A federal judge in Gainesville has ruled that former Statham police chief Allan Johnston violated the constitutional rights of a Hoschton woman and public critic of the city by issuing a criminal trespass warning against her and subsequently arresting her at a city council meeting.
In his 26-page order dated June 8, U.S. District Court Judge Richard Story granted Sondra Moore’s request for summary judgement and ruled that Moore’s First Amendment right to freedom of speech and Fourth Amendment right protecting against unlawful seizure had been violated and that her arrest at the council meeting was also in violation of the state’s open-meetings law.
The case now appears to be heading for a jury trial to determine what damages Moore is entitled to, though a timetable is not clear. Johnston and the city also filed for summary judgement, but given Story’s ruling on Moore’s filing, those will likely be denied, said Zack Greenamyre, the attorney representing Moore.
Moore is part of a group of citizens who have heavily criticized numerous city actions and decisions the past few years — starting with a series of DUI-less safe arrests made by former police officer Marc Lofton, many of which have been dismissed. She and others have also raised concerns in the past about the city’s water quality.
On May 6, 2018, Moore and former plaintiff Tony McDaniel of Statham, who has since settled with the city for about $60,000 over the issue, were part of a group that toured the city’s water-management system with then-Mayor Robert Bridges. The two later returned to the area with Bridges’ permission and were observed by former police officer Johnny Wood at a park near the city’s sewer system attempting to collect water samples when Wood told them to leave. They complied but were later issued criminal trespass warnings.
Four days later, Moore and McDaniel were served notices of prohibited entry for all city properties, including city hall, and Moore was arrested that evening while attending a council meeting at city hall and charged with a second criminal trespass offense.
The second charge has since been dismissed by the Piedmont Judicial Circuit District Attorney’s Office, and the city repealed the criminal trespass warning in November 2018, a month after Moore filed suit and just prior to a preliminary hearing. However, the initial case remains pending in Barrow County Superior Court.
In his order, Story ruled that Johnston was individually liable because Moore’s arrest lacked both probable cause and “arguable probable cause,” which negated his assertion of qualified immunity. He ruled that the city was liable because the criminal trespass warning was the official policy of the city and was issued by the final policymaker, determined to be Johnston in the case of police department policies.
Moore withdrew her motion against former city attorney Thomas Mitchell in the case because of his sworn testimony that he did not author or sign the trespass warning, even though it was issued in the names of Bridges and him.
Story wrote that the defendants, in order to avoid judicial termination of a constitutional right violation, “halfheartedly” argued that the city’s rescission of the criminal trespass warning rendered Moore’s motion moot. He also said the defendants misrepresented Moore’s complaint as an isolated incident when she in fact alleged at least two other incidents of similar conduct by the city.
The criminal trespass warning provided “no exceptions as to time, place and manner of expression and (had) no temporal limit,” Story wrote. Rather, he said, the enforceability was said to be indefinite and there was no mechanism provided for review, appeal or dispute of the terms and conditions that were given.
The judge also said the defendants claimed that they believed the arrest was lawful on the advice of Mitchell but that they failed to assert that defense in their answer and instead claimed attorney-client privilege for all communications between Johnston, the city and Mitchell. While Johnston has said he sought Mitchell’s advice prior to having Moore arrested, Mitchell has contended Johnston told him what he was going to do and that he didn’t stop him — a discrepancy a jury would need to iron out, Greenamyre said.
Story’s ruling is the latest in a slew of federal lawsuits involving the city, most of which have settled and most of which Greenamyre has represented the plaintiffs in.
In addition to Moore’s case, the only other ongoing matter is the case brought by Wayne Hardigree, who Greenamyre represents, against Lofton and Barrow County sheriff’s deputy Chad Norris for Fourth Amendment violations and excessive force stemming from an incident at Hardigree’s sister’s trailer. Story ruled in favor of Hardigree last July but the ruling remained out on appeal as of last week, Greenamyre said.
Charges against Hardigree stemming from the incident were dropped in January 2017.