In the United States, elected officials, citizens, and journalists must feel free to express differences of opinion. When those in power intimidate their opponents into silence, it strikes at the heart of American governance. But holding officials accountable when they violate basic constitutional rights can be nearly impossible, especially when they are law enforcers. A new Institute for Justice lawsuit seeks to change that.

Escambia County is in lower Alabama on the border of the Florida Panhandle. Like many American counties, the public schools are governed by a county school board and a superintendent. In 2021, the Board hired Michele McClung as superintendent. Her contract was for three school years. McClung quickly developed a close relationship with local officials, including the district attorney, county sheriff, and a few board members.

But two years into her tenure, state auditors called a meeting with the Board about the district’s financial practices. Despite the issues with ongoing audit, McClung’s allies in Escambia County rallied around her and even tried to extend her contract. In August 2023, McClung’s allies sprung a surprise vote at a Board meeting to extend McClung’s contract for another four years. The timing was highly unusual and more than six months ahead of schedule. The vote ultimately failed three votes to four. That’s when things really went off the rails.

Two of the “no” votes were Sherry Digmon and Cindy Jackson. Sherry has long been a Board member. She also started Atmore News back in 2005, which is a weekly newspaper covering Escambia County. Like Sherry, Cindy has also been an active member in the community, working for the school district for almost three decades, and serving with Sherry on the Board. After Sherry and Cindy voted “no,” the district attorney and country sheriff started a public campaign to intimidate them into supporting McClung.

As part of that scheme, the district attorney sent a bogus subpoena to the Board asking about old COVID-19 payments authorized by McClung’s predecessor. (This was likely just a distraction to take the focus off McClung.) That subpoena was served on Ashley Fore, who grew up in Escambia County and now works as the payroll supervisor. Ashley shared the subpoena with her boss, who sent it to Cindy, who sent it to Sherry (along with the rest of the Board). Then, after more public threats by the sheriff and district attorney, Don Fletcher, a journalist for Atmore News, published a story disclosing the subpoena and highlighting the coordinated attack against anyone who questioned McClung.

In response, the district attorney, the sheriff, and his deputies went after Sherry, Cindy, Ashley, and Don—the “Atmore Four.” The powers-that-be had the Atmore Four arrested and charged with felonies, their cell phones seized, and even tried to have Sherry impeached for their political disagreement. That retaliation violates the First and Fourth Amendments to the U.S. Constitution. So now, the Atmore Four are teaming up with the Institute for Justice to sue the local Escambia County officials responsible for violating their constitutional rights. 

Case Team

Clients

Attorneys

Staff

Kendall Morton

Assistant Director of Special Litigation Projects and Paralegal

Case Documents

Media Resources

Get in touch with the media contact and take a look at the image resources for the case.

Andrew Wimer Director of Media Relations [email protected]

Related News

The State Audits the Board.

During the summer of 2023, the Alabama Department of Examiners of Public Accounts conducted an annual audit of the Escambia County School Board. During the investigation, the state found several problems that triggered meetings with the Board and School Superintendent Michele McClung. Even though none of the findings were overly serious, McClung hired private attorneys and told people throughout the district that she was worried she’d be arrested over the audit. Then, the auditors suddenly recused themselves and McClung’s allies went out of their way to assure everyone that the audit wasn’t anything to worry about.

McClung’s Allies Bring a Surprise Vote to Extend Her Contract.

Before the dust settled from the audit, McClung’s allies on the Board hatched a plan. At the very next board meeting, McClung’s allies moved for a vote to extend McClung’s contract for another four years for a salary to be determined later by McClung and one of her allies. At this point, the school year had just started, and McClung had nine months left on her contract. Ordinarily, the Board would not have considered an extension until the spring of 2024—closer to the end of the school year. In the normal process, the Board members making the motion would have also included written materials distributed to the Board and a presentation explaining the details of any proposed extension.

None of these standard procedures were followed. Rather, McClung’s allies briefly discussed McClung’s performance as superintendent before quickly moving to a vote on “next steps.” The Board President suddenly revealed that by “next steps,” he meant giving McClung a blank check for four more years without any discussion. Half the Board members looked around in surprise, with two saying they felt like they were being pressured. After a roll-call vote, the motion failed 4-to-3. Board members Sherry and Cindy both voted “no.” The Board President, a McClung ally, then lectured the group about failing to extend the contract and promised a second vote. In the meantime, McClung’s allies devised a retaliation plan.

The Sheriff Threatens McClung’s Detractors; The District Attorney Subpoenas the Board.

Rumors began to circulate about McClung, the Board, and the investigation, including that McClung had misappropriated county funds. At this point, the county sheriff, Heath Jackson, got involved. Sheriff Jackson began threatening anyone that opposed or criticized McClung, including the detractors on the Board. Sheriff Jackson even threatened arrests, saying that “if the vote for the superintendent did not go the way it should, the wrath would be coming down on some school board members.” He promised to arrest McClung’s opponents on a Friday afternoon, so they’d have to “eat his hotdogs all weekend.” Other local officials soon joined suit—pressuring Sherry and Cindy to change their votes and warning them not to criticize McClung.

