# Has Mike Nifong been Sued? **URL:** \ **Category:** Factual Questions\ **Created:** [September 5, 2007, 12:11pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106 "2007-09-05T12:11:58Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [September 5, 2007, 12:11pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/1 "2007-09-05T12:11:58Z")
Remember this is a factual question. Has Mike Nifong been sued by anyone over his recent wrongful prosecution? I ask as someone has told me he has been, but I maintain prosecutors are protected from such suits. More exactly, can a person sue a prosecutor for wrongful prosecution? Under what circumstances? Bonus question, what sort of name in Nifong anyway? ---
**Author:** ![brazil84](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@brazil84](https://boards.straightdope.com/u/brazil84)\ **Post date:** [September 5, 2007, 1:16pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/2 "2007-09-05T13:16:40Z")
[QUOTE=Paul in Saudi] Remember this is a factual question. Has Mike Nifong been sued by anyone over his recent wrongful prosecution? I ask as someone has told me he has been, but I maintain prosecutors are protected from such suits. More exactly, can a person sue a prosecutor for wrongful prosecution? Under what circumstances? Bonus question, what sort of name in Nifong anyway? [/QUOTE] No he has not been sued. But he could potentially be sued to the extent he stepped out of his role as prosecutor, e.g. directing the Durham police to set up a phoney lineup. I imagine that if the Duke 3 file suits, they will include him as a defendant so they can make sure Nifong doesn’t profit from any book deals. (“Here’s how I did it, by Mike Nifong”) I read somewhere that Nifong is a Welsh name. In the early days of the hoax, there was some speculation among white supremacists that he was Jewish, since this would confirm their bias that Jewish = bad; white + gentile = good. Edited to add: It’s possible that he has been sued and nobody knows. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [September 5, 2007, 1:24pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/3 "2007-09-05T13:24:40Z")
According to [this article](http://www.wral.com/news/local/story/1777604/), the possibility of civil suits against Durham is under active discussion. This could mean that a suit against Nifong might also be forthcoming. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [September 5, 2007, 1:49pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/4 "2007-09-05T13:49:06Z")
Thank you for your answers. Anyone else? ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [September 5, 2007, 2:16pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/5 "2007-09-05T14:16:06Z")
[QUOTE=Paul in Saudi] I maintain prosecutors are protected from such suits. [/QUOTE] My understaning is that they have considerable but by no means absolute immunity. When a prosecutor breaks the rules (and it’s clear that Nifong broke plenty of them) his immunity is jeapordized. ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [September 5, 2007, 2:21pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/6 "2007-09-05T14:21:33Z")
[QUOTE=Paul in Saudi] Thank you for your answers. Anyone else? [/QUOTE] Prosecutors have limited immunity. It is usually very difficult to press a suit successfully against a prosecutor. Nifong’s recent conviction on criminal charges will make a suit against him much easier to win. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 5, 2007, 2:32pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/7 "2007-09-05T14:32:26Z")
[QUOTE=Paul in Saudi] More exactly, can a person sue a prosecutor for wrongful prosecution? Under what circumstances? [/QUOTE] Depends on the state. [QUOTE=North Carolina Court of Appeals] The prosecutor has absolute immunity. State ex rel Jacobs v. Sherard, 36 N.C. App. 60; 243 S.E.2d 184; 1978 N.C. App. LEXIS 2405 (1978) ("Judges and judicial officers have always been awarded “absolute” immunity for their judicial acts. Absolute immunity covers even conduct which is corrupt, malicious or intended to do injury. Prosecutorial immunity is likewise absolute because it is really but a particular manifestation of judicial immunity.) [/QUOTE] Some have noted that this immunity might not extend to investigative conduct, and others have pointed out that it pretty clearly doesn’t extend to defamatory statements made at press conferences. > **[FIFA World Cup 2026 MD5 recap: Cape Verde holding Spain headline day of draws](https://www.espn.com/college-sports/news/story?id=2835259http:%2F%2Ffederalism.typepad.com%2Fcrime_federalism%2F2006%2F06%2Fdistrict_attorn.html)** > > Egypt, Saudi Arabia and New Zealand also pulled off draws against the more favoured Belgium, Uruguay and Iran respectively ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [September 5, 2007, 2:45pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/8 "2007-09-05T14:45:07Z")
