SEARS v. BRADLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ATHENS DIVISION

CHRISTOPHER SEARS, :

:

Plaintiff, :

:

v. :

: No. 3:20-CV-86-CAR

JONATHAN BRADLEY and :

STACY JARRARD, :

:

Defendants. :

___________________________________ :

ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Christopher Sears (“Sears”) asserts various claims under 42 U.S.C. § 1983

alleging Georgia State Patrol Trooper Jonathan Bradley (“Trooper Bradley”) Sheriff Stacy

Jarrard (“Sheriff Jarrard”) violated his First, Fourth, and Fourteenth Amendment rights.1

Currently before the Court are Defendants’ Motions for Summary Judgment.2 Having

considered the record, the parties’ briefs, and applicable law, Trooper Bradley’s Motion

for Summary Judgment [Doc. 36] is GRANTED in part and DENIED in part. Specifically,

the Court GRANTS summary judgment on Sears’ unlawful stop, detention, malicious

prosecution, First Amendment, and Fourteenth Amendment claims, and DENIES

1 See generally, Pl.’s Amend. Comp. [Doc. 8].

2 The Motions seek summary judgment on Plaintiff’s remaining claims after the Court granted in part

Defendants’ motions to dismiss. See Order granting in part and denying in part Defendants’ Motions to

Dismiss. [Doc. 20].

summary judgment on Sears’ unlawful search and arrest claims. Sherriff Jarrard’s Motion

for Summary Judgment [Doc. 37] is GRANTED.

BACKGROUND

On June 26, 2018, Georgia State Patrol (“GSP”) Lieutenant Anthony Coleman3 (“Lt.

Coleman”) authorized a roadblock to occur on June 29, 2018 at 6:45 PM at the intersection

of Nimblewill Church Road and US Forestry 28-1 in Lumpkin County, Georgia.4 Pursuant

to GSP Policy, Lt. Coleman completed a roadblock supervisor initiation approval form

and a roadblock final report.5 The roadblock initiation form states the roadblock was

authorized for the primary purpose of improving driver safety and to specifically

perform routine traffic checks for driver’s license, insurance, and registration verification;

seatbelt compliance; driver impairment; and vehicle fitness and safety compliance.6

Thirteen GSP troopers were assigned to the roadblock.7 GSP troopers met at the Lumpkin

County Jail for briefings before the roadblock.8 While Sheriff Jarrard described his office

as a “backup source or an assisting source,” neither Sheriff Jarrard nor any Lumpkin

County Sherriff’s officer participated in the roadblock.9 The roadblock was planned,

3 The Court notes at the time of the roadblock, Lt. Coleman was a sergeant with GSP, but has since been

elevated to lieutenant. For the purposes of these Motions, the Court will refer to Lt. Coleman by his current

rank.

4 See Declaration of Anthony Coleman (“Coleman Declaration”), [Doc. 36-4] at p. 3, 9.

5 See Id. at p. 2, 5-10.

6 Id. at p. 9.

7 Id. at p. 10.

8 Deposition of Stacy Jarrard (“Jarrard Depo.”), [Doc. 42] at 36:18-37:8, Deposition of Anthony Coleman

(“Coleman Depo.”), [Doc. 41] at 33:14-34:16.

9 Jarrard Depo., [Doc. 42] at 40:12-41:22; Coleman Declaration, [Doc. 36-4].

2

effectuated, and conducted by GSP. The roadblock resulted in the issuance of twenty-

three citations, five non-DUI custodial arrests, and two DUI arrests—one of whom was

Sears.10

On June 29, 2018, Sears attended the Rainbow Gathering, an annual “primitive

camping” event in the Chattahoochee National Forest.11 While driving back to his friend’s

house after leaving the Rainbow Gathering, Sears was stopped by Trooper Bradley at the

roadblock.12 Trooper Bradley is POST certified and has received training in Standardized

Field Sobriety as well as ARIDE—a training on how to detect certain drugs and the effects

those drugs have on individuals.13 Trooper Bradley participated in a DUI “refresher

training” in 2017.14

During his initial interaction with Sears, Trooper Bradley contends he observed

Sears “had blood shot watery eyes,” “his speech was slow and slurred,” and he “smelled

the strong odor of marijuana coming from the vehicle.”15 Sears denied having any

marijuana.16 Trooper Bradley then ordered Sears out of the vehicle, and GSP troopers

searched his vehicle based on the smell of marijuana. During the search, Trooper Bradley

10 Coleman Declaration, [Doc. 36-4] at p. 10.

11 Pl.’s Amend. Comp., [Doc. 9] at p. 3.

12 Deposition of Christopher Sears (“Sears Depo.”), [Doc. 39] at 37:3-38:8.

13 Declaration of Jonathan Bradley (“Bradley Declaration”), [Doc. 36-3] at p. 2.

14 Id.

15 Id. at p. 6.

16 Sears Depo., [Doc. 39] at 38:9-12.

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located a pill bottle labeled San Pedro tea, which contained capsules of San Pedro tea

concentrate.17 No marijuana was found in the vehicle.18

Sears consented to a standardized field sobriety test (“SFST”) which Trooper

Bradley administered.19 The SFST was captured on GSP dash-cam footage included in the

record.20 The SFST consisted of four tests: the horizontal gaze nystagmus (“HGN”) test,

the walk and turn test, the one leg stand test, and the Romberg test.21 At the conclusion

of the SFST, Trooper Bradley asked Sears what illegal substances he had taken that day.22

Sears admitted to smoking marijuana earlier in the day.23 Trooper Bradley concluded

Sears was under the influence and arrested Sears for possession of a controlled substance

and driving under the influence.24 Trooper Bradley read Sears the Georgia implied

consent notice for suspects over the age of twenty-one.25 Sears refused a blood test and

was transported to the Lumpkin County detention center.26

17 San Pedro tea is a hallucinogen made from mescaline, which is extracted from psychoactive cacti. Peyote

and Mescaline, United States Drug Enforcement Administration, Last Accessed: March 1, 2023.

https://www.dea.gov/factsheets/peyote-and-mescaline.

18 Bradley Declaration, [Doc. 36-3]; Exhibit C, Lumpkin County Superior Court Order Granting Sears’

Motion to Suppress (“Suppression Order”), [Doc. 10-4].

19 Bradley Declaration, [Doc. 36-3]; Deposition of Jonathan Bradley (“Bradley Depo.”), [Doc. 40] at 37:21-

38:4.

20 See generally Defendant Jarrard’s Motion to Dismiss, Exhibit A (“Dashcam Video”) [Doc. 10-2].

21 See generally Id.; Bradley Declaration, [Doc. 36-3] at p. 6.

22 Dashcam Video, [Doc. 10-3] at 8:31-9:21.

23 Id.

24 Id.

25 Id. at 9:22-10:55.

26 Id. at 10:55-11:43; Bradley Declaration, [Doc. 36-3] at p. 6; Sears Depo. [Doc. 39] at 49:7-50:21.

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During the resulting criminal proceedings in state court, Sears moved to suppress

the seizure of the San Pedro tea. The Superior Court of Lumpkin County granted the

motion finding: (1) the State did not meet its burden of proving that the challenged stop

was reasonable under the totality of the circumstances; (2) Trooper Bradley was not

credible as to the odor of marijuana being present in any degree to justify a search of

Sears’ vehicle; and (3) there was objectively no probable cause to believe Sears was an

impaired driver at the time he was arrested (the “Suppression Order”).27 The court based

its findings, in part, on the lack of marijuana found in the vehicle, inconsistencies in

Trooper Bradley’s report, testimony, and video footage, as well as statements the court

concluded were “demonstrably false.”28

Sears originally filed this action in the Superior Court of Franklin County,

Georgia.29 Defendants timely removed to this Court pursuant to the Court’s federal

question jurisdiction.30 Defendants’ Motions for Summary Judgment on Sears’ remaining

claims are now ripe for ruling.

