David Evans v. Patrick Baker , 703 F.3d 636 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVID F. EVANS; COLLIN FINNERTY; 
READE SELIGMANN,
Plaintiffs-Appellees,
v.
STEVEN W. CHALMERS; BEVERLY
COUNCIL; RONALD HODGE; JEFF
LAMB; MICHAEL RIPBERGER; LEE
RUSS; PATRICK BAKER,
Defendants-Appellants,  No. 11-1436
and
CITY OF DURHAM, NORTH CAROLINA;
MARK GOTTLIEB; BENJAMIN HIMAN;
DAVID ADDISON; MICHAEL NIFONG;
LINWOOD WILSON; STEPHEN
MIHAICH; DNA SECURITY,
INCORPORATED; RICHARD CLARK;
BRIAN MEEHAN,
Defendants.

2 EVANS v. CHALMERS
DAVID F. EVANS; COLLIN FINNERTY; 
READE SELIGMANN,
Plaintiffs-Appellees,
v.
CITY OF DURHAM, NORTH CAROLINA;
MARK GOTTLIEB; BENJAMIN HIMAN;
DAVID ADDISON,
Defendants-Appellants,
and  No. 11-1438
MICHAEL NIFONG; LINWOOD
WILSON; STEVEN W. CHALMERS;
BEVERLY COUNCIL; RONALD HODGE;
JEFF LAMB; STEPHEN MIHAICH;
MICHAEL RIPBERGER; LEE RUSS;
DNA SECURITY, INCORPORATED;
RICHARD CLARK; BRIAN MEEHAN;
PATRICK BAKER,
Defendants.

EVANS v. CHALMERS 3
EDWARD CARRINGTON; CASEY J. 
CARROLL; MICHAEL P. CATALINO;
GALE CATALINO; THOMAS V. CLUTE;
KEVIN COLEMAN; JOSHUA R.
COVELESKI; EDWARD J. CROTTY;
EDWARD S. DOUGLAS; KYLE DOWD;
PATRICIA DOWD; DANIEL FLANNERY;
RICHARD GIBBS FOGARTY; ZACHARY
GREER; IRENE GREER; ERIK S.
HENKELMAN; STEVEN W.
HENKELMAN; JOHN E. JENNISON;
BEN KOESTERER; MARK KOESTERER;
JOYCE KOESTERER; FRED KROM;
PETER J. LAMADE; ADAM LANGLEY;
CHRISTOPHER LOFTUS; DANIEL
LOFTUS; BARBARA LOFTUS;
 No. 11-1453
ANTHONY MCDEVITT; GLENN NICK;
NICHOLAS O’HARA; LYNNDA
O’HARA; DANIEL OPPEDISANO; SAM
PAYTON; JOHN BRADLEY ROSS;
KENNETH SAUER, III; STEVE
SCHOEFFEL; ROBERT SCHROEDER;
DEVON SHERWOOD; DANIEL
THEODORIDIS; BRET THOMPSON;
CHRISTOPHER TKAC; TRACY TKAC;
JOHN WALSH, JR.; MICHAEL WARD;
ROBERT WELLINGTON, IV; WILLIAM
WOLCOTT; MICHAEL YOUNG,
Plaintiffs-Appellees,

4 EVANS v. CHALMERS
v. 
PATRICK BAKER; STEVEN CHALMERS;
RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB;
MICHAEL RIPBERGER,
Defendants-Appellants,
and
DUKE UNIVERSITY; DUKE
UNIVERSITY HEALTH SYSTEMS,
INCORPORATED; RICHARD BRODHEAD;
PETER LANGE; LARRY MONETA;
JOHN BURNESS; TALLMAN TRASK; 
SUZANNE WASIOLEK; MATTHEW
DRUMMOND; AARON GRAVES;
ROBERT DEAN; TARA LEVICY;
THERESA ARICO; J. WESLEY
COVINGTON; KATE HENDRICKS;
VICTOR DZAU; CITY OF DURHAM;
LINWOOD WILSON; MARK GOTTLIEB;
BENJAMIN HIMAN; STEPHEN
MIHAICH; DAVID ADDISON; MARSHA
COVINGTON, Executrix of the Estate
of John Wesley Covington,
Defendants.

EVANS v. CHALMERS 5
RYAN MCFADYEN; MATTHEW 
WILSON; BRECK ARCHER,
Plaintiffs-Appellees,
v.
PATRICK BAKER; STEVEN CHALMERS;
RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB;
MICHAEL RIPBERGER,
Defendants-Appellants,
and
DUKE UNIVERSITY; DUKE
UNIVERSITY POLICE DEPARTMENT;
AARON GRAVES; ROBERT DEAN;
LEILA HUMPHRIES; PHYLLIS COOPER;
WILLIAM F. GARBER, III; JAMES
 No. 11-1458
SCHWAB; JOSEPH FLEMING; JEFFREY
O. BEST; GARY N. SMITH; GREG
STOTSENBERG; ROBERT K. STEEL;
RICHARD H. BRODHEAD, Ph. D.;
PETER LANGE, Ph. D.; TALLMAN
TRASK, III, Ph. D.; JOHN BURNESS;
LARRY MONETA, Ed. D.; DUKE
UNIVERSITY HEALTH SYSTEMS,
INCORPORATED; PRIVATE DIAGNOSTIC
CLINIC, PLLC; JULIE MANLY, MD;
THERESA ARICO, R. N.; TARA
LEVICY, R. N.; THE CITY OF
DURHAM, NORTH CAROLINA;
MICHAEL NIFONG; STEPHEN
MIHAICH; EDWARD SARVIS;

6 EVANS v. CHALMERS
LAIRD EVANS; JAMES T. SOUKUP; 
KAMMIE MICHAEL; DAVID ADDISON;
MARK D. GOTTLIEB; BENJAMIN W.
HIMAN; LINWOOD WILSON; RICHARD
D. CLAYTON; DNA SECURITY,
INCORPORATED; RICHARD CLARK;
BRIAN MEEHAN, Ph. D.; VICTOR J.
DZAU, MD; ALLISON HALTON;

KEMEL DAWKINS; SUZANNE
WASIOLEK; STEPHEN BRYAN;
MATTHEW DRUMMOND; DUKE
POLICE DEFENDANTS,
Defendants.

RYAN MCFADYEN; MATTHEW 
WILSON; BRECK ARCHER,
Plaintiffs-Appellees,
v.
THE CITY OF DURHAM, NORTH  No. 11-1460
CAROLINA; DAVID ADDISON; MARK
GOTTLIEB; BEJAMIN HIMAN,
Defendants-Appellants,
and

EVANS v. CHALMERS 7
DUKE UNIVERSITY; DUKE 
UNIVERSITY POLICE DEPARTMENT;
AARON GRAVES; ROBERT DEAN;
LEILA HUMPHRIES; PHYLLIS COOPER;
WILLIAM F. GARBER, II; JAMES
SCHWAB; JOSEPH FLEMING; JEFFREY
O. BEST; GARY N. SMITH; GREG
STOTSENBERG; ROBERT K. STEEL;
RICHARD H. BRODHEAD, Ph. D.;
PETER LANGE, Ph. D.; TALLMAN
TRASK, III, Ph. D.; JOHN BURNESS;
LARRY MONETA, Ed. D.; DUKE
UNIVERSITY HEALTH SYSTEMS,
INCORPORATED; PRIVATE DIAGNOSTIC
CLINIC, PLLC; JULIE MANLY, MD;
THERESA ARICO, R. N.; TARA
LEVICY, R. N.; MICHAEL NIFONG;
STEPHEN MIHAICH; EDWARD SARVIS;

LAIRD EVANS; JAMES T. SOUKUP;
KAMMIE MICHAEL; LINWOOD
WILSON; RICHARD D. CLAYTON;
DNA SECURITY, INCORPORATED;
RICHARD CLARK; BRIAN MEEHAN,
Ph. D.; VICTOR J. DZAU, MD;
ALLISON HALTON; KEMEL DAWKINS;
SUZANNE WASIOLEK; STEPHEN
BRYAN; MATTHEW DRUMMOND;
DUKE POLICE DEFENDANTS; PATRICK
BAKER; STEVEN W. CHALMERS;
RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB;
MICHAEL RIPBERGER,
Defendants.

8 EVANS v. CHALMERS
EDWARD CARRINGTON; CASEY J. 
CARROLL; MICHAEL P. CATALINO;
GALE CATALINO; THOMAS V. CLUTE;
KEVIN COLEMAN; JOSHUA R.
COVELESKI; EDWARD J. CROTTY;
EDWARD S. DOUGLAS; KYLE DOWD;
PATRICIA DOWD; DANIEL FLANNERY;
RICHARD GIBBS FOGARTY; ZACHARY
GREER; IRENE GREER; ERIK S.
HENKELMAN; STEVEN W.
HENKELMAN; JOHN E. JENNISON;
BEN KOESTERER; MARK KOESTERER;
JOYCE KOESTERER; FRED KROM;
PETER J. LAMADE; ADAM LANGLEY;
CHRISTOPHER LOFTUS; DANIEL
LOFTUS; BARBARA LOFTUS;
 No. 11-1465
ANTHONY MCDEVITT; GLENN NICK;
NICHOLAS O’HARA; LYNNDA
O’HARA; DANIEL OPPEDISANO; SAM
PAYTON; JOHN BRADLEY ROSS;
KENNETH SAUER, III; STEVE
SCHOEFFEL; ROBERT SCHROEDER;
DEVON SHERWOOD; DANIEL
THEODORIDIS; BRET THOMPSON;
CHRISTOPHER TKAC; TRACY TKAC;
JOHN WALSH, JR.; MICHAEL WARD;
ROBERT WELLINGTON, IV; WILLIAM
WOLCOTT; MICHAEL YOUNG,
Plaintiffs-Appellees,

EVANS v. CHALMERS 9
v. 
CITY OF DURHAM; MARK GOTTLIEB;
BENJAMIN HIMAN; DAVID ADDISON,
Defendants-Appellants,
and
PATRICK BAKER; STEVEN CHALMERS;
RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB;
MICHAEL RIPBERGER; DUKE
UNIVERSITY; DUKE UNIVERSITY
HEALTH SYSTEMS, INCORPORATED;
RICHARD BRODHEAD; PETER LANGE; 
LARRY MONETA; JOHN BURNESS;
TALLMAN TRASK; SUZANNE
WASIOLEK; MATTHEW DRUMMOND;
AARON GRAVES; ROBERT DEAN;
TARA LEVICY; THERESA ARICO; J.
WESLEY COVINGTON; KATE
HENDRICKS; VICTOR J. DZAU;
LINWOOD WILSON; STEPHEN
MIHAICH; MARSHA COVINGTON,
Executrix of the Estate of John
Wesley Covington,
Defendants.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., Chief District Judge.
(1:07-cv-00739-JAB-WWD; l:08-cv-00119-JAB-WWD;
1:07-cv-00953-JAB-WWD)
10 EVANS v. CHALMERS
Argued: September 18, 2012
Decided: December 17, 2012
Before WILKINSON, MOTZ, and GREGORY,
Circuit Judges.
Affirmed in part, dismissed in part, reversed in part, and
remanded by published opinion. Judge Motz wrote the opin-
ion, in which Judge Wilkinson concurred and Judge Gregory
concurred except as to Parts III-B and III-B.1. Judge Wilkin-
son wrote a concurring opinion. Judge Gregory wrote an opin-
ion concurring in part and dissenting in part.
COUNSEL
ARGUED: Michael A. Vatis, STEPTOE & JOHNSON, LLP,
New York, New York, for Appellants. Christopher Nicholas
Manning, WILLIAMS & CONNOLLY, LLP, Washington,
D.C.; Robert Christopher Ekstrand, EKSTRAND & EKST-
RAND, LLP, Durham, North Carolina; Peter A. Patterson,
COOPER & KIRK, PLLC, Washington, D.C., for Appellees.
