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Doggrell v. City of Anniston

United States District Court, N.D. Alabama, Eastern Division

September 29, 2017

JOSH DOGGRELL, Plaintiff,
v.
CITY OF ANNISTON, ALABAMA, a Municipality, and BRIAN JOHNSON, Individually and in His Official Capacity as City Manager of the City of Anniston, Alabama, Defendants.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION AND PROCEDURAL HISTORY

         On January 8, 2016, Plaintiff Josh Doggrell (“Mr. Doggrell”) initiated this lawsuit in the Circuit Court of Calhoun County against the City of Anniston (the “City”) and Brian Johnson, individually and in his official capacity as the City Manager (“City Manager Johnson”).[1] (Doc. 1-3). Mr. Doggrell's complaint contains two counts. (Doc. 1-3 at 8-10 ¶¶ 31-37).[2] Count I asserts violations of Mr. Doggrell's state and federal constitutional rights of freedom of speech, association, assembly and religion. (Doc. 1-3 at 8-9 ¶¶ 31-35) against both Defendants. Count II asserts a violation of the Alabama Religious Freedom Amendment (“ARFA”) against both Defendants. (Doc. 1-3 at 9-10 ¶¶ 36-37).

         Defendants removed the action to federal court on February 11, 2016, on the basis of federal question over Count I and supplemental jurisdiction over Count II. (Doc. 1 at 2-3 ¶¶ 3-4). On December 2, 2016, Defendants moved for summary judgment (doc. 11) (the “Motion”). The parties have supported and opposed the Motion. (Docs. 12-15, 22-23, 26). For the reasons set out below, the Motion is due to be granted.

         II. FACTUAL BACKGROUND [3]

         Mr. Doggrell was first employed by the City of Anniston's Police Department (“APD”) in April 2006. AF No. 1.1.[4] He was promoted in July 2010 to the position of Sergeant, and he was promoted again in January 2013 to the position of Lieutenant. AF No. 1.2.

         Mr. Doggrell became a member of the League of the South in 1995 while he was a student at the University of Alabama. AF No. 2.1. He remained a member of the organization through July 2015. AF No. 2.2.

         Michael Hill (“Mr. Hill”) is the President of the League of the South and has been since its foundation in 1994. AF No. 3.1. Mr. Hill is also the organization's primary spokesperson. AF No. 3.2. He has actual authority from the League of the South's Board of Directors to utilize the organization's website to communicate ideas, beliefs and principles on its behalf. AF No. 3.3. He also has “carte blanche” authority to link from his Facebook page and Twitter account to the League of the South's website. AF No. 3.4.

         The League of the South's stated purpose is “to advance the cultural, social, economic, and political well-being and independence of the southern people by all honorable me[a]n[s].” AF No. 4.1. According to its President, the League of the South considers the “southern people” to be white people of southern heritage. AF No. 4.2. Black southerners are not eligible to be included within its concept of the “southern people.” AF No. 4.3.

         For most of his adult life, Mr. Doggrell was a firmly committed member of the League of the South. AF No. 5.1. In March 2009, Mr. Doggrell started a local chapter of the League of the South in Calhoun County, Alabama. AF No. 5.2. The Anniston Star published an article about his formation of the local chapter. AF No. 5.3. Mr. Doggrell asked the Anniston Star's reporter not to identify him as an Anniston police officer. AF No. 5.4. Mr. Doggrell made this request to the reporter because he wanted to minimize any controversy for APD. AF No. 5.5. Shortly thereafter, the City received a citizen's complaint criticizing Mr. Doggrell's involvement in the League of the South and requesting an investigation into the matter. AF No. 6.

         Former Anniston Police Chief John Dryden (“Former Police Chief Dryden”), who was interim City Manager at the time, issued a memorandum in response to the citizen's request. AF No. 7.1. In the memorandum, Former Police Chief Dryden acknowledged that a member of APD was also a member of the League of the South and asserted that the City's investigation “revealed no violations of any kind that action could be taken on.” AF No. 7.2. In reaching this conclusion, Former Police Chief Dryden specifically noted that the APD officer-Mr. Doggrell-“in no way affiliated his employment with the City to his membership with this organization.” AF No. 7.3.