LEGAL STANDARD

Summary judgment is proper if the movant “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

27 Suppression Order, [Doc. 10-4].

28 Id.

29 Notice of Removal, p. 1 [Doc. 1].

30 Id.

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law.”31 The moving party “always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material

fact” and that entitles it to a judgment as a matter of law.32 If the moving party discharges

this burden, the burden then shifts to the nonmoving party to go beyond the pleadings

and present specific evidence showing that there is a genuine issue of material fact.33

The Court must view the facts, and any reasonable inferences drawn from those

facts, in the light most favorable to the party opposing the motion.34 “The inferences,

however, must be supported by the record, and a genuine issue of material fact requires

more than ‘some metaphysical doubt as to the material facts.’”35 In cases where opposing

parties tell different versions of the same events, and one is “blatantly contradicted by

the record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts.”36 A disputed fact will preclude summary judgment only “if the

dispute might affect the outcome of the suit under the governing law.”37 “The court may

31 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

32 Celotex, 477 U.S. at 323 (internal quotation marks omitted).

33 See Fed. R. Civ. P. 56(e); see also Celotex, 477 U.S. at 324.

34 Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010); Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.

1992).

35 Logan v. Smith, 439 F. App’x 798, 800 (11th Cir. 2011) (quoting Penley, 605 F.3d at 848).

36 Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010) (per curiam) (quoting Scott v. Harris, 550

U.S. 372, 380 (2007)).

37 Penley, 605 F.3d at 848.

6

not resolve any material factual dispute, but must deny the motion and proceed to trial

if it finds that such an issue exists.”38

DISCUSSION

Sears brings claims under § 1983 against Sherriff Jarrard and Trooper Bradley in

their individual capacities. Sears alleges Sherriff Jarrard violated his First and Fourth

Amendment rights and Trooper Bradley violated his First, Fourth, and Fourteenth

Amendment rights. Section 1983 provides a private cause of action against those who,

under color of law, deprive a citizen of the United States of “any rights, privileges, or

immunities secured by the Constitution and laws.”39 A plaintiff may bring a § 1983 claim

against a person in his individual or official capacity, or against a governmental entity.40

I. Fourth Amendment Claims

Sears claims Trooper Bradley violated his Fourth Amendment right to be free from

unlawful stop, detention, search, arrest, and malicious prosecution, and Sherriff Jarrard

violated his Fourth Amendment right to be free from unlawful stop.

A. Unlawful Stop Claims

Sears contends he was unlawfully stopped at an unconstitutional roadblock

established by Sherriff Jarrard and enforced by Trooper Bradley, and collateral estoppel

38 Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981). In Bonner v. City of Prichard, 661 F.2d 1206,

1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all the decisions of the

former Fifth Circuit handed down prior to the close of business on September 30, 1981.

39 42 U.S.C. § 1983.

40 Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991).

7

prevents Defendants from challenging the findings in the Suppression Order. Sears’

arguments fail, and his reliance on the Suppression Order is misplaced.

1. Collateral Estoppel

Sears argues the Suppression Order triggers collateral estoppel and precludes

Defendants from challenging the findings and conclusions contained in the Order. While

the Court may consider the Suppression Order as evidence, the order is neither binding

nor triggers collateral estoppel. “Congress has specifically required all federal courts to

give preclusive effect to state-court judgments whenever the courts of the State from

which the judgments emerged would do so.”41 Under Georgia law:

[a] judgment of a court of competent jurisdiction shall be conclusive

between the same parties and their privies as to all matters put in issue or

which under the rules of law might have been put in issue in the cause

wherein the judgment was rendered until the judgment is reversed or set

aside.42

Georgia law "retains the old 'mutuality' rule . . . requiring an 'identity of parties or their

privies' to bar a second lawsuit."43 Issue preclusion does not apply to Sears’ claims because

there is no identity of parties or their privies in the state court criminal case and this case.

The criminal case, State of Georgia v. Christopher Sears, Case No. 18-CR-573-JP, was

between the State of Georgia and Sears. Neither Trooper Bradley nor Sherriff Jarrard were

41 Allen v. McCurry, 449 U.S. 90, 96 (1980) (citing 28 U. S. C. § 1738).

42 O.C.G.A. § 9-12-40.

43 Webb v. Ethridge, 849 F.2d 546, 549 (11th Cir. 1988).

8

parties to the criminal case.44 There is also no privity between the Defendants and the

State of Georgia. Trooper Bradley and Sherriff Jarrard “are being sued in their individual

capacity[ies] in this [case], and their personal interests, which were not at stake in the

criminal proceeding, differ from [Georgia's] interests."45 Thus, collateral estoppel does not

apply.

2. Constitutionality of the Roadblock

Sears claims the roadblock was unconstitutionally established for the improper

purpose of targeting members of the Rainbow Gathering. “A vehicle stop at a highway

checkpoint is a seizure within the meaning of the Fourth Amendment, which requires

that a seizure by the government be reasonable."46 The Supreme Court has

never approved a checkpoint program whose primary purpose was to

detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint

cases have recognized only limited exceptions to the general rule that a

seizure must be accompanied by some measure of individualized

suspicion. We suggested in [Delaware v. Prouse] that we would not credit

the "general interest in crime control" as justification for a regime of

suspicionless stops. Consistent with this suggestion, each of the checkpoint

programs that we have approved was designed primarily to serve purposes

44 See Farred v. Hicks, 915 F.2d 1530, 1534 (11th Cir. 1990). ("[A]lthough [the plaintiff] was a party in the state

criminal proceeding and is a party in this civil case, neither the police officers nor the [head of the police

department] were parties to the criminal case.").

45 Kinslow v. Ratzlaff, 158 F.3d 1104, 1106 (10th Cir. 1998); see also Santhuff v. Bloxom, No. 1:07-CV-1616-TWT,

2009 U.S. Dist. LEXIS 151685, at *13 (N.D. Ga. Feb. 19, 2009).

46 United States v. Whitehead, 567 F. App'x 758, 765 (11th Cir. 2014) (citing City of Indianapolis v. Edmond, 531

U.S. 32, 37, 40 (2002)).

