Appeals court panel rejects request to reinstate Stillwater lawsuit

Wednesday, September 15th 2004, 6:32 am

By: News On 6

OKLAHOMA CITY (AP) _ A Denver appeals court declined Tuesday to reinstate a lawsuit against the Stillwater Police Department by a woman who alleged she was raped by four ex-Oklahoma State University football players.

``Primary responsibility of law enforcement rests with the city and the state,'' a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals wrote in a 37-page opinion. ``Today, we hold only that the United State Constitution does not provide a cause of action on the legal theories invoked by the Plaintiff.''

Alison Jennings' lawsuit alleged that police violated Jennings' procedural due process, access to courts and equal protection rights under the U.S. Constitution.

Jennings publicly identified herself at a 2001 news conference announcing the lawsuit.

U.S. District Judge Tim Leonard threw out Jennings' 2001 lawsuit last year, ruling that Jennings failed to establish that officers had violated her constitutional rights.

``The question in this case is whether the United States Constitution provides a cause of action for victims of crime when state or local law enforcement officials fail to perform a proper investigation,'' the opinion stated.

``In general, federal courts are not entrusted with the responsibility of ensuring the effective enforcement of state criminal laws; that role falls to state and local law enforcement authorities. It is the duty of executive officials _ not the courts _ to take care that the criminal laws are faithfully executed.''

The ex-OSU student accused former football players Alvin Porter, J.B. Flowers, Evan Howell and Marcellus Rivers of raping her during a Sept. 21, 1999, party at a Stillwater residence.

All four men said they had consensual sex with her, police records show.

In videotaped interviews with police Detective Robert Buzzard, the lead investigator in the case, Jennings indicated she had been drunk at the time of the alleged assault and that she might have trouble identifying each of the suspects, court records show.

Jennings later returned to police, said she felt pressured into signing the waiver and asked to be re-interviewed by a female officer. After the second interview, she again decided not to press charges, according to court records.

Attempts to reach representatives of the Stillwater Police Department weren't immediately successful Tuesday night.

Jennings accused police of failing to adequately investigate the alleged rape and of discouraging her from pursuing prosecutions of the alleged assailants.

Her lawyers argued that Buzzard made false statements that convinced her to sign a prosecution waiver, which ultimately played a role in Payne County District Attorney Rob Hudson's decision not to charge the players.

According to the judges' opinion, Buzzard challenged Jennings' account of the events, stating the he had interviewed ``numerous people'' at the party and told Jennings ``something is not jiving, OK, with what you're saying and what everybody else is telling me.''

Later at deposition, Buzzard acknowledged that the ``numerous people'' to whom he was referring were the four football players, court records show.

Tamara Gowens, one of Jennings' attorneys, said she hadn't seen the lawsuit and couldn't comment specifically.

The case went beyond the district attorney's decision not to charge players to allegations ``that the investigating officers made actual factual misrepresentations to the district attorney to secure the dismissals of the actions,'' Gowens said.

``There should be some sort of constitutional recourse for that set of facts,'' she said.

The judges wrote in their opinion that they ``in no way condone or excuse the failure of police to conduct an adequate investigation of such a crime.''

``The State of Oklahoma has enacted legislation designed to ensure that victims of rape, domestic violence, and sodomy receive a respectful hearing and have a right to request prosecution.''