         After the City's 2009 investigation into Mr. Doggrell's involvement with the League of the South, the APD warned Mr. Doggrell to be very careful. AF No. 8.1. Mr. Doggrell confirmed that he was careful not to mix his association in the League of the South with the APD. AF No. 8.2.

         In 2013, Mr. Hill invited Mr. Doggrell to speak at the League of the South's Annual National Conference that was being held in Wetumpka, Alabama. AF No. 10.1. Mr. Hill wanted Mr. Doggrell to address the relationship between local police and the League of the South and the recruitment of police officers to the organization. AF No. 10.2.

         Mr. Doggrell accepted the invitation and gave a speech at the League of the South's 2013 National Conference entitled “Cultivating the Good Will of Peace Officers.” AF No. 11.1. Mr. Doggrell believed that he had to identify himself as a police officer in order to have credibility to speak on the subject. AF No. 11.2.

         Prior to beginning his speech, Mr. Doggrell was introduced as living in the community of Saks in Anniston, Alabama. (Doc. 12-31 at 2).[5] Mr. Doggrell submitted a biography in connection with his speech indicating that he had been a peace officer in his home city/county for sixteen years. AF No. 12.2; (see also Doc. 12-23 at 1 (attaching flyer detailing speakers scheduled for 2013 Annual League of the South National Conference)).

         Mr. Doggrell's speech included the following statements:

• “[I]t was wonderful to go by there and show my bosses all the radicals that I was cavorting with on the weekends.” (Doc. 12-31 at 5);
•“It's wonderful to be around sanity . . . it's good to be among people who think like I do for a change, even if it's just for a weekend. We are working on getting more of those people around our way of thinking.” (Id. at 7);
•“Now, it is not easy being a League of the South member either . . . It can be hard. And let me tell you, we had a city council member who could be best described as a small-town Jessie Jackson. We began our chapter in 2009. And there was an internal investigation [launched] against this cop who had founded a local hate group. And I was cleared for that, and hopefully won't have to put up with that again. And that city councilman, by the way, has been voted out of office as well. So there are - In my department, they have been very supportive of me. I have somehow, been promoted twice since I have been there. So these folks are not necessarily always against us. I want to leave you with that impression. (Doc. 12-31 at 8-9, 9-10);
• “Calhoun County has several police agencies. I work at Anniston, which I'll go ahead and go on record. Nothing I say here today is necessarily the views of the Anniston Police Department. I speak only as an individual and not an employee of that agency.” (Id. at 13);[6]
•“The vast majority of men in uniform are aware that they are Southerners and kith and kin comes before illegal national mandates.” (Id. at 23);
•“You may ask how many police officers I have recruited to the League. Well, not many . . . But continuously, like Dr. Hill said last night in our state meeting, it is a grind . . . Some of those same people who said ten years ago were telling me how crazy I was, this week are telling me, ‘I am this close to where you are at.' Okay? We have got to keep working on that and stay the course.” (Id. at 23, 24);
•“[Police officers] are the kind of people we will need in this kind of organization. These are the successful ones that can be counted on to be a warrior in the battles to come.” (Id. at 33);
•“[B]y the way, Wayne. But Wayne Brown is here, a lieutenant at the Anniston Police Department. He accompanied me to a meeting in Cullman; and on the way there, he was asking me, he said, ‘What is the magic bean, ' as he put it, ‘that would arouse our people to see exactly what was happening to them and how necessary the step of secession is?' And I told him I considered that, not only a good question but perhaps the million dollar one: What will it take? We see all this, and we still see the zombies walking around accepting it. What - What would it take?” (Doc. 12-31 at 39);
•“By and large, our lawmen of Southern justice are good people with good intentions. They are just as susceptible to being swayed to our side and our views as any other southerner, and I would say even more so.” (Id. at 41);
•“I went through that internal investigation and was cleared. The department I work at has been very supportive about that. They are not all on board, now, but they have been very supportive. They are just - They are like other southerners. They have that fear of taking this step. What's it going to do to me? What's it going to do to my job? . . . It's the same thing. They are southerners just like others. (Id. at 48-49, 49); and
•“Everybody in here, something starts swirling back around about it. You know, “This guy works at the police department, founder of a local hate group.” And I went in and told the chief last year, I said . . ., “Is there anything you want to ask me?” I said, “I promise you that whatever I do I want to exercise good judgment about it. I am not going to sell out my position with a league of something that I believe in strongly. If it came down to it, I would choose the League.” And I said, “Is there anything you want to ask me? He said, “You just answered every question I have.” And he even said this. He said, “We pretty much think like you do.” They are just - They are like everybody else you come into contact with that's not here today. They are just not quite ready to take that step. But like I said earlier, they are much closer than they were ten or 15 years ago.” (Id. at 49, 49-50).