9

closely related to the problems of policing the border or the necessity of

ensuring roadway safety.47

Georgia courts have similarly required roadblocks to be “implemented to ensure

roadway safety rather than as a constitutionally impermissible pretext aimed at

discovering general evidence of ordinary crime.”48 The Georgia Supreme Court noted

that “[a]lthough a roadblock cannot be used as a subterfuge to detain citizens for the

purpose of searching their automobiles, a momentary stop of a traveling citizen to

perform the license checks or to check the present fitness of a car or driver for further

driving is permissible.”49

But, while “a checkpoint program whose primary purpose was to detect evidence

of ordinary criminal wrongdoing violates the Fourth Amendment,”50 the Eleventh Circuit

has held that “a state may conduct a mixed-motive roadblock as long as one purpose

presented for the roadblock could validly justify the roadblock, even if no roadblock

would have been put in place but for the state's [other motive].”51

To determine if a checkpoint satisfies the constitutional requirements of the Fourth

Amendment, courts are instructed to "consider whether the government's operation—as

planned or in the reality of its performance—violated plaintiff's constitutional rights; that

47 Edmond, 531 U.S. at 41-42.

48 Ross v. State, 257 Ga. App. 541, 542 (2002).

49 Lafontaine v. State, 269 Ga. 251, 253 (1998) (overruled in-part on other grounds by McCoy v. State, 303 Ga.

551, 556 (2018)).

50 Delaware v. Prouse, 440 U.S. 648, 663 (1979).

51 Merrett v. Moore, 58 F.3d 1547, 1551 (11th Cir. 1995).

10

is, whether [the checkpoint was] reasonable in the light of the state's interest in

conducting the roadblocks, the effectiveness of the operation in promoting that interest,

and the level of intrusion on the individual's privacy caused by the checkpoints."52

Lt. Coleman implemented the roadblock for the purpose of improving driver

safety and to specifically perform routine traffic checks for driver’s license, insurance,

and registration verification; seatbelt compliance; driver impairment; and vehicle fitness

and safety compliance.53 The checkpoint advanced an important state interest,

maintaining traffic safety, which is "beyond the normal need for law enforcement."54

Additionally, the roadblock was effective in promoting the state’s interest in maintaining

traffic safety. Officers stopped each vehicle that passed through the roadblock and

reported the delay to motorists was minimal.55 The roadblock resulted in the issuance of

twenty-three citations, five non-DUI custodial arrests, and two DUI arrests.56 The Court

finds the severity of the intrusion of the roadblock on Plaintiff’s Fourth Amendment

52 United States v. Regan, 218 F. App'x 902, 904 (11th Cir. 2007) (quoting Merrett, 58 F.3d at 1551).

53 Georgia Department of Public Safety Roadblock Supervisor Initiation Approval Form (“Roadblock

Initiation Form”), [Doc. 36-4] at p. 9.

54 Edmond, 531 U.S. at 37; see also Delaware, 440 U.S. at 658 (1979) (“We agree that the States have a vital

interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these

vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection

requirements are being observed.”); Merrett, 58 F.3d at 1550 (“That the state had the authority to conduct

roadblocks to check drivers' license and vehicle registration is also undisputed.”).

55 Georgia Department of Public Safety Roadblock Final Report (“Roadblock Final Report”), [Doc. 36-4] at

p. 10.

56 Id.

11

rights and effectiveness of the operation weigh in favor of the constitutionality of the

roadblock.57 Thus, the roadblock was constitutional.

Plaintiff’s allegation that the roadblock was established for the unarticulated

purpose of targeting members of the Rainbow Gathering is simply conjecture and

unsupported by the record. Lt. Coleman articulated four constitutionally valid purposes

for the roadblock. Because “a state may conduct a mixed-motive roadblock as long as one

purpose presented for the roadblock could validly justify the roadblock, even if no

roadblock would have been put in place but for the state's [other motive],”58 the Court

concludes the roadblock comported with the requirements of the Fourth Amendment.

Thus, assuming Trooper Bradley and Sherriff Jarrard are the proper defendants for Sears’

unlawful stop claims, both are entitled to summary judgment.

B. Unlawful Arrest Claim

The Court concludes the record contains evidence that contradicts Trooper

Bradley’s findings and credibility sufficient to create a genuine issue of material fact as to

whether Trooper Bradley smelled marijuana and fabricated evidence to support a finding

of arguable probable cause or probable cause to believe Sears was impaired. The Court

57 Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450-51, 455 (1990), (finding the "initial stop of each

motorist passing through a [sobriety] checkpoint and the associated preliminary questioning and

observation by checkpoint officers" to be "consistent with the Fourth Amendment."); United States v. Smith,

694 F. Supp. 2d 1242, 1256 (M.D. Ala. 2009), aff'd 481 F. App'x 540 (11th Cir. 2012) (finding roadblock that

had the primary purpose of conducting license, insurance and registration checks was constitutional).

58 Merrett, 58 F.3d at 1551.

12

“cannot allow a probable cause determination to stand principally on the unsupported

statements of interested officers, when those statements have been challenged and

countered by objective evidence.”59 The findings in Trooper Bradley’s report have been

sufficiently challenged and countered by objective evidence including the lack of

marijuana in the car, the video footage of the SFST, and the temporal gap between when

Sears admitted to having smoked marijuana and his arrest. Furthermore, given the

standard of review at the summary judgment stage, the Court must accept Sears’ version

of the disputed material facts as true.60

Sears contends Trooper Bradley arrested him without probable cause. Trooper

Bradley argues he is entitled to qualified immunity. The Court disagrees. Here, a genuine

issue of material fact exists as to whether Trooper Bradley had even arguable probable

cause to arrest Sears. Thus, Trooper Bradley is not entitled to qualified immunity, and

summary judgment must be denied.

1. Qualified Immunity

Arrests qualify as seizures under the Fourth Amendment.61 “Where a police officer

lacks probable cause to make an arrest, the arrestee has a claim under section 1983 for

59 Kingsland v. City of Miami, 382 F.3d 1220, 1227 (11th Cir. 2004), abrogated on other grounds by Nieves v.

Bartlett, 139 S.Ct. 1715 (2019).

60 See Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279 n.9 (11th Cir. 2002) (stating that a court must accept

the non-movant's version of disputed facts as true for purposes of summary judgment).

61 Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011); Manuel v. City of Joliet, Ill., 580 U.S. 357 (2017).

13

false imprisonment based on a detention pursuant to that arrest.”62 Similarly, “[a]

warrantless arrest without probable cause violates the Fourth Amendment and forms a

basis for a section 1983 claim.”

“Qualified immunity offers complete protection for government officials sued in

their individual capacities if their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.”63 “Qualified

immunity gives government officials breathing room to make reasonable but mistaken

judgments about open legal questions.“64 When properly applied, ”it protects all but the

plainly incompetent or those who knowingly violate the law.”65 When an officer invokes

qualified immunity, the initial burden is on the official to show that “he was acting within

the scope of his discretionary authority when the allegedly wrongful acts occurred.66

“Once the defendant establishes that he was acting within his discretionary authority, the

burden shifts to the plaintiff to show that qualified immunity is not appropriate.”67

Sears does not contest Trooper Bradley was acting within his discretionary

authority, so he must show that the alleged constitutional violation was “clearly

established.”68 “The contours of the right must be sufficiently clear that a reasonable

62 Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996).

63 Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (internal quotation marks omitted).