ON BRIEF: Patricia P. Shields, D. Martin Warf, TROUT-
MAN SANDERS, LLP, Raleigh, North Carolina, for Appel-
lants Steven W. Chalmers, Beverly Council, Ronald Hodge,
Jeff Lamb, Michael Ripberger, Lee Russ, and Patrick Baker;
Roger E. Warin, Matthew J. Herrington, Leah M. Quadrino,
John P. Nolan, STEPTOE & JOHNSON, LLP, Washington,
D.C., Reginald B. Gillespie, Jr., FAISON & GILLESPIE,
Durham, North Carolina, for the City of Durham; Edwin M.
Speas, Jr., Eric P. Stevens, POYNER & SPRUILL LLP,
Raleigh, North Carolina, for Appellant Mark Gottlieb; Joel M.
Craig, Henry W. Sappenfield, KENNON, CRAVER, PLLC,
Durham, North Carolina, for Appellant Benjamin Himan;
EVANS v. CHALMERS 11
James B. Maxwell, MAXWELL, FREEMAN & BOWMAN,
PA, Durham, North Carolina, for David Addison. David S.
Rudolf, RUDOLF WIDENHOUSE & FIALKO, Charlotte,
North Carolina, Richard D. Emery, Ilann M. Maazel, EMERY
CELLI BRINCKERHOFF & ABADY LLP, New York, New
York, for Appellee Reade Seligmann; Robert M. Cary,
Charles Davant IV, Ashley W. Hardin, WILLIAMS & CON-
NOLLY, LLP, Washington, D.C., for Appellees David F.
Evans, and Collin Finnerty. William J. Thomas II, THOMAS,
FERGUSON & MULLINS, LLP, Durham, North Carolina;
Brian S. Koukoutchos, Mandeville, Louisiana; Charles J.
Cooper, David H. Thompson, COOPER & KIRK, PLLC,
Washington, D.C., for Appellees Carrington. Stefanie A.
Sparks, EKSTRAND & EKSTRAND, LLP, Durham, North
Carolina, for Appellees McFadyen.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
These appeals arise from allegations that the City of Dur-
ham 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.
12 EVANS v. CHALMERS
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 Shel-
ton instructed another officer to take Mangum to the Durham
Access Center, an outpatient mental health clinic with a man-
datory 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 ques-
tion "Were you raped?" Because of her allegation, Mangum
was transported to the Duke Medical Center for a sexual
assault examination.
At the Duke Medical Center, Sergeant Shelton questioned
Mangum regarding her rape allegations. Mangum then denied
being raped, but contended that someone had stolen her
money. Soon after this recantation, Mangum told another offi-
cer she had been raped by as many as five men after perform-
ing at a bachelor party. Over the course of that night and the
next few days, Mangum provided multiple, vastly inconsistent
versions of her rape to medical personnel and police officers.
Her accounts differed not only as to how many men had raped
EVANS v. CHALMERS 13
her (ranging from three to twenty), but also as to how they
raped her (orally, vaginally, or anally).
Nurses at the Duke Medical Center performed a rape kit
examination to document physical evidence of sexual assault.
Some plaintiffs allege that Nurse Tara Levicy interviewed
Mangum, who told the nurse that three white men—named
Adam, Brett, and Matt—had raped her orally, vaginally, and
anally, had not worn condoms, and had ejaculated in her
mouth, vagina, and anus. A doctor performed a pelvic exami-
nation on Mangum and noted only one abnormality—diffuse
edema of the vaginal walls—which Nurse Levicy then
recorded on a sexual assault examination report.
Officer B.S. Jones, who was initially assigned to investi-
gate Mangum’s allegations, believed that no evidence sup-
ported proceeding with a criminal investigation. Nonetheless,
during the next two days (March 15-16), the case was reas-
signed to Officers Mark Gottlieb and Benjamin Himan. When
Officers Gottlieb and Himan interviewed Mangum for the
first time on March 16, Mangum told them that she was raped
by three white men –- Adam, Brett, and Matt -– and provided
physical descriptions of the attackers. Later that day, based on
her descriptions, Durham Police administered a photo array to
Mangum limited to pictures of twenty-four white members of
the Duke lacrosse team. Mangum did not identify any of the
men in the photographs as her attackers, though she did iden-
tify men who she believed had attended the party.
On the same day, March 16, Officers Gottlieb and Himan
executed a search warrant for the site of the March 13-14
party. The three residents—Evans, Flannery, and Zash—
complied with the execution of the search warrant, consented
to lengthy police interviews, submitted to physical inspections
for signs of rape, and provided DNA and hair samples.
Four days later, on Monday, March 20, Officer Himan
interviewed Mangum’s fellow dancer, Pittman, who asserted
14 EVANS v. CHALMERS
that Mangum’s rape allegations were a "crock" and that there
had been no opportunity for an assault to have occurred out
of Pittman’s presence at the party. On March 22, Officers
Gottlieb and Himan used an outstanding arrest warrant and
the threat of revocation of probation to induce Pittman to
recant her initial statement calling the rape allegations a
"crock," and to create a fictional window of opportunity in her
story when the rape could have been committed. In the mean-
time, Durham Police arranged a second photo array of mem-
bers of the Duke lacrosse team. Once again, Mangum could
not identify any attacker.
During this same time period, Officer Gottlieb served a
subpoena on Nurse Levicy to obtain the Medical Center’s
sexual assault examination report. Some plaintiffs allege that
Nurse Levicy previously had indicated to Officer Gottlieb that
the examination of Mangum had revealed "signs consistent
with sexual assault," but had refused to turn over the report
without a subpoena. Once Officer Gottlieb returned with the
subpoena, Nurse Levicy misled Gottlieb about the extent of
the evidence of sexual assault, claiming that the examination
had also revealed physical evidence of "blunt force trauma"
and other symptoms "consistent with the victim’s statement."
Two days later, on Thursday, March 23, Officers Gottlieb
and Himan, using Nurse Levicy’s corroborating statements,
obtained court approval for a non-testimonial order ("NTO").
The NTO required the forty-six white lacrosse team members
to provide DNA samples, sit for photographs, and submit to
examination for injuries consistent with struggle during a sex-
ual assault. The police offered two affidavits in support of the
NTO—one to establish probable cause that a crime had been
committed, the other to establish reasonable grounds that the
subjects might have committed the crime. The NTO affidavits
explained that "[t]he DNA evidence requested will immedi-
ately rule out any innocent persons, and show conclusive evi-
dence as to who the suspect(s) are in the alleged violent attack
EVANS v. CHALMERS 15
upon this victim." The team members fully complied with the
NTO.
B.
The next day, Friday, March 24 (ten days after the alleged
rape), District Attorney Michael Nifong took over the investi-
gation. Durham Police Commander Jeff Lamb instructed Offi-
cers Gottlieb and Himan to take direction in the rape
investigation from Nifong.
On Monday morning, March 27, Officers Gottlieb and
Himan briefed Nifong on the case. At this briefing, the offi-
cers detailed the exculpatory evidence, including contradic-
tions in Mangum’s allegations and the negative results of the
photo arrays. Recognizing the weakness of the case, Nifong
responded, "You know, we’re f*cked."
Nonetheless, the investigation continued. Later that morn-
ing, Officer Gottlieb obtained from a confidential source an
email that a lacrosse team member, Ryan McFadyen, had sent
to his teammates only hours after the party at which the rape
assertedly occurred. The email stated:
tomorrow night . . . ive decided to have some strip-
pers over to edens 2c. all are welcome.. however
there will be no nudity. i plan on killing the bitches
as soon as they walk in and proceeding to cut their
skin off while cumming in my duke issue spandex.
. . . 41
McFadyen’s dormitory address was Edens 2C, and his
lacrosse jersey number was 41. Officers Gottlieb and Himan
added the text of the email to the information from the NTO
affidavits and applied for and executed a search warrant on
McFadyen’s dorm room, adding to the list of suspected
crimes "conspiracy to commit murder."
16 EVANS v. CHALMERS
Meanwhile, on March 24 and 25, Durham police
spokesperson Corporal David Addison made a series of public
statements regarding the case. On March 24, Corporal Addi-
son told local and national reporters that the investigation had
produced "really, really strong physical evidence" of rape. In
explaining the scope of the NTO, Corporal Addison told one
reporter: "You are looking at one victim brutally raped. If that
was someone else’s daughter, child, I don’t think 46 [sus-
pects] would be a large enough number to figure out exactly
who did it." The next day, Corporal Addison stated: "We’re
asking someone from the lacrosse team to step forward. We
will be relentless in finding out who committed this crime."
By March 28, the State Bureau of Investigation had con-
cluded its examination of evidence from Mangum’s rape kit
and the DNA collected from the plaintiffs under the NTO. By
March 29, the State Bureau of Investigation had notified
Nifong of the results: the state examination revealed no DNA
from anyone in Mangum’s rape kit or her clothing. Neverthe-
less, Nifong sought a second, more sensitive DNA analysis at
a private laboratory, DNA Security, Inc. On April 5, Nifong
obtained a judicial order to transfer the rape kit and NTO evi-
dence to the private laboratory.
Meanwhile, the day before, on April 4, Officer Gottlieb
administered a third photo array to Mangum. This photo array
contained pictures of all forty-six white members of the Duke
lacrosse team; the police officers informed Mangum that they
had reason to believe everyone pictured had been at the party.
During this photo array, Mangum identified three team mem-
bers as her attackers—David Evans with 90% certainty, Col-
lin Finnerty with 100% certainty, and Reade Seligmann with
100% certainty.
From April 7 through April 10, the private laboratory ana-
lyzed the rape kit and NTO evidence. On April 10, employees
from the private laboratory met with Nifong and Officers Got-
tlieb and Himan to report the results of the analyses. Although
EVANS v. CHALMERS 17
the private laboratory found that several men contributed
DNA to the items in Mangum’s rape kit, the analyses
excluded with 100% certainty every member of the Duke
lacrosse team as a potential contributor of that DNA. Know-
ing that the private laboratory’s results would prevent an
indictment, neither Nifong nor the officers disclosed the
results to the players or their attorneys. However, the state
laboratory’s initial report—finding no DNA from anyone in
Mangum’s rape kit—was released to the public later that day.
Notwithstanding two negative DNA analyses, Mangum’s
inconsistent testimony, and Pittman’s initial repudiation of
Mangum’s allegations, Nifong continued pursuing the case.
On April 17, Nifong sought and successfully obtained indict-
ments against Collin Finnerty and Reade Seligmann for first-
degree rape, first-degree sex offense, and kidnapping. On
May 12, Nifong provided a report detailing the private labora-
tory’s DNA results to counsel for Finnerty and Seligmann.
However, the report excluded the fact that the private labora-
tory had conclusively eliminated every member of the Duke
lacrosse team as a potential contributor of the DNA found in
the rape kit. Nifong, along with Officers Gottlieb and Himan,
had worked with the private laboratory to ensure that the
report remained ambiguous and misleading on this point. On
May 15, based partly on the private laboratory’s misleading
report, Nifong sought and obtained an indictment against
David Evans for first-degree rape, first-degree sexual offense,
and kidnapping.
Over the next few months, Nifong intentionally misrepre-
sented and misstated material facts to opposing counsel and
the state trial judge regarding the private laboratory’s DNA
report. On September 22, the state judge issued an order
requiring Nifong to provide the indicted lacrosse players with
the complete files and underlying data from both the State and
private laboratory analyses. After complying with the order,
Nifong denied prior knowledge that the private laboratory test
had ruled out all lacrosse team members as contributors of
18 EVANS v. CHALMERS
DNA in Mangum’s rape kit. However, on December 15,
employees from the private laboratory admitted to conspiring
with Nifong to obfuscate the results of its DNA analyses.
On December 21, in an interview with a Durham police
officer, Mangum recanted her rape allegation for the first time
since the night of the alleged rape. Mangum, however, still
maintained that she had been assaulted. Nifong dismissed the
charges of first degree rape, but continued the prosecutions of
the sexual assault and kidnapping charges.