AF No. 13.

         After giving his speech in 2013, Mr. Doggrell began to notice a shift or change in the League of the South. AF No. 9.1. Certain people were being placed in leadership positions that Mr. Doggrell felt did not represent the League of the South or southern nationalism well. AF No. 9.2. People with White Nationalist and neo-Nazi beliefs were becoming associated with the League of the South and were becoming more prevalent. AF No. 9.3. According to Mr. Doggrell, “the tone and language and rhetoric ha[d] gotten vile to a degree.” AF No. 9.4. Mr. Doggrell was afraid that the movement was being hijacked. AF No. 9.5.

         The City first learned about Mr. Doggrell's 2013 speech when a person who identified herself as being associated with the Southern Poverty Law Center (“SPLC”) called Anniston Police Chief Denham in late-May, early-June of 2015. AF No. 14. City Manager Johnson was notified of Mr. Doggrell's speech at that same point in time. AF No. 15.1.

         City Manager Johnson had never heard of the League of the South. AF No. 15.2. He did not know Mr. Doggrell, either. AF No. 15.3. Initially, City Manager Johnson made no decision as to how the City would respond other than to investigate the matter internally. AF No. 15.4.

         City Manager Johnson spoke to the Police Chief to ask for background on the League of the South, Mr. Doggrell's membership in the organization, and Mr. Doggrell's personnel record. AF No. 16.1. City Manager Johnson also spoke with the City's HR Director as to the personnel concerns relating to the allegation that a member of the police force may be involved in an organization that could be construed as a hate group. AF No. 16.2. He directed both the Police Chief and HR Director to investigate the situation and report how it might impact Mr. Doggrell's employment with the City. AF No. 16.3.

         On June 17, 2015, the SPLC published an article on its Hatewatch Blog entitled, “Anniston Police Department Has Two Hate Group Members on the Force.” AF No. 17.1. The article cited several of Mr. Doggrell's statements made during his speech to the League of the South's 2013 National Conference, which had been posted to YouTube, including Mr. Doggrell's purported conversation with former Police Chief Layton McGrady (“Former Police Chief McGrady”)[7] in 2012 about Mr. Doggrell's League of the South affiliations. AF No. 17.2.

         Prior to the SPLC's June 17th publication, Mr. Doggrell was never hindered in his advancement in his career with APD because of his association with the League of the South. AF No. 18.3. Mr. Doggrell suffered no adverse employment action in the time period between when Defendants first received notice of his speech and the SPLC's June 17th publication. AF No. 18.1. Mr. Doggrell does not dispute that Defendants' initial response after receiving notice of his speech was measured. AF No. 18.2.

         The SPLC's article and the posting of a related YouTube video had a tremendous impact in the community. AF No. 19.1 Concerning the video, more particularly, it depicted the current APD, Mr. Doggrell, and Lt. Wayne Brown (“Lt. Brown”) as being connected with the KKK's actions in the 1960s in burning buses of Freedom Riders. AAF No. 11.1. Police Chief Denham testified that he believed that the SPLC edited the video footage in this manner to inflame racial tensions. AAF No. 11.1; (see Doc. 12-2 at 27 at 108 (“It was very obvious to me that the SPLC was trying to inflame the situation.”)).