64 Ashcroft, 563 U.S. at 743.

65 Id.

66 Lee v. Ferraro, 284 F.3d 1188, 1194 (2002).

67 Id.

68 Pearson, 555 U.S. at 232.

14

official would understand that what he is doing violates that right.”69 The Court may first

determine whether the alleged violation was “clearly established” without resolving

whether there was an actual constitutional violation.70

For the purposes of qualified immunity “in wrongful arrest cases, [the Eleventh

Circuit has] defined the ‘clearly-established’ prong as an ‘arguable probable cause’

inquiry.”71 This is “a more lenient standard than probable cause.”72 The standard is an

objective one and does not include an inquiry into the officer's subjective intent or

beliefs.73 Arguable probable cause exists where “reasonable officers in the same

circumstances and possessing the same knowledge as the Defendants could have

believed that probable cause existed to arrest Plaintiff.”74 “Indeed, it is inevitable that law

enforcement officials will in some cases reasonably but mistakenly conclude that

probable cause is present, and in such cases those officials should not be held personally

liable.”75 Whether an officer had arguable probable cause “depends on the elements of

the alleged crime and the operative fact pattern.”76

69 Anderson v. Creighton, 483 U.S. 635, 640 (1987).

70 Pearson, 555 U.S. at 236.

71 Moran v. Cameron, 362 Fed. Appx. 88, 93 (11th Cir. 2010).

72 Id. at 94.

73 Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010).

74 Grider v. City of Auburn, Ala., 618 F.3d 1240, 1257 (11th Cir. 2010).

75 Brescher v. Von Stein, 904 F.2d 572 at 579 (11th Cir. 1990) (quotation marks and ellipses omitted); see also

Hunter v. Bryant, 502 U.S. 224, 227 (1991) ("Even law enforcement officials who reasonably but mistakenly

conclude that probable cause is present are entitled to immunity."); Montoute, 114 F.3d at 184 ("Thus, the

qualified immunity standard is broad enough to cover some 'mistaken judgment [ ]’").

76 Grider, 618 F.3d at 1257.

15

A genuine issue of material fact exists as to whether Trooper Bradley had arguable

probable cause to arrest Sears. Thus, Trooper Bradley is not entitled to qualified

immunity. The Eleventh Circuit has distinguished good faith mistakes from conduct

which creates factual issues as to an officer’s honesty and credibility.77 But Sears contends

Trooper Bradley made several deliberately false statements and fabricated smelling the

odor of marijuana. Sears’ contention is not pure conjecture; the Court, like Judge Parks,

concludes many of Trooper Bradley’s findings are contradicted by video evidence.78 Here,

“if the plaintiff's version of the facts is true, the defendants' conduct is patently objectively

unreasonable, and no reasonable public official would contend that such conduct was

lawful.”79

The Eleventh Circuit has held qualified immunity “does not offer protection if an

official knew or reasonably should have known that the action he took within his sphere

of official responsibility would violate the constitutional rights of the plaintiff.”80 “Plainly,

an arrest without probable cause violates the right to be free from an unreasonable search

77 See Kingsland, 382 F.3d at 1233 (comparing Kingsland with Post, 7 F.3d 1552 (11th Cir. 1993) “The agents

in Post claimed that they counted people in excess of the restaurant's maximum capacity, but in effect they

erroneously counted employees who were not to be counted. We held that a "mistaken but reasonable

count" was sufficient for the agents to establish arguable probable cause. Id. However, the agents in Post

simply made a good faith mistake, whereas here, the officers' conduct creates factual issues as to their

honesty and credibility.”).

78 See generally, Suppression Order, [Doc. 10-4].

79 Id.

80 Holmes v. Kucynda, 321 F.3d 1069 at 1077 (11th Cir. 2003).

16

under the Fourth Amendment.”81 Likewise, “falsifying facts to establish probable cause

is patently unconstitutional and has been so long before [Sears’] arrest in [2018].”82

Indeed, “[t]he principles behind qualified immunity would be rendered meaningless if

such immunity could be invoked to shelter officers who, because of their own interests,

allegedly flout the law, abuse their authority, and deliberately imperil those they are

employed to serve and protect.”83 Trooper Bradley was on notice that arrests without

probable cause and manufacturing probable cause are both unconstitutional. The facts in

the record, interpreted in the light most favorable to Sears, sufficiently allege a violation

of his clearly established Fourth Amendment right to be free of warrantless searches and

seizures.

Determining what happened during Sears’ arrest on this disputed factual record

is "exactly the sort of factual, credibility-sensitive task best left to the jury."84 Without

further factfinding, it is impracticable to conclude that arguable probable cause existed

for Sears’ arrest when it is unclear how much of the proffered evidence tending to support

81 Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003) (citing Redd v. City of Enterprise, 140 F.3d 1378, 1382

(11th Cir. 1998)).

82 Kingsland, 382 F.3d at 1332 (citing Riley v. City of Montgomery, 104 F.3d 1247, 1253 (11th Cir. 1997) ("It was

well established in 1989 that fabricating incriminating evidence violated constitutional rights."); Hinchman

v. Moore, 312 F.3d 198, 205-06 (6th Cir. 2002); Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989)).

83 Kingsland, 382 F.3d at 1234; see also Butz v. Economou, 438 U.S. 478, 506-07 (1978) (“It is not unfair to hold

liable the official who knows or should know he is acting outside the law, and that insisting on an

awareness of clearly established constitutional limits will not unduly interfere with the exercise of official

judgment.").

84 Goldring v. Henry, No. 19-13820, 2021 U.S. App. LEXIS 33621, at *26 (11th Cir. Nov. 12, 2021) (citing Skop

v. City of Atlanta, 485 F.3d 1130, 1141 (11th Cir. 2007).

17

a finding of arguable probable cause was manufactured or misrepresented.85 Thus,

Trooper Bradley is not entitled to qualified immunity.

a. Constitutional Violation

Trooper Bradley’s report states Sears “had blood shot watery eyes,” “his speech

was slow and slurred,” he “smelled the strong odor of marijuana coming from [Sears’]

vehicle,” and thus, Trooper Bradley instructed Sears to exit the vehicle.86 Sears argues

Trooper Bradley did not smell marijuana, and the statements in his report are refuted by

video evidence, testimony, the Suppression Order, and the absence of marijuana from the

vehicle. Thus, Sears contends that there is a genuine issue of material fact. The Court

agrees.

To establish a disputed fact, the nonmoving party "must do more than simply

show that there is some metaphysical doubt as to the material facts."87 "[A] court need not

entertain conclusory and unsubstantiated allegations of fabrication of evidence."88 It is

undisputed that the smell of marijuana may give an officer probable cause to believe that

the suspect currently possesses marijuana.89 Ordinarily, “[a]n officer's statement that he

85 Kingsland, 382 F.3d at 1232.

86 Bradley Declaration, [Doc. 36-3] at p.6.

87 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

88 Kingsland, 382 F.3d at 1227.

89 See United States v. Cheeks, 795 F. App'x 805, 811-12 (11th Cir. 2019) (finding probable cause based (in part)

on the "odor of burnt marijuana," and noting that "[o]ur precedent makes clear that an officer's level of

suspicion rises to the level of probable cause when he detects 'what he [knows] from his law enforcement

experience to be the odor of marijuana'" (quoting United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991)));

United States v. Session, 649 F. App'x 821, 822 (11th Cir. 2016) (finding probable cause where the officer

"detected a strong odor of burnt marijuana and observed that the occupants of the vehicle were extremely

18

smells marijuana should be taken as true, provided that there is no evidence as to the

contrary or dispute as to the officer's credibility.”90 But here, as in Kingsland, the Court

concludes the record contains evidence that contradicts Trooper Bradley’s findings and

credibility sufficient to overcome summary judgment. A reasonable jury could find

Trooper Bradley either materially misrepresented or fabricated evidence to support the

finding of probable cause.

