Petition for Writ of Certiorari — Johnny Moats, Sheriff, Polk County, Georgia, et al., Petitioners v. Stephen Jarrard
Supreme Court briefFeb 7, 2025
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NO. 24-_____
In the
Supreme Court of the United States
SHERIFF JOHNNY MOATS
AND AL SHARP,
Petitioners,
v.
STEPHEN JARRARD,
Respondent.
__________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
PETITION FOR A WRIT OF CERTIORARI
Terry E. Williams
Counsel of Record
Jason C. Waymire
WILLIAMS & WAYMIRE, LLC
4330 S. Lee Street, Bldg. 400, Ste. A
Buford, GA 30518
678-541-0790 ext.4
terry@wmwlaw.com
February 10, 2025
Counsel for Petitioners
i
QUESTIONS PRESENTED
This qualified immunity case concerns the
proper First Amendment analysis for a claim by a
volunteer applicant to a jail religious ministry
program operated by a Georgia sheriff. The program
employs volunteers to provide religious ministry to
local jail inmates. Respondent was denied admission
to the program.
Seven circuits have applied the Court’s
Pickering-Garcetti framework to First Amendment
claims by volunteers who apply to or serve in
government programs. See Garcetti v. Ceballos, 547
U. S. 410 (2006); Pickering v. Board of Education of
Township High School District 205, 391 U.S. 563
(1968).
Here, however, the Eleventh Circuit held that
the unique circumstances of this case rendered the
Pickering-Garcetti framework inapplicable. Instead,
the Eleventh Circuit applied First Amendment
forum analysis, under which the court held (1)
viewpoint discrimination is prohibited and (2) the
unbridled discretion doctrine required jail policies to
contain specific criteria to guide officials’ decisions.
Accordingly, the questions presented are:
1. Whether the Court’s Pickering-Garcetti
framework applies to a First Amendment
claim by an applicant for volunteer religious
work in a local jail’s program for inmates.
ii
2. If the Pickering-Garcetti framework does not
apply, whether a jail policy that lacks
standards
compliant
with
the
First
Amendment “unbridled discretion” doctrine is
a basis for a damages claim under 42 U.S.C. §
1983, where an official’s decision under the
policy is made within a reasonable time and
for a reason that does not violate the First
Amendment.
3. Whether it was clearly established that the
Pickering-Garcetti framework did not apply,
and that petitioners’ conduct violated clearly
established law, thereby justifying denial of
qualified immunity.
iii
PARTIES TO THE PROCEEDING
Petitioners are Johnny Moats, the Sheriff of
Polk County, Georgia, and Al Sharp, the now retired
Jail Administrator for the Polk County jail. Sheriff
Moats and Mr. Sharp were sued individually and in
their “official capacities,” making the Sheriff of Polk
County, Georgia a party as well. Petitioners were
defendants in the district court and appellees in the
Eleventh Circuit.
Respondent is Stephen Jarrard. Respondent
was the plaintiff in the district court and the
appellant in the Eleventh Circuit.
iv
CORPORATE DISCLOSURE STATEMENT
Pursuant to this Court’s Rule 29.6, petitioners
state as follows:
Petitioners Moats and Sharp are individuals.
Sheriff Moats also was sued in his “official capacity,”
as the Sheriff of Polk County, Georgia. The Sheriff’s
Office is a public law enforcement entity.
Respondent Jarrard is an individual.
v
STATEMENT OF RELATED PROCEEDINGS
This case
proceedings:
arises
from
the
following
A. Jarrard, Plaintiff-Appellant v. Polk County
Sheriff, et al., Defendants-Appellees, No. 2310332 (11th Cir.) (opinion reversing judgment
of district court, issued September 16, 2024);
and
B. Jarrard, Plaintiff v. Moats, et al., Defendants,
No. 4:20-cv-2-MLB (N.D. Ga.) (order granting
summary judgment to defendants, filed
September 27, 2022).