         Police Chief Denham also testified that it “was not like anything I had ever seen before . . . .” AF No. 19.2. “Very angry and very disgusted” people started showing up in APD's lobby, and APD started receiving phone calls and emails about it. AF No. 19.3. A large portion of the complaints were directed at the APD as a whole, “as in you have a racist department, you follow the beliefs of this organization, League of the South, and you are in line with them, as evidenced by the speech that one of your lieutenants gave.” AF No. 19.4.

         City Manager Johnson's first response to the public outcry was to place both Mr. Doggrell and Lt. Brown, who Mr. Doggrell had identified during the 2013 speech as a fellow ADP officer who supported the League of the South, on paid administrative leave. AF No. 20.1. He did so for their own safety, the safety of their fellow officers, and to allow time for an internal investigation. AF No. 20.2. Tensions in the community were pretty high, and the Police Chief believed that there were “absolutely” real safety concerns. AF No. 20.3.

         Following the SPLC's publication, the City looked into the League of the South by reference to its readily available web page and social media presence, which revealed troublesome materials. AF No. 21.1. For instance, the organization was promoting a return to segregation, overtly disparaging black Americans, promoting white supremacy and the inferiority of black Americans (in the context of a threatened race war), and espousing plainly racist and inflammatory rhetoric. AF No. 21.2. For example, in a social media posting by “Michael Hill @MichaelHill51[, ]” it states: “Let's see, who's killed more white Americans today, ISIS or feral negroes? First things first, people! leagueofthesouth.com.” (Doc. 12-11). Accompanying this post made by Mr. Hill is a copy of the League of the South's logo. Id.

         Lt. Brown was in fact present during Mr. Doggrell's speech at the League of the South's 2013 National Conference. AF No. 22.1. In actually though, he had very limited involvement with the organization in 2013 and was not a member in 2015. AF No. 22.2. Lt. Brown attended a meeting at Mr. Doggrell's invitation in Cullman, Alabama in 2013. AF No. 22.3. He purchased an annual membership to attend the 2013 National Conference, which he never renewed. AF No. 22.4. Lt. Brown then attended an event with Mr. Doggrell in Vidalia, Georgia in August 2013. He withdrew from the organization after being exposed to some of the views espoused by its members. AF No. 22.5. Lt. Brown perceived a radical element within the organization. AF No. 22.6.

         On June 18, 2015, Police Chief Denham held a meeting at the Justice Center to address the public outcry. AF No. 25.1. He communicated with community leaders, civil rights activists, and concerned citizens who expressed that they had lost confidence in the police department. AF No. 25.2. He tried to get people to understand that the SPLC's publication did not expose a department-wide issue, but rather a more limited issue. AF No. 25.3.

         In Police Chief Denham's assessment, Mr. Doggrell's 2013 speech was very damaging to the APD because Mr. Doggrell gave the false impression that the APD supported the League of the South and condoned his activities in furtherance of the organization. AF No. 26.1. Ultimately, Police Chief Denham determined that Mr. Doggrell's continued employment with the City was impossible. AF No. 26.2.

         City Manager Johnson also engaged in a number of meetings with community representatives, specifically from the minority community, in an effort to refute the implication that there was a pervasive problem within the police department and to prevent further erosion of the public's trust in the department. AF No. 27.1. City Manager Johnson received information relating to the public's reaction through his own direct communications, staff members, Police Chief Denham, and elected officials. AF No. 27.2.

         The City concluded in its investigation that Mr. Doggrell had misrepresented the extent to which the APD supported his association and activities with the League of the South. AF No. 29.1. More specifically, Mr. Doggrell's statements during his 2013 speech about APD's prior investigation into his association with the League of the South, the Police Chief's support of his association, and Mr. Doggrell's apparent recruitment of police officers created the perception within the community that there was a “department wide pervasive problem.” AF No. 27.3. City Manager Johnson perceived the community as being a “powder keg.” AF No. 27.4.

