Opinion

Ross M. Jackson v. Sgt. Glenn Cowan

Court: Court of Appeals for the Eleventh Circuit
Filed: Sep 1, 2022
Status: Unpublished
Nature of suit: NEW
Cited by: 0 cases
Authority: More cited than 1.4%

“Whether a particular set of facts gives rise to probable cause or arguable probable cause to justify an arrest for a particular crime depends, of course, on the elements of the crime.”

How later courts described this case

“Whether a particular set of facts gives rise to probable cause or arguable probable cause to justify an arrest for a particular crime depends, of course, on the elements of the crime.”
rejecting require- ment that plaintiffs must identify a case with “fundamentally” or “materially similar” facts to show that the law is clearly established because “officials can still be on notice that their conduct violates established law even in novel factual circumstances”
rejecting requirement that plain- tiffs must identify a case with “fundamentally” or “materially simi- lar” facts to show that a law is clearly established because “officials can still be on notice that their conduct violates established law even in novel factual circumstances”
“[T]he existence of probable cause . . . defeats [a] First Amendment [retaliation] claim.”

Written by the judges who cited it.

The opinion

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-13181

____________________

ROSS M. JACKSON,

Plaintiff-Appellant,

versus

SGT GLENN COWAN,

University of Georgia Police Department,

SPO K DORSEY,

University of Georgia Police Department,

OFC HUTCHINS,

University of Georgia Police Department,

Defendants-Appellees,

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2 Opinion of the Court 19-13181

KEATON WILLIAM LAW, et. al.,

Defendants.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 3:17-cv-00145-CDL

____________________

Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Ross Jackson preaches Biblical Christianity in public places.

While he was delivering a sermon at the University of Georgia, he

was arrested for simple battery of a student who was countering

his message.

Mr. Jackson filed suit against several UGA police officers—

Sergeant Glenn Cowan, Officer Kevin Dorsey, and Officer Oksana

Hutchins—alleging claims under 42 U.S.C. § 1983 for violations of

the First, Fourth, and Fourteenth Amendments and a claim under

42 U.S.C. § 1985(3). The officers moved for summary judgment

based on qualified immunity. After concluding that the officers

were entitled to qualified immunity, the district court entered sum-

mary judgment in their favor. After reviewing the record and with

the benefit of oral argument, we affirm.

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19-13181 Opinion of the Court 3

On October 10, 2016, Mr. Jackson, who is black, and three

white preachers delivered sermons on UGA’s Tate Lawn, a desig-

nated free expression area on UGA’s campus. A free expression

area at UGA is an area for individuals to exercise their First Amend-

ment rights without obtaining a permit from UGA.

Mr. Jackson preached first for approximately thirty to sixty

minutes, followed by the three white preachers. In delivering their

sermons, the preachers expressed controversial religious views,

and a large crowd of students surrounded the preachers. After ar-

riving on the scene, UGA police officers, including the officers sued

here, stood behind the crowd of students, monitored the situation,

and answered questions from the students. In response to student

questions about how to silence the preachers, the officers repeat-

edly explained that they could not intervene because the preachers

had the constitutional right to freedom of speech.

After the UGA officers had been on the scene for approxi-

mately forty-two minutes, the crowd of students audibly reacted to

one of the white preachers. The officers moved into the crowd,

and Officer Dorsey asked, “What just happened? Did someone

touch him?” A small group of students was up close to a preacher,

1 The record evidence in this case includes the body camera video recordings

of Officer Dorsey and Sergeant Cowan, which captured the events that tran-

spired on October 10 and October 11, 2016, respectively, on UGA’s Tate

Lawn.

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4 Opinion of the Court 19-13181

with some students holding each other back. The officers asked

the students to move away from the preacher and back into the

crowd. One student remained close to the preacher, however, and

the officers physically moved her back. Officer Dorsey informed

one student that the preachers’ goal was to “upset” them and said

not to touch them.2

The officers then remained in the front of the crowd for ap-

proximately eight minutes. During this time, several students got

close to the preacher, but the officers did not intervene. They con-

tinued to explain to students that the preacher had freedom of

speech under the First Amendment so long as “he doesn’t threaten

someone or put his hands on someone.” Officer Dorsey told a stu-

dent that the officers’ “whole goal is to make sure that no on

touches him and he doesn’t touch anyone else and he doesn’t

threaten someone.” At one point, the student who was previously

moved away from the preacher came up and spoke with the offic-

ers. The officers explained to her that she could “say whatever

[she] want[s], . . . just don’t threaten him.” Shortly after, the offic-

ers went back behind the crowd of students.

A few minutes later, there was another reaction from the

crowd, and the officers moved back into the crowd. They spoke to

a student who the preacher had insulted, with Officer Dorsey

This was not the first time that the crowd audibly reacted, but it was the first

time shown in the video where the reaction led officers to move into the

crowd.

