The City of Orange Beach is asking a federal judge to dismiss a lawsuit stemming from a public records request seeking body cam footage at the center of controversy surrounding Mayor Tony Kennon.
Christle “C.C.” Dixon-Moreno filed the suit in July in Baldwin County Circuit Court, but the city had the case removed to federal court last week before filing a motion for the case to be dismissed.
Dixon-Moreno is an attorney practicing in Mississippi and cannot practice law in Alabama, but filed the lawsuit pro se as a resident of Orange Beach.
There are two main arguments from the city for dismissal of the suit: that it is an impermissible “shotgun pleading” that does not clearly define which of its claims are connected to which of its multiple defendant, and that the claims errantly rely on the city violating state public records law.
Dixon-Moreno filed the suit after requesting numerous public records from the city through an email on July 15 and subsequent emails, including body cam footage from an incident at the Coastal Resources building last year where police responded to a report of domestic violence and allegedly spoke to Kennon through a closed door at his office.
City Clerk Renee Eberly directed Dixon-Moreno to the city’s public records request form, but Dixon-Moreno refused to request documents that way, calling it an arbitrary and capricious barrier to accessing public records.
“Moreno’s personal theory of how a public record request works is in direct contradiction with Alabama law,” the city argues in its motion. “She contends that she can make a demand for records in any format of her own choosing, and set her own deadlines for compliance, and if the City fails to recognize her authority and comply with her procedures, she can file a lawsuit. The Alabama Legislature says otherwise.”
A law passed by the Alabama Legislature last year emphasizes that a “public officer may require the requester to submit his or her request using a standard request form or by following the written procedures for accepting requests for public records established by the public officer” and that “a public officer shall not be obligated to respond to a public records request that is not made pursuant to the public officer’s written procedures.”
The motion also claims Dixon-Moreno is guilty of filing a “shotgun complaint” that does not clearly assign its eight separate claims to individual defendants.
“Here, the Complaint lumps all five (5) individual defendants into one group of ‘Defendants,’ apparently alleging that the group as a whole is liable for all eight (8) causes of action, with little to no explanation,” the city said in the filing. “For example, Count 4 alleges that ‘Defendants’ viewpoint-based blocking of Plaintiff from the Mayor’s official Facebook page violated the First Amendment.’ Does Moreno contend that all five (5) defendants – the Mayor, the City Attorney, the City Clerk, the City Administrator, and the Chief of Police – blocked her from the Mayor’s Facebook account? Or consider Count 5, which alleges that ‘Defendants’ deprived plaintiff of her right to inspect public records ‘without constitutionally adequate process.’ Does plaintiff allege that all five (5) Defendants have a duty to produce these records?”
The motion also moves to dismiss individual counts for other reasons, including that the claims are not yet ripe because the city has not denied a proper public records request. The motion also challenges Dixon-Moreno’s request for compensation of attorney’s fees, noting that she is not acting as an attorney in the case but rather representing herself pro se.
The city also alleges Dixon-Moreno lacks a private cause of action for one claim and that the city cannot be held liable for “wantonness” in another claim.
Dixon-Moreno has been a driving force behind attempts to obtain the body cam footage from an incident in which a Pleasure Island Tiki bar employee told police she saw a naked man punch a woman three times in the head on the balcony of the Coastal Resources building. The building is owned by the city and Kennon has a second office there that would correlate with where the employee reported the incident.
According to police reports and sources speaking to the Lagniappe, police officers responded to the scene and knocked on the door of Kennon’s office, with Kennon identifying himself behind the closed door. Sources who told Lagniappe they have seen he body cam footage say officers backed down at that point.
A follow-up police report reinforces some of those allegations, as police made contact with “Ms. Kennon” four days later and apologized for failing to make contact with her, the apparent victim, on the night of the incident. She told officers there was no incident and that she was fine.
Regardless of whether this lawsuit proceeds or is dismissed by the judge, no answers will come in time for residents looking to an outcome before casting their votes in the municipal elections on August 26. The judge has set September 3 as the date to hear both sides on whether to allow the case to move forward.
