is (1) inextricably intertwined with the decision 590 (7th cir. 2008); sanders v. english, 950 f.2d 1152, 1159- sonable inference" of malice. id. at 678. although the plausi- dna to the items in mangum’s rape kit, the analyses david addison; michael nifong; modify or terminate th[e] policy at any time, and to have any such modifi- to his teammates only hours after the party at which the rape involves civil damages actions against related parties (for parent than it already is. who did it." the next day, corporal addison stated: "we’re the very maladies that plaintiffs complain infected the crimi- nate in the plaintiffs’ favor (i.e., the dismissal of the indict- "reasonable grounds to suspect that the person named or cause them. rather, they contend, an independent intervening suzanne wasiolek; stephen subjects might have committed the crime. the nto affidavits "false statements or omissions [are] ‘material,’ that is, ‘neces- eral statements that reference no individual and are therefore himan briefed nifong on the case. at this briefing, the offi- d.c.; robert christopher ekstrand, ekstrand & ekst- the private laboratory found that several men contributed theodoridis; bret thompson; evidence and witness tampering. the mcfadyen plaintiffs 2. the complete files and underlying data from both the state and duke university; duke a. inconsistent testimony, and pittman’s initial repudiation of raped her (orally, vaginally, or anally). counsel i. ality prong. to state a franks claim, false statements must be (7th cir. 1988); borunda v. richmond, 885 f.2d 1384, 1390 as soon as they walk in and proceeding to cut their ben koesterer; mark koesterer; defendant (1) caused (2) a seizure of the plaintiff pursuant to and remanded that duplicates the very evils that prompted plaintiffs to file numbers when calling for one and another across the room[,] their university and team affiliations from mangum and pitt- carolina courts have generally held causation can be estab- claim under franks. lyzed the rape kit and nto evidence. on april 10, employees subpoena on nurse levicy to obtain the medical center’s the circumstances of publication reasonably give rise to the next few days, mangum provided multiple, vastly inconsistent a ‘conspiracy’ would in virtually every case render the offi- sent or some other exception to the warrant clause ing an arrest or search greatly reduces the perception and because the allegations against the officers failed. the city the district court’s denial of defendants’ motions to dismiss and where it should have focused long, long ago. governmental immunity not to be applicable. crimes "conspiracy to commit murder." reade seligmann, not even actionable under traditional defamation law. see anally, had not worn condoms, and had ejaculated in her patricia dowd; daniel flannery; behavior toward exotic dancers. the email’s temporal prox- april 1, 2007 to april 1, 2008. plaintiffs do not allege any engaged in unconstitutional conduct is insufficient to give rise public purposes—and to prevent defendant officials who are henkelman; steven w. 50 evans v. chalmers and certainly, no north carolina court has adopted the attenu- ing, it is not before us. guard determined that mangum in fact was intoxicated, he v. of pittman’s presence at the party. on march 22, officers 628 (internal quotation marks omitted); see also franks, 438 insurance coverage, along with its arbitration with one of its insurers over ryan mcfadyen; matthew ately rule out any innocent persons, and show conclusive evi- tivize the invocation of exceptions to the warrant requirement. statements, like the four statements discussed above in the complaint, thirty-two in carrington, and forty in mcfadyen), linwood wilson; stephen tiffs complain because it occurred days after the preparation c. mous tip to support a terry stop-and-frisk. id. at 268. in this gottlieb and himan contend that the grand jury’s decisions to indict con- how the officers conducted a criminal investigation. although i concur fully in judge motz’s fine opinion. it demonstrates  tigators, but also a number of durham city officials such as and other symptoms "consistent with the victim’s statement." uncertainty as to whether north carolina courts would interpret the state assault examination. gale catalino; thomas v. clute; plaintiffs briefly argue the city’s conflicting statements regarding its 27evans v. chalmers would discourage resort to judicial process and instead incen- photo arrays. recognizing the weakness of the case, nifong defendants-appellants, allowing them to proceed. conduct. christopher tkac; tracy tkac; cnty., 475 f.3d 621, 627 (4th cir. 2007), we must step cau- the plaintiffs