Judge denies gag order on JC in ‘Does’ lawsuit but calls city manager’s statements ‘lamentable at best’

GREENEVILLE, Tenn. (WJHL) — A federal judge has denied a request to bar Johnson City officials from talking publicly about plaintiffs in a rape-centered civil lawsuit against the city and its police department but opened the door for plaintiffs’ attorneys to speak publicly in the case.

Judge Travis McDonough also didn’t spare criticism of the city’s Aug. 25 press conference and remarks by Johnson City City Manager Cathy Ball — remarks that prompted the plaintiffs’ motion — even while ruling against an injunction for the time being.

Ball laid out some of the city’s defenses in that conference, including one known as “comparative fault,” which she said defense attorneys might employ in the case. If a judge rules that a plaintiff bears some fault in a civil case, damages can be either reduced by a percentage or completely disallowed.

“There are allegations that are made by Jane Does, and in that factual information that they provide it indicates that they consumed and partook of illegal drugs during the course of that time period with visit, and that is contained within the information that they provided in the lawsuit,” Ball said at the time. “So as part of the defense under a civil lawsuit, our attorneys are using comparative fault as a fact that is included within that.”

The City has denied all allegations made against it in the lawsuit.

Attorneys for nine “Jane Does” sued the city, Johnson City Police Department and some individuals in June, claiming the police failed to properly investigate and charge downtown Johnson City businessman Sean Williams for allegedly raping or sexually assaulting them.

A week after Ball’s news conference, the Jane Does’ lawyers moved to prevent the city from further public statements about the alleged victims. The motion claimed some of Ball’s statements were factually and legally inaccurate and that others were misleading. It said in addition to having a chilling effect on other alleged victims stepping forward, the statements made to people who could be part of a jury pool “present a clear and present danger that will prejudice a fair trial in this matter.”

McDonough disagreed. After citing the very high bar for limiting someone’s free speech rights “in connection with litigation,” he wrote the comments did not present a “‘serious and imminent threat,'” largely because the case remains in very early stages.

The judge did, however, characterize Ball’s news conference as “certainly lamentable at best.” And he footnoted that description with a reference to a declaration plaintiffs provided from Alicia Bunch Vargas, a clinical social worker who is the clinical director of Nashville’s sexual assault center.

Vargas described the term “victim blaming” in her brief declaration, as well as describing “rape culture,” which she called “social or environmental norms or common beliefs that normalize and perpetuate sexual violence…”

In their successful opposition to the gag order, the city’s attorneys briefly referred to Vargas as a “purported ‘Rape Culture’ expert” who to their knowledge hadn’t “reviewed any of the public statements of City Manager Ball at issue.”

McDonough, though, cited Vargas, saying she “notes in her declaration that victim-blaming statements, like those issued by Ball, ‘create unnecessary barriers for victims to report their sexual assault because they understand that they will not be believed, or they will be blamed for the assault.'”

The judge’s reference to victim-blaming statements being “issued by Ball” was his own, as her declaration never specifically mentions Ball or the case.

McDonough’s order indicated that he wouldn’t be averse to a similar motion closer to the trial.

“Should Ball or other Johnson City agents continue to publicly issue such statements about the Does as the trial date approaches, they may move at that time to enjoin those actions,” he wrote.

He also essentially invited the Doe attorneys to seek permission to speak to the media “to respond to Ball’s statements.” That would require leave from the local court rule preventing lawyers involved in federal suits from making statements to the media.

McDonough included in bold type one of the exceptions to that, which allows statements “a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”

Those statements, the rule says, must be limited to information “necessary to mitigate the recent adverse publicity.”

The order’s last sentence reads: “Counsel for the Does may file a motion seeking relief from Local Rule 83.2 to issue a statement in accordance with Tennessee Rule of Professional Conduct 3.6(c).

News Channel 11 reached out to the City of Johnson City for a response to McDonough’s ruling. The City provided the following statement: