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ELECTRONICALLY FILED
4/2/2021 3:05 AM
03-CV-2021-900346.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY
STATE OF ALABAMA

)
JERRY LAMAR LETT, )
)
Plaintiff/Petitioner, )
) CIVIL ACTION
v. )
) NO.
ALABAMA BUREAU OF PARDONS )
AND PAROLES, )
)
Defendant/Respondent. )
)

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION FOR WAR VETERAN FACING
IMMEDIATE INCARCERATION DUE TO PAROLE BOARD’S ERRORS

On April 1, 2021, the Alabama Board of Pardons and Paroles (“Board”)

revoked the parole of Sergeant Jerry Lamar Lett—a 52-year-old decorated United

States Army veteran and first responder with congestive heart failure, diabetes, and

other serious medical needs—despite everyone agreeing that he has done nothing

wrong. Quite the opposite. Sergeant Lett was released on parole in October 2020

and has served his parole sentence without a single violation. Even the Board’s

counsel conceded that Sergeant Lett “was a good candidate for parole,” while its

director acknowledged that he “has done everything right.”1

1
Melissa Brown, Parole revoked, warrant issued for Alabama veteran after state released him from
prison in error, Montgomery Advertiser, Apr. 1, 2021, available at https://tinyurl.com/d7uvhxwe;
see also Melissa Brown, Jerry Lett is facing parole revocation because of a parole board paperwork
issue, Montgomery Advertiser, Mar. 31, 2021, available at https://tinyurl.com/3jaju6xx.
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The Attorney General nevertheless sought Sergeant Lett’s reincarceration,

claiming that the Board relied on the wrong version of its policies in considering

Sergeant Lett when it did. Despite Sergeant Lett’s indisputable record of military

service, stellar institutional conduct, and flawless performance on parole, the Board

followed the Attorney General’s recommendation and revoked Sergeant Lett’s

parole.

This revocation order is unconstitutional for two reasons. One, it violates

established due process principles that prohibit Sergeant Lett’s reincarceration,

because the Board’s administrative errors did not substantially undermine the

Board’s determination that he was fit for release. Ellard v. Alabama Board of

Pardons and Paroles, 824 F.2d 937 (11th Cir. 1987) (Ellard I). Two, the

application of new parole rules to Sergeant Lett will prolong his incarceration, in

violation of the state and federal bars on ex post facto punishments.

The revocation order also requires immediate judicial action. Absent this

Court’s intervention, Sergeant Lett, a veteran in declining health whom the

State believes is a “model parolee,” will be returned to prison on Friday, April

2, 2021, through no fault of his own.2 All four requirements for an immediate

injunction are present: imprisonment of Sergeant Lett would cause immediate,

2
Sergeant Lett will report as ordered at 8:30am, but undersigned counsel is providing immediate,
electronic notice of this filing to Respondent, along with a request that Respondent refrain from
incarcerating Sergeant Lett pending the resolution of this motion.

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irreparable harm, particularly given his health concerns and medical appointments

scheduled for the coming weeks; Sergeant Lett’s constitutional challenges to the

Board’s actions have a reasonable likelihood of success on the merits; Sergeant

Lett does not have an alternative legal remedy; and an injunction would cause no

harm to anyone, as even the Board recognizes that Sergeant Lett has been a model

parolee since October.

Sergeant Lett files this emergency motion at the first possible instance,

having learned of his impending arrest just hours before this filing. While a

verified complaint and petition for writ of certiorari outlining all of Sergeant Lett’s

legal claims are being filed contemporaneously with this motion, Sergeant Lett

urgently seeks a temporary restraining order and preliminary injunction to stop his

immediate incarceration under an illegal revocation order.

FACTUAL BACKGROUND

Sergeant Lett is a decorated veteran and first responder who has served his

country, the State of Alabama, and his Dothan community. As a Staff Sergeant in

the United States Army, he deployed to multiple volatile regions across the world.