make much of mangum’s inconsistent 1:07-cv-00953-jab-wwd) charges of first degree rape, but continued the prosecutions of carolina, for appellees mcfadyen. sary to’" a neutral and disinterested magistrate’s authorization harm, and their claim is the one most plausibly grounded in gestion that defendants—and courts—should scour several-hundred page matic statement and a "state action that ‘distinctly altered or not suffice. see franks, 438 u.s. at 171 ("[plaintiffs] should point out spe- (6th cir. 2010); jones v. city of chicago, 856 f.2d 985, 993 "the victim had signs, symptoms, and injuries consistent with itself, does not plausibly suggest they acted "wantonly" for iqbal, 556 u.s. 662, 682 (2009) (internal quotation marks omitted). denial of a motion to dismiss based on qualified immunity, unconstitutional acts of each defendant"). the plaintiffs here, united states v. grubbs, 547 u.s. 90, 95 (2006) (internal quo- 1. 36 evans v. chalmers v. (n.c. 1997); see also becker v. pierce, 608 s.e.2d 825, 829 12 nexus between his apartment and the asserted crimes also that in seizing physical evidence from them, the officers acted omitted facts from those affidavits, thus rendering the affida- mcfadyen contends that the fact that the search warrant was executed f.3d at 627. second, plaintiffs must demonstrate that those give rise to an entitlement to relief." id. at 679. executed a search warrant for the site of the march 13-14 sense," for the collection of dna evidence pursuant to an nto. see davis arrays, or fabrication of false dna evidence. as for the alle- the officers assert qualified immunity. see mitchell v. for- kenneth sauer, iii; steve the evans and carrington state law claims rests on diversity in iqbal, the plaintiffs’ allegations here could be "consistent city supervisory officials and of liability under monell v. about the sweeping scope and number of claims brought by board. the threat posed by litigation of this kind would cause wesley covington; kate ph. d.; victor j. dzau, md; plaintiffs-appellees, liable under § 1983 without some predicate ‘constitutional case. if a complaint of this kind can proceed, i fear that every because the corrected affidavit would provide adequate man sanders, llp, raleigh, north carolina, for appel- tiffs ultimately bear the burden of proving these allegations, and the dis- examination to document physical evidence of sexual assault. 26 evans v. chalmers 42 evans v. chalmers gale catalino; thomas v. clute; spokesperson, and every effort to invoke judicial process in cials, particularly certain police officers.1 mangum, who told the nurse that three white men—named dates both the supreme court’s revolutionary reinterpretation of framing the plaintiffs. in re grad, 321 s.e.2d at 890. on than an ‘unparticularized suspicion or hunch,’" and is a "sig- that nifong desired to exploit the "high-profile, racially- here would portend a sorry end to a sorry saga. increase its effectiveness, and not necessarily a sign of some neously encouraged to seek judicial sanction in doing so. liability for the assertedly illegal seizures because they did not maliciously to frame the lacrosse players. the fact that an to nifong that mangum was not credible." the evans plain- they possessed. rather, their investigative conduct leading to persons is subject to liability to an individual member of it if, michael nifong; stephen deliberate falsehood under franks. rather, only the four mis- and intimidating witnesses. the district court denied the offi- interviewed pittman, interviewed duke lacrosse players, not defeat their reliance on the information when applying for officers acted "wantonly," in a way that reasonable officers the indictment, cf. beck, 527 f.3d at 870. plaints belie this contention. a. be characterized as a "conspiracy." allowing § 1983 claims nity by purchasing liability insurance.13 tory purposes. 11evans v. chalmers grounds. the potential for inflicting tremendous damage to plaint (three of which are also pled in the carrington moreover, the plaintiffs’ position would expose spokesper- intent to deceive or recklessness, and thus the asserted omis- then and there," abney v. coe, 493 f.3d 412, 415 (4th cir. hopkins v. prince george’s cnty., 309 f.3d 224, 231 (4th cir. florida v. j.l., 529 u.s. 266 (2000), on which mcfadyen was meant to be a joke or parody—is a theory that could suc- 10 mitted. cf. torchinsky v. siwinski, 942 f.2d 257, 262 (4th cir. injury at the hands of the individual [state] officer,’ at least in suits for damages." waybright v. frederick cnty., 528 f.3d man during the party. in addition, the mcfadyen plaintiffs mcfadyen complaint) where the prosecutor and investigators the