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19-13181 Opinion of the Court 5

saying, “We just wanted to make sure you were okay.” Then, the

officers went back behind the crowd. About six minutes later, the

officers moved back in and broke up a group of students surround-

ing the preacher. Officer Dorsey explained to a student that “they

can say whatever they want,” but if the preacher “attacks someone,

touches someone, or threatens someone, like their safety, then

that’s an issue, then we can step in.” The student asked, “Really?”

and Officer Dorsey responded, “Just like you could say anything

you want. I mean, as long as you don’t touch him, as long as you

don’t like threaten him or anything. . . . As long as everyone just

maintains their distance and doesn’t threaten them or anything,

then it’s okay.” At that point, a woman started aggressively engag-

ing with one of the preachers; officers stepped between them and

created distance but allowed the woman to continue to engage

while the officer stood between them. After she moved back, an

officer stopped and spoke to her. This woman continued to inter-

act with the preachers for the next half hour without further police

intervention.

The officers briefly moved back, but then returned to the

front of the crowd. The officers made no further physical interven-

tions, although some students held or moved each other back.

When a student was upset at a preacher’s comments that “all Mus-

lims are a cancer,” Officer Dorsey once again explained, “He can

say whatever he wants. You can say whatever you want as well, as

long as you don’t touch him or threaten him. And that’s the First

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6 Opinion of the Court 19-13181

Amendment.” The video evidence does not show any further po-

lice intervention that day. 3

Mr. Jackson returned to Tate Lawn the next day. When Ser-

geant Cowan arrived at the scene on the second day, the crowd

gathered around Mr. Jackson was significantly sparser than it was

the day before.

UGA students Keaton Law and Lechandt Opperman were

aggressively engaging with Mr. Jackson. Sergeant Cowan stood

back and monitored the situation for about twelve minutes. At

that point, Officer Dorsey arrived and started to separate Mr. Jack-

son and Mr. Law, but Sergeant Cowan called Officer Dorsey back.

Mr. Law told the officers, “I promise not to touch him at all,” to

which Sergeant Cowan responded, “I know.” Officer Dorsey said

to Sergeant Cowan that “it just kind of looked like [Mr. Law] was

all up in [Mr. Jackson’s] face.” Sergeant Cowan responded that

“they’re countering what he’s saying” and that Officer Dorsey

should not say anything and should refer all questions to him.

Sergeant Cowan said that Mr. Law and Mr. Opperman were

“doing a really good job” countering Mr. Jackson’s speech. Officer

Dorsey apologized and said that he “didn’t know [Sergeant Cowan]

had already talked to” Mr. Law and Mr. Opperman. Sergeant

Cowan later testified that he remembered explaining to a group of

We note, however, that the video ends as new officers arrive, while the

crowd was still gathered and the preachers were still preaching.

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19-13181 Opinion of the Court 7

students, including Mr. Law, the day before that they could engage

in counter-speech and that they had the same rights as the preach-

ers.

Mr. Jackson, Mr. Law, and Mr. Opperman continued their

heated exchange for about seven minutes. During this period, Ser-

geant Cowan stood behind the sparser crowd and responded to stu-

dent questions. For example, he told a student that Mr. Jackson’s

preaching was to get somebody to react to him, e.g., by striking

him, and was “not real religion.”

At one point during his exchange with Mr. Law, Mr. Jackson

“felt [Mr. Law’s] spit touch” him when Mr. Law shouted in his ear.

Mr. Jackson then approached the officers, who were responding to

student questions, and asked if it was okay for the students to “put

his mouth right up on his ear and yell.” Cowan brushed off the

question, and the students and Mr. Jackson returned to the center

of the circle. Mr. Jackson and Mr. Law continued to yell at each

other, sometimes in each other’s faces and sometimes farther apart.

On several occasions, Mr. Jackson raised his arms while holding a

Bible and yelled at Mr. Law to “back up.” According to Mr. Jackson,

Mr. Law “chest-bumped” him as the exchange escalated. From the

video footage, Mr. Jackson and Mr. Law were positioned very close

to one another during this point of the exchange; the video depicts

Mr. Law moving his chest closely to Mr. Jackson’s chest but does

not clearly depict whether the two bumped chests.

The exchange continued, and when they were close to-

gether, Mr. Jackson backed up from Mr. Law and told him, “You

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8 Opinion of the Court 19-13181

need a breath mint.” Mr. Law responded, “I do, and I hope it

smells,” while walking toward Mr. Jackson. Mr. Jackson raised his

arms while holding his Bible like he had done in the minutes be-

fore.

At the same time, Mr. Law moved even closer and stepped

to Mr. Jackson’s left side. Mr. Jackson lifted his left arm across his

own body and made contact with Mr. Law’s face. After touching

Mr. Law, Mr. Jackson continued moving him to the side, saying,

“Out of my face.” Officer Dorsey said, “He just pushed him,” and

the officers moved in and arrested Mr. Jackson for simple battery.

