0

Tuggle's suit against sheriff likely to go to trial

By Daniel Silliman

dsilliman@news-daily.com

A federal civil suit against Clayton County Sheriff Victor Hill, filed in 2005 by George Mark Tuggle, the former sheriff's brother, looks like it will go to trial this fall.

United States District Judge Orinda D. Evans denied Hill's motion for a summary judgment, late last week, and both sides say they are not interested in a settlement and are looking for legal vindication.

"It's going to trial," said Allen Park, an attorney for Tuggle. "That's what [Tuggle] wanted from day one, to get this in front of a jury."

The legal development comes at the same time as another civil suit against the sheriff, filed by 27 employees who were fired on Hill's first day in office, is nearing settlement. That case, forced to a settlement by a federal judge, is expected to be finalized this week, with the 27 reportedly receiving about $7 million.

Hill said Tuggle's suit will give the sheriff's office a chance to be exonerated. "We're going to get our day in court, on this one," he said. "We'll never settle it... We are not going to be intimidated by frivolous law suits."

Tuggle was arrested on January 4, 2005, two days after Hill replaced Stanley Tuggle as Clayton County Sheriff, on charges he had made harassing phone calls to the sheriff's office. According to court documents, Tuggle said he saw the 27 deputies being fired, on Jan. 3, and called the sheriff's office twice that evening.

He left a voice-mail message at 6:17 p.m., saying, "Sherry, this is Mark Tuggle. How 'bout calling me first chance you get. I'd like to get an appointment with that little, short lil' b------ sheriff of y'all's."

He called a second time at about 6:20 p.m., and spoke to Captain Jon Antonie. Tuggle left his phone number, and said he wanted to talk with Hill about the fired employees. "During the conversation, Tuggle either referred to Sheriff Hill as 'scum,' or referred to people who worked for Sheriff Hill as 'scum,'" according to the undisputed information listed in the court document.

According to the warrant application, written by Deputy Sheriff Joanne Borrelli, Tuggle, "did call the Sheriff low down scum."

Antoine left a message slip, saying the former sheriff's brother had called "re: termination of employees."

Hill, when he heard the voice-mail message, reportedly said, "I want him locked up."

Tuggle was arrested by Deputy Joanne Borrelli on Jan. 4, and released on bond on Jan. 5. The Clayton County Solicitor General's Office dismissed the case on Aug. 5, "based on the fact that the [harassing phone calls] statute requires 'repeated' calls, which the Solicitor defined as 'more than two but not many,'" according to court documents.

Tuggle sued the sheriff and the arresting deputy, arguing the arrest violated his First Amendment right to free speech, and his Fourth Amendment right to protection from unreasonable search and seizure.

"We're seeking punitive damages as a deterrent," Park said. "We're hoping that if there was punitive damages, the sheriff would really take it to heart. I don't know that he will."

Hill's attorney, James Dearing, argued that the sheriff and his deputies did not violate Tuggle's constitutionally guaranteed rights, because they were "acting within the scope" of their "discretionary authority" when arresting Tuggle.

"We believe the sheriff did not do anything wrong, nor did the deputy," Dearing said Wednesday. "His actions were not malicious. They were based on the facts presented to his office."

Dearing asked the judge, in January 2007, to consider the case based on the presented evidence, without a jury trial, and dismiss it with a summary judgement.

In a 20-page document reviewing the case, Judge Evans wrote, "Two calls in a period of three minutes, with no subsequent phone calls, and an explicit request for a meeting cannot reasonably be said to provide probable cause for an arrest under the Harassing Phone Calls statute." Evans points out that Hill was an elected official.

Evans denied the summary judgment, leaving three legal options: appeal, settlement and trial.

Neither side seems interested in a settlement, they have not discussed a settlement, and both sides say they expect to win the argument in front of a jury.

Park said the case is being pushed to trial by a "political undercurrent." Dearing denied any political motivation on Hill's side of the case. "No one had any motive to arrest Mr. Tuggle other than that he was, in our opinion, breaking the law," he said. "What Mr. Tuggle's motivations were will be exposed at trial."

The case could be tried as soon as this fall.