nto. see unus v. kane, 565 f.3d 103, 125 (4th cir. that the plaintiffs stated such a claim by alleging they "were location of the slaying would be outrageous. defendants. gation. durham police commander jeff lamb instructed offi- courts when they have no business being there. to prolong mean she is lying, nor does a witness’s initial denial always nto statute "as authorizing a search and seizure . . . on less than a full city of durham, north carolina; the investigation at nifong’s instruction, and that, when allowed such claims to proceed, see miller v. prince george’s 56 evans v. chalmers undoubtedly establishes probable cause that a rape was com- was someone else’s daughter, child, i don’t think 46 [sus- stat. § 160a-485(a). neither argument is persuasive. the will be of material aid in determining whether the person intentional or reckless creation of false or misleading evi- alleges gottlieb and himan acted maliciously, but instead informed that medical evidence corroborated her accusations, access center, an outpatient mental health clinic with a man- aguilar v. texas, 378 u.s. 108, 110 (1964), on the probable cause." evans v. city of durham, no. 1:07cv739, rights of others." id. at 890–91 (citing givens, 273 n.c. at 3evans v. chalmers not and do not reach this contention. impair the ability of the criminal justice system to do its job. michael ripberger, obstruction of justice claim against police officers based on (1:07-cv-00739-jab-wwd; l:08-cv-00119-jab-wwd; remanded by published opinion. judge motz wrote the opin- weld corp. v. independence tube corp., 467 u.s. 752, 777 pendent decision . . . unless the officer [1] concealed or mis- coveleski; edward j. crotty; 52 evans v. chalmers march 29, the state bureau of investigation had notified of the attorneys in this matter, there is something disquieting published 6 that at some point nurse levicy and officers gottlieb and versions of her rape to medical personnel and police officers. sense as well. the plaintiffs seek to hold the investigating nudge the issue of malice "across the line from conceivable to plausible." ion, in which judge wilkinson concurred and judge gregory peter lange, ph. d.; tallman true here as well, where the mere fact that public officials the threat of revocation of probation to induce pittman to david evans for first-degree rape, first-degree sexual offense, the relevant facts as alleged in their amended complaints. standing to do so. see united states v. gray, 491 f.3d 138, 144 (4th cir. ment. the evans plaintiffs argue that a causal connection may d.c., reginald b. gillespie, jr., faison & gillespie, gations of witness tampering, the complaint alleges that the the evans plaintiffs are the ones who have suffered the most robert dean; tara levicy; 53evans v. chalmers all three sets of plaintiffs allege state common-law tort the complaints’ failure to identify specific misconduct on the the police is to allow "hurried actions," id. at 110-11, however, have roped in a number of durham city officials tional claim, and because the state constitutional standards are devon sherwood; daniel admonition in declining to interpret the franks rule in an before wilkinson, motz, and gregory, 19evans v. chalmers only ones to raise a malicious prosecution claim under north defendants. the plaintiffs have sued not just the police inves- appeals from the district court’s judgment denying their b. 31evans v. chalmers dismissed in part, benjamin himan; stephen mangum’s rape allegations, which they did not know to be tionalize in the first place. court has never provided guidance on whether and how the much in the nature of the claims as in the identity of the she was raped. although the details of her accusations shifted, motion for summary judgment as to these claims. clearly satisfy the first franks prong as deliberate falsehoods. richard clark; brian meehan; the policy coverage, bars the grant of summary judgment. however, himan official immunity. edward carrington; casey j. tion, the possession of a warrant by officers conduct- 490 f.3d 189, 195 (2d cir. 2007); barts v. joyner, 865 f.2d first time on march 16, mangum told them that she was raped larry moneta, ed. d.; duke to the various individual plaintiffs, the complaints fail to plau- christopher loftus; daniel no. 11-1465loftus; barbara loftus; a final example of the overreach infecting this case lies in by those "engaged in the often competitive enterprise ct. app. 1996). or destruction of evidence for the purpose of impeding the it is for this reason that i join the majority opinion in dis- with these principles in mind, we turn to the federal claims brian meehan, the reasons that follow, we affirm in part, dismiss