PITTSBURGH – Allegheny County has denied that its internal “Gag Rule” policies violate the First Amendment rights of its county jail employees and prevent the plaintiff, an investigative journalist, from developing sources to offer comment for stories detailing events which have taken place inside the jail.
Brittany Hailer first filed suit in the U.S. District Court for the Western District of Pennsylvania on Aug. 17 versus Allegheny County. Both parties are of Pittsburgh.
“This action is brought by investigative journalist Brittany Hailer to enforce her rights under the First Amendment to receive information from employees and contractors of the Allegheny County Jail. Several such personnel wish to speak to Hailer about pressing matters of public concern at the Jail but are prevented from doing so by Jail policies prohibiting all communications about the Jail made without the approval of the Warden or his designee,” the suit stated.
“The Jail has housed, on average, 1,553 individuals each day. Over the last three years the Jail has experienced a death rate that is reportedly nearly twice the national average among local jails of similar size. Since April 2020, 20 men have died after entering the Jail. Some died in the facility, while others died at the hospital following their release from the Jail.”
The suit added that, according to the plaintiff, the Jail faces “serious shortages of correctional officers and medical personnel that put both incarcerated persons and Jail staff at risk” and that “among other consequences, these shortages mean that incarcerated persons often cannot receive timely medical care for chronic or urgent health issues…for example, individuals with diabetes sometimes go days without receiving prescribed insulin and those with bipolar disorder and other mental health conditions wait months for medication and sessions with mental health professionals.”
In one case, the plaintiff asserted that a man held in a temporary housing unit for acutely suicidal persons cried out from his cell for days and was ignored, despite complaining of chest pains, vomiting and disorientation. The man in question died lying on the floor of his cell, according to the suit.
“Plaintiff wants to report on the medical treatment provided to incarcerated people and other conditions and events at the Jail. These are important issues of legitimate public concern, but the Jail has adopted policies that prohibit all employees and contractors from speaking publicly on any issue concerning the Jail without the prior approval of the Warden (the “Gag Rules”). Several Jail employees and contractors want to speak out about problems at the Jail of which the public is unaware, and they would talk to Hailer but for the Gag Rules’ prohibition on all such communications. The Gag Rules effectively keep the public in the dark about issues at the Jail of significant public concern,” the suit said.
“The fears that prevent these Jail employees and contractors from speaking to Hailer and other reporters are not hypothetical. The Gag Rules are strictly enforced, and several individuals have been disciplined for speaking to the press or making public statements without permission. These rules restrict defendant’s employees and contractors from speaking truthfully about matters of public concern that are uniquely within their personal knowledge, even when that speech would not disrupt the internal operations of the Jail. The Gag Rules’ content-based prohibitions against unauthorized communications with the press violate the First Amendment rights of Jail employees and contractors. They also violate plaintiff’s First Amendment right to gather news and receive information from otherwise willing speakers.”
The plaintiff’s argument is that the Gag Rules harm her “directly by depriving [her] of on-the-record sources who could and would provide information essential to her reporting, cause substantial delay in her investigation of allegations of newsworthy events inside the Jail and prevent publication of some newsworthy stories altogether by denying [her] access to on-the-record sources.”
UPDATE
Allegheny County answered the complaint on Nov. 9, denying that the Jail death rate is “nearly twice the national average” and referring to “Gag Rule” as “an undefined pejorative term.”
The county further argued that 20 deaths occurred in persons who were detained in the Jail from April 2020 to the filing date of the complaint, if deaths of those admitted to a hospital are included – and that the jail provides medical records to the authorized representative of the deceased.
“Plaintiff has failed to establish, and cannot establish, proper subject-matter jurisdiction to sustain this suit. Plaintiff has failed to state facts showing, and cannot establish facts showing, that Jail employees acted under color of state, local or federal statute, ordinance, custom, policy, regulation, usage, law, or authority in a way violating any due process rights, other constitutional rights or other legal rights had by plaintiff. Plaintiff has failed to establish, and cannot establish, that Allegheny County implemented or followed any unconstitutional customs or policies, that any high County official knew of, should have known of, or acquiesced in, any unconstitutional conduct, customs, or policies, or that Allegheny County engaged in any constitutional conduct in any way whatsoever,” the answer’s defenses stated, in part.