Statements in Trooper Bradley’s report are not supported—and at times directly

contradicted—by video footage. Trooper Bradley stated that he observed Sears had

“blood shot watery eyes, and his speech was slow and slurred.”91 But in over forty

minutes of footage provided to the Court, there is no evidence of Sears’ speech being slow

or slurred. Indeed, throughout the entire encounter, Sears speaks coherently with a

normal intonation and pace. Additionally, the video does not conclusively show Sears

had “bloodshot, watery eyes.”

Moreover, discrepancies between Trooper Bradley’s report and video evidence of

the SFST create genuine issues of material fact as to whether Trooper Bradley fabricated

evidence to support a finding of probable cause and whether he had arguable probable

cause to believe Sears was impaired. During the SFST, Trooper Bradley conducted four

nervous"); United States v. Hamilton, 299 F. App'x 878, 882 (11th Cir. 2008) (finding probable cause where

the officers "smelled a strong odor of burnt marijuana as soon as [the suspect] rolled down his window").

90 Rogers v. City of Boca Raton, No. 19-CIV-80293-MIDDLEBROOKS, 2019 U.S. Dist. LEXIS 221876, at *9 (S.D.

Fla. Dec. 19, 2019).

91 Bradley Declaration, [Doc. 36-3] at p.6.

19

tests: the HGN eye test, the walk and turn test, the one leg stand test, and the Romberg

test.

Trooper Bradley stated he “observed 0 clues” of impairment during the HGN eye

test.92 As to the walk and turn test, although Trooper Bradley’s report indicates Sears

“started too soon,” “was unable to maintain his balance during the instructional stage,”

“used his arms for balance, missed heel to toe on several steps, made an improper turn

by not making it at all, and then he started walking backwards,”93 video evidence calls

these findings into question.94 Six seconds after Trooper Bradley states “I want you to stay

in this position until I tell you to do otherwise,” Sears appears to adjust his footing once

but otherwise does not appear to move. Although Sears did adjust his footing, the Court

is skeptical a slight adjustment—mere seconds after Trooper Bradley’s instruction—

warrants a finding that Sears started too soon or was unable to maintain his balance.

92 Id.

93 Id.

94 Dashcam Video, [Doc. 10-2] at 3:40-5:35.

20

Additionally, Trooper Bradley contends Sears “missed heel to toe on several steps,” but

the video recording only demonstrates Trooper Bradley stating “missed heel toe” once.95

Moreover, while Trooper Bradley correctly states Sears made an improper turn, a

reasonable jury could conclude Sears’ improper turn was the result of vague instructions

rather than impairment. Trooper Bradley gave Sears the following instruction:

What I want you to do is I want you to take nine heel to toe steps. I want

you to leave your left foot planted. I want you to take a series of small steps,

and I want you to take nine heel to toe steps back. Okay? Just like so. I am

only going to take three, but I want you to take nine.96

Trooper Bradley then demonstrated three steps in each direction. Although Trooper

Bradley did not walk backwards during his demonstration,97 he never used the word turn

in his instructions and only referenced “left foot planted and a series of small steps.”

During the test, Sears takes nine steps forward, appears confused, looks to Trooper

Bradley, and states “back?” At the conclusion of the test, Trooper Bradley asks “did you

understand all my instructions to you and the way I demonstrated? Did you understand

everything I explained?” Sears appears to nod and then asks “did I get it wrong?” to

which Trooper Bradley responds “no, I just…” before immediately transitioning to the

next test. Considering the unclear instructions and discrepancies between Trooper

95 Id. at 5:04.

96 Id at 4:22-4:38.

97 The turn in Bradley’s demonstration occurs outside the view of the video footage, and thus, was not

observed by the Court.

21

Bradley’s report and video evidence, a jury could reasonably conclude the perceived

clues of impairment resulted from unclear instructions rather than actual impairment.

Third, while Trooper Bradley contends Sears failed the one leg stand test—video

evidence calls his findings into question.98 Trooper Bradley instructed Sears on how to

perform the one leg stand test, demonstrated the test, and instructed Sears to count out

loud until he told Sears to stop.99 Trooper Bradley’s report indicates Sears “raised his arms

for balance, and swayed side to side.”100 But the video shows Sears balanced on one leg

with little to no movement for thirty-six seconds—during which he balanced on the side

of a busy street, mere feet away from the distractions of actively flashing lights and an

officer opening and closing the trunk of a patrol car.101 A jury could reasonable conclude

that Sears did not fail the third test or performed it with similar skill as Trooper Bradley

did in his demonstration.

Fourth, video evidence contradicts Trooper Bradley’s findings during the

Romberg test.102 Trooper Bradley instructed Sears to lean his head back as far as he could,

close his eyes, estimate the passage of thirty (30) seconds, and, once Sears believed thirty

seconds had passed, to raise his head and tell Trooper Bradley to stop. Trooper Bradley’s

report indicates Sears “estimated the passage of 30 seconds in 40 seconds. He also swayed

98 Dashcam Video, [Doc. 10-3] at 5:36-7:04.

99 Id.

100 Bradley Declaration, [Doc. 36-3] at p.6.

101 Dashcam Video, [Doc. 10-3] at 6:27-7:03.

102 Id. at 7:04-8:15.

22

side to side, [and] had eyelid tremors in both eyes.”103 But video evidence shows Sears

estimated thirty (30) seconds in twenty-nine (29) seconds.104 Additionally, any movement

was minimal. Thus, a jury could reasonably conclude Sears did not fail the Romberg test

or that Bradley fabricated evidence to support a finding of probable cause.

Following the Romberg test, Trooper Bradley examined Sears’ eyes and mouth,

after which Sears stated, “I’m very uh […] I’m uh dehydrated from walking all day.”105

Trooper Bradley’s report states Sears had reddening of the conjunctiva and raised taste

buds.106 Here, in light of other discrepancies in the report, a reasonable jury could find

any perceived clues of impairment were due to dehydration rather than actual

impairment.

After the SFST was complete, Trooper Bradley asked Sears what kind of illegal

substances he had taken that day. Sears admitted he “smoked some weed” “several hours

ago” “at the beginning of the day.”107 Bradley responded that based on his evaluation,

and still smelling the odor of marijuana on Sears, he concluded Sears was “impaired on

103 Bradley Declaration, [Doc. 36-3] at p.6.

104 Dashcam Video, [Doc. 10-3] at 7:44-8:13.

105 Id. at 8:20-8:28.

106 Bradley Declaration, [Doc. 36-3] at p. 6.

107 See Dashcam Video, [Doc. 10-3] at 8:32-9:08. The Court cannot discern the exact time Sears’ stated he

smoked marijuana. In his Deposition, Sears stated “It was sort of a wake and bake situation. I don't recall

exactly what time, but it was early that morning.” Sears Depo., [Doc. 39] at 35:14-15.