At the same time, the district attorney, Stephen Billy, sent a subpoena to the Board. The subpoena, which pretended to be a grand jury subpoena, asked for records about COVID-related payments and bonuses. The subpoena was neither accident nor coincidence. Rather, DA Billy was using it to try to shift the blame for Board’s financial mismanagement onto McClung’s predecessor. Sheriff Jackson served the subpoena on the Board’s payroll supervisor, Ashley. That same night, while Ashley was still in the office, McClung showed up after hours to review the subpoena after she was given a “tip” about it. Ashley shared the subpoena with her supervisor, who shared it with Cindy, who sent a copy to her fellow Board members.

Two days later, the DA sent a threatening letter to the Board members and warned them not to talk negatively about McClung. The letter warned that the DA controlled the grand jury, implying that he could essentially bring whatever charges he wanted. The letter also supported McClung and suggested that Board members would violate their oaths if they failed to extend her contract.

The Second Vote about McClung; DA Billy and Sheriff Jackson Retaliate.

In October 2023, McClung’s allies scheduled a second vote about a contract extension. The meeting started with DA Billy praising McClung and threatening consequences (again) if the Board failed to approve McClung’s extension, as he literally waved his warning letter at the Board. Other McClung allies, including an Alabama state senator, echoed DA Billy’s praises. Still, the ultimate vote remained 4-3, denying the extension.

A week after the failed vote, Sheriff Jackson and DA Billy began to make good on their threats of retaliation. They obtained bogus warrants to seize and search Sherry’s and Cindy’s cell phones for the crime of talking to one another about McClung.

Atmore News Publishes an Article about the Subpoena.

The next week, Atmore News published a story about the September “grand jury” subpoena and DA Billy’s threats at the October Board meeting. Sherry approved the article, which Don wrote, because, as they saw it, the subpoena revealed the plan to blame McClung’s problems on her predecessor. The article revealed that Don had received a copy of the subpoena that Sheriff Jackson served on Ashley the month before.

Retaliation Against the Atmore Four.

After the article was published, the police seized Ashley’s phone without a warrant and arrested her. Ashley’s alleged crime was sharing the subpoena issued by DA Billy. The police then arrested Don and Sherry the same day—a Friday afternoon, just like Sheriff Jackson promised—for the same alleged crime. A few weeks later, Cindy was also arrested. For Sherry, the police arrested her a second time (and even a third time) on other bogus ethics violations, such as an alleged financial conflict of interest between her position on the Board and as co-owner of Atmore News. But that’s not all. DA Billy then used an obscure and never-used process to impeach Sherry from the Board.

All this was done for what appears to be purely retaliatory reasons. The Atmore Four dared to stand up to DA Billy and Sheriff Jackson, and for doing so, the officials made good on their threats. At the same time, McClung was gloating that DA Billy and Sheriff Jackson were punishing her political rivals. Indeed, McClung revealed during one such vaunt that she knew about the arrests of the Atmore Four before they even happened.

The Atmore Four are Exonerated.

Luckily, the truth about the Atmore Four eventually surfaced, with the story told by media outlets across the country. In December 2023, the Board voted unanimously to buy out McClung’s contract. McClung was then placed on leave and barred from school property. In February 2024, just two weeks after the Board paid out the rest of McClung’s contract, DA Billy finally recused himself from the criminal prosecutions of the Atmore Four. And within 17 days, the Alabama Attorney General’s Office took over the cases, entered an appearance, and dismissed all charges against the Atmore Four with prejudice, meaning they can never be filed again.

Legal Claims

First Amendment Retaliation.

Sherry and Cindy had political disagreements with McClung and her allies. And they expressed that disagreement at public meetings and in private discussions with people throughout the district. Sherry and Don then published an article on these issues of public concern. For that, they were arrested, jailed, criminally charged, and even impeached. That is classic retaliation that is clearly prohibited under the First Amendment and Supreme Court precedent. That is true even with the use of warrants, which officials obtained despite knowing there was no probable cause. Fundamentally, the warrants were an attempt to launder retaliatory animus and unlawful behavior, and thus, cannot prevent Sherry, Cindy, and Don from holding the district attorney, the sheriff’s department, and the board of education accountable.

Fourth Amendment Unreasonable Search and Seizure.

The seizure of the Atmore Four’s cell phones and their arrests also violated the Fourth Amendment. The district attorney, the sheriff, and his deputies all knew that the criminal charges were bogus—and that they lacked probable cause to search and seize the Atmore Four and their phones. Any reasonable officer would have known that the warrants were invalid and that the Atmore Four could not be arrested for their political disagreement with McClung and her allies. 

Litigation Team

The litigation team consists of IJ Attorneys Jared McClain and Brian Morris.

About the Institute for Justice

Founded in 1991, the Institute for Justice is a nonprofit, public interest law firm that defends the First Amendment nationwide. IJ is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violating the Constitution. We defend the right to criticize the government without fear of retaliation—whether you’re concerned about potholes or the police. Earlier in 2024, in Gonzalez v. Trevino, IJ won at the U.S. Supreme Court on behalf of a Texas councilwoman who was arrested for her opposition to her city’s mayor. IJ is also defending a councilwoman whose home was raided in retaliation in Kansas, a citizen journalist arrested for his reporting in Texas, and a man who had his vehicle seized and damaged when he used it to campaign against a mayor in Ohio.