Friday, January 18, 2008

Addison’s Motion to Dismiss (Post 1)

Before reading this post you should be familiar with this JinC post: Look! It's Sergeant Addison (reposted)

This is the first of two posts concerning the 26-page Memorandum of Law in Support of Motion to Dismiss filed Jan. 15 on behalf of Durham Police Sergeant David Addison.

I’m not an attorney and can’t assess the strengths of legal arguments made on Addison’s behalf for dismissal. Two attorneys who have followed the case and are not connected with it read the motion. They agreed to offer opinions with the qualification they are not expert in the area of civil rights violation claims based on Constitutional and federal statues violations.

I’ll share their opinions with you in this first post; I’ll offer mine in the second post.

In separate conversations both attorneys said essentially many of the same things, including:

The immunity Addison is claiming is a limited privilege granted him by law and by virtue of his serving as a police officer. It protects him as long as his actions are what would be expected of a “reasonable, trained officer.” Both attorneys doubt Addison's actions meet the "reasonable, trained officer" standard.

That's even though the attorneys stressed that where a police officer’s conduct is concerned, the courts tend to come down strongly on the officer’s side in most matters. One attorney spoke of “the great discretion the courts grant police” and said “most courts are very reluctant to look at questions concerning police conduct.” The other echoed that saying at one point, “I’ve seen courts turn ‘a blind eye’ to some pretty heinous police conduct.”

But in this case both attorneys said that while you can never be sure what a court will do, they doubted the court would dismiss Addison as a defendant. They also said the attorneys for the plaintive will get a chance to respond to the motion to dismiss and that they expected the response to be very strong.

The attorneys gave a number of reasons why they thought the court in this case would consider what Addison as well his fellow police officers did.

One reason had to do with the public attention the case has received. Others had to do with the seriousness of the actions alleged to have violated the players’ rights and real harm the players suffered.

Then there was this one I’ll relate in more detail and as one attorney explained it, but both made this point.

According to the one attorney (I’ll paraphrase here) : The things the courts try to avoid and where they give wide latitude to the police have to do with instant decision or the officer was in danger or it’s a property possession matter where the law is complex.

Anytime an officer can claim he was alone, in danger, acting on the spur of the moment – something like that - he’s home free.

What make’s Addison’s situation so tough for him and what I think the courts will want to take a look at is this guy’s actions really took place over two weeks. He wasn’t making a highway stop late at night; he was on national TV just like Nifong.

It’s a pattern of police conduct over time the court will want to consider.

Both attorneys said Addison’s actions raised the question of what his supervisors were doing and why they allowed it which, as one attorney put it, “moves things from a question of ‘should this cop have done that?’ to ‘what kind of department is that?’”

And finally this:

While the motion to dismiss isn’t the place to argue what a defendant actually did, attorneys usually work into the motion something that gives the court an idea there’ll be challenges to the defendant’s conduct alleged. There was none of that in the Addison dismissal motion.

KC Johnson has posted on the motion here.

Your turn.


kbp said...

Thanks John!

I seems impossible to determine if the qualified immunity applies in his case unless they can determine what he was aware of, was directed to do... when he made all his public statements.

A good part of the reasoning looks to be a claim about what he MIGHT not have known, so that lack of knowledge shields him.

We have seen and heard about quite a bit that the authorities in Durham did not know of in this case. They must have all worked very hard NOT to uncover facts!

silent_l said...

Personally, I don't think it completely matters what he knew, or when. Certainly, the more he knew about the case, the more reprehensible some of his comments would be. But let's review the allegations in the lawsuit of what he actually did:

a. On or about March 24, 2006, Addison told a reporter for WRAL TV: “You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 would be a large enough number to figure out exactly who did it.”
b. On or about March 25, 2006, Addison told reporters from CBS and ABC News that a “brutal rape” occurred at 610 N. Buchanan.
c. On or about March 25, 2006, Addison told the Durham Herald-Sun that when Durham Police served the search warrant at 610 N. Buchanan on March 16, 2006, the Duke lacrosse players who lived there had refused to cooperate.
d. On or about March 25, 2006, Addison told the Durham Herald-Sun that there was “really, really strong physical evidence” of a crime.
e. On or about March 25, 2006, Addison told the Raleigh News & Observer that an attack had occurred, that some or all of the Duke lacrosse players knew about it, and that the players should stop obstructing the investigation and come forward to provide evidence. Addison repeated these statements to the Durham Herald-Sun, ABC News, and WRAL TV on or about March 25, 26, and 28, 2006.
f. On or about March 28, 2006, Addison colluded with Himan and Durham Crimestoppers to produce a “Wanted” poster, which he caused to be disseminated in and around the campus of Duke University. The flier stated that:
On Monday, March 13, 2006 about 11:00pm, the Duke University Lacrosse Team solicited a local escort service for entertainment. The victim was paid to dance at the residence located at 610 Buchanan.
The Duke Lacrosse Team was hosting a party at the residence. The victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community. Durham Police needs your assistance in solving this case. We are asking anyone who has any information related to this case, please contact Inv. Himan at 560-4582 x229. Information can also be provided anonymously through Durham Crimestoppers at 683-1200 or by email to (Please use an anonymous email account). Durham Crimestoppers will pay cash for any information which leads to an arrest in this case.
g. In subsequent days, Addison, acting with the approval of senior command officers in the Durham Police Department, and pursuant to existing Department policy and custom, colluded with Himan and Durham Crimestoppers to produce different versions of this same “Wanted” poster.

Anyone notice what I notice? Review those remarks for the word "alleged", or similar words. Don't see that in there? Funny, neither do I. Do you think that the DPD's official spokesperson doesn't know about the word "alleged"? Of course he does. Instead, he chose extremely inflammatory descriptions of what he asserted *DID* happen -- over and over again. He was a city's police spokesman, and didn't know enough to not say some of the things he said? That rather boggles the mind...

Almost one month after the release of the Crimestoppers wanted poster (quoted above), they released a new version which made the following change: "The victim alleges that she was sodomized, raped, assaulted and robbed." It also removed the "horrific crime" sentence. A few minutes later, another new version -- "victim" became "complainant". So, they left the "horrific" version out there for a *MONTH* before they noticed the problem? Making the changes, of course, recognizes that the original version is inherently flawed, *REGARDLESS OF WHAT HE KNEW*.

Does anyone really think that a “reasonable, trained officer” in the position of public spokesperson for a city's police department wouldn't know better?

By the way, in order to defend himself based on the "I was just a mouthpiece" line, he'd have to explain who told him to make such comments, when, and what the actual instructions were (so as to know whether anything he said went beyond the official communication), so we should get some good finger-pointing out of his defense. Those persons might deny that they authorized such broad rhetoric. That wouldn't rescue the DPD administrative defendants, though, since his comments were, by their nature, on the (extremely) public record, and were never disavowed by DPD (except insofar as the wanted poster was "disavowed" by being re-released on April 11th). And just as Nifong wasn't muzzled quickly enough to rescue him from his own words, neither was Addison.

Anonymous said...

Actually there is something in Addison's response "that gives the court an idea there'll be challenges to the defendant's conduct alleged."

On page 10 in a parenthetical statement, Addison "denies" it all. Unfortunately, the statement is blatently false and ridiculous.

Rather than a normal, he did not "knowingly, intentionally," do wrong, the statement denies what he clearly did.

"... even assuming that in his official capacity as a spokesperson for the Durham Police Department, Addison made some false, misleading or inflammatory statements (which is all denied by the Defendant, David Addison)"

He denies, his official capacity as DPD spokesperson, that he made the statements, that they were false ....? He denies it ALL!