23

something today.”108 Trooper Bradley then placed Sears under arrest and read him the

Georgia implied consent notice for suspects over the age of twenty-one.109

Here, the Court cannot conclude the inconsistencies in Trooper Bradley’s report

amount to good faith mistakes. Instead, the nature and prevalence of the inconsistencies

create factual issues as to Trooper Bradley’s honesty and credibility.110 Thus, a genuine

issue of material fact exists as to whether Trooper Bradley smelled marijuana or whether

the results of the SFST gave Trooper Bradley arguable probable cause to arrest Sears. The

Court notes that Sears has proffered no less evidence regarding the presence or absence

of a cannabis odor than Trooper Bradley has. Sears’ word is merely countered by Trooper

Bradley’s testimony. While Sears did admit to smoking marijuana earlier in the day, Sears

was arrested around 8:00 PM—a potentially significant temporal gap.111 A reasonable jury

108 Dashcam Video, [Doc. 10-3] at 8:31-9:21.

109 Id. at 9:22-10:55.

110 See Kingsland, 382 F.3d at 1233 (comparing Kingsland with Post, 7 F.3d 1552 “The agents in Post claimed

that they counted people in excess of the restaurant's maximum capacity, but in effect they erroneously

counted employees who were not to be counted. We held that a "mistaken but reasonable count" was

sufficient for the agents to establish arguable probable cause. Id. However, the agents in Post simply made

a good faith mistake, whereas here, the officers' conduct creates factual issues as to their honesty and

credibility.”).

111 Bradley Declaration, [Doc. 36-3] at p. 5-6.

24

could conclude Sears’ admission alone could not establish arguable probable cause or

probable cause.

b. Clearly Established Law

“Plainly, an arrest without probable cause violates the right to be free from an

unreasonable search under the Fourth Amendment.”112 Likewise, “falsifying facts to

establish probable cause is patently unconstitutional and has been so long before [Sears’]

arrest in [2018].”113 The Eleventh Circuit has held qualified immunity "does not offer

protection if an official knew or reasonably should have known that the action he took

within his sphere of official responsibility would violate the constitutional rights of the

plaintiff."114 Here, Bradley was on notice that manufacturing probable cause is

unconstitutional. The facts in the record, interpreted in the light most favorable to Sears,

sufficiently allege a violation of his clearly established Fourth Amendment right to be

free of warrantless searches and seizures.

Because Trooper Bradley is not shielded by qualified immunity and genuine issues

of material fact exist whether he had probable cause to arrest Sears, summary judgment

is denied.

112 Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003) (citing Redd v. City of Enterprise, 140 F.3d 1378,

1382 (11th Cir. 1998)).

113 Kingsland, 382 F.3d at 1332 (citing Riley, 104 F.3d at 1253 ("It was well established in 1989 that fabricating

incriminating evidence violated constitutional rights."); Hinchman, 312 F.3d at 205-06; Hill, 884 F.2d at 275).

114 Holmes v. Kucynda, 321 F.3d 1069 at 1077 (11th Cir. 2003).

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C. Unlawful Search Claim

Sears contends Bradley unlawfully searched his vehicle without a warrant,

consent, or probable cause. Because a genuine issue of material fact exists as to whether

Trooper Bradley smelled marijuana to support a finding of arguable probable cause, he

is not entitled to qualified immunity.

The Fourth Amendment generally requires an officer to have a warrant supported

by probable cause to search an individual's personal property.115 But this requirement is

subject to several well-established exceptions—including the “automobile exception.”

The Supreme Court has held that the Fourth Amendment permits the warrantless search

of a car where (1) the car is “readily mobile” and (2) “probable cause exists to believe [the

car] contains contraband.”116 “For purposes of the automobile exception, probable cause

exists when ‘there is a fair probability that contraband or evidence of a crime will be

found in the vehicle under the totality of the circumstances.’”117

First, Bradley contends he was not the officer who searched Sears’ vehicle. While

the video evidence submitted to the Court does not show the search of Sears’ vehicle,

Trooper Bradley contends “it is obvious that the car was searched by troopers other than

115 See United States v. Wilson, 979 F.3d 889, 910 (11th Cir. 2020).

116 Maryland v. Dyson, 527 U.S. 465, 467 (1999); Carroll v. United States, 267 U.S. 132, 153-56 (1925) (upholding

the warrantless search of a car that officers had probable cause to believe contained illegal liquor).

117 Watkins v. Johnson, 853 F. App'x 455, 462 (11th Cir. 2021) (quoting United States v. Delva, 922 F.3d 1228,

1243 (11th Cir. 2019)).

26

Bradley, as Bradley was engaged with Sears [and he] cannot be liable for others’ alleged

misconduct.”118

The Court disagrees. The video does not depict the search of Sears’ car, which took

place before his arrest. Moreover, Bradley attested to conducting the search in his

deposition and incident report. In his incident report, Bradley states, “I then conducted a

vehicle search where I found a pill container which stated on the bottle San Pedro tea.”119

Likewise, in his deposition, Bradley stated, “I found San Pedro which is an illegal

substance inside the vehicle.”120 Furthermore, Sears testified Bradley was “part of the

group” that searched his car.121 Sears alleges, and Bradley’s sworn statements support,

that he participated in the search of Sears’ vehicle. At this stage, the Court must accept

Sears’ version of disputed facts as true.122

Second, Bradley argues he had arguable probable cause to search Sears’ vehicle,

and he is therefore entitled to qualified immunity. But, as previously discussed, there is

a genuine issue of material fact as to whether Bradley smelled marijuana to justify the

search of Sears’ vehicle. Thus, without the smell of marijuana, the Court cannot conclude

arguable probable cause existed for Trooper Bradley to believe Sears’ vehicle contained

118 Bradley’s Motion for Summary Judgment, [Doc. 36-1], FN 5 at p. 9-10.

119 Bradley Declaration, [Doc. 36-3] at p.6 (emphasis added).

120 Bradley Depo., [Doc. 40] at 35:7-23 (emphasis added).

121 Sears Depo., [Doc. 39] at 39:15-40:6.

122 Rowe, 279 F.3d at 1279 n.9 (11th Cir. 2002) (stating that a court must accept the non-movant's version of

disputed facts as true for purposes of summary judgment).

27

contraband. Furthermore, accepting Sears’ version of disputed facts as true, it is clearly

established that “falsifying facts to establish probable cause is patently unconstitutional

and has been so long before [Sears’] arrest in [2018].”123 Therefore, Trooper Bradley is not

entitled to qualified immunity on Sears’ unlawful search claim.

D. Unlawful Detention Claim

Sears alleges his “civil and constitutional rights were violated when he was

detained […] despite no evidence of committing a crime and doing nothing to justify

reasonable suspicion of criminal activity.”124 To the extent Sears attempts to assert a

Fourth Amendment claim for unlawful detention, his claim fails.

