An Australian shepherd.
It was September 2014 when Jim Cole, the mayor of the small Missouri town of Walnut Grove, shot and killed a stray dog. A barber by trade, Cole first used a 12-gauge shotgun to blast the animal, followed by a bullet from Cole's 9 mm pistol. Those details are not in dispute.
But when Cole was publicly accused of animal cruelty, things started to unravel. First came an online petition demanding the 64-year-old's resignation. In response, Cole sued the Walnut Grove resident behind the campaign, a retired travel agent named Linda O'Toole, alleging defamation and slander. And that's when the ACLU of Missouri stepped in.
Last week, a U.S. Western District judge barred Cole from taking "any adverse legal action" against O'Toole until the federal court could determine if Cole had used his position as a public official to unconstitutionally suppress O'Toole's free speech rights.
“The court has rightly found that public officials cannot retaliate against public criticism,” said ACLU of Missouri legal director Tony Rothert in a press release. “The right to criticize public officials is at the heart of our public commitment to free speech.”
Key to the ACLU's countersuit was proving that Cole used the power of his elected office to silence O'Toole's criticism. In a ruling dated March 1, federal judge Brian Wimes noted that although the mayor filed the defamation lawsuit as an individual, the legal filling identified him as "Mayor of Walnut Grove, Missouri." Cole claimed to be self-funding the defamation suit, but he was being represented by lawyer Ken Reynolds — Walnut Grove's city attorney.
Wimes concluded that the ACLU stood a "fair chance" of proving Cole had violated O'Toole's First Amendment rights, "given that this is a case involving political speech aimed at a public figure, as well as the high bar the Supreme Court of the Unites States has set for public figures in defamation cases." That was reason enough to put a temporary halt to the mayor's lawsuit.
It's worth emphasizing that the federal ruling did not resolve Cole's defamation claims — or, for that matter, the considerable differences between the shooting described in O'Toole's online petition and Cole's sworn statements.
In separate depositions included as exhibits on the ACLU's motion for summary judgement, which was filed Monday, Cole and O'Toole presented their respective versions of what happened on September 26, 2014.
O'Toole told Cole's lawyer that she had not seen the shooting herself, and that she could not state the time or location of the incident. But her online petition — titled 'Dog Shooting Mayor of Walnut Grove, Missouri Has To Go'
— contains detailed descriptions of a callous killing.
"Why would a mayor decide to brutally shoot a dog instead of saving it and why would he use a shotgun to cause as much pain and suffering as possible?" the petition asked. "Clearly, Mr. Cole needs to find a different vocation."
In her deposition, O'Toole said she personally encountered the dog around town about a dozen times in the nine months preceding the shooting, and she contested any claim that the dog was vicious. However, she admitted that the details of the shooting had all come second-hand; she based her petition primarily on the account of an alleged witness.
But Cole disputes virtually every point in O'Toole's petition — other than the fact that he shot the dog. For one thing, Cole claims the dog, an Australian shepherd, had a history of aggressive behavior, even biting an officer during a previous capture attempt. On the day of the shooting, Cole said officers had attempted to administer a tranquilizer hidden in dog food, but it appeared to have no effect. When the dog charged, Cole said he had no choice but to shoot.
O'Toole's petition garnered about 3,000 signatures. Cole testified that it also put him in the cross-hairs for online harassment and death threats.
He acknowledges that he fought back. At an October 2014 city council meeting, when O'Toole publicly confronted Cole about the shooting, Cole responded by having her removed from the meeting.
"The reason Ms. O'Toole was removed wasn't so much for criticizing me, it was for interrupting the meeting," Cole said under questioning by the ACLU's Rothert. "We were talking about planning and zoning and she said — threw her hands up like this out in the crowd. Her and her brother was there. She said, 'All you want to do is just kill dogs.' She said that, just on and on."
O'Toole's petition sparked enough of an outcry that it reached the attention of the Humane Society of Missouri. The organization dispatched animal cruelty investigator Mike Langford to Walnut Grove about a month after the shooting.
Langford interviewed both O'Toole and Cole, as well as a police chief from the nearby town of Ash Grove. According to Langford's investigative report, the chief stated that her officers had encountered the dog and found it to be aggressive. Langford also talked to the witness cited in O'Toole's petition, but he proved to be something of a disappointment. The witness admitted that he'd left his home only after hearing Cole's shotgun blast, so he could not say whether the dog had charged the mayor before the gunfire.
Langford eventually provided his report to the Greene County prosecuting attorney. No criminal charges for animal cruelty were ever filed against Cole.
"At this time I am closing this," Langford wrote on March 1, 2014. "I have interviewed all parties and spoke with the Assistant Prosecuting Attorney about the case. It is my belief along with Greene County Detective Jones and Assistant Attorney Dial that there is no evidence that a crime was committed."
The next step in the case will come down to the motion for summary judgement filed by the ACLU on Monday. If the federal court decides that Cole's defamation lawsuit against O'Toole was an unconstitutional abuse of power, then the mayor's defamation lawsuit dies — at least for now. But if the court concludes that Cole is suing as an individual citizen, and not as mayor of Walnut Grove, that's a entirely different story. In that case, O'Toole might find herself facing uncomfortable questions about a dog-shooting she never witnessed.
Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at [email protected]