The North Carolina State Bar subsequently filed an ethics
complaint against Nifong based on his conduct in the
Mangum rape investigation. On January 12, 2007, Nifong
recused himself from the criminal cases arising from
Mangum’s allegations. On April 11, after a thorough, inde-
pendent review, the Attorney General of North Carolina, not-
ing the inconsistency in Mangum’s statements, Mangum’s
suspect credibility, and the DNA reports demonstrating no
rape by the indicted men, dismissed the remaining charges
against Evans, Finnerty, and Seligmann. On June 16, Nifong
was disbarred for his conduct during the Mangum investiga-
tion and prosecution.
C.
Based on the above facts, Evans, Seligmann, and Finnerty
(collectively the "Evans plaintiffs"), Ryan McFadyen, Mat-
thew Wilson, and Breck Archer (collectively the "McFadyen
plaintiffs"), and thirty-eight other members of the 2005-2006
Duke University lacrosse team (collectively the "Carrington
plaintiffs") filed three separate complaints in the Middle Dis-
trict of North Carolina alleging a myriad of claims against
many defendants, including the City of Durham and city offi-
cials, particularly certain police officers.1
1
We note that one or more of the three complaints also allege claims
against the private laboratory, Duke University, and Duke employees,
EVANS v. CHALMERS 19
The individual police officers moved to dismiss all claims
against them. They asserted qualified immunity from the fed-
eral claims and official immunity from the state claims. The
City and its supervisory officials moved to dismiss the federal
claims pled against them, arguing that those claims failed
because the allegations against the officers failed. The City
moved for summary judgment on the state common-law
claims, asserting governmental immunity, and moved to dis-
miss the state constitutional claims. The district court granted
these motions in part and denied them in part.
The police officers, supervisory officials, and City appeal;
no plaintiff cross-appeals. We have consolidated the three
cases on appeal. We address first the federal and then the state
claims asserted in the three amended complaints.
II.
We have jurisdiction over the officers’ interlocutory
appeals from the district court’s judgment denying their
motions to dismiss the federal claims against them because
the officers assert qualified immunity. See Mitchell v. For-
syth, 472 U.S. 511, 530 (1985). "We review de novo the
denial of a motion to dismiss based on qualified immunity,
accepting as true the facts alleged in the complaint and view-
ing them in the light most favorable to the plaintiff." Ridpath
v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th
Cir. 2006).
Qualified immunity protects government officials from suit
for damages when their conduct does not violate a "clearly
among others. None of these defendants asserted any immunity from suit,
and thus none could file appeals from the district court’s interlocutory rul-
ings. All three complaints additionally allege numerous claims against the
prosecutor, Michael Nifong. The district court held that Nifong did not
enjoy qualified immunity from the claims alleged against him for his
investigatory actions. Because Nifong did not note an appeal of that rul-
ing, it is not before us.
20 EVANS v. CHALMERS
established" constitutional right. See Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). To escape dismissal of a complaint
on qualified immunity grounds, a plaintiff must (1) allege a
violation of a right (2) that is clearly established at the time
of the violation. See Pearson v. Callahan, 555 U.S. 223, 231
(2009). Although we may address immunity without ruling on
the existence of a right, see id. at 236, if a plaintiff fails to
allege that an official has violated any right, the official "is
hardly in need of any immunity and the analysis ends right
then and there," Abney v. Coe, 493 F.3d 412, 415 (4th Cir.
2007).
With these principles in mind, we turn to the federal claims
at issue here.
A.
The Evans plaintiffs allege a § 1983 malicious prosecution
claim against Officers Gottlieb and Himan.2 The district court
denied the officers’ motions to dismiss this claim, reasoning
that the plaintiffs stated such a claim by alleging they "were
arrested pursuant to an indictment that was obtained by the
2
Based on the same facts, the Evans plaintiffs also allege a Fourteenth
Amendment substantive due process claim against Officers Gottlieb and
Himan. The district court, noting the "unsettled legal doctrines" surround-
ing due process claims based on asserted pre-trial fabrication of evidence,
nonetheless denied the officers’ motions to dismiss this claim. In doing so,
the court erred. The Due Process Clause does not constitute a catch-all
provision that provides a remedy whenever a state actor causes harm. See
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). Rather, "[w]here
a particular Amendment provides an explicit textual source of constitu-
tional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process,
must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S.
266, 273 (1994) (plurality opinion) (internal quotation marks omitted); see
also id. at 286-91 (Souter, J., concurring). Because the Fourth Amendment
provides "an explicit textual source" for § 1983 malicious prosecution
claims, the Fourteenth Amendment provides no alternative basis for those
claims.
EVANS v. CHALMERS 21
intentional or reckless creation of false or misleading evi-
dence used before the grand jury that was necessary to a find-
ing of probable cause, or the deliberate or reckless omission
of material information that officials knew would negate
probable cause." Evans v. City of Durham, No. 1:07CV739,
slip op. at 29-30 (M.D.N.C. Mar. 31, 2011).
A "malicious prosecution claim under § 1983 is properly
understood as a Fourth Amendment claim for unreasonable
seizure which incorporates certain elements of the common
law tort." Lambert v. Williams, 223 F.3d 257, 261 (4th Cir.
2000). To state such a claim, a plaintiff must allege that the
defendant (1) caused (2) a seizure of the plaintiff pursuant to
legal process unsupported by probable cause, and (3) criminal
proceedings terminated in plaintiff’s favor. See Durham v.
Horner, 690 F.3d 183, 188 (4th Cir. 2012).
For purposes of this appeal, the officers do not contend that
the Evans plaintiffs have failed to allege illegal seizures (i.e.,
the indictments) or that criminal proceedings failed to termi-
nate in the plaintiffs’ favor (i.e., the dismissal of the indict-
ments). The officers do maintain, however, that they escape
liability for the assertedly illegal seizures because they did not
cause them. Rather, they contend, an independent intervening
act of another—i.e., Prosecutor Nifong’s decisions to seek the
indictments—caused the seizures.3
Of course, constitutional torts, like their common law
brethren, require a demonstration of both but-for and proxi-
mate causation. See Murray v. Earle, 405 F.3d 278, 289-90
(5th Cir. 2005); Townes v. City of New York, 176 F.3d 138,
146 (2d Cir. 1999). Accordingly, subsequent acts of indepen-
3
In addition to contending that Nifong’s decisions to seek the indict-
ments constitute intervening acts shielding them from liability, Officers
Gottlieb and Himan contend that the grand jury’s decisions to indict con-
stitute similar intervening acts. Given our holding as to Nifong, we need
not and do not reach this contention.
22 EVANS v. CHALMERS
dent decision-makers (e.g., prosecutors, grand juries, and
judges) may constitute intervening superseding causes that
break the causal chain between a defendant-officer’s miscon-
duct and a plaintiff’s unlawful seizure. See Zahrey v. Coffey,
221 F.3d 342, 351 (2d Cir. 2000). Such "intervening acts of
other participants in the criminal justice system" insulate a
police officer from liability. Id.; see also Cuadra v. Hous.
Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010), cert.
denied, 131 S. Ct. 2972 (2011); Wray v. City of New York,
490 F.3d 189, 195 (2d Cir. 2007); Barts v. Joyner, 865 F.2d
1187, 1195 (11th Cir. 1989); Smiddy v. Varney, 665 F.2d 261,
266-68 (9th Cir. 1981), overruled on other grounds by Beck
v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008); Rhodes
v. Smithers, 939 F. Supp. 1256, 1274 (S.D. W. Va. 1995),
aff’d, No. 95-2837, 1996 WL 420471 (4th Cir. July 29, 1996)
(unpublished).
However, even when, as here, a prosecutor retains all dis-
cretion to seek an indictment,4 police officers may be held to
have caused the seizure and remain liable to a wrongfully
indicted defendant under certain circumstances. In particular,
officers may be liable when they have lied to or misled the
prosecutor, see, e.g., Sykes v. Anderson, 625 F.3d 294, 317
(6th Cir. 2010); Jones v. City of Chicago, 856 F.2d 985, 993
(7th Cir. 1988); Borunda v. Richmond, 885 F.2d 1384, 1390
(9th Cir. 1988); failed to disclose exculpatory evidence to the
prosecutor, see, e.g., Dominguez v. Hendley, 545 F.3d 585,
590 (7th Cir. 2008); Sanders v. English, 950 F.2d 1152, 1159-
60 (5th Cir. 1992); or unduly pressured the prosecutor to seek
the indictment, cf. Beck, 527 F.3d at 870.
Stated differently, a police officer is not liable for a plain-
tiff’s unlawful seizure following indictment "in the absence of
evidence that [the officer] misled or pressured the prosecu-
4
In North Carolina, state district attorneys, like Nifong, have the sole
discretion to decide whether to prosecute. See State v. Ward, 555 S.E.2d
251, 260 (N.C. 2001) (citing N.C. Const. Art. IV § 18(1)).
EVANS v. CHALMERS 23
tion." Wray, 490 F.3d at 195; see also Snider v. Lee, 584 F.3d
193, 206 (4th Cir. 2009) (Stamp, J., concurring) ("A law
enforcement officer who presents all relevant probable cause
evidence to a prosecutor . . . is insulated from a malicious
prosecution claim where such intermediary makes an inde-
pendent decision . . . unless the officer [1] concealed or mis-
represented facts or [2] brought such undue pressure to bear
on the intermediary that the intermediary’s independent judg-
ment was overborne."); Hand v. Gary, 838 F.2d 1420, 1428
(5th Cir. 1988) ("An independent intermediary breaks the
chain of causation unless it can be shown that the delibera-
tions of that intermediary were in some way tainted by the
actions of the defendant.").
The Evans plaintiffs do not allege that Officers Gottlieb
and Himan misled or misinformed Nifong. Indeed, the Evans
plaintiffs expressly allege that, from the outset, the officers
candidly briefed Nifong as to the startling weaknesses in the
case by "detail[ing] the extraordinary evidence of innocence
and the fatal defects in Mangum’s claims" and "convey[ing]
to Nifong that Mangum was not credible." The Evans plain-
tiffs nonetheless insist that the officers remain liable because
they "misrepresented, withheld, or falsified evidence" that
ultimately influenced the grand jury. This argument fails
because acts of either the prosecutor or the grand jury may
break the causal chain. Cf. Cuadra, 626 F.3d at 813; Barts,
865 F.2d at 1195. In other words, if the independent act of a
prosecutor breaks the causal chain, the fact that the prosecutor
misled the grand jury does not render police officers liable.
Alternatively, the Evans plaintiffs maintain that Officers
Gottlieb and Himan conspired with Nifong to fabricate and
conceal evidence from the grand jury and thus somehow
unduly pressured Nifong to seek the indictment. The allega-
tions in their complaint significantly undercut this argument.
For the Evans plaintiffs ground their entire case on allegations
that Nifong desired to exploit the "high-profile, racially-
charged rape allegation for his personal political gain." They
24 EVANS v. CHALMERS
further allege that from his very first meeting with the offi-
cers, Nifong noted the lack of exculpatory evidence: "we’re
f*cked." Tellingly, the Evans plaintiffs do not assert that Offi-
cers Gottlieb and Himan responded by pressuring Nifong to
pursue the case. Rather, they allege that the officers continued
the investigation at Nifong’s instruction, and that, when
Nifong sought to indict the Evans plaintiffs, Officer Himan
frankly responded, "With what?" No matter how generously
read, these allegations do not allege that Officers Gottlieb and
Himan pressured Nifong to seek an indictment.
Moreover, it seems contrary to the very purpose of quali-
fied immunity to extend personal liability to police officers
who have assertedly conspired with, but neither misled nor
unduly pressured, an independent prosecutor. Police officers
and prosecutors often work together to establish probable
cause and seek indictments; such collaboration could always
be characterized as a "conspiracy." Allowing § 1983 claims
against police officers to proceed on allegations of such a
"conspiracy" would in virtually every case render the officers’
qualified immunity from suit "effectively lost," Mitchell, 472
U.S. at 526, and make discovery the rule, rather than the
exception, see Anderson v. Creighton, 483 U.S. 635, 639-40
& n.2 (1987).
Thus, we hold today that an alleged officer-prosecutor con-
spiracy does not alter the rule that a prosecutor’s independent
decision to seek an indictment breaks the causal chain unless
the officer has misled or unduly pressured the prosecutor.5
Because the Evans plaintiffs do not allege that Officers Got-
5
Twelve years ago, the Second Circuit questioned in dicta why "reason-
able foreseeability" would not suffice to preserve the causal chain between
a police officer’s actions and an unlawful seizure by way of indictment.