“An officer may, consistent with the Fourth Amendment, conduct a brief,

investigatory stop when the officer has a reasonable, articulable suspicion that criminal

activity is afoot.”125 Ordinarily, “[w]hen an officer asserts qualified immunity, the issue is

not whether reasonable suspicion existed in fact, but whether the officer had ‘arguable’

reasonable suspicion to support an investigatory stop.”126 But here, a qualified immunity

analysis is not necessary because Sears fails to state a claim for unlawful detention.

Trooper Bradley stopped Sears at a constitutionally valid roadblock and lawfully

ordered Sears out of his vehicle. In Pennsylvania v. Mimms, the Supreme Court held that

123 Kingsland, 382 F.3d at 1332 (citing Riley, 104 F.3d at 1253 ("It was well established in 1989 that fabricating

incriminating evidence violated constitutional rights."); Hinchman, 312 F.3d at 205-06 ; Hill 884 F.2d at 275).

124 Pl.’s Amend. Comp. [Doc. 8] at ¶ 36.

125 Illinois v. Wardlow, 528 U.S. 119, 120 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).

126 Jackson v. Sauls, 206 F.3d 1156, 1165-66 (11th Cir. 2000).

28

officers may “order all drivers out of their vehicles as a matter of course whenever they

ha[ve] been stopped for a traffic violation.”127 “Mimms imposes a per se rule: During a

lawful traffic stop, an officer may order the driver out of the vehicle.”128 But in Rodriguez,

the Supreme Court emphasized that “safety precautions taken in order to facilitate

[unrelated] detours” are beyond a traffic stop's lawful scope.129 Indeed, “the permissible

length of a traffic stop is the time ‘reasonably required’ to complete its core tasks.”130

Here, one articulated purpose for the roadblock was to perform routine traffic

checks for driver impairment.131 After Trooper Bradley ordered Sears out of his vehicle,

Sears consented to a standardized field sobriety test (“SFST”) which Trooper Bradley

administered.132 Immediately following the SFST, Trooper Bradley arrested Sears for DUI.

Requesting that Sears take a SFST was well within the scope of the roadblock, as it had

been authorized to screen for driver impairment. Although defendants have the right to

refuse to engage in field sobriety tests, 133 Sears chose not to exercise that right and

consented to the SFST. Because Trooper Bradley lawfully ordered Sears out of his vehicle

127 Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977); see also Maryland v. Wilson, 519 U.S. 408, 410, (1997).

128 Baxter v. Roberts, 54 F.4th 1241, 1262 (11th Cir. 2022) (citing Mimms, 434 U.S. at 111 n.6; Wilson, 519 U.S.

at 412, 413 n.1 (characterizing Mimms as "dr[awing] a bright line" and imposing a "per se rule")).

129 Id. at 1259 (citing Rodriguez v. United States, 575 U.S. 348, 356 (2015)).

130 Id.

131 Roadblock Initiation Form, [Doc. 36-4] at p. 9.

132 Bradley Declaration, [Doc. 36-3]; Bradley Depo., [Doc. 40] at 37:21-38:4.

133 Ammons v. State, 315 Ga. 149, 158-60 (2022).

29

and Sears consented to the SFST, Sears’ Fourth Amendment unlawful detention claim

fails.

E. Malicious Prosecution Claim

“To establish a federal malicious prosecution claim under § 1983, a plaintiff must

prove (1) the elements of the common law tort of malicious prosecution, and (2) a

violation of her Fourth Amendment right to be free from unreasonable seizures.”134 “A

claim for malicious prosecution under § 1983 and Georgia law requires showing "(1) a

criminal prosecution instituted or continued by the present defendant; (2) with malice

and without probable cause; (3) that terminated in the plaintiff accused's favor; and (4)

caused damage to the plaintiff accused."135

“Malicious prosecution ‘requires a seizure pursuant to legal process.’”136 Here,

was no seizure pursuant to legal process. "In the case of a warrantless arrest, the judicial

proceeding does not begin until the party is arraigned or indicted."137As in Brienza, Sears’

“arrest cannot serve as the predicate deprivation of liberty because it occurred prior to

134 Kingsland, 382 F.3d at 1234 (citing Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003)).

135 Green v. City of Lawrenceville, 745 F. App'x 881, 883 (11th Cir. 2018) (citing Kjellsen v. Mills, 517 F.3d 1232,

1237 (11th Cir. 2008)).

136 Brienza v. City of Peachtree City, No. 21-12290, 2022 U.S. App. LEXIS 24372, at *21-22 (11th Cir. Aug. 30,

2022) (citing Williams, 965 F.3d at 1158).

137 Id. (citing Kingsland, 382 F.3d at 1235).

30

the time of arraignment and was not one that arose from malicious prosecution as

opposed to false arrest.”138 Thus, Sears’ malicious prosecution claim fails.

II. First Amendment Claims

Sears contends Trooper Bradley and Sheriff Jarrard established the roadblock to

target attendees of the Rainbow Gathering and prevent them from exercising their First

Amendment rights of expression and assembly. Additionally, Sears asserts a First

Amendment retaliation claim against Bradley. Because Sears cannot demonstrate Sherriff

Jarrard participated in the roadblock or that Trooper Bradley’s conduct violated his First

Amendment rights, his claims fail.

A. Prior Restraint

“The First Amendment prohibits government from ‘abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.’”139 “[I]mplicit in the right to engage in

activities protected by the First Amendment [is] a corresponding right to associate with

others.”140 “A prior restraint on expression exists when the government can deny access

138 Id.

139 Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2382 (2021).

140 Id. (quoting Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984)).

31

to a forum for expression before the expression occurs.”141 Prior restraints generally occur

in the context of licensing or permitting schemes.142

Sears cannot demonstrate Sherriff Jarrard imposed a prior restraint on his First

Amendment rights. The record demonstrates Sheriff Jarrard played no role in the

authorization or execution of the roadblock. The roadblock was authorized by Lt.

Coleman,143 conducted by thirteen GSP troopers, and no other agencies participated in

the roadblock.144 Sheriff Jarrard was not present at the roadblock.145 No law clearly

establishes that simply offering assistance to another agency—while in no way

authorizing, supervising, or participating—in a roadblock constitutes an unlawful prior

restraint of a plaintiff’s First Amendment rights.

Additionally “[i]t is well established in this Circuit that supervisory officials are

not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability."146 “To hold a supervisor liable a plaintiff must

show that the supervisor either directly participated in the unconstitutional conduct or

that a causal connection exists between the supervisor's actions and the alleged

141 United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000).

142 Wright v. City of St. Petersburg, 833 F.3d 1291, 1298 (11th Cir. 2016).

143 Roadblock Final Report, [Doc. 36-4] at p. 10.

144 Id.

145 Jarrard Depo., [Doc. 42] at 40:6-41:4; Roadblock Final Report, [Doc. 36-4] at p. 10; Coleman Depo., [Doc.

41] at 22:18-2, 30:23-37:14.

146 Keith v. Dekalb Cty., 749 F.3d 1034, 1047 (11th Cir. 2014) (citing Cottone v. Jenne, 326 F.3d 1352, 1360 (11th

Cir. 2003) (internal quotation marks omitted)).