This service abroad was followed by multiple years in the Alabama National

Guard, and as a firefighter-EMT for the City of Dothan. Sergeant Lett received

many awards in recognition of his dedicated service to his country and community.

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This service came with serious challenges, including PTSD, compromised

health, and addiction. Sergeant Lett was arrested in 2012 for trafficking cocaine,

and he pled guilty to the offense in 2018. He was sentenced to life in prison under

Alabama’s Habitual Felony Offender Act.

While in prison, Sergeant Lett was a model of rehabilitation. He did not

receive a single disciplinary infraction, and he was considered a negative risk to

public safety. He availed himself of every possible class, enrolled in college

courses, and performed multiple work details. His supervising officers considered

him an asset because he helped diffuse potentially violent situations in the prisons,

protected officers from physical assault, and was a hard worker invested in his own

self-improvement.

The Board set an early parole consideration hearing for Sergeant Lett in

September 2020. At that hearing, the Board reviewed work reports, support letters,

certificates, and awards attesting to Sergeant Lett’s accomplishments both before

and during his incarceration. It also considered Sergeant Lett’s post-release plan,

which included substantial assistance from the Veterans Administration and strong

family support. On September 3, 2020, the Board granted Sergeant Lett parole,

and he was released from prison on October 5.

Sergeant Lett served his parole sentence without incident. He reported to his

parole officer as required, complied with all parole conditions, consistently

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attended doctor’s appointments, and reconnected with his family. Notwithstanding

his success on parole and the many documented reasons supporting his parole

grant, the Board revoked Sergeant Lett’s parole on April 1, 2021, due to its own

purported errors in setting the September 2020 hearing, namely relying on the

wrong policies in scheduling Sergeant Lett’s hearing. Absent from the Board’s

Order was any reference to the due process limitations on its authority to

reincarcerate Sergeant Lett under Ellard I, and any analysis of whether the Board’s

purported errors undermined its parole grant. He is scheduled to turn himself in

at 8:30am on his birthday, April 2, 2021, to resume his sentence within the

Alabama Department of Corrections.

Sergeant Lett is in failing health. He suffers from multiple medical

conditions, including congestive heart failure, diabetes, stomach ulcers, and

glaucoma. He has appointments with VA doctors and various specialists

scheduled over the next three months. His immediate incarceration will not only

deprive him of his liberty, but it will also undermine his efforts to seek proper

medical care for his serious health needs. An emergency injunction is needed to

prevent this injustice.

ARGUMENT

This Court may issue a temporary restraining order and preliminary

injunction if Sergeant Lett demonstrates (1) immediate, irreparable harm, (2) a

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reasonable likelihood of success on the merits, (3) the absence of an adequate,

alternative legal remedy, and (4) that the threatened injury to him outweighs

whatever harm the proposed injunction may cause the Board. Lott v. E. Shore

Christian Ctr., 908 So. 2d 922, 927 (Ala. 2005); see also DeVos v. Cunningham

Group, LLC, 297 So. 3d 1176, 1179 (Ala. 2019). As discussed below, every factor

supports the immediate issuance of a temporary restraining order and preliminary

injunction enjoining Sergeant Lett’s imminent incarceration.

I. Sergeant Lett Faces Immediate, Irreparable Harm.

An injury must be “imminent and irreparable” to warrant emergency

injunctive relief. State ex rel. Marshall v. TY Gree’s Massage Therapy, Inc., No.

1180921, 2021 WL 524492, at *4 (Ala. Feb. 12, 2021) (quoting Martin v. City of

Linden, 667 So. 2d 732, 736 (Ala. 1995)). Absent an injunction, Sergeant Lett will

be immediately arrested and processed into an Alabama prison for no other reason

than the Board’s alleged procedural errors.

