Judge narrows lawsuit alleging Escambia County officials cracked down on journalists

MOBILE, Ala. (WALA) - A federal judge has narrowed the scope of a lawsuit against Escambia County officials accused of conspiring to deprive Atmore journalists of their First Amendment rights.

The 52-page decision handed down this week throws out some of the claims but keeps others.

The ruling leaves a good portion of the lawsuit in place and allows the case to move to the information-gathering phase where lawyers will question witnesses under oath and exchange documents.

The suit alleges that Escambia County District Attorney Stephen Billy and Sheriff Heath Jackson conspired to engineer the arrests of the publisher of the Atmore News and one of her reporters on trumped-up charges of violating grand jury secrets. They say it was retaliation over a school board vote not to renew the contract of the Escambia County schools superintendent.

Publisher Sherry Digmon also was a member of the Board of Education. Reporter Don Fletcher wrote a story on an investigation into possible misuse of COVID-19 relief funds given to the school system. Charges alleging that they violated grand jury secrecy rules later were dismissed.

U.S. District Judge Terry Moorer ruled that Billy has absolute immunity for conduct in which he was performing prosecutorial duties. But the judge ruled that claims can move forward on his alleged conduct that was not purely prosecutorial, related to the seizure of cell phones belonging to Digmon and other plaintiffs.

Jared McClain, an attorney for the Institute for Justice who represents the plaintiffs, told FOX10 News that he is pleased with the outcome. He said the plaintiffs agreed that controlling precedent required some claims to be dismissed.

“It was just about whether the judge was going to let any claims go forward against the district attorney,” he said. “And since he did, then we feel like we’re in a very good position.”

Billy has a right to an immediate appeal of the ruling. It is unclear whether he intends to do so. Calls to attorneys representing him and Jackson were not immediately returned Friday afternoon.

Moorer ruled that Jackson is immune from claims against him in his official capacity. But he allowed one claim to move forward related to one of the three times deputies arrested Digmon during the controversy.

McClain noted that there are other claims that Jackson did not ask to be dismissed.

“So, the opinion reads as if we lost more than we really did, because lots of the stuff wasn’t even an issue,” he said.

Moorer wrote that the plaintiffs failed to support allegations that Billy issued subpoenas in order to trap the newspaper into committing the “fake crime of sharing his subpoena.”

Wrote the judge: “The Plaintiffs’ own allegations in their Amended Complaint undercut their position that the subpoena was intended as ‘bait,’” he judge wrote.

Regarding claims related to seizure of the cell phones, Moorer wrote that “a prosecutor is not entitled to absolute immunity when he ‘performs the investigative functions normally performed by a detective or police officer.’”

But the judge wrote that the law compelled dismissal of claims related to the grand jury investigation.

“The initiation of criminal proceedings and obtaining an arrest warrant are prosecutorial functions within the scope of absolute immunity, regardless of the prosecutor’s improper motives,” the judge wrote.

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