See Zahrey, 221 F.3d at 351-52. However, no other court has pursued this
suggestion and more recently the Second Circuit itself has stepped back
from that broad dicta. See Wray, 490 F.3d at 195. As explained in text
above, we believe good reasons counsel against following the approach
suggested in the Zahrey dicta.
EVANS v. CHALMERS 25
tlieb and Himan either misled or pressured Nifong to seek
their indictments, we reverse the district court’s denial of the
officers’ motions to dismiss the Evans plaintiffs’ § 1983 mali-
cious prosecution claims against them.
B.
Both the McFadyen and Carrington plaintiffs allege § 1983
claims against Officers Gottlieb and Himan based on the offi-
cers’ asserted unlawful seizures of evidence pursuant to a
state non-testimonial order ("NTO"). Plaintiffs acknowledge
that in seizing physical evidence from them, the officers acted
pursuant to a state NTO, but claim that those seizures none-
theless violate the Fourth Amendment because the NTO
flowed from the officers’ assertedly dishonest supporting affi-
davits. The district court agreed and so denied the officers’
motions to dismiss these claims.
The North Carolina NTO statute requires "probable cause
to believe that a felony offense . . . has been committed;"
"reasonable grounds to suspect that the person named or
described in the affidavit committed the offense;" and "[t]hat
the results of specific nontestimonial identification procedures
will be of material aid in determining whether the person
named in the affidavit committed the offense." N.C. Gen.
Stat. § 15A-273(1)-(3).6
6
Plaintiffs also challenge the constitutionality of the North Carolina
NTO statute, contending that it authorizes searches and seizures of blood
and DNA without probable cause. The district court correctly noted the
uncertainty as to whether North Carolina courts would interpret the state
NTO statute "as authorizing a search and seizure . . . on less than a full
showing of probable cause" and whether "such an interpretation would
render the state NTO statutes unconstitutional." McFadyen v. Duke Univ.,
786 F. Supp. 2d 887, 925 (M.D.N.C. 2011); see also State v. Grooms, 540
S.E.2d 713, 728 (N.C. 2000). Nonetheless, the district court refused to
hold that the officers’ qualified immunity barred this claim. Given this
uncertainty, we cannot conclude that clearly established law mandated "a
full showing of probable cause" or that the state NTO statute would be
26 EVANS v. CHALMERS
Franks v. Delaware, 438 U.S. 154 (1978), guides our anal-
ysis as to whether asserted material false statements and omis-
sions in the NTO supporting affidavits offered by Officers
Gottlieb and Himan state a constitutional claim. See also Mil-
ler v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir.
2007) (extending Franks to § 1983 claims). Franks provides
a two-prong test. First, plaintiffs must allege that defendants
"knowingly and intentionally or with a reckless disregard for
the truth" either made false statements in their affidavits or
omitted facts from those affidavits, thus rendering the affida-
vits misleading. See Franks, 438 U.S. at 155-56; Miller, 475
F.3d at 627. Second, plaintiffs must demonstrate that those
"false statements or omissions [are] ‘material,’ that is, ‘neces-
sary to’" a neutral and disinterested magistrate’s authorization
of the search. Miller, 475 F.3d at 628 (quoting Franks, 438
U.S. at 155-56). We take up each prong in turn.
1.
a.
In their complaints, both the McFadyen and Carrington
plaintiffs allege that Officers Gottlieb and Himan deliberately
falsified their NTO affidavits by wrongly declaring that: (1)
Mangum had claimed she lost painted fingernails in a struggle
with her attackers, and police recovered fingernails during
held unconstitutional without such a showing. Accordingly, we must
reverse the district court’s refusal to dismiss this constitutional challenge
to the state NTO statute on qualified immunity grounds. However, it is
clear that seizures pursuant to the NTO statute are "no less subject to the
constraints of the Fourth Amendment," and that the Constitution requires
some evidentiary showing, even if not "probable cause in the traditional
sense," for the collection of DNA evidence pursuant to an NTO. See Davis
v. Mississippi, 394 U.S. 721, 727 (1969); see also Hayes v. Florida, 470
U.S. 811, 816-17 (1985). On its face, the state NTO statute requires such
an evidentiary showing. See N.C. Gen. Stat. § 15A-273(1)-(3). We address
in text plaintiffs’ arguments that NTO affidavits failed to provide the evi-
dentiary showing required in the NTO statute.
EVANS v. CHALMERS 27
their search of the house where the party (and alleged rape)
occurred; (2) the lacrosse team members used aliases before
and during the party to conceal their identities from Mangum
and Pittman; and (3) the team members attempted to conceal
their university and team affiliations from Mangum and Pitt-
man during the party. In addition, the McFadyen plaintiffs
maintain that the officers deliberately falsified the affidavits
by declaring that at one point during the party a male
attendee, holding a broomstick in the air, told Mangum and
Pittman "I’m going to shove this up you." No record evidence
lends any support for these four statements; accordingly, they
clearly satisfy the first Franks prong as deliberate falsehoods.
We note that on appeal, plaintiffs vigorously contend that
the officers’ reliance in the NTO affidavits on Nurse Levicy’s
corroborating statements constitutes another deliberately false
statement under Franks. But the plaintiffs’ amended com-
plaints belie this contention.
The McFadyen complaint does not even mention the
nurse’s statements when detailing the false statements in the
NTO affidavits. While the Carrington complaint does allege
that the portions of the affidavits based on the nurse’s state-
ments were false, it does not allege that the officers knew of
the falsity when applying for the NTO, or acted with reckless
disregard for the truth in relying on the nurse’s statements. Of
course, the truthfulness of a witness statement is irrelevant as
to whether affiants’ statements were truthful. See Franks, 438
U.S. at 171. And that the officers may have learned of the
falsehood of the nurse’s statements after the NTO issued does
not defeat their reliance on the information when applying for
the NTO. See Unus v. Kane, 565 F.3d 103, 125 (4th Cir.
2009). Moreover, although the Carrington plaintiffs allege
that at some point Nurse Levicy and Officers Gottlieb and
Himan conspired to prolong the investigation, they do not
allege when that conspiracy began. Indeed their complaint
suggests that the officers initially believed Nurse Levicy’s
statements.
28 EVANS v. CHALMERS
For these reasons, we cannot agree that the officers’ reli-
ance on the nurse’s corroborating statements constituted a
deliberate falsehood under Franks. Rather, only the four mis-
statements actually pled in the McFadyen plaintiffs’ com-
plaint (three of which are also pled in the Carrington
plaintiffs’ complaint) satisfy the first Franks prong.7
b.
In addition, the McFadyen plaintiffs allege that Officers
Gottlieb and Himan’s omission from the NTO affidavits of
the fact that in the first photo array Mangum "ruled out as
plausible suspects" several team members also satisfies the
first Franks prong. We disagree. Affiants are not required to
include every piece of exculpatory information in affidavits.
See, e.g., Simmons v. Poe, 47 F.3d 1370, 1384 (4th Cir. 1995)
(finding affiant’s omission of facts inconsistent with a sus-
pect’s guilt from an affidavit "was not an attempt to mislead
the magistrate" under Franks); United States v. Colkley, 899
F.2d 297, 299-301 (4th Cir. 1990) (holding affiant’s omission
of the fact that six eyewitnesses failed to identify a criminal
suspect in a photo array did not satisfy the first Franks prong
absent evidence that the affiant possessed "the requisite intent
to mislead"). As in Simmons and Colkley, nothing in the omis-
sion alleged by the McFadyen plaintiffs plausibly suggests an
intent to deceive or recklessness, and thus the asserted omis-
sion does not satisfy the first Franks prong.
7
On appeal, plaintiffs insist that we look to their complaints as a whole
to determine whether Officers Gottlieb and Himan alleged numerous other
assertedly false statements in the NTO affidavits. We reject plaintiffs’ sug-
gestion that defendants—and courts—should scour several-hundred page
complaints to discover which affidavit statements plaintiffs allege are fab-
ricated or misleading. A complaint must specify the facts plaintiffs allege
defendants falsified or omitted. Contrary to plaintiffs’ arguments, general
allegations that "every material fact" in the affidavits was fabricated do
not suffice. See Franks, 438 U.S. at 171 ("[Plaintiffs] should point out spe-
cifically the portion of the warrant affidavit that is claimed to be false.").
EVANS v. CHALMERS 29
2.
Because the plaintiffs have sufficiently pled that Officers
Gottlieb and Himan deliberately made four false statements in
the NTO supporting affidavits, we proceed to Franks’ materi-
ality prong. To state a Franks claim, false statements must be
"material, that is, necessary to the neutral and disinterested
magistrate’s" authorization of the search. Miller, 475 F.3d at
628 (internal quotation marks omitted); see also Franks, 438
U.S. at 171; Colkley, 899 F.2d at 301. To determine material-
ity, we "excise the offending inaccuracies . . . and then deter-
mine whether or not the corrected warrant affidavit would"
provide adequate grounds for the search. Miller, 475 F.3d at
628 (internal quotation marks omitted).
In correcting the supporting affidavits, we remove the false
statements regarding the broomstick, Mangum’s fingernails,
and the suggestions that team members attempted to hide their
identities, school, and team affiliations. Even so, the corrected
affidavits clearly contain sufficient factual bases to establish
both probable cause that a rape was committed and "reason-
able grounds" that the named persons committed the rape, as
required under the NTO statute.
As corrected, the affidavits: (1) describe Mangum’s allega-
tion that, after dancing at the party, three white males "force-
fully held her legs and arms and raped and sexually assaulted
her anally, vaginally, and orally;" (2) include the fact that
police found some of Mangum’s belongings during their
search of the house where the alleged rape was committed;
and (3) contain Nurse Levicy’s corroborating statement that
"the victim had signs, symptoms, and injuries consistent with
being raped and sexually assaulted vaginally and anally." A
rape allegation, paired with corroborating medical evidence,
undoubtedly establishes probable cause that a rape was com-
mitted. Cf. Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir.
1991).
30 EVANS v. CHALMERS
The corrected affidavits also state "reasonable grounds" for
belief that the named persons committed the rape. The cor-
rected affidavits state Mangum’s allegations of gang-rape by
three white men at the party; that the team captains had identi-
fied all but five of the white team members named in the NTO
as being present at the party; that "no strangers . . . showed
up to the event"; and that—because there were so many
attendees—all white members of the lacrosse team were listed
under the NTO because "they were all aware of the party and
could have been present." These facts might not demonstrate
probable cause, but certainly meet the NTO "reasonable
grounds" standard. For these facts state more than an "unpar-
ticularized suspicion" that the parties named in the NTO may
have raped Mangum. See State v. Pearson, 566 S.E.2d 50, 54
(N.C. 2002) (stating that "reasonable grounds" requires only
"a minimal amount of objective justification, something more
than an ‘unparticularized suspicion or hunch,’" and is a "sig-
nificantly lower" standard than probable cause).
Because the corrected NTO affidavits would provide ade-
quate support for a magistrate’s authorization of the NTO, we
cannot say that the false statements identified above were
"material." Therefore, we reverse the district court’s denial of
defendants’ motions to dismiss these § 1983 unlawful seizure
claims.
C.
Plaintiff Ryan McFadyen individually alleges a § 1983
claim against Officers Gottlieb and Himan for the assertedly
unlawful search and seizure of his apartment and car pursuant
to a search warrant.8 McFadyen alleges that the officers made
material false statements and omissions in the search warrant
8
To the extent that McFadyen’s co-plaintiffs, Matthew Wilson and
Breck Archer, also attempt to bring this claim, we hold that they lack
standing to do so. See United States v. Gray, 491 F.3d 138, 144 (4th Cir.
2007).
EVANS v. CHALMERS 31
application. The district court denied the officers’ motions to
dismiss this claim, relying on its reasoning with respect to the
NTO claims. Because McFadyen alleges that Officers Got-
tlieb and Himan made false statements or omissions material
to the issuance of the search warrant, we again analyze the
claim under Franks.
