Arresting the press? Alabama officials claim legal shield in lawsuit
A federal judge is being asked to decide whether a small Alabama county prosecutor, sheriff and his deputies are immune from arresting journalists and school board members during the fallout of a contentious political vote over a superintendent’s contract.
The issue of immunity was raised in two separate court filings on Jan. 23.
A 19-page filing in the U.S. District Court of the Southern District of Alabama was made on behalf of the attorneys for Escambia County District Attorney Stephen Billy and argues he should be granted “absolute immunity” from civil liability.
A separate 25-page filing was also made the same day on behalf of the attorneys representing Escambia County Sheriff Heath Jackson and four sheriff’s deputies – Arthur Odom, Kevin Durden, Matthew Rabren, and Stephen Dereck Lowery.
The filings represent the first legal response by the public officials accused of violating the constitutional rights of the so-called “Atmore 4,” which includes two journalists, school board members and a school employee.
Specifically, Billy should be granted “absolute immunity,” a legal concept shielding government officials from civil lawsuits, regardless of their motives. Billy, Jackson and the four deputies are accused of violations to the First and Fourth Amendments of the U.S. Constitution for actions that allegedly took place during multiple arrests of the Atmore 4 in late 2023.
“Allegations of improper motives, and a lack of probable cause, are simply irrelevant to the immunity analysis and in no way negate the absolute immunity afforded to … Billy,” according to the 18-page response filed on Jan. 23, by Mobile attorney Michael Strasavich.
Jackson, Odom, Durden, Rabren and Lowery should be granted sovereign immunity, a similar legal concept that shields governments from civil lawsuits, according to a separate dismissal request by Fairhope attorney Christopher Williams.
“We’re still digesting the motions to dismiss, but my initial thought is that the defendants’ arguments are what we’ve come to expect in these retaliation cases,” said Jared McClain, an attorney with the Arlington, Va.-based Institute for Justice, which is representing the Atmore 4. There is no scheduled hearing date.
He added, “We’re optimistic that the court will see through these arguments.”
Conspiracy
The civil complaint, filed in November, surfaced about one year after the four were arrested during the fallout over a controversial decision to oust former Escambia County School Superintendent Michele McClung. The four plaintiffs include Atmore News publisher and Escambia County School board member Sherry Digmon, Atmore News journalist Don Fletcher, Escambia County School Board member Cynthia Jackson and Escambia County school employee Vernica “Ashley” Fore.
The complaint alleges that Billy, Jackson and the four deputies conspired with McClung to violate the First and Fourth Amendment rights of the four plaintiffs, who are seeking compensatory and punitive damages. McClung is not named as a defendant.
According to the filing from Williams, the plaintiff’s case should also be dismissed because it lacked specifics on which deputy was responsible for which arrests and was filled with generalizations about the defendants.
“The complaint offers vague and conclusory allegations that DA Billy and Sheriff Jackson reached an agreement and developed a plan to take action against McClung’s opponents, and that certain actions were part of this alleged plan,” Williams wrote. “However, the complaint fails to include sufficient facts.”
The lawsuit focuses on the events leading to the arrests and indictments of the journalists in late 2023, which sparked national attention over press freedoms and the extent to which elected prosecutors can punish the media for publishing confidential information.
Prosecutor’s actions
Escambia County District Attorney Steve Billy speaks with the parents of Superintendent Michele McClung during a break at the Escambia County School Board’s meeting on Tuesday, Nov. 28, 2023, in Atmore, Ala.John Sharp/[email protected]
The case also focuses on the activities of Billy, the county’s longtime top prosecutor, who is accused of making both private and public warnings about punishing “anyone who opposed McClung” during the grand jury process.
Digmon and Jackson, as board members, voted twice against renewing McClung’s contract in September and October 2023. Fletcher was arrested based on a writing a newspaper story that Billy claimed was a violation of the state’s grand jury secrecy law. Fore was arrested for disclosing grand jury secrets.
Billy pursued criminal charges against all four plaintiffs for disclosing grand jury secrets, then issuing a subpoena to the Escambia County School Board pursuant to his powers as district attorney. But the civil complaint suggests that Billy characterized his subpoena as a “secret grand jury document,” when the document “very clearly came from him – not a grand jury.”
Billy recused himself from the case in February 2024. It was forwarded to the Alabama Attorney General’s Office, which dismissed all criminal charges.
Immunity focus

The “Atmore Four” who are the plaintiffs in a federal lawsuit filed against the Escambia County District Attorney and Sheriff. From left to right: Don Fletcher, Sherry Digmon, Cynthia Jackson and Ashley “Veronica” Fore. The four stood outside the U.S. District Court for the Southern District of Alabama on Wednesday, Nov. 20, 2024, in Mobile, Ala.John Sharp
The case could highlight the issue of legal immunity in Alabama, a concept that is being challenged in other states following the 2020 murder of George Floyd by a Minneapolis police officer.
While no state has passed a law eliminating prosecutorial immunity, a few states and New York City have taken on qualified immunity, which shields government officials from civil lawsuits during the scope of their duties.
- In June 2020, Colorado became the first state to remove qualified immunity as a defense for law enforcement officers.
- In April 2021, the New Mexico Civil Rights Act was adopted, and it prohibited public officials from using qualified immunity as a defense for violating a person’s rights.
- In March 2021, the New York City Council eliminated qualified immunity for city police officers.
- The Nevada Supreme Court in 2023, rejected qualified immunity as a potential defense against lawsuits against government officials.
Montana was the first state to ban sovereign immunity through a constitutional amendment in 1974. Ohio voters, this fall, could be the first in the U.S. to end qualified immunity through a public referendum.
In Alabama, state lawmakers pursued an expansion of prosecutorial immunity during last spring’s legislative session. A bill, passed out of the Alabama House, declared a prosecutor’s legal advice to a law enforcement officer during an investigation was within a prosecuting attorney’s authority. The legislation did not get a vote by the Alabama Senate before the end of the session.

FILE – A stack of the Marion County Record sits in the back of the newspaper’s building, awaiting unbundling, sorting and distribution, Aug. 16, 2023, in Marion, Kan. The police chief who led a highly criticized raid of the small Kansas newspaper is suspended, the mayor confirmed to The Associated Press on Saturday, Sept. 30. Marion Mayor Dave Mayfield in a text said he suspended Chief Gideon Cody on Thursday, Sept. 28. (AP Photo/John Hanna, File)AP
The case in Atmore is also occurring around the same time a federal civil lawsuit is proceeding in Kansas. Former Vice Mayor Ruth Herbel is suing multiple Marion, Kan., officials over violations to her First and Fourth Amendment rights during a 2023 raid on her home. The raids, which also extended to a local newspaper, thrust the issue of press freedoms into the national spotlight.
The Institute for Justice is representing Herbel in her federal case. A judge ruled in October that the case could proceed against a former police chief, certain deputies and the city itself.”
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