This immediate loss of liberty, particularly for a veteran with serious

medical conditions who has important doctor’s appointments scheduled in the

coming weeks, is the precise type of irreparable harm that injunctions are designed

to prevent. See DeVos, 297 So. 3d at 1180 (“Irreparable [harm] is defined as an

injury that cannot be adequately measured or compensated by money and is

therefore often considered remediable by injunction.”) Accordingly, Sergeant Lett

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has demonstrated that he will suffer imminent, irreparable harm if the Board’s

revocation order is not immediately enjoined.

II. Sergeant Lett Is Reasonably Likely to Succeed on the Merits.

A plaintiff seeking emergency injunctive relief must show a reasonable

likelihood of success on the underlying merits. However, an “absolute certainty”

in prevailing is not required; rather, the plaintiff need only show that there is a

“reasonable chance of success.” Bd. of Dental Examiners of Ala. v. Franks, 507

So. 2d 517, 520 (Ala. Civ. App. 1986). Here, Sergeant Lett has a reasonable

likelihood of success on his due process and ex post facto claims.

First, the Board revoked Sergeant Lett’s parole in violation of the federal

due process protections enshrined in Ellard I. In that case, the Eleventh Circuit

Court of Appeals found that the “substantive protections of the due process clause”

prohibit the Board from declaring a parole void unless the Board’s “clear departure

from established statutory and regulatory guidelines substantially undermined the

Parole Board’s decision ‘that the State’s penological interests do not require

[continued] imprisonment.’” Ellard I, 824 F.2d at 946 (citation omitted). “[T]he

parole [is] a valid parole if . . . the existing facts before the Board did not

substantially undermine the parole board’s decision to grant . . . parole.” Ellard v.

Ala. Bd. of Pardons and Paroles, 928 F.2d 378, 381 (11th Cir. 1991) (Ellard II).

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The “existing facts before the board” in Sergeant Lett’s case included his

distinguished military service, perfect institutional record, recommendations for

release by numerous correctional officers, and failing health. All of these facts

supported release, and nothing has changed that would in any way “undermine the

parole board’s decision to grant [Sergeant Lett’s] parole.” See id. As the Board’s

own counsel and director acknowledged, Sergeant Lett was a “good [parole]

candidate” who “has done everything right.” See supra at 1. Indeed, for the last

six months, Sergeant Lett has been “living a relatively normal life” and has “relied

on at least an implicit promise that parole will be revoked only if he fails to live up

to the parole conditions.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Further,

he will serve a “lengthy incarceration” under the Board’s April 1 Order. Id. Under

these circumstances, the law is clear: Sergeant Lett is entitled to retain “the core

values of unqualified liberty.” Id.; see also Ellard I, 824 F.2d at 942.

The Eleventh Circuit’s holding in Ellard I is consistent with a large body of

due process case law that prevents the Board from returning Sergeant Lett to

prison. Indeed, other courts have held that the State violates the Due Process

Clause when, after releasing a person into the community, it seeks to reincarcerate

them because of its own error. See Johnson v. Williford, 682 F.2d 868, 869, 870,

873, n.3 (9th Cir. 1982) (holding that government’s revocation of parole violated

due process where man was “released prematurely from custody through no fault

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of his own;” (2) the parole commission had determined that “he, and the

community, no longer require his incarceration;” and (3) “his reintegration into

society has been good.”); U.S. v. Merritt, 478 F. Supp. 804, 806, 808 (D.D.C.

1979) (finding due process violation and ordering the release of a man rearrested

after erroneous release on parole because his subsequent success under supervision

“fully vindicated” the board’s parole grant).

As was true in Ellard I, Johnson, and Merritt, the Board in Sergeant Lett’s

case cannot lawfully revoke his parole due to errors that did not substantially

undermine its well-reasoned decision to release him six months ago.

