If I worked for Selah city right now, I would be petrified by one sentence in a federal judge's decision to allow a federal civil rights lawsuit to continue against Ferry County.
The sentence reads: "Therefore, Ms. Bledsoe’s Complaint alleges plausible First Amendment violations against Defendant Rowton."
Defendant Rowton was Clerk for the Ferry County Commissioner's office. Her role in the case was limited, but she remains named as a defendant individually as well as professionally.
Like the case in Selah, the case involved a chalk artist in Ferry County who got in trouble with local officials over using public space for her message. A state court recently concluded that chalk art on public sidewalks is not malicious mischief. The ruling hints that public streets enjoy the same public forum status as a sidewalk.
A federal court is allowing the chalk artist's civil rights lawsuit to move forward on a claim that public officials violated her Constitutional rights when they removed the art and prosecuted her.
Defendant Rowton's role should serve as a warning to Selah city employees: you follow your bosses' orders in this case at your own peril. This is not about you pushing back against something because it might change your town. This is about you being charged with violating somebody else's rights under the U.S. Constitution.
Here's what the federal judge wrote about Clerk Rowton's total involvement:
The factual allegations relating to Ms. Rowton are as follows: Ms. Rowton called law enforcement immediately after the chalking incident; she wanted to report the incident because it was not the first time that Ms. Bledsoe had “acted out against” the Commission; and Ms. Rowton may have removed Ms. Bledsoe’s chalk messages before the contentious meeting, so that the intended viewers could not read them.
She called the cops. She expressed her view that the chalk artist was a problem. She "may have" erased the chalk artist's lawful expression of her viewpoints so others could not read them.
That's it. And the federal judge kept her as a defendant in the civil rights lawsuit because she is accused of "plausible First Amendment violations" against the chalk artist.
CITY WORKERS NEED THEIR OWN LEGAL COUNSEL
If I worked for Selah city, I would be consulting with my collective bargaining unit's attorneys on whether I should follow city orders to remove chalk art on public walkways or streets. If my job classification didn't provide me with legal counsel through a collective bargaining unit, I would not rely on Selah city counsel for my legal advice.
Video of a Selah city workers powerwashing BLM messages off the sidewalk permanently documented a possible violation of the Constitutional right to free speech of those who placed the message there. There are photos and video of other possible violations by rank-and-file city workers simply doing what they were told to do.
While city workers can mount some legal defenses to following city instructions to remove the art, they also face some legal challenges. One basic standard is whether the worker reasonably believed or knew the order was unlawful.
The simplest way to grasp the concept is to change a few facts. Instead of drawing on the sidewalk, imagine for a moment that the chalk artists were simply blocking the sidewalk while a city crew was trying to clean it. Imagine that the supervisor instructed the crew to just keep washing, which required pointing the high pressure hose directly at the artists.
Having been properly trained in the safety issues related to using high-pressure washers, the entire crew understands they are being asked to risk permanently injuring the people on the sidewalk. The idea is contrary to their training and personal knowledge of the risk. They would not point the pressure washer at each other.
What would a reasonable person do in such a circumstance? There’s really only one right answer here, friend.
A reasonable person, knowing the probability of injury to the people on the sidewalk, would refuse to follow the order. Period. For any city worker to blindly follow the order puts them at risk of personal liability. The worker should not follow an order that a reasonable person would understand would knowingly inflict injury. Such an order is unlawful under the circumstances.
Now back to the real facts in the chalk art case. If a reasonable person — a Selah city worker — has good cause to believe they are being asked to violate another person’s Constitutional right to free speech, what should they do?
That is the question Selah city workers need to be examining with legal counsel from their collective bargaining units.
Relying on the city’s legal counsel is not sufficient protection under these circumstances. Selah employees should be petrified by the precarious legal position they are in at this moment.
SEE ALSO: Selah's (Former) Secret