[Here](http://www.slate.com/id/2164061/pagenum/all/) is one man’s opinion. [Here’s](http://www.lincolntribune.com/modules/news/article.php?storyid=5701) another. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [September 5, 2007, 2:57pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/9 "2007-09-05T14:57:28Z")
[QUOTE=North Carolina Court of Appeals, by way of Gfactor] The prosecutor has absolute immunity… Absolute immunity covers even conduct which is corrupt, malicious or intended to do injury. [/QUOTE] Yipes - I stand corrected. Isn’t this an invitation to troublesome behavior by prosecutors? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 5, 2007, 3:02pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/10 "2007-09-05T15:02:12Z")
[QUOTE=Contrapuntal] [Here](http://www.slate.com/id/2164061/pagenum/all/) is one man’s opinion. [Here’s](http://www.lincolntribune.com/modules/news/article.php?storyid=5701) another. [/QUOTE] The first link is about criminal prosecution, which is different. The second one discusses statements to the press and investigative conduct, and notes: > [@](#): > > “Generally, district attorneys – acting within their narrow role as prosecutors – have absolute immunity, and cannot be sued even if they violate a defendant’s constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and did so wrongfully and only for political purposes, he might not be held civilly liable.” I think there are North Carolina cases that support the defamation theory; the investigative conduct theory is based on federal cases applying federal immunity law. It’s not clear how the North Carolina courts will deal with the issue. ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [September 5, 2007, 3:03pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/11 "2007-09-05T15:03:47Z")
[QUOTE=Gfactor] It’s not clear how the North Carolina courts will deal with the issue. [/QUOTE] Oh, I agree. I didn’t mean to suggest that it was clear. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 5, 2007, 3:30pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/12 "2007-09-05T15:30:49Z")
[QUOTE=Xema] Yipes - I stand corrected. Isn’t this an invitation to troublesome behavior by prosecutors? [/QUOTE] Well, it’s certainly a free pass for it as far as civil liability is concerned. But proponents of the rule would point out that: 1. He got disbarred for it. 2. He could be criminally prosecuted for it. 3. The municipality (in this case) isn’t immune and could be sued. This gives the municipality a powerful reason to make sure he behaves. 4. If immunity is qualified instead of absolute, it’s messier (requires more factfinding, longer court proceedings, money, could “invade the judicial process”). 5. The official reason: > [@](#): > > The principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. 18 We explained in Ferri v. Ackerman, 444 U.S. 193 (1979): > > ``` > "As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. The societal interest in providing such public officials with the maximum ability to deal fearlesslyand impartially with the public at large has long been recognized as an acceptable justification for official immunity. The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion." Id., at 202-204. > > ``` [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=95-1853](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=95-1853) Opponents might respond: 1. He did it, and so do others, so the disincentives aren’t strong enough. 2. It’s unfair to burden innocent defendants with the costs of the bad acts of prosecutors. By giving them immunity, we are denying the players a source of recovery for their damages. _And see_, [Do the wrongfully imprisoned get compensation?](http://www.straightdope.com/mailbag/mwrongful.html) In a previous draft of this staff report, I actually talked about Nifong. My point was that he has absolute immunity, and if the players had been wrongfully convicted, Nifong’s immunity would make it just that much harder for them to get any compensation. This guy just got exonerated in NC [http://www.newsobserver.com/news/story/685778.html](http://www.newsobserver.com/news/story/685778.html) He’ll need a pardon in order to collect any compensation from the state. [G.S. 148-82](http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_148/GS_148-82.html) So would the players (although the might be able to sue the municipality). 3. Many employers of prosecutors are immune from suit, so not all prosecutors get watched. 4. Many prosecutors who break the rules don’t get disbarred or disciplined. 5. The official reason doesn’t make much sense when the prosecutor knows he’s doing bad stuff. ---