Sergeant Cowan told Mr. Jackson that he was under arrest for sim-

ple battery and asked Mr. Jackson if he understood. Mr. Jackson

responded that he did not “make any intentional physical conduct,”

but Sergeant Cowan stated that was what he and the other officers

observed and recorded.

Later, when Sergeant Cowan was briefing an investigating

officer on the incident, he stated that Mr. Jackson was “berating”

Mr. Law, that Mr. Law at one point came around to Mr. Jackson’s

side, that Mr. Jackson hit the side of Mr. Law’s shoulder and head,

and that “at that point [they] took him down.” Sergeant Cowan

concluded the briefing by stating, “Crowd went crazy. I think we

hit a home run.”

The state declined to prosecute Mr. Jackson. Prosecutors

concluded that while “there was sufficient probable cause to arrest

[him], the evidence is not sufficient to prove guilt beyond a reason-

able doubt.”

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19-13181 Opinion of the Court 9

Mr. Jackson filed suit against the officers, Mr. Law, and Mr.

Opperman, asserting claims under § 1983 for violations of the First,

Fourth, and Fourteenth Amendments, and a claim under § 1985(3).

The officers moved for summary judgment, arguing that Mr. Jack-

son’s claims failed as a matter of law and that they were entitled to

qualified immunity.

The district court granted summary judgment in favor of the

officers. The district court concluded that the claims of false arrest

under the Fourth Amendment and retaliatory arrest under the First

Amendment failed because there was probable cause to arrest Mr.

Jackson for simple battery, which is an absolute bar to challenging

an arrest. The district court reasoned that an objective officer

could reasonably conclude that Mr. Jackson’s physical contact with

Mr. Law was “intentional and insulting or of a provoking nature”

so as to constitute simple battery under Georgia law. See Ga. Code

Ann. § 16-5-23(a)(1) (2016). The district court therefore ruled that

the officers were entitled to qualified immunity on those claims.

As to Mr. Jackson’s claim that the officers failed to intervene

to protect his First Amendment rights, the district court concluded

that the officers did nothing to impede his speech prior to his arrest

and that there was no clearly established law requiring officers to

prevent third parties from obstructing speech. The district court

also rejected Mr. Jackson’s claim under the Fourteenth Amend-

ment that the officers were more protective of the white preachers

on the first day than they were of him on the second day. The two

days of preaching were not similar in all relevant respects, as there

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10 Opinion of the Court 19-13181

were material differences in crowd size and how the students in the

crowd behaved on each day. The district court thus ruled that the

officers were entitled to qualified immunity on Mr. Jackson’s Equal

Protection claim.

Finally, the district court concluded that Mr. Jackson’s

§ 1985(3) conspiracy claim failed because there was no evidence

that the officers were motivated by race- or class-based animus.

And it explained that the officers were likely protected from this

claim by qualified immunity as well.

This appeal ensued.

We review de novo summary judgment decisions based on

qualified immunity. See Glasscox v. City of Argo, 903 F.3d 1207,

1212 (11th Cir. 2018). “When considering a motion for summary

judgment, including one asserting qualified immunity, ‘courts

must construe the facts and draw all inferences in the light most

favorable to the nonmoving party and when conflicts arise be-

tween the facts evidenced by the parties, they must credit the non-

moving party’s version.’” Feliciano v. City of Miami Beach, 707

F.3d 1244, 1252 (11th Cir. 2013) (alteration adopted) (quoting Davis

v. Williams, 451 F.3d 759, 763 (11th Cir. 2006)). “Summary judg-

ment is appropriate only when the moving party demonstrates that

no disputed issue of material fact exists,” and that it is entitled to

judgment as a matter of law. See Carter v. Butts Cnty., 821 F.3d

1310, 1318 (11th Cir. 2016). If there is video evidence that

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19-13181 Opinion of the Court 11

“obviously contradicts [the plaintiff’s] version of the facts, we ac-

cept the video’s depiction instead of [the plaintiff’s] account.”

Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010).

III

On appeal, Mr. Jackson contends that the district court erred

in granting summary judgment in favor of the officers on all his

claims. To recap, Mr. Jackson asserted four claims under 42 U.S.C.

§ 1983, arguing that the officers violated his constitutional rights

(1) under the Fourth Amendment, by arresting him without prob-

able cause; (2) under the First Amendment, by arresting him be-

cause of the content of his speech; (3) under the First Amendment,

by failing to intervene to protect him while he was exercising his

right to free speech; and (4) under the Fourteenth Amendment’s

Equal Protection Clause, by offering him less protection on the sec-

ond day than they offered the white preachers on the first day. Mr.

Jackson also brought a claim under 42 U.S.C. § 1985(3), contending

that the officers conspired with Mr. Law and Mr. Opperman to de-

prive him “of his equal protection of the law and equal privileges

and immunities.” We first discuss the relevant legal principles gov-

erning qualified immunity before turning to Mr. Jackson’s claims.

