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.