**Author:** ![Lochdale](https://avatars.discourse-cdn.com/v4/letter/l/edb3f5/32.png) [@Lochdale](https://boards.straightdope.com/u/Lochdale)\ **Post date:** [September 5, 2007, 6:45pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/13 "2007-09-05T18:45:19Z")
[QUOTE=brazil84] I read somewhere that Nifong is a Welsh name. In the early days of the hoax, there was some speculation among white supremacists that he was Jewish, since this would confirm their bias that Jewish = bad; white + gentile = good. Edited to add: It’s possible that he has been sued and nobody knows. [/QUOTE] Er…why did you add this to an otherwise straight forward question (with a decent answer by you)? It had no relevance. Durham County and/or the State of North Carolina are most likely protected by soverign immunity statutes. Nifong is probably similarly protected though there are malicious prosecution and/or gross negligence exceptions. ---
**Author:** ![scm1001](https://avatars.discourse-cdn.com/v4/letter/s/c4cdca/32.png) [@scm1001](https://boards.straightdope.com/u/scm1001)\ **Post date:** [September 6, 2007, 1:33am UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/14 "2007-09-06T01:33:27Z")
[QUOTE=Paul in Saudi] Bonus question, what sort of name in Nifong anyway? [/QUOTE] from [http://genblogs.worldvitalrecords.com/](http://genblogs.worldvitalrecords.com/) “I poked around in some records and found that the Nifongs have been in North Carolina for a long time. George Nifong, the DA’s 4th great-grandfather, is on the 1790 census in Rowan County. George’s father Balthasar came to Pennsylvania from Germany in 1748 with the last name Neufang. The name was quickly corrupted to Nifong (North Carolina branch) or Knifong (Missouri branch).” ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 6, 2007, 1:43am UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/15 "2007-09-06T01:43:53Z")
Even if it did matter: Unless you are a mind reader, how could you ever prove to the satisfaction of a court under any standard that Nifong did it maliciously? You may have your good guesses, but how can you ever judge intent? ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [September 6, 2007, 2:39am UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/16 "2007-09-06T02:39:04Z")
[QUOTE=jtgain] Even if it did matter: Unless you are a mind reader, how could you ever prove to the satisfaction of a court under any standard that Nifong did it maliciously? You may have your good guesses, but how can you ever judge intent? [/QUOTE] One way would be by the testimony his former campaign manager, who he told that he needed to win the election in order to secure a better pension. Another would be by the testimony of one of his investigators, who told “You know this means we’re fucked” early in the investigation, but proceeded anyway. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 6, 2007, 2:50am UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/17 "2007-09-06T02:50:17Z")
> [@](#): > > legal malice may be inferred from a lack of probable cause [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals2004/&invol=030358-1](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals2004/&invol=030358-1) > [@](#): > > In an action for malicious prosecution, the malice element may be satisfied by a showing of either actual or implied (legal) malice. Best v. Duke University, 112 N.C. App. 548, 552, 436 S.E.2d 395, 399 (1993), aff’d in part, rev’d in part on other grounds , 337 N.C. 742, 448 S.E.2d 506 (1994). > > “Actual malice . . . is defined as ‘ill- will, spite, or desire for revenge, or under circumstances of insult, rudeness or oppression, or in a manner evidencing a reckless and wanton disregard of [plaintiff’s] rights.’” (Citations omitted). Actual malice, which “is more difficult to substantiate . . . is only required if plaintiff is seeking punitive damages.” (Citations omitted). Implied (or legal) malice, on the other hand, “may be inferred from want of probable cause in reckless disregard of plaintiff[s’] rights.” (Citations omitted). > > Moore v. City of Creedmoor, 120 N.C. App. 27, 43-44, 460 S.E.2d 899, 909 (1995), aff’d in part, rev’d in part on other grounds, 345 N.C. 356, 481 S.E.2d 14 (1997). Want of probable cause may not be inferred from malice for purposes of determining whether there is a cause of action for malicious prosecution but malice may be inferred from want of probable cause. Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914 (1966). [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals98/appeals1229/&invol=estridge](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals98/appeals1229/&invol=estridge) (quoted in dissenting opinion). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 7, 2007, 7:13pm UTC](https://boards.straightdope.com/t/has-mike-nifong-been-sued/418106/18 "2007-09-07T19:13:08Z")
Looks like they haven’t “sued” anyone yet, but are negotiating a settlement and threatening to sue the city. > [@](#): > > The players attorneys have proposed a settlement with the city of Durham that includes reforming the legal system. > > * * * > > If the terms aren’t met, the attorneys will file a civil rights lawsuit early next month, the person close to the case said, speaking on condition of anonymity because the proposed settlement wasn’t complete. [http://www.cnn.com/2007/US/law/09/07/duke.lacrosse.ap/index.html](http://www.cnn.com/2007/US/law/09/07/duke.lacrosse.ap/index.html)