# can Nifong be sued in Civil Court? **URL:** \ **Category:** Factual Questions\ **Created:** [June 18, 2007, 5:24pm UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483 "2007-06-18T17:24:23Z")\ **Posts on this page:** 10\ **Page:** 1
**Author:** ![ralph124c](https://avatars.discourse-cdn.com/v4/letter/r/8797f3/32.png) [@ralph124c](https://boards.straightdope.com/u/ralph124c)\ **Post date:** [June 18, 2007, 5:24pm UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/1 "2007-06-18T17:24:23Z")
Well, dirtbag ex-prosecutor Nifong is no long a bar member. my question: can his victims (the three lacrosse players) sue to recover damages? These boy’s leagl bills must run upwards of a million $ by now-so can they go after Nifong in court? I’d like to see the guy reduced to poverty-but seeing as how difficult it is for Mr. Goldman to collect anything (from OJ Simpson), I doubt they would gain much. But seeing him squirm would be worth it. Is Nifong shielded from civil suit 9as a county prosecutor)? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [June 18, 2007, 6:31pm UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/2 "2007-06-18T18:31:56Z")
Public officials in North Carolina enjoy a limited protection from lawsuits known as “qualified immunity,” as discussed by the North Carolina Court of Appeals in [Showalter v. NC Dept of Crime Control and Public Safety, et al.](http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060757-1.htm) : > [@](#): > > …The North Carolina rule is that a public official engaged in the performance of governmental duties involving the exercise of judgment and discretion may not be held liable unless it is alleged and proved that his act, or failure to act, was corrupt or malicious, or that he acted outside of and beyond the scope of his duties. Andrews, 144 N.C. App. at 76, 547 S.E.2d at 123. Plaintiff has specifically alleged malice in his complaint… > > ``` > ...“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.” Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984). > > ``` Judge for yourself whether Nifong’s actions qualify as “malice” within the legal meaning of the term. ---
**Author:** ![Bob55](https://avatars.discourse-cdn.com/v4/letter/b/e9c0ed/32.png) [@Bob55](https://boards.straightdope.com/u/Bob55)\ **Post date:** [June 18, 2007, 6:32pm UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/3 "2007-06-18T18:32:49Z")
According to [MSNBC](http://today.msnbc.msn.com/id/19287960) he can, and some of the players are in the process of filing a civil suit. ---
**Author:** ![howye](https://avatars.discourse-cdn.com/v4/letter/h/a9adbd/32.png) [@howye](https://boards.straightdope.com/u/howye)\ **Post date:** [June 18, 2007, 6:52pm UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/4 "2007-06-18T18:52:44Z")
[QUOTE=spoke-] Judge for yourself whether Nifong’s actions qualify as “malice” within the legal meaning of the term. [/QUOTE] I suspect 12 good citizens will be making that determination. The disbarment was a bit of a no-brainer. The civil suit will be interesting. I want to hear the arguments from both sides on how he was or was not malicious. ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [June 18, 2007, 7:00pm UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/5 "2007-06-18T19:00:57Z")
In earlier threads, posters with more backround in NC law said he was. However, one could argue that his actions were so far out of bounds as to be lacking in the color or character of his position. I don’t know if you’d get far with that one, but I imagine you could probably make that argument in front of a sympathetic judge who would at least WANT to hold Nifong liable. If the lacrosse players were black and we had a different administration in Washington, I could imagine civil rights issues being raised as you saw in the '60s and '70s. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [June 18, 2007, 7:11pm UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/6 "2007-06-18T19:11:19Z")
Hmm. Yes. I don’t pretend to be an expert on North Carolina law. IANANCL. And now that I think about it, we would be talking about a federal §1983 action (a federal claim for violation of civil rights), so federal rules of immunity come into play. In particular, prosecutorial immunity, more about which [here](http://www.foxnews.com/story/0,2933,237608,00.html): > [@](#): > > With Nifong, they will stumble over federal precedents of “absolute prosecutorial immunity” that immunize him against consequences for his behavior as a prosecutor. The qualification is key. The main question about Nifong’s immunity is not whether he committed misconduct-- he clearly did – but what function was he serving when he did so. > > The Supreme Court case [Imbler v. Pachtman](http://www.fa-ir.org/ai/case_imbler.htm) (1976) is often cited in discussion of prosecutorial misconduct. There, the court distinguished between “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate” [that is, a prosecutor]. It is only as a prosecutor that a D.A. has absolute immunity. > > Otherwise, his immunity is qualified; he is not automatically immunized against misconduct that he should have known was a violation of law. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [June 18, 2007, 7:17pm UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/7 "2007-06-18T19:17:41Z")
More discussion of prosecutorial immunity and its interplay with qualified immunity in this article:[Reconsidering Absolute Prosecutorial Immunity](http://findarticles.com/p/articles/mi_qa3736/is_200501/ai_n13637493): > [@](#): > > In litigation under the major federal civil rights statute, 42 U.S.C. § 1983, two kinds of immunity apply to prosecutors: absolute immunity and qualified immunity. The immunity that applies depends on the function the prosecutor was performing at the time of the misconduct.[Cit.] When prosecutors act as advocates, absolute immunity applies.[Cit.] Under absolute immunity, prosecutors are immunized even when the plaintiff establishes that the prosecutor acted intentionally, in bad faith, and with malice.[Cit.] When prosecutors act as investigators or administrators, qualified immunity applies.[Cit] Under qualified immunity, prosecutors are immunized unless the misconduct violated clearly established law of which a reasonable prosecutor would have known.[Cit] ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 19, 2007, 12:52am UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/8 "2007-06-19T00:52:12Z")
[QUOTE=spoke-] And now that I think about it, we would be talking about a federal §1983 action (a federal claim for violation of civil rights), so federal rules of immunity come into play. [/QUOTE] Would it have to be federal? Does §1983 preclude an an action for the tort of malicious prosecution under state law? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [June 19, 2007, 1:26am UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/9 "2007-06-19T01:26:26Z")
[QUOTE=Northern Piper] Would it have to be federal? Does §1983 preclude an an action for the tort of malicious prosecution under state law? [/QUOTE] No, I don’t think §1983 precludes such a state law claim, but I am not familiar enough with North Carolina law to know whether a malicious prosecution claim can be brought against a district attorney under the circumstances presented here. Perhaps a NC lawyer will happen by this thread. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 19, 2007, 5:58am UTC](https://boards.straightdope.com/t/can-nifong-be-sued-in-civil-court/408483/10 "2007-06-19T05:58:30Z")
The three lacrosse players and Duke have reached an [out-of-court settlement](http://www.cnn.com/2007/LAW/06/18/duke.lacrosse/) > [@](#): > > Duke University has reached an undisclosed settlement with three former lacrosse players who were falsely accused of rape, the school announced Monday. > > “This past year has been hard for many people who care about Duke – for students, faculty, staff, alumni, families and friends – and for the three students and their families most of all,” the Duke board of trustees said in a written statement. > > The three students posted a statement on Duke’s Web site saying, “We hope that today’s resolution will begin to bring the Duke family back together again, and we look forward to working with the university to develop and implement initiatives that will prevent similar injustices and ensure that the lessons of last year are never forgotten.”