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional

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12 Opinion of the Court 19-13181

rights of which a reasonable person would have known.’” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). “Qualified immunity balances two im-

portant interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield of-

ficials from harassment, distraction, and liability when they per-

form their duties reasonably.” Id. “[Q]ualified immunity is a priv-

ilege that provides ‘an immunity from suit rather than a mere de-

fense to liability.’” Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir.

2009) (alteration and emphasis in original) (quoting Bates v. Har-

vey, 518 F.3d 1233, 1242 (11th Cir. 2008)).

In order to be entitled to qualified immunity, an officer must

first show that he was acting within his discretionary authority. See

Manners v. Cannella, 891 F.3d 959, 967 (11th Cir. 2018). Because

that threshold question is undisputed here, “the burden shifts to

[Mr. Jackson] to establish that qualified immunity is not appropri-

ate by showing that (1) the facts alleged make out a violation of a

constitutional right and (2) the constitutional right at issue was

clearly established at the time of the alleged misconduct.” Gates v.

Khokhar, 884 F.3d 1290, 1297 (11th Cir. 2018). We have “discretion

in deciding which of the two prongs of the qualified immunity anal-

ysis should be addressed first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. at 236.

In determining whether a principle of law is clearly estab-

lished, “[w]e do not require a case directly on point, but existing

precedent must have placed the statutory or constitutional

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19-13181 Opinion of the Court 13

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). The “salient question” in a qualified immunity analysis is

whether officers had “fair warning” that their conduct was unlaw-

ful. See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (rejecting require-

ment that plaintiffs must identify a case with “fundamentally” or

“materially similar” facts to show that the law is clearly established

because “officials can still be on notice that their conduct violates

established law even in novel factual circumstances”). Accord-

ingly, a plaintiff may demonstrate clearly established law in one of

three ways. See Mercado v. City of Orlando, 407 F.3d 1152, 1159

(11th Cir. 2005). “First, he can show that a materially similar case

has already been decided.” Id. Second, he can “show that a

broader, clearly established principle should control the novel

facts” of his case. Id. Third, “he [can] show that [his] case fits

within the exception of conduct which so obviously violates [the]

[C]onstitution that prior case law is unnecessary.” Id.

Mr. Jackson contends that he was arrested without probable

cause in violation of the Fourth Amendment. “[I]t is well estab-

lished that ‘[a] warrantless arrest without probable cause violates

the Fourth Amendment and forms the basis for a [§] 1983 claim.’”

Carter, 821 F.3d at 1319 (second alteration in original) (quoting Or-

tega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996)). “[B]ut the

existence of probable cause at the time of arrest is an absolute bar

to a subsequent constitutional challenge to the arrest.” Brown v.

City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). Moreover,

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14 Opinion of the Court 19-13181

“[t]o receive qualified immunity, an officer need not have actual

probable cause, but only arguable probable cause,” meaning “rea-

sonable officers in the same circumstances and possessing the same

knowledge as the [d]efendants could have believed that probable

cause existed to arrest [the] [p]laintiff.” Id. (quotation marks omit-

ted).

“For probable cause to exist, . . . an arrest must be objec-

tively reasonable based on the totality of the circumstances.” Lee

v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). Although an officer

“‘is not required to explore and eliminate every theoretically plau-

sible claim of innocence before making an arrest,’” the officer “may

not choose to ignore information that has been offered to him or

her . . . or elect not to obtain easily discoverable facts.” Kingsland

v. City of Miami, 382 F.3d 1220, 1229 (11th Cir. 2004) (quoting Ric-

ciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)), ab-

rogated on other grounds by Williams v. Aguirre, 965 F.3d 1147

(11th Cir. 2020). “[W]e apply this objective reasonableness stand-

ard to the facts as they relate to the elements of the alleged crime

for which the plaintiff was arrested.” Carter, 821 F.3d at 1320; see

also Crosby v. Monroe Cnty., 394 F.3d 1328, 1333 (11th Cir. 2004)

(“Whether a particular set of facts gives rise to probable cause or

arguable probable cause to justify an arrest for a particular crime

depends, of course, on the elements of the crime.”).

Although arguable probable cause does not “require prov-

ing every element of a crime,” qualified immunity is not appropri-

ate when a reasonable officer, based on readily available

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19-13181 Opinion of the Court 15

information, would have known that the plaintiff’s conduct did not

satisfy an element of the offense. See Brown, 608 F.3d at 735;

Carter, 821 F.3d at 1321. Our decision in Carter provides a good

example of how these concepts work.

In Carter, an officer arrested maintenance workers who

were clearing out his abandoned, foreclosed-upon house after be-

ing authorized to do by their company. See 821 F.3d at 1315–18.

The officer argued that he had probable cause to arrest the workers

for burglary, criminal trespass, and theft by taking. Id. at 1320. We

analyzed the elements of the relevant statutes and explained that

“[t]he common thread running through all of these offenses is a

lack of authority,” i.e., a lack of authority to be at or inside a prop-

erty or a lack of authority to remove a property’s contents. See id.