32

constitutional violation.”147 “The standard by which a supervisor is held liable in [his]

individual capacity for the actions of a subordinate is extremely rigorous."148 Sears failed

to demonstrate that Sheriff Jarrard either directly participated in the unconstitutional

conduct or that a causal connection exists between Sheriff Jarrard’s actions and the

alleged constitutional violation. Therefore, Sheriff Jarrard is entitled to qualified

immunity on Sears’ prior restraint claim.

Furthermore, the establishment of the roadblock itself did not “deny access to a

forum for expression before the expression occurs,”149 nor did it prevent Sears from

attending the Rainbow Gathering. Sears had already attended the gathering and was

leaving when he was stopped at the roadblock and arrested.150 Additionally, as the Court

has previously noted, the “First Amendment's prohibition of prior restraint certainly does

not restrict the legitimate enforcement of criminal laws.”151 Trooper Bradley stopped

Sears at a constitutionally valid roadblock. Bradley played no role in authorizing or

selecting the location of the roadblock.152 Again, no law clearly established that Trooper

Bradley’s participation in a constitutionally valid roadblock, which did not deny Sears

147 Id. at 1047-48.

148 Cottone, 326 F.3d at 1360.

149 Frandsen, 212 F.3d at 1236-37.

150 Sears Depo., [Doc. 39] at 37:3-38-8.

151 2025 Highway, L.L.C. v. Bibb Cty., 377 F. Supp. 2d 1310, 1356 (M.D. Ga. 2005).

152 Coleman Declaration, [Doc. 36-4] at p. 3, 9; See also Id. at p. 5, Georgia Department of Public Safety Policy

Number 17.16 (“The decision to implement the roadblock shall be made by supervisory personnel in

advance rather than by field personnel, including the time and location of the roadblock.); Bradley Depo.,

[Doc. 40] at 31:7-9.

33

access to the Rainbow Gathering, constitutes an unlawful prior restraint of Sears’ First

Amendment rights. Therefore, Trooper Bradley is entitled to qualified immunity on

Sears’ prior restraint claim.

B. Retaliation

To state a First Amendment retaliation claim, Sears “must establish first, that his

speech or act was constitutionally protected; second, that [Bradley’s] retaliatory conduct

adversely affected the protected speech; and third, that there is a causal connection

between the retaliatory actions and the adverse effect on speech.”153 A defendant

"adversely affects protected speech if his alleged retaliatory conduct would likely deter a

person of ordinary firmness from the exercise of First Amendment rights."154 Here, Sears

has failed to provide sufficient evidence of the third element.

Sears relies solely on his own speculation that the roadblock was established to

target Rainbow Gathering attendees.155 The record contains no evidence—other than

Sears’ speculation—to establish a causal connection between Trooper Bradley’s arrest of

Sears and Sears’ association with the Rainbow Gathering. In Trooper Bradley’s

declaration, he states: “I did not arrest Sears because he was an attendee at the Rainbow

Gathering; I would have arrested anyone who exhibited the signs of driving under the

153 Bennett, 423 F.3d at 1250.

154 Bailey v. Wheeler, 843 F.3d 473, 481 (11th Cir. 2016) (internal quotation marks omitted).

155 Sears Depo., [Doc. 39] at 103:16-104:16.

34

influence.”156 Evidence in the record does not support Trooper Bradley knew Sears was

associated with the Rainbow Gathering. In over forty minutes of video footage provided

to the Court, Trooper Bradley never inquired into Sears’ association with—or even

mentioned—the Rainbow Gathering. Sears admits the same:

Q: Did Trooper Bradley ask you any questions about your involvement in

the Rainbow Gathering during the stop?

A: I don't think so. I think he might have just said, you know, where are you

from, what are you -- what are you doing here, that kind of thing, but no, it

wasn't any detailed questioning.157

Sears failed to produce any credible evidence that Bradley knew of Sears’

association with the Rainbow Gathering and arrested him due to his association. Sears’

speculation alone is insufficient to establish causation or to create a genuine issue of

material fact.158 Thus, Trooper Bradley is entitled to summary judgment on Sears’ First

Amendment retaliation claim.

III. Fourteenth Amendment Claim

Finally, Sears contends Trooper Bradley violated his right to equal protection under

the Fourteenth Amendment by targeting Sears due to his affiliation with the Rainbow

Gathering and his residence.159 Specifically, Sears alleges law enforcement stopped

156 Bradley Declaration, [Doc. 36-3] at p. 3.

157 Sears Depo., [Doc. 39] at 102:21-103:1.

158 Chapman v. Am. Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir. 1988) (“an inference based on speculation

and conjecture is not reasonable.”).

159 Pl.’s Amend. Comp. [Doc. 8] at p. 13.

35

Rainbow Gathering attendees but either did not stop or quickly released local drivers or

drivers not associated with the Rainbow Gathering.

But the evidence in the record conclusively demonstrates all drivers were stopped

at the roadblock regardless of their affiliation with the Rainbow Gathering or state of

residence. Both Bradley’s dash-cam footage and Lt. Coleman’s Roadblock Final Report

further support the Court’s conclusion. The roadblock resulted in the issuance of twenty-

three citations, five non-DUI arrests, and two DUI arrests.160 Sears cites no law supporting

his theory of a Fourteenth Amendment violation, and Sears’ own testimony contradicts the

allegations in his Amended Complaint.

Q: And how do you know that local residents weren't stopped?

A: Well, I don't know that, but I do know that the -- the way the roadblock

was situated, it was to intercept traffic leaving the Chattahoochee National

Forest, which is where the gathering was. It -- It was not set up on the

main road. It was set up in order to get people leaving the gathering or

entering the gathering.

Q: And that’s just based on your observation or what you believe?

A: Yes, ma’am.161

Furthermore, there is no evidence Trooper Bradley knew of or inquired into Sears’

association with the Rainbow Gathering.162 “To prevail on a ‘class of one’ equal protection

160 Roadblock Final Report, [Doc. 36-4] at p. 10.

161 Sears Depo., [Doc. 39] at 70:8-18.

162 Sears Depo., [Doc. 39] at 102:21-103:1.

36

claim, Plaintiffs must show they were intentionally treated differently from others who

were ‘similarly situated’ and that there is no rational basis for the difference in

treatment.”163 Sears can make no such showing, and his unsupported speculation is wholly

insufficient to establish an equal protection claim. Thus, Sears’ equal protection claim fails,

and Trooper Bradley is entitled to summary judgment.

CONCLUSION

For the reasons stated above, Trooper Bradley’s Motion for Summary Judgment

[Doc. 36] is GRANTED in part and DENIED in part. Specifically, the Court GRANTS

summary judgment on Sears’ unlawful stop, detention, malicious prosecution, First

Amendment, and Fourteenth Amendment claims, and DENIES summary judgment on

Sears’ unlawful search and arrest claims. Sherriff Jarrard’s Motion for Summary

Judgment [Doc. 37] is GRANTED.

SO ORDERED, this 31st day of March, 2023.

s/ C. Ashley Royal_________________

C. ASHLEY ROYAL, SENIOR JUDGE

UNITED STATES DISTRICT COURT

163 Grider, 618 F.3d at 1263-64 (citing Village of Willowbrook v. Olech, 528 U.S. 562 (2000); Griffin Indus. v. Irvin,

496 F.3d 1189, 1202 (11th Cir. 2007)).

37