The director of Franklin County Animal Care and Control (FCACC) and other county officials are violating federal law and infringing on the First Amendment rights of rescuers, according to a new lawsuit filed by Guardians for the Animals of Ohio.
The lawsuit alleges that the director of the Franklin County, OH, pound suspended the ability of the rescue group to save animals scheduled to be killed because other people posted critical comments about the pound on Guardians’ Facebook page. In a letter to the group, County officials acknowledged that Guardians for the Animals works hard to save dogs in the pound, but the director demanded that those comments be deleted or hidden or she would retaliate against the group. Doing so would not only consign dogs to death, it is illegal under federal law: 42 U.S. Code Sec. 1983 (Section 1983).
County officials also attempted to strong arm Guardians for the Animals into giving up their constitutional rights by telling them they could return to rescue if they agreed never to make “Disparaging comments in public, person, print, or through social media.” That, too, is illegal.
The director also falsely claimed that Guardians for the Animals did not have a “right” to rescue and she could suspend them without recourse. That is false.
Guardians for the Animals of Ohio is suing for infringement of their First Amendment rights, retaliation, fraud, tortious interference with contract, destruction of public records, and other claims. They are demanding that the Court declare the County’s actions illegal and order them to reinstate them. The law is on their side.
Congress enacted Section 1983 as part of the Ku Klux Klan Act of 1871, largely to protect Black Americans in the South from state-sponsored lawlessness that ensued after the conclusion of the Civil War. It has subsequently been used to sue government officials in a wide variety of contexts when they infringe on the rights of citizens. It is a violation of Section 1983 for a state or municipal government to take action designed to prevent or intimidate people from exercising their First Amendment rights, or punish them for doing so, and there can be no dispute that complaining about conditions at animal shelters is a constitutionally protected right.
In 2008, The No Kill Advocacy Center, my organization, was the first to sue an animal shelter under Section 1983 for revoking a volunteer/rescuer’s ability to help animals because she testified before the Board of Supervisors about inhumane and abusive treatment of animals in the Los Angeles County pound, including staff allowing a dog to die of pneumonia and starvation. The Court ruled that the County retaliated against her in violation of her First Amendment rights to petition the government for a redress of grievances and ordered her reinstated.
Since then, courts in an unbroken string of cases have likewise ruled that volunteers cannot be fired for critical comments or complaining about what they feel are inhumane conditions at municipal shelters. Fancy Cats Rescue Team, for example, successfully sued Baltimore County Animal Services under Section 1983 when the pound tried to silence rescuers and volunteers by requiring them to sign the kind of gag order Franklin County is trying to impose on Guardians for the Animals. The result: the shelter was forced to abandon its illegal policies, volunteers and rescuers spoke out, the pound was forced to clean up its act, and killing has declined by more than half.
Citizens not only have a First Amendment right to speak out against policies with which they disagree, they have a constitutionally protected right to demand that the government correct the wrongs that are identified. As the U.S. Supreme Court has ruled, “speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983). Indeed, such speech lies “at the heart of the First Amendment’s protection.” First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978).
There would be little hope of improving the conditions at municipal animal shelters if rescuers, volunteers, and No Kill advocates — the very people who are the most knowledgeable about those conditions — could be intimidated into remaining silent by the threat of retaliation. Animals have no voice of their own and need others to speak for them. Silencing volunteers and rescuers silences the animals.
When animal lives are at stake, as they are in a pound like Franklin County because of what the lawsuit alleges is a “failure to implement basic industry standards” and because “dogs with behavioral or medical concerns that fall into the custody of FCACC have, statistically speaking, no chance of survival” without rescue, retaliation is even more egregious given the life and death consequences.
The Complaint in Guardians for the Animals of Ohio vs. Franklin County Animal Care & Control is here.
Know your rights:
The First Amendment (and federal law: 42 U.S. Code Sec. 1983) gives rescuers, volunteers, and No Kill advocates the right to criticize the shelter on Facebook and Twitter without being banned.
It gives them the right to complain to city and county officials without being fired as a volunteer or rescuer partner.
It gives them the right to take and publicize photographs of conditions without being kicked out.
It forbids shelters from forcing them to sign, as a condition of volunteering or rescuing, a “non disclosure” agreement that prevents them from posting criticism the shelter deems “disparaging.”
And it makes it illegal to ban commenters, as well as hide or delete critical comments, by members of the public, volunteers, rescuers, or No Kill advocates on the Facebook and Twitter pages of legislators, government officials, and the pound.
Members of the public, volunteers, rescuers, and No Kill advocates do not surrender their constitutional rights at the shelter door.
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