         The City received numerous media requests from local, national and international media outlets following the SPLC's publication. AF No. 28.1. The City received press inquiries from NBC News in New York and CNN in Atlanta, as well as WIAT 42 in Birmingham, WVTM 13 in Birmingham, Alabama Heritage Communications, and the Anniston Star, among others. AF No. 28.2.

         On June 18, 2015, “Anniston, Alabama: City's Police Department Places 2 Officers on Leave After Hate-Group Allegations” was the number one trending topic on Facebook. AF No. 28.6. The APD's Facebook account had to be shut down because of the extraordinary social media response, including many vitriolic and salacious postings. AF No. 28.3. The APD's Facebook account had 27, 000 followers at the time and served as a lifeline between the department and the community. AF No. 28.4. APD's Facebook also served as a useful tool in the department's efforts to solve crimes. AF No. 28.5.

         During his tenure as Police Chief, Chief McGrady promoted Mr. Doggrell to sergeant and then lieutenant. AF No. 30.1. Former Police Chief McGrady did not consider Mr. Doggrell's association with the League of the South in relation to those promotions because it did not affect his job performance or the APD. AF No. 30.2. At the time of those promotions, Former Police Chief McGrady had no reason to believe that Mr. Doggrell had associated his membership in the League of the South with his position as a police officer. AF No. 30.3.

         After the SPLC's publication, the City also looked at Mr. Doggrell's public Facebook profile and identified social media activity that violated its policy against harassment. AF No. 31.1; AF No. 31.2. Mr. Doggrell's public Facebook profile displayed an image of a white “not-equal” sign with a black background that, on its face, conveyed the message that blacks and whites are not equal. (Exhibit 1, pg. 156-157) and (Exhibit 1-10). This image was depicted along with confederate symbols and a picture of Nathan Bedford Forrest, which solidified its racially offensive message. (Exhibit 1, pg. 157-159) and (Exhibit 1-11). Mr. Doggrell's public Facebook profile also included three photographs of him together with Michael Hill, one of which displayed the message, “Southern Nationalists: 100% Diverse” with a banner reading “SECEDE” in the background.

         Prior to making a decision on how to handle Mr. Doggrell's employment, City Manager Johnson received a report from APD that Mr. Doggrell was unwilling to denounce the League of the South. AF No. 32.1. According to Mr. Doggrell, he was asked by the APD whether he would “outright denounce” the League of the South and “throw them under the bus, ” to which he responded: “Well, that's not going to happen.” AF No. 32.2. Mr. Doggrell also stated in writing: “Friday afternoon the carrot was dangled by Internal Affairs. Would I be willing to flush the League entirely in order to save my job[?] The answer was a swift no.” AF No. 32.3.

         Although Mr. Doggrell disagreed with the outcome of the investigation, City Manager Johnson determined that the revelation of Mr. Doggrell's 2013 speech and his conduct had “unequivocally” damaged the public's perception, confidence and trust in the City's police department and, “without a doubt”, interfered with Mr. Doggrell's ability to carry out the duties of his job and the APD's ability to carry out its mission and operations. (Doc. 12-2 at 51 at 204; id. at 52 at 207-08). In an effort to remedy the damage to APD's reputation, its officers underwent training by the Department of Justice's Community Relations Service on policing and relationships with the minority community. (Doc. 12-2 at 52 at 211-12). The controversy surrounding the situation also served as a catalyst for the United States Attorney for the Northern District of Alabama and her office to become involved in the affairs and operations of APD. (Doc. 12-2 at 52 at 212).

         City Manager Johnson decided on June 19, 2015, to terminate Mr. Doggrell's employment with the City. AF No. 34.1. Ultimately, like Police Chief Denham, City Manager Johnson considered Mr. Doggrell's continued employment and service to the City to be ...


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