1.
The affidavit supporting the search warrant mirrors those
supporting the NTO with the following two additions. First,
the officers added that during the party "[t]he players . . . used
numbers when calling for one and another across the room[,]
again to hide their identities." Second, the officers added the
contents of the email McFadyen sent to his teammates and the
assertion by Officer Gottlieb that he received the email from
a confidential source. McFadyen contends that both of these
statements, like the four statements discussed above in the
NTO affidavits, constitute knowing false statements under the
first Franks prong. We agree with respect to the first state-
ment, as the record lends it no support.
But we disagree as to the second statement, which contains
the email. McFadyen argues that, because the affidavit indi-
cates that the email was provided by a "confidential source,"
but does not articulate any facts relating to the reliability of
the source, we must strike the email from the affidavit before
addressing Franks’ materiality prong. Assuming, without
deciding, that this would be the appropriate manner to handle
such admittedly truthful, yet perhaps inadequately verified,
information under Franks, we nonetheless find McFadyen’s
argument meritless.
Florida v. J.L., 529 U.S. 266 (2000), on which McFadyen
heavily relies, in fact provides him little support. J.L. holds
that police officers must offer evidence other than an anony-
mous tip to support a Terry stop-and-frisk. Id. at 268. In this
case, the email itself supplies evidence in addition to the
32 EVANS v. CHALMERS
anonymous tip. For the email sent from McFadyen’s Duke
email account and signed with his jersey number contains suf-
ficient indicia of reliability to support its inclusion in the
search warrant application. See United States v. Perkins, 363
F.3d 317, 325 (4th Cir. 2004) ("The central point in those
[anonymous tip] cases is that courts must ensure, one way or
the other, that an anonymous informant’s tip was sufficiently
reliable."). Accordingly, we do not strike McFadyen’s email
from the warrant affidavit.
2.
Because McFadyen sufficiently pled that Officers Gottlieb
and Himan made five false statements in the search warrant
affidavit (four from the NTO affidavits and the additional
statement as to the players’ use of jersey numbers to hide their
identities), we proceed to Franks’ materiality prong to "deter-
mine whether or not the ‘corrected’ warrant affidavit would
establish probable cause." Miller, 475 F.3d at 628 (internal
quotation marks omitted).
"Probable cause exists when there is a fair probability that
. . . evidence of a crime will be found in a particular place."
United States v. Grubbs, 547 U.S. 90, 95 (2006) (internal quo-
tation marks omitted). We conclude that the corrected affida-
vit establishes probable cause to search McFadyen’s dorm
room.9
As corrected, the affidavit still contains significant evi-
dence that a rape was committed, most notably Mangum’s
allegations and Nurse Levicy’s corroborating statement that
"the victim had signs, symptoms, and injuries consistent with
being raped and sexually assaulted vaginally and anally." Fur-
9
The search warrant also authorized the search of McFadyen’s car. On
appeal, McFadyen maintains that a search of his car violated the Constitu-
tion. This argument fails because in his complaint McFadyen never alleges
that police actually searched his car.
EVANS v. CHALMERS 33
ther, the affidavit contains McFadyen’s email, which specifi-
cally identified his apartment as the location of a planned
murder of exotic dancers.
Even crediting McFadyen’s allegation that his email
spoofed the novel and film, American Psycho, a reasonable
officer could have—and given the circumstances here, should
have—taken seriously the email’s disturbing contents. McFa-
dyen’s email, sent only hours after the alleged rape of an
exotic dancer, specifically contemplated other brutally violent
behavior toward exotic dancers. The email’s temporal prox-
imity and substantive similarity to the rape allegations provide
more than a fair probability that evidence relating to the rape
would be found in McFadyen’s apartment.10
McFadyen’s argument that the affidavit fails to establish a
nexus between his apartment and the asserted crimes also
fails. That none of the crimes stemming from Mangum’s alle-
gations were alleged to have occurred in McFadyen’s apart-
ment is irrelevant. Instead, the probable cause inquiry focuses
on whether the affidavit demonstrates a "fair probability" that
evidence relating to the crimes alleged would be found in
McFadyen’s apartment. See Unus, 565 F.3d at 125 n.25; see
also Grubbs, 547 U.S. at 95. Based on the content of McFa-
dyen’s email, there is no question that the corrected affidavit
meets this standard.
Because the corrected affidavit would provide adequate
support for a magistrate’s finding of probable cause, we can-
not say that the false statements in the affidavit were "mate-
rial" under the second Franks prong. Therefore, we reverse
the district court’s denial of defendants’ motions to dismiss
10
McFadyen contends that the fact that the search warrant was executed
nearly two weeks after he sent the email renders its information stale.
While this may be true for the "conspiracy to commit murder" crime, the
email certainly provided non-stale probable cause for the other crimes
listed in the warrant application—sexual assault and kidnapping.
34 EVANS v. CHALMERS
McFadyen’s individual § 1983 unlawful search and seizure
claim.
D.
Based on the above § 1983 claims, all three sets of plain-
tiffs allege derivative claims of supervisory liability against
City supervisory officials and of liability under Monell v.
Department of Social Services, 436 U.S. 658 (1978), against
the City itself.11 Further, plaintiffs allege "stigma-plus" due
process claims under Paul v. Davis, 424 U.S. 693 (1976),
against various officials who had made public statements
about the investigation. The district court denied the City and
its officials’ motions to dismiss these claims.
All of these claims require a predicate constitutional viola-
tion to proceed. For "supervisors and municipalities cannot be
liable under § 1983 without some predicate ‘constitutional
injury at the hands of the individual [state] officer,’ at least in
suits for damages." Waybright v. Frederick Cnty., 528 F.3d
199, 203 (4th Cir. 2008) (quoting City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986)). Similarly, a plaintiff bring-
ing a "stigma-plus" claim under Paul must allege both a stig-
matic statement and a "state action that ‘distinctly altered or
extinguished’" his legal status. Shirvinski v. U.S. Coast
Guard, 673 F.3d 308, 315 (4th Cir. 2012) (quoting Paul, 424
U.S. at 711). Because we hold that all plaintiffs failed to state
predicate § 1983 claims against the individual officers, we
must also hold that all plaintiffs have failed to state supervi-
11
We recognize that because cities do not possess qualified immunity
from § 1983 claims, Owen v. City of Independence, 445 U.S. 622, 638
(1980), we do not have appellate jurisdiction under the collateral order
doctrine to hear the City’s appeal of the Monell claims. However, because
our determinations of the individual officers’ qualified immunities fully
resolve the issue of the City’s Monell liability, we exercise pendent appel-
late jurisdiction over these claims. See Altman v. City of High Point, 330
F.3d 194, 207 n.10 (4th Cir. 2003).
EVANS v. CHALMERS 35
sory liability, Monell liability, and "stigma-plus" claims.12
Thus, we reverse the district court’s denial of the defendants’
motions to dismiss these derivative claims.
III.
Having resolved the City and officials’ appeals of the dis-
trict court’s denial of their motions to dismiss the federal
claims asserted against them, we turn to their appeals of the
district court’s denial of their motions for summary judgment
or to dismiss the state law claims. Federal jurisdiction over
the Evans and Carrington state law claims rests on diversity
of citizenship. Although the McFadyen plaintiffs only pled
federal question jurisdiction, a federal court has pendent juris-
diction over their state law claims. 28 U.S.C. § 1367. Simi-
larly, we have appellate jurisdiction under the collateral order
doctrine to review a district court’s denial of those claims to
which the defendants assert immunities "from suit." Gray-
Hopkins v. Prince George’s Cnty., 309 F.3d 224, 231 (4th Cir.
2002); see also Moore v. Evans, 476 S.E.2d 415, 420 (N.C.
Ct. App. 1996).
A.
All three sets of plaintiffs allege state common-law tort
claims against the City. The City moved for summary judg-
ment as to these claims on the ground of governmental immu-
nity from suit. The district court denied the motion.
Clearly, North Carolina municipalities enjoy governmental
immunity from state common-law tort claims arising out of
their performance of governmental, as opposed to proprietary,
functions. Patrick v. Wake Cnty. Dep’t of Human Servs., 655
12
The parties dispute whether a Fourth Amendment violation constitutes
a cognizable "plus" under Paul. Given that we hold that plaintiffs failed
to state Fourth Amendment claims, we need not and do not reach this
question.
36 EVANS v. CHALMERS
S.E.2d 920, 923 (N.C. Ct. App. 2008). Just as clearly, the pro-
vision of police services constitutes a governmental function
protected by governmental immunity. Arrington v. Martinez,
716 S.E.2d 410, 414 (N.C. Ct. App. 2011).
All plaintiffs maintain, however, that the City has waived
its governmental immunity by purchasing liability insurance
pursuant to N.C. Gen. Stat. § 160A-485(a). Well-established
North Carolina law holds that courts may not lightly infer a
waiver of immunity. Guthrie v. N.C. State Ports Auth., 299
S.E.2d 618, 627 (N.C. 1983). Indeed, "[i]mmunity is waived
only to the extent that the city or town is indemnified by the
insurance contract from liability for the acts alleged." Combs
v. Town of Belhaven, 415 S.E.2d 91, 92 (N.C. Ct. App. 1992).
All plaintiffs argue that a genuine dispute of material fact
exists as to whether the City waived its governmental immu-
nity by purchasing liability insurance.13
Plaintiffs first contend that the City’s purchase of two lia-
bility insurance policies from the Insurance Company of the
State of Pennsylvania ("ICOP") waived its governmental
immunity. But a "governmental immunity endorsement" pres-
ent in both ICOP policies establishes that the City did not
waive its governmental immunity. The endorsement states:
[T]his policy provides coverage only for occurrences
or wrongful acts for which the defense of govern-
mental immunity is clearly not applicable or for
which, after the defenses is [sic] asserted, a court of
13
Plaintiffs briefly argue the City’s conflicting statements regarding its
insurance coverage, along with its arbitration with one of its insurers over
the policy coverage, bars the grant of summary judgment. However,
because "[t]he meaning of language used in an insurance contract is a
question of law for the Court," Daniel v. City of Morganton, 479 S.E.2d
263, 267 (N.C. Ct. App. 1997), the City’s opinions and the existence and
outcome of the arbitration proceedings are irrelevant to the purely legal
question of whether the City waived its governmental immunity by pur-
chasing liability insurance.
EVANS v. CHALMERS 37
competent jurisdiction determines the defense of
governmental immunity not to be applicable.
The endorsement is clear and none of the plaintiffs’ argu-
ments undermine its clarity. Indeed, the endorsement is mate-
rially indistinguishable from similar provisions that North
Carolina courts have held do preserve governmental immu-
nity. See Owen v. Haywood Cnty., 697 S.E.2d 357, 359-60
(N.C. Ct. App.), review denied, 705 S.E.2d 361 (N.C. 2010);
Estate of Earley ex rel. Earley v. Haywood Cnty. Dep’t of
Soc. Servs., 694 S.E.2d 405, 409 (N.C. Ct. App. 2010); Pat-
rick, 655 S.E.2d at 923-24. Thus, we must hold that the City
did not waive its governmental immunity through the ICOP
policies.
Nor do the plaintiffs’ contentions that the City waived its
governmental immunity by purchasing an insurance policy
from Everest Insurance Company fare any better. For none of
the plaintiffs’ claims implicate the policy period covered by
the Everest policy. That policy explicitly provides coverage
for "occurrences" or "wrongful acts" for the policy period of
April 1, 2007 to April 1, 2008. Plaintiffs do not allege any
"occurrences" or "wrongful acts" during the Everest policy’s
temporal scope.14 Accordingly, the Everest policy does not
apply to their claims and cannot function as a waiver of gov-
ernmental immunity. See Patrick, 665 S.E.2d at 923.
Finally, the McFadyen plaintiffs argue that the City waived
its governmental immunity by participating in a local govern-
ment risk pool or creating a funded reserve under N.C. Gen.
