Animal activist loses retaliation suit before federal appeals panel

Tuesday, August 29, 2000

A divided federal appeals panel has dismissed the First Amendment lawsuit of a Virginia animal activist who alleged she was retaliated against for criticizing officials of a city animal shelter.

Eileen McAfee, a member of the citizen group Save Our Shelter, was kicked out of the Richmond Animal Shelter three times in 1998 for allegedly being disruptive. McAfee was kicked out in January, March and April.

In February 1998, McAfee filed a defamation suit in state court against Selina Deale, superintendent of animal control, and Anthony Romanello, deputy director of the Richmond Health Department. In her state-court suit, which she later dropped, McAfee contended that the city officials had defamed her by attributing racist comments to her and by saying she had removed a drain grate from the floor of the shelter to take a photograph.

McAfee filed a federal lawsuit later in 1998, alleging that she had been retaliated against for two reasons: (1) because she filed her state-court defamation lawsuit, and (2) because she had criticized shelter officials.

The city officials contended that the federal court should dismiss the suit because they were entitled to qualified immunity — a legal status that protects public officials from lawsuits if they have not violated clearly established constitutional rights.

After U.S. District Judge Richard L. Williams refused to grant them summary judgment, the city defendants appealed to the 4th U.S. Circuit Court of Appeals.

On Aug. 24, a three-judge panel ruled 2-1 that the city defendants were entitled to qualified immunity in McAfee v. Deale.

“In the context of the information known to Deale and Romanello, we believe that it was not unlawful for them to have ushered McAfee from the Shelter on the three occasions when they were confronted with what they perceived was rude and disruptive conduct by McAfree,” the panel majority wrote.

The panel majority also noted that McAfee was first kicked out of the shelter in January 1998 — one month before she filed her state-court defamation suit.

The majority also wrote that McAfee had “produced no evidence suggesting a causal link between her exclusion from the Shelter and any statement, comment, or speech that she made.”

Judge Robert R. Beezer dissented, saying that there were too many factual disputes for the case to be thrown out at this early stage. Beezer said that McAfree was entitled to have her claims heard by a jury.

Calls to attorneys on both sides were not returned.

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