Cobb taxpayers funding sheriff’s legal defense in KSU cheerleader suit

File Photo: Kennesaw State cheerleaders take a knee during a 2017 football game. Photo: Cory Hancock/Special to the AJC

File Photo: Kennesaw State cheerleaders take a knee during a 2017 football game. Photo: Cory Hancock/Special to the AJC

Cobb taxpayers are footing the bill for Sheriff Neil Warren's legal defense after he was sued by a former Kennesaw State University cheerleader over his actions during student protests that roiled the campus in the fall of 2017.

The plaintiff, Tommia Dean, was one of the so-called Kennesaw Five, a group of KSU cheerleaders who were inspired by professional football player Colin Kaepernick to take a knee during the national anthem before a football game in protest of racial injustice.

The protest drew the ire of Warren, an outspoken conservative and season ticket-holder who was in the stands that day. He publicly condemned the cheerleaders, saying their actions were disrespectful to the flag and the troops.

He also worked behind the scenes with State Rep. Earl Ehrhart to successfully pressure then-KSU President Sam Olens into keeping the cheerleaders off the field during the anthem at subsequent games, according to text messages first published by The Atlanta Journal-Constitution. Olens resigned under pressure after the text messages became public.

Last year, Dean filed a federal lawsuit against officials, including Warren, accusing them of conspiring to violate her constitutional rights by preventing her from taking a knee.

The county has not argued that Warren was acting within the scope of his professional duties as sheriff. Nevertheless, county attorneys have already spent at least 161 hours on the case. The county did not provide an estimated cost of using in-house attorneys, but several lawyers estimated the value of the work so far between $40,000 and $80,000. Taxpayers could be liable for damages and attorney’s fees if Dean’s suit is ultimately successful.

“One-hundred and sixty-one hours is a lot of money—no question about that,” said County Chairman Mike Boyce. He said he trusted the county’s legal department, which consists of nine attorneys.

County Attorney Deborah Dance said that although Warren is technically being sued in his personal capacity, the county’s representation of him is “appropriate and warranted” based on Dean’s allegations. Dance, whose salary is $186,100, said she considered Dean’s suit frivolous and expressed confidence it would be dismissed.

“However her attorneys may have cast her legal claims, it is clear that she has sued him in relationship to his position as Cobb County Sheriff and a defense is due,” Dance wrote in response to questions. “Utilizing in-house counsel to conserve expenses and seek an early resolution is both prudent and in the interests of public and judicial economy.”

But Lance Lamberton, head of the Cobb Taxpayers Association, said defending the sheriff in this case seemed like an “inappropriate” use of taxpayer money.

“This is something that was taking place on the KSU campus and is really more related to KSU,” Lamberton said. “It was outside the purview of his duties as sheriff to intervene in that matter.”

In court filings, Dean’s attorneys pointed to the text messages, which appear to show Warren and Ehrhart congratulating each other on having forced Olens’ hand.

"He had to be dragged there but with you and I pushing he had no choice," Ehrhart wrote to Warren. "Thanks for your patriotism my friend."

In another message, Warren wrote that “Not letting the cheerleaders come out on the field until after the national anthem was one of the recommendations that Earl and I gave [Olens]!”

The state later admonished Olens for ignoring the legal guidance he was given by the university system about how to handle such protests.

A federal judge is expected to rule soon on the defendants’ motion to dismiss the case.

Alexander “Sasha” Volokh, an Emory law professor, said the strength of Dean’s case comes down to whether she can convince a judge that Warren’s and Ehrhart’s pressure on Olens was illegitimate coercion, rather than just concerned citizens stating their opinion.

“If she can show that, she has a good case,” Volokh wrote in an email. “Just understand that this stuff is extremely hard to show. […] So I like her case and I hope she wins, but I’m not super-optimistic about her chances.”

The story so far:

  • Sept. 30, 2017: Five Kennesaw State University cheerleaders kneel during the national anthem at a football game to protest racial injustice.
  • Oct. 7, 2017: At the next game, school officials keep the cheerleaders off the field during the anthem to improve the "fan experience," they say.
  • Oct. 17, 2017: The AJC publishes text messages between Cobb Sheriff Neil Warren and then-State Rep. Earl Ehrhart in which they appear to take credit for "dragging" Olens to take action against the cheerleaders because they were offended by their political statement.
  • Dec. 14, 2017: Olens announces he will resign after a state report found he ignored official guidance on handling 'take-a-knee' protests.
  • Sept. 5, 2018: Tommia Dean, one of the cheerleaders, files a federal lawsuit accusing officials of violating her rights.