Efforts by former Morgan County Sheriff Ana Franklin and two of her deputies to claim immunity in a lawsuit involving their dealings with a blogger took a hit last week as the 11th U.S. Circuit Court of Appeals ruled against them.
The lawsuit was brought by blogger Glenda Lockhart, a persistent critic of the Franklin administration, and Lockhart’s Falkville company, Straightline Drywall & Acoustical LLC.
“In her motion to dismiss, Sheriff Franklin simply asserts — without any factual support whatsoever — that she is entitled to state-law immunity because she serves as sheriff,” ruled the three-judge panel. “At no time has Sheriff Franklin provided evidence or legal authority supporting her claim that she acted within the scope of her employment, which is essential to her affirmative defense of immunity.”
In a separate opinion issued the same day, the appellate court also shot down the immunity defenses raised by two of her deputies, Blake Robinson and Robert Wilson, both of whom left the Sheriff’s Office after Sheriff Ron Puckett took office in January.
“The complaint here repeatedly alleges that the defendants acted beyond their authority by making material misrepresentations to obtain the search warrant, by searching the plaintiffs’ property, by intentionally interfering with the plaintiffs’ contractual relations, and by intercepting the plaintiffs’ electronic communications,” the court wrote. “Yet deputies Wilson and Robinson, in moving to dismiss, simply made the conclusory assertion that they are entitled to state-law immunity because they are deputies.”
Both orders were joined by judges Adalberto Jordan, Elizabeth Branch and Julie Carnes. Franklin, Robinson and Wilson appealed to the court after losing their immunity arguments in federal district court.
The appellate court emphasized that in ruling on a motion to dismiss, it was required to assume that all allegations of the complaint are true. Once evidence is collected in the case, the former sheriff and deputies can try again.
Lockhart’s lawyer, Brandi Lee of Birmingham, was not available for comment. Franklin’s lawyer, Robert Spence of Birmingham, did not return calls.
The defendants have also filed an appeal to the 11th U.S. Circuit Court of Appeals in a closely related case brought by Leon Bradley, a Morgan County Jail warden for 13 years until he was fired in October 2016 by Franklin. Among the grounds for his termination was that he was allegedly feeding internal Sheriff’s Office documents to Lockhart for her Morgan County Whistleblower blog.
As in the Lockhart case, Franklin and the deputies sought to dismiss Bradley’s case on immunity grounds. Also as in the Lockhart case, District Judge Madeline Haikala rejected the immunity argument, prompting the appeal.
Nick Heatherly, one of Bradley’s lawyers, said Thursday he expects the appellate ruling in Lockhart’s favor will also benefit his client.
“The 11th Circuit affirmed Judge Haikala’s order because Franklin and the deputies provided the court with zero evidence showing they were entitled to immunity. That set of facts is no different in our case,” Heatherly said.
Heatherly, who resides in Morgan County, said local residents should be pleased with the Lockhart ruling.
“Law enforcement officers like we have in the Bradley and Lockhart cases are not going to be able to act under color of law and get away with it,” Heatherly said. “The takeaway is their actions are going to be brought to light and people who have no business being in law enforcement can be screened out.”
In 2015, Lockhart’s blog accused Franklin of investing $150,000 from a Morgan County Jail food account in Priceville Partners, a used car and title loan company managed by former felon Greg Steenson. The substance of Lockhart’s allegations proved to be accurate, a fact that became clear when Priceville Partners declared bankruptcy in 2016 and Franklin filed a claim as an unsecured creditor. Steenson is in the Morgan County Jail awaiting trial on various fraud-related charges, most involving Priceville Partners.
Franklin was later cited with contempt of a federal court order that prohibited her from personally benefiting from money designated for the feeding of inmates. She also was sued by the Priceville Partners bankruptcy trustee in a case that has since settled.
According to Lockhart’s complaint, Franklin repeatedly said she wanted the blog shut down and Lockhart arrested. In an effort to accomplish that goal, the complaint alleges Wilson and Robinson approached Lockhart’s grandson and promised “the sheriff would pay him $1,000 for information on who was leaking information to his grandmother.”
In testimony at an April 2018 hearing over a misdemeanor charge against Bradley, Franklin admitted paying the grandson $500 as a confidential informant.
Also at that hearing, Franklin’s information technology coordinator, Justin Powell, said he provided keylogger software to the grandson and “showed him how to install it.” In her complaint, Lockhart alleges the grandson installed the keylogger software on her computers for the purpose of retrieving passwords and other information relevant to the blog, allegations supported by the grandson’s testimony in the 2018 hearing, but Franklin said she knew nothing about the keylogger.
The grandson testified he took pictures of computer files and other documents at Lockhart’s business while Robinson stood guard outside. He also testified, and Franklin acknowledged, that he was threatened with arrest if he revealed to Lockhart that he was cooperating with the Sheriff’s Office.
Information obtained from the grandson and from a search of Bradley’s county emails were used to obtain search warrants from former Circuit Judge Glenn Thompson. Those warrants were executed at Straightline and at Bradley’s home.
Thompson later ruled he had been “deliberately misled” by Robinson and Franklin, and that they and others at the Sheriff’s Office “endeavored to hide or cover up their deception and criminal actions under the color of law.”
Franklin is also in federal court in another case after pleading guilty to a charge of failing to file her personal 2015 tax returns with the Internal Revenue Service. That was the same year she loaned jail food money to Priceville Partners, and her lawyer, William Gray of Birmingham, has said Franklin’s failure to file the tax returns stemmed from her confusion over whether to treat the food money as personal income.
The maximum sentence for the offense is a year in prison and a fine of $100,000, although federal sentencing guidelines suggest a sentence of zero to six months. A confidential presentence investigation report upset expectations of a minimal sentence, however, and she has challenged the report. Her sentencing hearing had been set for June 26, but on Monday the U.S. Attorney’s Office filed a motion to delay it “to give the parties additional time to discuss and attempt some resolution of the defendant’s objections."
Franklin’s use of jail food money is also central to a case brought against her by Morgan County District Attorney Scott Anderson, who is demanding return of any money she personally kept. Information from two banks has been subpoenaed. Lauderdale County Circuit Judge Gilbert Self is handling the case after all Morgan County judges recused themselves.
Franklin last month filed a motion to dismiss the complaint. Gray argued in the motion that Franklin has not personally retained any jail food funds, but “even assuming arguendo that the funds were put to personal uses at some point in time after properly feeding the inmates, this is a legally permissible use of the funds under Alabama law.”
Since January, after Franklin left office, a local Morgan County constitutional amendment has prohibited sheriffs from personally retaining inmate food money. The Alabama Legislature passed a statewide law ending the practice last month. Both the local and statewide laws were sponsored by Sen. Arthur Orr, R-Decatur.
Franklin, Wilson, Robinson and Powell in January filed a complaint against Bradley and Daniel Lockhart, Glenda Lockhart’s grandson. The complaint, filed in Morgan County Circuit Court, alleges the April 2018 order by Thompson dismissing a misdemeanor count against Bradley was “procured by fraud.”
Self was assigned as the judge on that case after Morgan County judges again recused themselves. A hearing on the defendants’ motion to dismiss the case is scheduled for Sept. 16.