Stat. § 160A-485(a). Neither argument is persuasive. The
14
Although the Evans and McFadyen plaintiffs allege an ongoing con-
spiracy among several defendants until April 11, 2007, the last specific
"occurrence" or "wrongful act" they allege occurred in December 2006. A
plaintiff cannot defeat governmental immunity by alleging an ongoing
conspiracy without any specific factual pleadings of a covered action dur-
ing the policy period.
38 EVANS v. CHALMERS
asserted local government risk pool that the McFadyen plain-
tiffs identify is actually a contract for the provision of liability
claims adjusting services, not a contract for the provision of
liability coverage itself. Further, because the City repealed its
funded reserve on June 18, 2007, the funded reserve does not
waive the City’s governmental immunity in these cases.15
In short, no genuine dispute as to any material fact exists
as to whether the City waived its governmental immunity
from state common-law tort claims; it clearly did not. Accord-
ingly, we reverse the district court’s denial of the City’s
motion for summary judgment as to these claims.
B.
The plaintiffs also allege state common-law tort claims
against various Durham police officers, to which the officers
asserted official immunity. In North Carolina, official immu-
nity protects public officials performing discretionary acts
under color of authority from suit in their individual capacity.
See Moore, 476 S.E.2d at 421. Plaintiffs may avoid dismissal
of such claims on official immunity grounds simply by plead-
ing that an official’s tortious actions were "malicious, corrupt
or outside the scope of [his] official duties." Id. Notwithstand-
ing the officers’ vigorous appellate arguments to the contrary,
as the district court explained, the plaintiffs sufficiently pled
15
Of course, all plaintiffs’ tort claims against the City rest on conduct
that occurred before the City repealed its funded reserve. However, when
creating the funded reserve in 2004, "[t]he City reserve[d] the right to
modify or terminate th[e] policy at any time, and to have any such modifi-
cation or termination apply to any claim not paid or for which there has
not yet been a final decision of a court of competent jurisdiction." Because
the City repealed its funded reserve policy before a final decision in any
of these cases—indeed, before plaintiffs even filed their original
complaints—the City has not waived its governmental immunity as to
these claims through its prior funded reserve. Moreover, because the City
has not waived its governmental immunity, we need not reach the issue
of whether the public duty doctrine immunizes the City from plaintiffs’
negligence-based tort claims.
EVANS v. CHALMERS 39
malicious conduct by the officers.16 Thus, we need only con-
sider whether the alleged conduct fails as a matter of law to
constitute a tortious act under North Carolina law.
1.
The Evans plaintiffs allege that Officers Addison, Gottlieb,
and Himan engaged in the tort of malicious prosecution by
concealing material evidence, manufacturing false evidence,
and intimidating witnesses. The district court denied the offi-
cers’ motion to dismiss this claim on official immunity
grounds, finding the plaintiffs properly pled the elements of
a state malicious prosecution claim—causation of a criminal
proceeding, without probable cause and with malice, which
terminates in the plaintiff’s favor. See Williams v. Kuppen-
heimer Mfg. Co., 412 S.E.2d 897, 899 (N.C. Ct. App. 1992).
On appeal, the officers urge us to hold—as we do in the
§ 1983 context—that Prosecutor Nifong’s decision to seek
indictments against the Evans plaintiffs broke the causal chain
between their acts and the indictments.
Certainly, no North Carolina court has adopted the attenu-
ated view of causation espoused by the plaintiffs; but North
Carolina courts have generally held causation can be estab-
lished by allegations that the defendant "instituted, procured,
16
The partial dissent contends that there is an "obvious alternative
explanation" for the officers’ allegedly malicious acts. See Ashcroft v.
Iqbal, 556 U.S. 662, 682 (2009) (internal quotation marks omitted).
Maybe so if each act were viewed in isolation. But, in applying Iqbal, we
are to "draw on [our] judicial experience and common sense" to determine
whether plaintiffs’ well-pleaded, non-conclusory allegations collectively
nudge the issue of malice "across the line from conceivable to plausible."
Id. at 679-80. As outlined in the dissent itself, plaintiffs allege many
wrongful acts by the officers. Taken together, the officers’ multiple
alleged acts certainly present plausible claims of malice. Of course, plain-
tiffs ultimately bear the burden of proving these allegations, and the dis-
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
conduct.
40 EVANS v. CHALMERS
or participated in" a criminal proceeding. See Moore v. City
of Creedmoor, 460 S.E.2d 899, 906 (N.C. Ct. App. 1995),
aff’d in part, rev’d in part on other grounds, 481 S.E.2d 14(N.C. 1997); see also Becker v. Pierce, 608 S.E.2d 825, 829
(N.C. Ct. App. 2005). Given this language, we cannot hold
that the district court erred in finding that the Evans plaintiffs
pled a state-law malicious prosecution claim as to Officers
Gottlieb and Himan. However, plaintiffs fail to allege any
conduct by Officer Addison that plausibly could be construed
as "institut[ing], procur[ing], or participat[ing]" in a criminal
proceeding. Accordingly, we must affirm the court’s denial of
Officers Gottlieb and Himan’s motions to dismiss this claim,
and reverse the court’s denial of Officer Addison’s motion to
dismiss this claim.
2.
All three sets of plaintiffs allege state common-law obstruc-
tion of justice claims against Officers Gottlieb and Himan,
based on the officers’ asserted fabrication and concealment of
evidence and witness tampering. The McFadyen plaintiffs
also allege a state common-law obstruction of justice claim
against the officers’ supervisor, Commander Jeff Lamb, based
on his asserted concealment of evidence and witness tamper-
ing.
All three officers argue that, in North Carolina, criminal
suspects (like the plaintiffs) cannot allege a common-law
obstruction of justice claim against police officers based on
how the officers conducted a criminal investigation. Although
logic would seem to compel this conclusion, the district court
denied the defendants’ motions to dismiss, explaining it could
not "rule out the possibility that a claim could exist for com-
mon law obstruction of justice for creation of false evidence
or destruction of evidence for the purpose of impeding the
justice system, even if the conduct occurred as part of a crimi-
nal investigation." McFadyen v. Duke Univ., 786 F. Supp. 2d
887, 975 (M.D.N.C. 2011). We cannot affirm. Even though
EVANS v. CHALMERS 41
North Carolina courts have interpreted common-law obstruc-
tion of justice to include fabrication of evidence, Henry v.
Deen, 310 S.E.2d 326, 334 (N.C. 1984), and destruction of
evidence, Grant v. High Point Reg’l Health Sys., 645 S.E.2d
851, 855 (N.C. Ct. App. 2007), we have not found—and
plaintiffs have not offered—any case from any jurisdiction
recognizing a common-law obstruction of justice claim
against a police officer for his actions relating to a criminal
proceeding.
Thus, in forecasting whether North Carolina would recog-
nize such an action, see Wilson v. Ford Motor Co., 656 F.2d
960, 960 (4th Cir. 1981), we must conclude that although
such a holding may be a remote "possibility," it is not a real-
ity. Accordingly, we reverse the district court’s denial of the
officers’ motions to dismiss this claim.
C.
Finally, the City asks us to exercise pendent appellate juris-
diction over the district court’s denial of the City’s motions to
dismiss all three sets of plaintiffs’ state constitutional claims.
Because governmental immunity does not shield North
Carolina municipalities from claims alleged under the state
constitution, Craig ex rel. Craig v. New Hanover Cnty. Bd. of
Educ., 678 S.E.2d 351, 354 (N.C. 2009), the district court’s
denial of the City’s motion to dismiss is a non-final order, not
appealable under the collateral order doctrine. Nonetheless,
the City urges us to exercise pendent appellate jurisdiction
over these claims because, it argues, the issue of governmen-
tal immunity is relevant to the existence of a state constitu-
tional claim, and because the state constitutional standards are
the same as those applicable to plaintiffs’ § 1983 claims.
As we have previously noted, "[p]endent appellate jurisdic-
tion is an exception of limited and narrow application driven
by considerations of need, rather than of efficiency." Rux v.
42 EVANS v. CHALMERS
Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006). Our
exercise of pendent appellate jurisdiction "is proper only
when an issue is (1) inextricably intertwined with the decision
of the lower court to deny qualified immunity or (2) consider-
ation of the additional issue is necessary to ensure meaningful
review of the qualified immunity question." Bellotte v.
Edwards, 629 F.3d 415, 427 (4th Cir. 2011) (internal quota-
tion marks omitted). In this case, neither rationale is present.
Our review of the issues of qualified, official, and govern-
mental immunity in these appeals did not require any evalua-
tion of the state constitutional claims. Indeed, the state
constitutional claims, although "sharing certain wholesale
commonalities" with the immunity issues, "nevertheless pre-
sent quite distinct factual and legal issues at the retail level"—
in particular, what constitutes an "adequate remedy at state
law" under Craig. Id.We therefore decline to exercise pendent appellate jurisdic-
tion over the state constitutional claims. Instead, we dismiss
for lack of jurisdiction the City’s appeal of the district court’s
denial of the City’s motions to dismiss these claims.
IV.
To recapitulate, we hold as follows. We reverse the district
court’s denial of all defendants’ motions to dismiss the federal
claims alleged against them. We reverse the court’s denial of
the City’s motion for summary judgment as to the state
common-law claims alleged against it. We affirm the court’s
denial of Officers Gottlieb and Himan’s motions to dismiss
the state common-law malicious prosecution claims alleged
against them. We reverse the court’s denial of the officers’
motions to dismiss all other state common-law claims. We
dismiss for lack of appellate jurisdiction the City’s appeal of
the state constitutional claims alleged against it. Finally, we
remand the cases for further proceedings consistent with this
opinion.
EVANS v. CHALMERS 43
AFFIRMED IN PART,
DISMISSED IN PART,
REVERSED IN PART,
AND REMANDED
WILKINSON, Circuit Judge, concurring:
I concur fully in Judge Motz’s fine opinion. It demonstrates
well the central flaws in the plaintiffs’ contentions.
A few additional observations may underscore the over-
blown nature of this case. Plaintiffs have sought to raise every
experimental claim and to corral every conceivable defendant.
The result is a case on the far limbs of law and one destined,
were it to succeed in whole, to spread damage in all direc-
tions.
I.
Although I appreciate the able and well-intentioned efforts
of the attorneys in this matter, there is something disquieting
about the sweeping scope and number of claims brought by
the various plaintiff groups (twenty-three counts in the Evans
complaint, thirty-two in Carrington, and forty in McFadyen),
as well as the glacial pace at which this litigation has pro-
ceeded (we are now nearly six years removed from the dis-
missal of the last charges against the three Duke lacrosse
players). With all of these overwrought claims disputed over
years of complex litigation, this matter has taken on an unfor-
tunate life of its own. A few examples of the pitfalls in plain-
tiffs’ most inventive claims illustrate my concerns with
allowing them to proceed.
A.
To take one example, the complaints lodge a Fourteenth
Amendment "due process stigma-plus" claim against Corporal
David Addison, the Durham Police spokesman. In seeking to
44 EVANS v. CHALMERS
hold Addison liable for allegedly defamatory statements, the
complaints fly in the face of the Supreme Court’s admonition
that the Due Process Clause is not to be converted into "a font
of tort law to be superimposed upon whatever systems may
already be administered by the states." Paul v. Davis, 424
U.S. 693, 701 (1976). Yet plaintiffs seek that result and then
some, attempting to hold a police spokesman liable for gen-
eral statements that reference no individual and are therefore
not even actionable under traditional defamation law. See
Restatement (Second) of Torts § 564A (1977) ("One who
publishes defamatory matter concerning a group or class of
persons is subject to liability to an individual member of it if,
but only if, (a) the group or class is so small that the matter
can reasonably be understood to refer to the member, or (b)
the circumstances of publication reasonably give rise to the
conclusion that there is particular reference to the member.").
Moreover, the plaintiffs’ position would expose spokesper-
sons (who are often given limited information by their superi-
ors on a need-to-know basis) to the threat of monetary
damages for expressing a departmental position in the most
general of terms. Think of the implications of such a rule for
public spokespersons of all sorts, from the press secretary for
the Department of State to the spokesperson for a local school
board. The threat posed by litigation of this kind would cause
such officials to clam up, and the criminal justice system—not
to mention government generally—would become less trans-
parent than it already is.
