U.S. District Judge Kristi Dubose Nov. 10 denied summary judgments requested by the Mobile County Commission related to four claims of First Amendment violations in a lawsuit filed by animal rescue group SouthBARK. After more than a year in litigation, the decision moves the civil case one step closer toward a jury trial.
In August 2012, the Commission voted to end a partnership with SouthBARK, claiming it was “disruptive to operations” and “doing more harm than good” in its association with the Mobile County Animal Shelter.
At the time, county officials said the organization was publishing false information about the shelter and fostering negative and even threatening remarks about shelter employees and administrators — most of which were made on the shelter’s Facebook page or through private emails.
SouthBARK volunteers and organizers denied those allegations and later claimed the county violated their right to freedom of speech when it retaliated by preventing them from rescuing animals from the county shelter.
In April 2013, SouthBARK filed suit against the Commission, as well as Public Affairs Director Nancy Johnson and County Administrator John Pafenbach.
In an amended complaint, SouthBARK alleged county officials terminated its contract in retaliation for the group “speaking out against the practices at MCAS,” an act the group’s attorney Ishmael Jaffree claims violated the right to free speech guaranteed in both the U.S. Constitution and additional provisions of Alabama’s Constitution.
In Dubose’s ruling, the county’s four requests to throw out SouthBARK’s free speech claims were denied, meaning there is enough dispute over the claims to let a jury decide.
“There is an issue of fact whether the county’s decisions to suspend and later terminate SouthBARK’s relationship with MCAS were in retaliation for SouthBARK’s criticism or whether it was because SouthBARK’s interactions with MCAS were disruptive,” the judgment reads. “Moreover, there is also an issue of fact as to whether the suspension and/or termination ‘would likely deter a person of ordinary firmness from the exercise of First Amendment rights.’”
SouthBARK submitted evidence that other rescue groups were deterred from criticizing the MCAS as a result of the county’s action against SouthBARK, which Dubose said creates “an issue of fact for a jury to decide.”
Jaffree said four members of other rescue groups provided testimony included in separate affidavits in the case. Those individuals included members of Krewe de Rescue, the Animal Rescue Foundation and other independent rescuers.
“Actions were taken against SouthBARK after they made speeches publicly complaining about the condition of the shelter,” Jaffree said. “One of the elements we had to prove is that, if an objective observer who was also part of another rescue saw what happened my clients, it would be a deterrent.”
Despite the development in the case, Jaffree said he hoped the court would take things a step further and establish that pets “have a legal interest that can be recognized by the court” — a precedent he said several groups around the country have tried and failed to set.
“My clients had two purposes; to rescue as many animals as they could … and secondly, they wanted to bring to the public’s attention the conditions of the shelter and the overwhelming number of dogs and cats that were being euthanized at the shelter,” Jaffree said. “The second part of our case deals with them having a right to notify the public about those conditions without being punished.”
Jaffree said his clients believe they were punished after speaking out about the conditions of the shelter, but county officials still maintain they quit working with the rescue group because of members making threatening and bullying remarks toward MCAS employees.
SouthBARK’s original complaint, filed in June 2013, dismisses claims the county made about “threatening” and “disruptive” language when it decided to ban the group. Dusty Feller, one of the two plaintiffs in the case, said many of the comments she’s aware of were made in a private Facebook group by members not officially connected to SouthBARK.
“If their speaking out on social media or other publications complaining about the conditions, if that played any role at all in stopping them from facilitating the rescue of animals, if there’s any evidence to support that, SouthBARK would be entitled to judgment,” Jaffree said.
A fifth count related to defamation was also included in SouthBARK’s amended complaint, a charge rooted in comments made by County Commission President Connie Hudson and Pafenbach in two meetings in 2012.
Both the complaint and judgment cite the following comments from Hudson:
“We cannot knowingly allow people that go to work every day to be bullied,” the judgment reads. “Right now in America there is a push all across this country to stop bullying in classrooms. Well the workplace is no different. People do not deserve to be bullied and harassed while they’re trying to do their job, and they’re trying to do a good job.”
Dubose granted the county’s motion for summary judgment on the claim, effectively throwing allegations of defamation out after SouthBARK failed to present evidence showing actual malice from the county. Because the judge determined SouthBARK was a public figure, the group was required to show the county had “knowledge (the comments) were false or had a reckless disregard for whether (they were) false or not.”
Jaffree said unless there is some form of settlement, the case will go to trial, likely around the first of year. Though the county will have other opportunities to have parts of the case dismissed as it progresses, Feller said she is optimistic.
“We are very excited that the judgment validated the First Amendment claims in the lawsuit, and about the possibly of a jury trial,” she said. “We feel like that’s our best chance of getting a fair judgment.”
Mobile County officials were unable to comment for this report because it deals with a pending legal matter. At the time of publication, County Attorney Jay Ross said he was not prepared to comment without reviewing Dubose’s judgment.