Therefore, whether the officer had arguable probable cause to ar-

rest the workers “necessarily focuse[d] on whether a reasonable of-

ficer in [the defendant officer’s] position should have known that

[the workers] were authorized to prepare the [p]roperty for sale

following the foreclosure.” Id. at 1320–21. We held that the officer

“lacked even arguable probable cause” because “a reasonable of-

ficer should have known both that [the p]laintiffs were authorized

to enter the [p]roperty and . . . to remove its contents.” Id. at 1321.

Indeed, the officer was aware that the resale company was author-

ized to enter and clean out his property before and at the time of

the workers’ arrests. Id. We explained that the officer’s refusal to

look at authorization documentation did not “excuse any igno-

rance” he claimed to have, as “[a] police officer may not conduct

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16 Opinion of the Court 19-13181

an investigation in a biased fashion[,] . . . elect not to obtain easily

discoverable facts,’” nor “choose to ignore information that has

been offered to him or her.” Id. (quotation marks omitted). A jury,

we said, could reasonably conclude that the officer arrested the

workers to retaliate against them for the lawful foreclosure against

his abandoned property. See id. at 1322.

Here Mr. Jackson was arrested for simple battery. Georgia’s

simple battery statute provides that “[a] person commits the of-

fense of simple battery when he or she either: (1) Intentionally

makes physical contact of an insulting or provoking nature with

the person of another; or (2) Intentionally causes physical harm to

another.” Ga. Code Ann. § 16-5-23(a) (2016). As the unambiguous

text of the statute makes clear, accidental or unintentional conduct

cannot form the basis of a charge of simple battery. Indeed, the

Georgia Supreme has noted that “[i]f the jury believed that an acci-

dent occurred, no battery was committed” under § 16-5-23(a). See

Moore v. State, 656 S.E.2d 796, 799–800 (Ga. 2008). Moreover, in

considering this same statute, we held in United States v. Griffith,

455 F.3d 1339 (11th Cir. 2006), that § 16-5-23(a)(1) is a predicate of-

fense under 18 U.S.C. § 922(g)(9), which prohibits someone who

has been convicted of “a misdemeanor crime of domestic violence”

from possessing firearms. We explained that Georgia’s simple bat-

tery statute has an element of “‘physical contact of an insulting or

provoking nature’” and that “[a] person cannot make physical con-

tact—particularly of an insulting or provoking nature—with

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19-13181 Opinion of the Court 17

another without exerting some level of physical force.” Griffith,

455 F.3d at 1342 (quoting § 16-5-23(a)(1)).

Even considering the facts in the light most favorable to Mr.

Jackson—as we must at the summary judgment stage—the officers

were entitled to qualified immunity. As we explain, the officers

had arguable probable cause to arrest Mr. Jackson for simple bat-

tery.

The video evidence shows Mr. Jackson repeatedly raising his

arms while holding a Bible without making physical contact with

Mr. Law. But when Mr. Law moved toward Mr. Jackson’s side

while Mr. Jackson was simultaneously raising his arms with his Bi-

ble in hand, physical contact took place. Under those circum-

stances, we acknowledge that it was not crystal-clear that Mr. Jack-

son acted intentionally or in an insulting or provoking way. But

given the confrontation and animosity between Mr. Jackson and

Mr. Law, a reasonable officer objectively “could have believed”

that Mr. Jackson acted intentionally or in an insulting or provoking

manner by touching Mr. Law’s face with his arm. And that is all

that is required for arguable probable cause to exist. See Brown,

608 F.3d at 734.

After the arrest, Sergeant Cowan explained to an investigat-

ing officer that Mr. Jackson had “brushed his arm up against” Mr.

Law. This characterization of the touching, however, does not ne-

gate the existence of arguable probable cause or create an issue of

material fact. For example, the following exchange—captured on

video—occurred during Mr. Jackson’s arrest:

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18 Opinion of the Court 19-13181

COWAN: You’re under arrest for simple battery, do

you understand?

...

COWAN: You cannot make intentional physical con-

tact with anybody. Do you understand that?

JACKSON: I didn’t make any intentional physical

contact.

COWAN: Yes, sir, but that’s what we observed and

that’s what we have recorded, sir. Okay.

Taking Sergeant Cowan’s contemporaneous and post-arrest

statements together, and viewing them in the light most favorable

to Mr. Jackson, our conclusion about arguable probable cause re-

mains the same. As we and some of our sister circuits have ex-

plained, officers are given latitude when making on-the-spot deter-

minations about a suspect’s intent or mens rea. See Jordan v. Mos-

ley, 487 F.3d 1350, 1355 (11th Cir. 2007); Cox v. Hainey, 391 F.3d

25, 34 (1st Cir. 2004); Paff v. Kaltenbach, 204 F.3d 425, 437 (3d Cir.