The plaintiffs’ "stigma-plus" claim against Addison suffers
from another shortcoming. Even if Addison’s general state-
ments could somehow be considered defamatory with respect
to the various individual plaintiffs, the complaints fail to plau-
sibly allege that any of his statements caused the indictments
of Evans, Finnerty, and Seligmann, much less the issuance of
the NTO or McFadyen search warrant. See Johnson v. Morris,
903 F.2d 996, 999 (4th Cir. 1990) ("[F]or a liberty interest to
have been implicated, some damage to [plaintiff’s] employ-
EVANS v. CHALMERS 45
ment status must have resulted from publication of the rea-
sons for his demotion." (emphasis added)); see also Rehberg
v. Paulk, 611 F.3d 828, 853 (11th Cir. 2010) (dismissing a
stigma-plus claim where the complaint did not allege that the
defendant’s media statements "caused" the plaintiff’s indict-
ments and arrest), aff’d on other grounds, 132 S. Ct. 1497(2012).
Indeed, it is difficult to imagine how the public statements
of a spokesperson about the status of a rape investigation
could be causally related to a police investigator’s decision to
seek evidence or a prosecutor’s decision to pursue an indict-
ment. The Evans plaintiffs argue that a causal connection may
be inferred from their allegation that Addison’s statements
were "intended to inflame the Durham community and grand
jury pool against the plaintiffs." But such an intent, even if
taken as true, is far too removed from the prosecutor’s deci-
sion to indict and the investigators’ decision to seek the NTO
to justify imposition of monetary liability on the basis of a
defamation claim that is dubious enough under common law
and that the Supreme Court was deeply reluctant to constitu-
tionalize in the first place.
B.
A second example of the complaints’ overreach lies not so
much in the nature of the claims as in the identity of the
defendants. The plaintiffs have sued not just the police inves-
tigators, but also a number of Durham city officials such as
the City Manager, Chief of Police, and various members of
the police chain of command. Plaintiffs seek monetary dam-
ages from these so-called "supervisory defendants" under a
theory of supervisory liability. In Ashcroft v. Iqbal, 556 U.S.
662 (2009), however, the Supreme Court issued several cau-
tionary holdings with respect to such liability—lessons that
plaintiffs have utterly failed to heed.
To begin with, the Supreme Court explained in Iqbal that
"a supervisor’s mere knowledge" that his subordinates are
46 EVANS v. CHALMERS
engaged in unconstitutional conduct is insufficient to give rise
to liability; instead, a supervisor can be held liable only for
"his or her own misconduct." Id. at 677. Yet the complaints
in this case repeatedly allege that the so-called supervisory
defendants violated plaintiffs’ constitutional rights on the the-
ory that they "knew or should have known" about their subor-
dinates’ conduct. This directly contradicts Iqbal’s holding that
such allegations, standing alone, cannot give rise to supervi-
sory liability.
Moreover, the Iqbal Court explained that in order to state
a claim for supervisory liability, "a plaintiff must plead that
each [supervisory] defendant, through the official’s own indi-
vidual actions, has violated the Constitution." Id. at 676(emphases added); see also Robbins v. Oklahoma, 519 F.3d
1242, 1250, 1252-53 (10th Cir. 2008) (dismissing supervisory
liability claim where complaint failed to "isolate the allegedly
unconstitutional acts of each defendant"). The plaintiffs here,
however, have roped in a number of Durham city officials
without pleading any allegedly improper individual actions.
For example, apart from general references to name, rank, and
place in the chain of command, the Evans complaint does not
contain so much as a single individualized allegation against
named defendants Beverly Council and Lee Russ. The Car-
rington complaint likewise fails to make particularized allega-
tions against Council, Russ, and Michael Ripberger. The
absence of individualized allegations is all the more remark-
able in light of the otherwise exhaustive nature of the com-
plaints: combined, the three complaints weigh in at a
staggering eight hundred-plus pages.
The plaintiffs argue that the absence of specific allegations
with respect to each individual supervisor is of no conse-
quence given that they have used the term "supervisory defen-
dants" as shorthand to allege the collective actions and state
of mind for all of the named supervisors. Requiring repetition
of the names of specific defendants within the context of each
factual allegation, we are told, would be "pointless and ineffi-
EVANS v. CHALMERS 47
cient." This contention sorely misses the mark. The purpose
of requiring a plaintiff to identify how "each [supervisory]
defendant, through the official’s own individual actions, has
violated the Constitution," Iqbal, 556 U.S. at 676 (emphases
added), is not to erect some formalistic rule that a complaint
must mention each defendant by name some particular num-
ber of times. The requirement is instead designed to ensure
that the serious burdens of defending against this sort of law-
suit are visited upon a departmental supervisor only when the
complaint "plausibly suggest[s]" that the supervisor engaged
in "his or her own misconduct." Id. at 681, 677 (emphasis
added).
That showing is demonstrably absent here. In addition to
the complaints’ failure to identify specific misconduct on the
part of certain individual defendants, there are numerous
problems with the individualized allegations that are actually
made. For instance, both the Carrington and McFadyen com-
plaints discuss at length a meeting occurring on or around
March 29, 2006, allegedly attended by specific supervisory
defendants (Patrick Baker and Steven Chalmers in the Car-
rington complaint; Baker, Russ, and Ronald Hodge in the
McFadyen complaint) where the prosecutor and investigators
allegedly agreed or were instructed to expedite the case
against the Duke players despite mounting evidence of their
innocence. But that meeting has no logical relevance to the
supposed Fourth Amendment violations of which these plain-
tiffs complain because it occurred days after the preparation
of the allegedly false NTO and McFadyen search warrant
applications. In other words, to use the language of Iqbal, the
plaintiffs’ allegations regarding this meeting do not "plausibly
give rise to an entitlement to relief." Id. at 679.
At bottom, then, the problem with the supervisory liability
claims here is that, like those at issue in Iqbal, they fail to
cross "the line from conceivable to plausible." Id. at 680. As
in Iqbal, the plaintiffs’ allegations here could be "consistent
with" a scenario in which the supervisory officials somehow
48 EVANS v. CHALMERS
participated in their subordinates’ allegedly unconstitutional
conduct. Id. at 678. But the "obvious alternative explanation,"
id. at 682, for the supervisors’ conduct in assigning the case
to certain investigators and attending meetings where the case
was discussed is that they wanted to facilitate the investiga-
tion, stay abreast of recent developments, and bring the case
to closure on a reasonable timeline. That, after all, is their job.
In short, the complaints here are wholly indiscriminate.
They seek to sweep in everyone and everything, heedless of
any actual indications of individual malfeasance that would
justify the personal burdens that litigation can impose. What
Iqbal condemned, the complaints assay. What is more, the
complaints’ sweeping allegations mirror the sweeping nature
of the wrongs of which plaintiffs complain. It is, of course,
the purpose of civil litigation to rectify, but not in a manner
that duplicates the very evils that prompted plaintiffs to file
suit.
C.
The damage that the plaintiffs’ theory of the case would
inflict upon the criminal justice system is evident in a related
sense as well. The plaintiffs seek to hold the investigating
officers and their supervisors liable by repeatedly asserting
notions of conspiracy, suggesting that the defendants colluded
to investigate and prosecute the Duke players despite the evi-
dence of their innocence. The upshot of such a theory, how-
ever, would be that whenever police officers, their superiors,
and prosecutors communicate regarding an investigation into
certain suspects, that very act of communication would
expose them to a risk of monetary liability should the suspects
ultimately be exonerated. The plaintiffs’ theory of conspiracy,
in other words, would inhibit the exchange of information
among police and prosecutors that takes place every day.
Thus, I could not agree more with Judge Motz’s statement
that to allow § 1983 claims "to proceed on allegations of such
a ‘conspiracy’ would in virtually every case render the offi-
EVANS v. CHALMERS 49
cers’ qualified immunity from suit ‘effectively lost’ and make
discovery the rule, rather than the exception." Ante at 24.
The improvidence of subjecting law enforcement officers
to such wide-ranging liability is supported by Supreme Court
precedent in the analogous context of intra-enterprise antitrust
conspiracy doctrine. As with the present case, that doctrine
involves civil damages actions against related parties (for
instance, a parent corporation and its wholly owned subsid-
iary) on the theory that wrongful conduct may be inferred
from their intra-organizational communications. In Copper-
weld Corp. v. Independence Tube Corp., 467 U.S. 752, 777
(1984), however, the Court held that such parties cannot be
held liable for "conspiring with each other" under Section 1
of the Sherman Act, 15 U.S.C. § 1. The Court recognized that
coordination among various actors within a company is often
"necessary if a business enterprise is to [operate] effectively,"
but that such coordination might be discouraged if intra-
enterprise conspiracy liability were permitted. Id. at 769-71.
That same concern animates our decision here. Moreover,
Copperweld noted that "[c]oordination within a firm" is fre-
quently the hallmark of a business’s commonplace desire to
increase its effectiveness, and not necessarily a sign of some
"effort to stifle competition." Id. at 769. That caution rings
true here as well, where the mere fact that public officials
meet to discuss a high-profile criminal case is far more often
indicative of a desire to foster communication and coopera-
tion than an insidious conspiracy to violate the Constitution.
D.
A final example of the overreach infecting this case lies in
the Carrington and McFadyen plaintiffs’ attempts under
Franks v. Delaware, 438 U.S. 154 (1978), to hold officers
monetarily liable for seeking from the state courts a non-
testimonial order and a search warrant for standard investiga-
tory purposes.
50 EVANS v. CHALMERS
Although Franks held that a warrant so grounded in false-
hoods as to effectively eliminate its "support[ ] by Oath or
affirmation" could give rise to a Fourth Amendment violation,
id. at 164-65, the Supreme Court stressed the importance of
applying this rule so as not to vitiate the warrant process so
instrumental to the personal privacy protected by our Bill of
Rights. Indeed, in part because of concerns with the holding’s
potential effects on the incentives of police, the Court empha-
sized that "the rule announced today has a limited scope." Id.
at 165-67. And since Franks, the Court itself has never eluci-
dated the standards for evaluating the veracity of affidavits
supporting warrants. See Stephen W. Gard, Bearing False
Witness: Perjured Affidavits and the Fourth Amendment, 41
Suffolk U. L. Rev. 445, 446 (2008).
In this area, therefore, we must heed the Supreme Court’s
often communicated goal of preserving the warrant require-
ment. As one treatise explains:
The Supreme Court has long expressed a strong pref-
erence for the use of arrest warrants and search war-
rants. Resort to the warrant process, the Court has
declared, is to be preferred because it "interposes an
orderly procedure" involving "judicial impartiality,"
United States v. Jeffers, 342 U.S. 48, 51 (1951),
whereby "a neutral and detached magistrate," John-
son v. United States, 333 U.S. 10, 14 (1948), can
make "informed and deliberate determinations,"
Aguilar v. Texas, 378 U.S. 108, 110 (1964), on the
issue of probable cause. To leave such decisions to
the police is to allow "hurried actions," id. at 110-11,
by those "engaged in the often competitive enterprise
of ferreting out crime," Johnson, 333 U.S. at 14.
Wayne R. LaFave, 2 Search and Seizure § 3.1(c) (4th ed.
2004). Because of this overarching concern, the Supreme
Court has instructed lower courts to eschew rulings that
would discourage resort to judicial process and instead incen-
EVANS v. CHALMERS 51
tivize the invocation of exceptions to the warrant requirement.
As the Court declared in determining whether a warrant was
supported by probable cause:
If the affidavits submitted by police officers are sub-
jected to the type of scrutiny some courts have
deemed appropriate, police might well resort to war-
rantless searches, with the hope of relying on con-
sent or some other exception to the warrant clause
that might develop at the time of the search. In addi-
tion, the possession of a warrant by officers conduct-
ing an arrest or search greatly reduces the perception
of unlawful or intrusive police conduct, by assuring
the individual whose property is searched or seized
of the lawful authority of the executing officer, his
need to search, and the limits of his power to search.
