Ex-players seek $30 million settlement

Durham's insurance could cover $5 million

Staff WritersSeptember 8, 2007 

  • The three former defendants in the Duke lacrosse case would sue Durham under a federal civil rights statute if the city opts not to settle.

    Municipalities in many cases have immunity from civil lawsuits, but not when the suit is filed under Section 1983 of the U.S. Code. It states that when a government violates a person's constitutional rights, the government "shall be liable to the party injured in an action at law."

    If the case did go to trial, it probably would be held in the federal courthouse in Greensboro.

    The players and their lawyers face a hurdle in holding the city liable. They must prove that the city exhibited a "pattern and practice" of violating people's civil rights.

    The players would sue the city rather than the state -- Nifong's employer -- because the state would pay much less. North Carolina law limits the state's liability in nearly every civil case to $500,000.

    Because of the separation of powers laid out in the Constitution, the federal government can't dictate when and how individual states can be sued. That means Section 1983 would not apply.

— Durham taxpayers could be on the hook for $30 million -- about $142 for each of the city's estimated 210,000 residents -- if officials agree to a proposed settlement with the three former defendants in the Duke lacrosse case, according to sources close to the case.

Durham leaders now have a month to decide whether to pay $10 million each over five years to Dave Evans, Collin Finnerty and Reade Seligmann or fight a civil lawsuit in federal court.

Such a settlement would be one of the largest payouts, if not the largest payout, by a municipality in state history, said David Blackwell, publisher of N.C. Lawyers Weekly.

The lacrosse players' demands were described by four people familiar with the negotiations that took place Wednesday between city officials and attorneys representing the former players.

The city has liability insurance coverage for up to $5 million. If the city accepts the settlement, it would have to find $25 million in the budget to be paid over five years, the sources said.

They said representatives of the city's insurer, the Insurance Company of Pennsylvania, attended the Wednesday meeting and are being consulted on whether to settle or fight.

The settlement also would require the City Council to pass resolutions urging the state legislature to pass criminal justice reform laws, including mandatory videotaping of identification procedures, recording of grand jury proceedings and creating a state ombudsman position to review complaints against prosecutors and intervene as necessary. And the city would be required to form an independent commission to review residents' complaints about police.

Attorneys Barry Scheck, representing Seligmann, and Brendan Sullivan Jr., representing Evans and Finnerty, met behind closed doors with city legal staff for more than two hours Wednesday. On Thursday, the council spent more than two hours in closed session being briefed on the demands made by the high-powered legal team with national reputations.

Lawyers who have followed the case closely say the city has three main areas of vulnerability:

* The April 4, 2006, photo-identification procedure, conducted in violation of city policies, that led to indictments in the case. Accuser Crystal Gail Mangum was shown only photos of 46 white Duke lacrosse players.

* Discrepancies between hand-written notes taken by police Investigator Benjamin Himan and typewritten notes submitted months later by Sgt. Mark Gottlieb. Gottlieb wrote in July 2006 that Mangum on March 16 had described three people that fit the characteristics of the three accused players. Himan's notes, written the day of the March meeting with Mangum, offer three very different descriptions.

* A CrimeStoppers poster released by police shortly after the initial rape allegations. It said a woman "was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community."

The lawsuit, if filed, is expected to name various public officials, including Mike Nifong, the district attorney who was disbarred for his misconduct in the case; Steven Chalmers, the former police chief; and some of the individual officers in the lacrosse case.

But the big target is the city of Durham, the only defendant that could write checks in the millions of dollars, and the only entity that could make changes in police department policy.

Staff writer Matt Dees can be reached at 956-2433 or matt.dees@newsobserver.com.

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