in part, tory’s dna results to counsel for finnerty and seligmann. heavily relies, in fact provides him little support. j.l. holds years of complex litigation, this matter has taken on an unfor- wilkinson, circuit judge, concurring: asserted by the evans plaintiffs. the evans plaintiffs were the university; duke university (quoting bell atl. corp. v. twombly, 550 u.s. 544, 567 police defendants, notwithstanding two negative dna analyses, mangum’s other participants in the criminal justice system" insulate a proceeding. anthony mcdevitt; glenn nick; mental immunity is clearly not applicable or for rant for his room and car in connection with his utterly denial of the city’s motion to dismiss is a non-final order, not the magistrate" under franks); united states v. colkley, 899 297, 303 (4th cir. 1990). dence of their innocence. the upshot of such a theory, how- mcfadyen’s apartment. see unus, 565 f.3d at 125 n.25; see university health systems, cer she had been raped by as many as five men after perform- orderly procedure" involving "judicial impartiality," as corrected, the affidavits: (1) describe mangum’s allega- grocery store parking lot and asked a nearby security guard to differ, i agree with the court that the evans plaintiffs have the police officers, supervisory officials, and city appeal; 887, 975 (m.d.n.c. 2011). we cannot affirm. even though 45evans v. chalmers ronald hodge; lee russ; (finding affiant’s omission of facts inconsistent with a sus- qualified immunity from suit "effectively lost," mitchell, 472 cannot say that the false statements identified above were we recognize that because cities do not possess qualified immunity ing the policy period. to mention government generally—would become less trans- son v. united states, 333 u.s. 10, 14 (1948), can enterprise conspiracy liability were permitted. id. at 769-71. policies. indicted defendant under certain circumstances. in particular, added the text of the email to the information from the nto our review of the issues of qualified, official, and govern- vidual actions, has violated the constitution." id. at 676 457 u.s. 800, 818 (1982). to escape dismissal of a complaint from suit and on that basis moved to dismiss, or for summary v. witness: perjured affidavits and the fourth amendment, 41 the criminal justice system by punishing officers for pursuing allegedly agreed or were instructed to expedite the case are to "draw on [our] judicial experience and common sense" to determine or participated in" a criminal proceeding. see moore v. city doctrine to review a district court’s denial of those claims to mihaich; dna security, does a very fine job disposing of most of the issues in these story when the rape could have been committed. in the mean- first franks prong. we disagree. affiants are not required to sparks, ekstrand & ekstrand, llp, durham, north meanwhile, the day before, on april 4, officer gottlieb from anyone in mangum’s rape kit or her clothing. neverthe- state non-testimonial order ("nto"). plaintiffs acknowledge that police actually searched his car. of unlawful or intrusive police conduct, by assuring already be administered by the states." paul v. davis, 424 the various plaintiff groups (twenty-three counts in the evans such allegations, standing alone, cannot give rise to supervi- john p. nolan, steptoe & johnson, llp, washington, ficient indicia of reliability to support its inclusion in the ment risk pool or creating a funded reserve under n.c. gen. based on any evidence before us. the problem is that the not say that the false statements in the affidavit were "mate- carolina law, and they were the only ones indicted. given that 199, 203 (4th cir. 2008) (quoting city of los angeles v. a claim for supervisory liability, "a plaintiff must plead that and pittman; and (3) the team members attempted to conceal results to the players or their attorneys. however, the state that mangum’s rape allegations were a "crock" and that there recant her initial statement calling the rape allegations a the majority opinion. meanwhile, on march 24 and 25, durham police wrongful acts by the officers. taken together, the officers’ multiple of tort law to be superimposed upon whatever systems may tlieb and himan either misled or pressured nifong to seek fails. that none of the crimes stemming from mangum’s alle- with respect to each individual supervisor is of no conse- complaints also allege that the officers continued the investi- lacrosse jersey number was 41. officers gottlieb and himan ors on a need-to-know basis) to the threat of monetary carolina municipalities from claims alleged under the state


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