2000). “The concept of arguable probable cause . . . allows for the

possibility that an officer might ‘reasonably but mistakenly con-

clude that probable cause is present,’” and “‘does not require prov-

ing every element of a crime.’” Gates, 884 F.3d at 1298–1300 (cita-

tions omitted). See also District of Columbia v. Wesby, 138 S. Ct.

577, 591 (2018) (“Even assuming the officers lacked actual probable

cause to arrest the partygoers, the officers are entitled to qualified

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19-13181 Opinion of the Court 19

immunity because they ‘reasonably but mistakenly conclude[d]

that probable cause [wa]s present.’”) (citation omitted). 4

Mr. Jackson contends that the officers violated the First

Amendment by arresting him based on the content of his speech.

As an initial matter, we agree with the district court’s determina-

tion that, at the time of Mr. Jackson’s arrest, it was the law of this

circuit that the existence of probable cause barred a First Amend-

ment retaliatory arrest claim. See Dahl v. Holley, 312 F.3d 1228,

1236 (11th Cir. 2002) (“[T]he existence of probable cause . . . defeats

[a] First Amendment [retaliation] claim.”), abrogated by Lozman

v. City of Riviera Beach, 138 S. Ct. 1945 (2018); Gates, 884 F.3d at

1297–98 (probable cause defeats a false arrest claim). Subsequently,

in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), the Supreme Court held

that though generally a “plaintiff pressing a retaliatory arrest claim

must plead and prove the absence of probable cause for the arrest,”

there is an exception to “the no-probable-cause requirement . . .

when a plaintiff presents objective evidence that he was arrested

when otherwise similarly situated individuals not engaged in the

same sort of protected speech had not been.” Id. at 1724, 1727.

Because this exception was announced when Nieves was decided,

4Even if we were to consider Mr. Jackson’s post-arrest denial of intentional

contact, an officer is not required to accept a suspect’s protestations of inno-

cence. See Wesby, 138 S. Ct. at 587–88.

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20 Opinion of the Court 19-13181

it was not clearly established law in this circuit at the time of Mr.

Jackson’s arrest.

As previously discussed, the officers had arguable probable

cause to arrest Mr. Jackson for simple battery. Given the law of

our circuit at the time, the officers are entitled to qualified immun-

ity for the First Amendment claim. Mr. Jackson argues that, be-

cause the Supreme Court applied the probable cause exception ret-

roactively in Nieves, we should do so here. He fails to note, how-

ever, that in the Ninth Circuit prior to Nieves “a plaintiff [could]

prevail on a First Amendment retaliatory arrest claim even in the

face of probable cause for the arrest.” Nieves, 139 S. Ct. at 1721.

That was not the law in this circuit. Indeed, the Supreme Court in

Nieves rejected the Ninth Circuit’s approach, holding that

“[a]bsent . . . a showing [of no probable cause], a retaliatory arrest

claim fails,” subject only to the “narrow qualification” discussed

above. Id. at 1725, 1727.

Additionally, Lozman—the other case Mr. Jackson relies on

for his retroactivity argument—was similarly decided after his ar-

rest. In any event, in Lozman the Supreme Court explicitly limited

its holding to suits against governmental entities, which are not en-

titled to qualified immunity. See 138 S. Ct. at 1954–55 (noting that

because the defendant was a city rather than a governmental of-

ficer, the plaintiff was required to “prove the existence and enforce-

ment of an official policy motivated by retaliation,” which “sepa-

rate[d] [the plaintiff’s] claim from the typical retaliatory arrest

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19-13181 Opinion of the Court 21

claim,” and declining to “address the elements required to prove a

retaliatory arrest claim in other contexts”).

Mr. Jackson asserts that the officers had a duty to intervene

to prevent Mr. Law and Mr. Opperman from drowning out his

speech. He argues that the officers encouraged the obstruction,

effectively subjecting him to a heckler’s veto.

A heckler’s veto occurs when unpopular speakers are “con-

victed upon evidence which show[s] no more than that the opin-

ions which they were peaceably expressing were sufficiently op-

posed to the views of the majority of the community to attract a

crowd and necessitate police protection.” Edwards v. South Caro-

lina, 372 U.S. 229, 237 (1963). Such convictions “may not stand.”

Id. at 238 (quoting Terminiello v. Chicago, 337 U.S. 1, 5 (1949)); see

also Gregory v. City of Chicago, 394 U.S. 111, 111–12 (1969) (re-

versing convictions of peaceful protestors for disorderly conduct

after “onlookers became unruly” and “police, to prevent what they

regarded as an impending civil disorder, demanded that the de-

monstrators, upon pain of arrest, disperse”); Cox v. Louisiana, 379

U.S. 536, 545–51 (1965) (reversing convictions for breach of the

peace where officers ordered peaceful protestors to disperse be-

cause “violence was about to erupt” from counter-protestors).