Illinois v. Gates, 462 U.S. 213, 236 (1983) (internal quotation
marks omitted). This court has specifically acknowledged this
admonition in declining to interpret the Franks rule in an
overbroad manner. See United States v. Colkley, 899 F.2d
297, 303 (4th Cir. 1990).
Moreover, the concern with establishing perverse incen-
tives to circumvent the warrant process is all the more critical
where an officer faces, as here, personal pecuniary loss in a
civil claim for damages—as opposed to the exclusion of evi-
dence in a criminal matter. In this regard, it bears note that
Franks itself was an exclusionary rule case, and the Supreme
Court has never provided guidance on whether and how the
Franks rule should be implemented in the context of § 1983
claims. See Gard, supra, at 446 ("Th[e] absence of guidance
[from the Supreme Court] for lower courts [with respect to the
Franks rule generally] is especially acute because Franks pre-
dates both the Supreme Court’s revolutionary reinterpretation
of the Fourth Amendment and the development of most mod-
ern civil rights law."). Though this court has previously
allowed such claims to proceed, see Miller v. Prince George’s
52 EVANS v. CHALMERS
Cnty., 475 F.3d 621, 627 (4th Cir. 2007), we must step cau-
tiously in light of the Supreme Court’s lack of direction in this
area and its steadfast commitment to preserving the warrant
requirement generally.
Plaintiff McFadyen’s Franks challenge to the search war-
rant for his room and car in connection with his utterly
tasteless—indeed, ominous—e-mail stands on the shakiest of
grounds. The potential for inflicting tremendous damage to
the criminal justice system by punishing officers for pursuing
a court-ordered NTO would be compounded by penalizing
them for attempting to investigate what initially (and under-
standably) appeared to be an entirely credible threat to perpe-
trate a gruesome murder. To hold policemen liable for
damages for a search even when they request and possess a
warrant, even when they have uncovered an e-mail explicitly
vowing to kill certain people out of apparent contempt for
their class, and even where that e-mail identifies the exact
location of the slaying would be outrageous.
The argument offered in the McFadyen complaint—that the
investigators should have somehow realized that the e-mail
was meant to be a joke or parody—is a theory that could suc-
ceed only in Never Never Land, a theory that takes no account
of the real and brutal rampages by disturbed individuals on
college campuses and elsewhere in recent years. As it turned
out, the e-mail was a highly vulgarized expression of fancy.
But we cannot ascribe instant clairvoyance to those charged
with protecting the community—and who must be simulta-
neously encouraged to seek judicial sanction in doing so.
II.
It cannot be emphasized too often that the plaintiffs in this
case were innocent of any criminal wrongdoing. Their behav-
ior in many instances was boorish, but it was in no way illegal
based on any evidence before us. The problem is that the
immunities and rules of pleading at issue here exist to protect
EVANS v. CHALMERS 53
the larger good of discretionary judgment in the service of
public purposes—and to prevent defendant officials who are
innocent of any wrongdoing from being swept up by baseless
accusations in unrestrained complaints. The infirmities of the
pleadings portended what was sure to become an extended
fishing expedition, the broader implications of which could
hardly be confined to these particular actions.
Hard cases can and do make bad law, and the costs of these
ones—outside of the limited claim we have allowed to
proceed—are much too steep. The plaintiffs seek to thrust the
prospect of monetary liability and burdensome discovery into
every meeting between supervisor and subordinate within a
police department, every internal communication between
police officer and prosecutor, every statement by a police
spokesperson, and every effort to invoke judicial process in
furtherance of a police investigation. Allowing these claims to
proceed would let litigation loose in such a fashion as to
impair the ability of the criminal justice system to do its job.
In sum, we run the risk here of replicating in civil litigation
the very maladies that plaintiffs complain infected the crimi-
nal process to which they were subjected. That is to say, indi-
viduals would be pulled into the coercive proceedings of
courts when they have no business being there. To prolong
the overextension of legal process that has been attempted
here would portend a sorry end to a sorry saga.
It is for this reason that I join the majority opinion in dis-
missing the complaints in large part, but preserving the state
malicious prosecution claim against Gottlieb and Himan
asserted by the Evans plaintiffs. The Evans plaintiffs were the
only ones to raise a malicious prosecution claim under North
Carolina law, and they were the only ones indicted. Given that
the elements of the federal and North Carolina claims appear
to differ, I agree with the court that the Evans plaintiffs have
pled the state malicious prosecution claim with sufficient
specificity to survive a motion to dismiss under the Iqbal stan-
54 EVANS v. CHALMERS
dards governing even state claims brought in federal court.
The Evans plaintiffs are the ones who have suffered the most
harm, and their claim is the one most plausibly grounded in
North Carolina law. That single claim with its two discrete
defendants is where the case before us essentially stands now,
and where it should have focused long, long ago.
GREGORY, Circuit Judge, concurring in part and dissenting
in part:
I concur in part in Judge Motz’s opinion, which I believe
does a very fine job disposing of most of the issues in these
cases. However, I dissent from Parts III-B and III-B.1. Unlike
the majority, I would dismiss all state common law claims
against all individual defendants based on the North Carolina
doctrine of official immunity. I cannot agree that the com-
plaints sufficiently allege malicious conduct such that the
claims are not barred. Because the majority disposes of the
bulk of state common law claims on other grounds, allowing
only the Evans plaintiffs’ malicious prosecution claims
against Gottlieb and Himan to proceed, I focus my partial dis-
sent on the inadequacies of those claims.
The North Carolina doctrine of official immunity protects
public officials from personal liability for discretionary acts
performed in the course of their official duties, so long as the
officers acted without malice or corruption. Collins v. N. Car-
olina Parole Comm’n, 473 S.E.2d 1, 3 (N.C. 1996). Thus, a
police officer is protected from personal liability for investi-
gative conduct unless the plaintiffs "allege and prove that the
defendant’s acts were malicious or corrupt." Schlossberg v.
Goins, 540 S.E.2d 49, 56 (N.C. Ct. App. 2000) (citing Jones
v. Kearns, 462 S.E.2d 245, 248 (N.C. Ct. App. 1995). "A
defendant acts with malice when he wantonly does that which
a man of reasonable intelligence would know to be contrary
to his duty and which he intends to be prejudicial or injurious
to another." In re Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C.
1984) (citing Givens v. Sellars, 159 S.E.2d 530 (N.C. 1968)).
EVANS v. CHALMERS 55
"An act is wanton when it is done of wicked purpose, or when
done needlessly, manifesting a reckless indifference to the
rights of others." Id. at 890–91 (citing Givens, 273 N.C. at
535).
Because the plaintiffs chose to bring suit in federal court,
the sufficiency of their allegations must be judged against the
pleading standard articulated by the Supreme Court in Ash-
croft v. Iqbal, 556 U.S. 662 (2009). Under that standard, a
complaint’s "bare assertions" of malicious conduct are not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 680-
81. Rather, the complaint must plausibly suggest malicious
conduct by alleging "sufficient factual matter" to draw a "rea-
sonable inference" of malice. Id. at 678. Although the plausi-
bility requirement is not a probability requirement, id., where
there is an "obvious alternative explanation" for the conduct
alleged, malice may not plausibly be inferred, id. at 682(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 567
(2007)).
The majority does not explain why the complaint plausibly
alleges Gottlieb and Himan acted maliciously, but instead
merely says it is so. I cannot agree. Stripping the complaint
of its conclusory allegations, it does not plausibly suggest the
officers acted "wantonly," in a way that reasonable officers
"would know to be contrary to [their] duty," for the purpose
of framing the plaintiffs. In re Grad, 321 S.E.2d at 890. On
the contrary, the "obvious alternative explanation" for the
officers’ conduct is that they were acting as reasonable,
though not perfect, police officers would to investigate
Mangum’s rape allegations, which they did not know to be
false.
To begin, the complaint alleges that Gottlieb and Himan
diligently investigated a case assigned to them by their super-
visors, not that they sought to frame the plaintiffs. Consistent
with their official duties, the officers interviewed Mangum,
interviewed Pittman, interviewed Duke lacrosse players,
56 EVANS v. CHALMERS
obtained a search warrant and an NTO, collected DNA evi-
dence, and turned over the full results of their investigation to
prosecutor Nifong, candidly briefing him on the case. The
complaints also allege that the officers continued the investi-
gation under the direction of Nifong and their police depart-
ment supervisors. Far from plausibly suggesting the officers
acted maliciously to frame the plaintiffs, the "obvious alterna-
tive explanation" for their conduct is that they were doing
their job and investigating a case assigned to them, in collabo-
ration with the prosecutor.
The plaintiffs make much of Mangum’s inconsistent
accounts of the alleged attack and Pittman’s initial denial,
alleging on this basis that the detectives knew Mangum was
lying and proceeded with the investigation with the intent of
framing Duke lacrosse players. This is simply implausible.
Mangum told numerous people, on numerous occasions, that
she was raped. Although the details of her accusations shifted,
she was known to have been intoxicated on the night of the
alleged assault. Further, as the other two complaints make
clear, a nurse at Duke Medical Center informed officer Got-
tlieb that Mangum’s examination had revealed evidence "con-
sistent with sexual assault." And an email sent by one of the
lacrosse players just hours after the alleged attack stated that,
"after tonight’s show," the author planned to have strippers
over again and to murder them. Given the facts alleged in the
three consolidated cases, it is implausible to infer that Gottlieb
and Himan knew Mangum was lying and therefore acted
maliciously to frame the lacrosse players. The fact that an
alleged rape victim changes the details of her story does not
mean she is lying, nor does a witness’s initial denial always
correspond with the truth. Police officers owe a duty to the
public to take seriously and investigate allegations of rape—a
duty that cannot and should not be dismissed on such flimsy
grounds.
Nor can the plaintiffs rest their allegations of malice on the
officers’ supposed witness tampering, use of suggestive photo
EVANS v. CHALMERS 57
arrays, or fabrication of false DNA evidence. As for the alle-
gations of witness tampering, the complaint alleges that the
officers threatened to enforce an outstanding warrant against
Pittman if she did not recant her earlier statement that
Mangum was lying. But leveraging an outstanding warrant
against a recalcitrant witness is hardly beyond the pale of
police investigative techniques. Given that this occurred after
Mangum told police she had been raped and Gottlieb was
informed that medical evidence corroborated her accusations,
the obvious alternative explanation is that Gottlieb and Himan
were trying to persuade Pittman to tell the truth, not to frame
the plaintiffs.
As for the suggestive photo arrays, the complaint does
allege that the procedures violated police department policy.
However, the obvious explanation for the officers’ conduct is
that the police officers were attempting to identify a suspect
to further investigate Mangum’s claims, which they did not
know were false. Although their photo array techniques were
not perfect, a mere deviation from departmental policy, by
itself, does not plausibly suggest they acted "wantonly" for
the purpose of framing the plaintiffs.
Finally, although the complaint alleges that Gottlieb and
Himan were present during the meetings in which Nifong and
DNA laboratory personnel decided to withhold potentially
exculpatory DNA information, these meetings took place
hardly a month into the investigation, before indictments had
even been secured. Neither the Constitution nor any law I am
aware of requires police officers to disclose potentially excul-
patory information at this early stage—either to the grand jury
or to suspects—and I do not believe a reasonable police offi-
cer would believe such a duty exists. The officers’ failure to
do something they were under no obligation to do does not
plausibly suggest malice.
Although in retrospect it may be clear to some that
Mangum’s accusations were baseless, the complaint does not
58 EVANS v. CHALMERS
plausibly allege Gottlieb and Himan knew this to be the case,
particularly in light of the corroborating medical information
they possessed. Rather, their investigative conduct leading to
the plaintiffs’ indictments, though not perfect, is consistent
with the conduct of reasonable police officers assigned a rape
case. If a complaint of this kind can proceed, I fear that every
rape case where a victim has given inconsistent accounts and
a witness has changed her statement could subject investigat-
ing police officers to personal liability. I do not believe the
North Carolina doctrine of official immunity or federal plead-
ing standards can be circumvented so easily, and I fear this
Court has done a disservice to both by denying Gottlieb and
Himan official immunity.
For these reasons, I dissent from Parts III-B and III.B.1 of
the majority opinion.