“Allegheny County engaged in no actions, customs, directives, inactions, policies, practices, procedures, or protocols that interfered with plaintiff’s constitutional/legal rights, which violated plaintiff’s constitutional/legal rights, and/or that violated any duties the County had to the plaintiff. Allegheny County engaged in no actions, customs, directives, inactions, policies, practices, procedures, or protocols that caused plaintiff any harm, injuries or damages. Allegheny County was not recklessly indifferent to, or deliberately indifferent to, plaintiff’s needs and/or rights.”
Allegheny County added that in no way did it act in a fashion “that could be deemed negligent, reckless, or recklessly, deliberately or intentionally indifferent to plaintiff’s constitutional rights and/or other legal rights” – and further, that the plaintiff “has failed to state a claim and cannot establish a claim entitling her to judgment against, or entitling her to recover any damages, attorneys’ fees or costs from, any defendant.”
“Plaintiff has failed to state a claim, and cannot establish a claim, of any civil rights violation or other violation by Allegheny County. Plaintiff has otherwise failed to state any claim, and cannot establish any claim, upon which relief can be granted against defendant under the Fourteenth Amendment to the U.S. Constitution or the First Amendment to the U.S. Constitution, or any other provision of the U.S. Constitution, 42 U.S.C. Sections 1983, 1988, any U.S. civil rights act and/or amendments thereto, any other federal laws or provisions, any provision of the Pennsylvania Constitution, any other Pennsylvania laws or provisions, or any other legal or equitable authority of any type whatsoever. At all times relevant hereto, Allegheny County took appropriate actions and used appropriate customs, directives, policies, practices, procedures, and protocols to protect plaintiff’s rights and to meet all duties the County had to plaintiff. Allegheny County met all of its constitutional and statutory duties vis-à-vis
plaintiff. The plaintiff has otherwise waived all claims against Allegheny County,” the defenses stated.
“Plaintiff’s suit is barred wholly or in part by the applicable statute of limitations. Plaintiff’s suit is barred by laches. To the extent not already pled by the Allegheny County, it asserts that plaintiff cannot demonstrate any conduct, policy, harm, injury or damage constituting a constitutional violation and/or establishing a right to relief. Allegheny County is entitled to recover from plaintiff all attorneys’ fees and costs incurred by the County in defending this suit. The defendant’s conduct was not the legal cause of plaintiff’s alleged constitutional injury.”
For counts of violating the rights of Hailer and the Bureau Employees under the First Amendment to the U.S. Constitution, the plaintiff is seeking the following relief:
• Declare Bureau Policies 605, 624 and 625 (“Code of Ethics/Conduct,” “Access to News Media,” and “Use of Social Media by Employees,” respectively) to violate the First and Fourteenth Amendments to the Constitution of the United States, insofar as they restrict Bureau employees and contractors from disclosing any information about the Jail regardless of its truth or the impact of disclosure on the operation of the Jail;
• Enter an order enjoining defendant, including all of its officers, agents, servants, employees, contractors, and attorneys, and those persons in active concert or participation with defendant who receive actual notice of the injunction, from enforcing the parts of Bureau Policies 605, 624 and 625 that restrict Bureau employees and contractors from disclosing any information about the Jail, or from otherwise engaging in any act limiting a county employee’s ability to speak in his or her capacity as a private citizen about information of public concern acquired during the course of employment with the Bureau;
• Award plaintiff costs and attorneys’ fees pursuant to 42 U.S.C. Section 1988 and 28 U.S.C. Section 2412 and such further relief as it deems just and proper.
The plaintiff is represented by Paula Knudsen Burke of the Reporters Committee for Freedom of the Press, in Harrisburg.
The defendant is represented by John A. Bacharach and Lisa G. Michel of Bacharach & Michel, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01480
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com