In each of these heckler’s veto cases, police ordered unpop-

ular, but peaceful, protestors to disperse because they were con-

cerned that counter-protestors were about to become violent.

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22 Opinion of the Court 19-13181

When the peaceful protestors refused to disperse, they were ar-

rested.

The heckler’s veto principle prohibits police from arresting

peaceful protestors, or ordering them to disperse, in acquiescence

to unruly counter-protestors. Some circuits have held or suggested

that police officers have a duty to take reasonable actions to pro-

tect, against violence, persons exercising their First Amendment

rights. See, e.g., Bible Believers v. Wayne County, Mich., 805 F.3d

228, 252–53 (6th Cir. 2015) (en banc); Phelps-Roper v. Ricketts, 867

F.3d 883, 900–01 (8th Cir. 2017). Others, however, have concluded

that officers can ask speakers to move to another location in order

to prevent violence as long as their actions are not based on the

content of the speech. See Startzell v. City of Philadelphia, 533 F.3d

183, 200–01 (3d Cir. 2008). As far as we can tell, however, no court

has ruled that the heckler’s veto principle requires officers to pro-

tect a speaker from counter speech. Here, Mr. Jackson was never

ordered to disperse, and the basis for his arrest was not the stu-

dents’ reaction to his unpopular speech, but rather the physical

contact between himself and Mr. Law. This is therefore not a heck-

ler’s veto case. Accordingly, we affirm the district court’s rejection

of this claim on qualified immunity grounds.5

5 Mr. Jackson asserts that internal UGA policies required the officers to inter-

vene. The relevant question under § 1983, however, is whether the officers

violated Mr. Jackson’s First Amendment rights, not internal policies. See Da-

vis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials sued for constitutional

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19-13181 Opinion of the Court 23

Mr. Jackson’s fourth and final § 1983 claim was brought un-

der the Fourteenth Amendment’s Equal Protection Clause. Mr.

Jackson argues that the officers engaged in racial discrimination be-

cause they provided more protection to the white preachers on the

first day than they provided to him on the second day.

“[T]he Equal Protection Clause requires government enti-

ties to treat similarly situated people alike.” Campbell v. Rainbow

City, 434 F.3d 1306, 1313 (11th Cir. 2006). “To prevail on [a] tradi-

tional type of equal protection claim, basically a selective enforce-

ment claim, . . . [a plaintiff] must show . . . that [he was] treated dif-

ferently from other similarly situated individuals.” Id. at 1314.

“[D]ifferent treatment of dissimilarly situated persons does not vi-

olate the equal protection clause.” Id. (quoting E&T Realty v.

Strickland, 830 F.2d 1107, 1109 (11th Cir. 1987)).

Here, the district court correctly identified several material

differences between the first day and the second day that preclude

Mr. Jackson’s race discrimination claim. Two are particularly com-

pelling. First, on the first day, the crowd of students was signifi-

cantly larger and blocked the officers’ view. The officers inter-

vened when they heard the crowd react but could not see what was

going on inside the circle. On the second day, the officers had bet-

ter visibility, and there was less crowd reaction. Second, on the

violations do not lose their qualified immunity merely because their conduct

violates some statutory or administrative provision.”).

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24 Opinion of the Court 19-13181

first day, the officers separated several students from the preachers;

the officers had not yet explained to those students that they could

engage in counter-speech but could not touch the preachers. No-

tably, after the officers had a conversation with a woman who was

aggressively debating a white preacher, they allowed her to con-

tinue to engage without further police intervention. On the second

day, Sergeant Cowan remembered that he had already explained

this to Mr. Law, and video evidence shows Mr. Law promising the

officers that he would not touch Mr. Jackson.

In short, the conditions on the first day differed from those

of the second day such that the first day is not an adequate compar-

ator. The officers’ treatment of Mr. Jackson and handling of the

students may not have been optimal, but he has failed to show that

it was based on race discrimination. We therefore affirm the dis-

trict court’s rejection of this claim on qualified immunity grounds.

Mr. Jackson claimed that the officers engaged in a conspiracy

in violation of § 1985(3). That provision prohibits “two or more

persons” from “conspir[ing] . . . for the purpose of depriving, either

directly or indirectly, any person or class of persons of the equal

protections of the laws.” 6

6 Previously in this circuit, qualified immunity was not available as a defense

to § 1985(3) claims. See Burrell v. Bd. of Trs. of Ga. Mil. Coll., 970 F.2d 785,

794 (11th Cir. 1992). Subsequently, however, the Supreme Court has applied

qualified immunity to § 1985(3) claims. See Ziglar v. Abbasi, 137 S. Ct. 1843,

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19-13181 Opinion of the Court 25

To prevail on a § 1985(3) claim, a plaintiff must show:

(1) a conspiracy; (2) for the purpose of depriving, ei-

ther directly or indirectly, any person or class of per-

sons of the equal protections of the laws, or of equal

privileges and immunities under the laws; and (3) an

act in furtherance of the conspiracy; (4) whereby a

person is either injured in his person or property or

deprived of any right or privilege of a citizen of the

United States.

