David Evans v. Patrick Baker

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.