Second, the Board’s retroactive application of parole regulation amendments

enacted after Sergeant Lett entered prison violates state and federal bans on ex post

facto punishments. Both the state and federal constitutions prohibit ex post facto

laws that unlawfully increase a person’s punishment. U.S. Const. art. I, § 10; see

also Ala. Const. art. I, § 7. Courts have held that a retroactive parole amendment

violates the ex post facto clause when it “creates a significant risk of prolonging [a

person’s] incarceration.” Garner v. Jones, 529 U.S. 244, 251 (2000); see also Cal.

Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995) (parole amendment violates

ex-post facto clause when it “produces a sufficient risk of increasing the measure

of punishment”); Jones v. Fla. Parole Comm’n, 787 F.3d 1105, 1109 (11th Cit.

2015) (issue is whether parole amendment “poses a significant risk that offenders

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will serve more time in prison”). Applying parole policies to Sergeant Lett months

after his release from prison would indisputably “prolong [his] incarceration,” in

violation of the ex post facto clause. Garner, 529 U.S. at 251; see also Tucker v.

Ala. Bd. of Pardons & Paroles, 188 So. 3d 713, 720 (Ala. Crim. App. 2015)

(parole amendment may violate ex post facto clause when “its retroactive

application will result in a longer period of incarceration than under the earlier

rule”).

Thus, Sergeant Lett has a reasonable chance of succeeding on these claims

as this case progresses.

III. Sergeant Lett Does Not Have an Adequate Remedy at Law to

Prevent His Immediate Incarceration.

“An adequate remedy at law is . . . a legal remedy (such as an award of

damages) that provides sufficient relief to the petitioning party, thus preventing the

party from obtaining equitable relief.” DeVos, 297 So. 3d at 1180 (citation

omitted). There is no other legal remedy that will stop Sergeant Lett’s

incarceration. The injunctive relief this motion seeks is the only remedy that will

stop this irreparable harm.

IV. The Board Will Suffer No Harm if this Court Enjoins Sergeant
Lett’s Arrest and Incarceration Pending the Resolution of His
Legal Claims.

Every party in this action, including the Board’s own counsel and director,

agree on one thing: Sergeant Lett was a worthy parole candidate who has

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succeeded in the community. Since leaving prison, he has complied with all parole

conditions, timely reported to his parole officer, and reunited with his family. His

parole performance has vindicated earlier predictions of him being a negative

public safety risk. There is no reason to believe that Sergeant Lett, a valued

community member in declining health with a demonstrated record of service, will

create any problems at all while on continued parole. For these reasons, the

balance of harms supports an injunction in Sergeant Lett’s favor.

CONCLUSION

For these reasons and any others this Court finds just, a temporary injunction

order and preliminary injunction should be issued immediately to enjoin Sergeant

Lett’s incarceration.

/s/Alison Ganem
Patrick Mulvaney, # 5851R80M
Alison Ganem, # 1933H67K
Atteeyah Hollie*
Southern Center for Human Rights
60 Walton Street, NW
Atlanta, GA 30303
(404) 688-1202 (phone)
(404) 688-9440 (fax)
[email protected]
[email protected]
[email protected]

April 2, 2021 Counsel for Mr. Lett

* pro hac vice application forthcoming

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CERTIFICATION OF NOTIFICATION EFFORTS

In accordance with Alabama Rule of Civil Procedure 65(b), I certify that I

notified the Director of the Alabama Bureau of Pardons and Paroles the day before

filing this petition of Petitioner’s intent to seek immediate judicial relief in this

matter.

Respectfully submitted this 2nd day of April, 2021.

s/Alison Ganem
Counsel for Mr. Lett
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CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing on the Respondent

and the Attorney General by causing true and correct copies thereof to be deposited

with the United States Postal Service, first-class postage prepaid, in envelopes

addressed, and by email, to the following:

Cam Ward, Director

J. Eric Anderson, Assistant Attorney General
Alabama Bureau of Pardons and Paroles
100 Capital Commerce Blvd.
Montgomery, Alabama 36117
[email protected]
[email protected]

This 2nd day of April, 2021.

/s/Alison Ganem
Alison Ganem