United Brotherhood of Carpenters & Joiners of Am. v. Scott, 463

U.S. 825, 828–29 (1983).

The first element of a § 1985(3) claim is a conspiracy, i.e., “an

agreement between ‘two or more persons’ to deprive him of his

civil rights.” Dickerson v. Alachua Cnty. Comm’n, 200 F.3d 761,

767 (11th Cir. 2000) (quoting § 1985(3)). For example, in Adickes

v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970), the Supreme

Court concluded that, based on “unexplained gaps in the materials

submitted” at the summary judgment stage, the respondent failed

to demonstrate that no policeman was in the store, which was a

“critical element” in determining whether a conspiracy to refuse

service occurred.

1869 (2017) (“Petitioners are entitled to qualified immunity with respect to the

claims under 42 U.S.C. § 1985(3).”); see also Chua v. Ekonomou, 1 F.4th 948,

956 (11th Cir. 2021) (recognizing that the Supreme Court in Ziglar abrogated

Burrell’s holding that “qualified immunity does not apply to a claim brought

under [§] 1985(3)”).

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26 Opinion of the Court 19-13181

Only one of Mr. Jackson’s allegations could plausibly indi-

cate such an agreement—that “[Mr.] Law asked [Dean Janice] Bar-

ham the day before how to shut Mr. Jackson down, and [Mr.] Law

then spoke with [Sergeant] Cowan.” But the record evidence does

not support this allegation. Dean Barham testified that on the first

day of preaching, Mr. Law was “engaging in conversation, the

same questions that most of our students were asking, ‘Why are

they able to be here? What are they doing? How do we shut this

down?’” Dean Barham was generalizing the questions that most

students were asking, not directly quoting Mr. Law. Furthermore,

the video footage demonstrates that when students did ask ques-

tions—along the lines of “how do we shut this down”—the officers

responded that they could not interfere with the preachers’ free-

dom of speech and that the best course of action was for students

to walk away or engage in counter-speech.

Sergeant Cowan also testified that he did not speak directly

to Mr. Law. Rather, Mr. Law was standing in a group of students,

and Sergeant Cowan spoke with other members of the group. Our

review of the video indicates that Sergeant Cowan did not come to

an agreement or understanding with any of the students but simply

informed them of their right to engage in counter-speech. Mr. Jack-

son did not present any evidence that contradicts Dean Barham’s

or Sergeant Cowan’s testimony on these issues. And, unlike

Adickes, there are no “unexplained gaps” in the evidence here. See

398 U.S. at 158.

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19-13181 Opinion of the Court 27

After reviewing all the video footage and the extensive dep-

osition testimony, there is simply no evidence that the officers

reached an agreement with their co-defendants to deprive Mr. Jack-

son of his rights. We therefore affirm the dismissal of Mr. Jackson’s

§ 1985(3) claim for failure to establish a factual dispute as to

whether a conspiracy existed.

We affirm the district court’s summary judgment order.

AFFIRMED.

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19-13181 LAGOA, J., Concurring in Part, Dissenting in Part 1

LAGOA, Circuit Judge, Concurring in Part and Dissenting in Part:

I concur with the majority’s rulings to affirm the district

court’s denial of Ross Jackson’s claims against Appellees for: (1) fail-

ing to intervene to protect Jackson while he was exercising his right

to free speech; (2) engaging in racial discrimination in violation of

the Fourteenth Amendment’s Equal Protection Clause by provid-

ing more protection to white preachers on the first day of preach-

ing than him on the second day; and (3) conspiracy in violation of

42 U.S.C. § 1985(3).

However, I part ways with the majority’s affirmance of the

district court’s denial of Jackson’s 42 U.S.C. § 1983 claims for false

arrest under the Fourth Amendment and retaliatory arrest under

the First Amendment. In my view, when viewing the record evi-

dence in the light most favorable to Jackson—as we must at the

summary judgment stage—no reasonable officer with the same

knowledge as Appellees would have concluded that Jackson’s con-

tact with Keaton Law was intentional such that Appellees had

probable cause or arguable probable cause to arrest Jackson for

simple battery. Therefore, I would reverse the district court’s de-

termination that Appellees are entitled to qualified immunity as to

Jackson’s false arrest and retaliatory arrest claims. And, as to the

substance of Jackson’s retaliatory arrest claim, I would conclude

that the evidence, when viewed in the light most favorable to Jack-

son, shows that Appellees had a disparate reaction to similar levels

of aggression from Jackson and Law such that a genuine dispute of

USCA11 Case: 19-13181 Date Filed: 09/01/2022 Page: 29 of 39

2 LAGOA, J., Concurring in Part, Dissenting in Part 19-13181

material fact exists as to whether Jackson’s arrest was motivated by

Appellees’ animosity toward the content of his speech.

I. Qualified Immunity Principles