Tuesday, October 09, 2007

Thank you, Ralph Phelan

Ralph Phelan comments here often including from time-to-time telling me to improve the quality of my posts.

I always appreciate RP's comments. He's one of many of you who help makes this blog much better than it would be if everything was left to me.

Anyway, RP commented in response to Sunday's post, Suit Filing & Cpl. Addison (Post 1).

RP began his comment quoting from another commenter. After RP's comment I make a few of my own. Now RP:

"Aside, I suppose a witness in a civil case can invoke the 5th and get away with it."

Yes. But under rules of civil trails, the jury is then to assume the worst about what he would have said.

I don't think he will, because
doing so would be bad for his personal liability, and good for Durham's. And multi-defendant suits are all about blame-shifting.

It's in Durham's interest to make it look like he was acting on his own against city policy and therefore not covered by "qualified immunity." That would let the city off the hook for some portion of his bad acts.

It's in Addison's interest to claim that he was following orders and policy and what he was doing was legal, thus sticking the city with liability for his acts.

Given that the city released a report saying that the police did nothing wrong, that should be pretty easy for Addison to claim.

If the city wants to claim they're not responsible for his acts, they're reduced to arguing that any reasonable person would have recognized that their orders and policies were illegal and refused to follow them.
I offer no comments on any part of RP's comment except the sentence beginning: "Given that the city released a report......"

Two things to bear in mind here. First, as a sworn officer, Cpl. Addison has certain duties he can't waive off on the basis of someone else telling him to violate duties he'd sworn to fulfill.

Just how sworn duties will play out in the suit I don't yet know, but I'm working to try to learn.

Second, at the time of the report RB refers to as "the city released ..." (Chalmers-Baker) some people commented that since it made no mention of Addison and what he'd done, that meant his actions weren't all that important and/or relevent to the type of suit we are seeing now.

Such assertions were far from reality. Addison's conduct stands for what it is regardless of whether a city review of police conduct ignores it.

Something else: By failing to even mention Addison's actions, Chalmers-Baker actually put the city in the position of effectively saying, "we don't think what Addison did is even worth mentioning."

The city was effectively saying that what Addison did were not the actions of a rogue cop for which the city shouldn't be held responsible, but were instead so usual and customary that they didn't even rate a mention in the report.

Whatever you and I may think of Chalmers-Baker, the attorneys for the three young men must love it.

Message to Ralph Phelan: Thank you.


Insufficiently Sensitive said...

Good observations on the wedge between Addison and the DPD.

Seriously off topic: DUKE Chronicle.

Looking for my Kristin Butler hit this morning - all that comes up is the October 5 edition. What's with the Chronicle? Circling the wagons against us uncultured furriners?

Anonymous said...

fall break...no chronicle

Anonymous said...

Chronicle will be back tomorrow. We all missed them during this fall break.

kbp said...

Thanks John!

You touch on the "rogue cop" topic the city will want to push, to disassociate their actions from that which is standard or acceptable.

I anticipate, as I've posted elsewhere, that the city will be the one calling on Duke and any others they can hope to spread the blame on.

Lets hope this show makes it through the preliminary steps,

kbp said...


"their" = rogue copS, in my first paragraph.

Ralph Phelan said...

Self correction:

"It's in Addison's interest to claim that he was following orders and policy and [that he reasonably believed that] what he was doing was legal..."

I expect to see a lot of underlings using a combined stupidity/Nuremberg defense. Despite its bad reputation this defense does sometimes work (especially for underlings in an organization that hasn't just lost a war).

I don't know enough law to know if the city can advance a theory of "It was all illegal actions by these named individuals, therefore outside the scope of their employment, therefore their personal libaility, not ours." I also don't know the Durham political environment well enough to know if the conspirators are ready to start throwing each other to the wolves. They seem to have a pretty strong good-ole-boy omerta down there.

The insurer's interests are so intricately dependent on details of law and their specific contract that I have no idea what their incentives are.