There are no other proceedings in state or
federal trial or appellate courts, or in this Court,
directly related to this case within the meaning of
this Court’s Rule 14.1(b)(iii).
vi
TABLE OF CONTENTS
QUESTIONS PRESENTED .................................... i
PARTIES TO THE PROCEEDING ....................... iv
CORPORATE DISCLOSURE STATEMENT .....… v
STATEMENT OF RELATED PROCEEDINGS ... vi
TABLE OF AUTHORITIES ....................…………. x
PETITION FOR WRIT OF CERTIORARI .....….... 1
OPINIONS BELOW .....................................…....... 3
JURISDICTION ...................................................... 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ...................….............. 3
STATEMENT OF THE CASE ................…............ 4
A. Legal Background ...................…............ 4
B. Factual Background ............................... 4
C. Proceedings Below ..........................…... 13
REASONS FOR GRANTING THE PETITION ... 17
I.
The Decision Below is in Tension With
Umbehr and Conflicts With Volunteer
Cases in Other Circuits ...........……............ 18
A. The Decision Below is in Tension With
Umbehr .......................................…....... 20
B. The Decision Creates a Circuit Split .... 24
vii
II.
The Decision Below Is Wrong on
Multiple Grounds ..................................... 26
A.
Petitioners Should Prevail Under
the Pickering-Garcetti
Framework ............................…...... 26
B.
The Unbridled Discretion Ruling
Confuses Breach of a First
Amendment Policy Requirement
with Violation of Respondent’s
Individual Rights ........................... 30
C.
Petitioners Plainly Are Entitled
to Qualified Immunity ................... 34
1. General Rules Do Not
Overcome Qualified Immunity
in This Case ..............…........... 34
2. The Law Was Not Clearly
Established .............................. 38
3. The Court Should at Least
Exercise Summary Reversal .. 41
III. The Questions Presented Are Critically
Important, and This is an Ideal Vehicle
to Resolve Them ..........…........................ 42
CONCLUSION ....................................….............. 44
viii
APPENDIX
Appendix A
Opinion, United States Court of Appeals
for the Eleventh Circuit, Jarrard v.
Sheriff of Polk County, et al.,
No. 23-10332 (Sept. 16, 2024) ................. App-1
Appendix B
Order, United States Court of Appeals
for the Eleventh Circuit, Jarrard v.
Sheriff of Polk County, et al.,
No. 23-10332 (Nov. 12, 2024) ................ App-59
Appendix C
Order, United States District Court for
the Northern District of Georgia,
Jarrard v. Moats et al.,
No. 4:20-cv-2-MLB
(Sept. 27, 2022) ................................ App-61
ix
TABLE OF AUTHORITIES
Cases:
Page
Akridge v. Wilkinson,
178 F. App’x 474 (6th Cir. 2006) ............... 24
Barrett v. Walker Cnty. Sch. Dist.,
872 F.3d 1209 (11th Cir. 2017) ................. 31
Baz v. Walters, 782 F.2d 701 (7th Cir. 1986) ...... 29
Bd. of Cnty. Comm’rs, Wabaunsee Cnty., Kan.
v. Umbehr, 518 U.S. 668 (1996) ....... 1, 18-22
Brosseau v. Haugen,
543 U.S. 194 (2004) ........................ 35, 39, 41
Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972) .... 29
Connick v. Myers, 461 U.S. 138 (1983) .…...... 19, 28
Cygan v. Wis. Dep’t of Corr.,
388 F.3d 1092 (7th Cir. 2004) .................... 23
Daniels v. City of Arlington,
246 F.3d 500 (5th Cir. 2001) ...................... 27
Davis v. Scherer, 468 U.S. 183 (1984) ............. 16-17
Donahue v. Staunton,
471 F.2d 475 (7th Cir. 1972) ...................... 25
x
Fox v. City of Austin, No. 1:22-cv-00835-DAE,
2024 U.S. Dist. LEXIS 159628
(W.D. Tex. Sep. 4, 2024) ............................. 25
Garcetti v. Ceballos,
547 U. S. 410 (2006) .............i-ii, 1-2, 4, 13-27,
29-30, 37-39, 42
Goldstein v. Chestnut Ridge Vol. Fire Co.,
218 F.3d 337 (4th Cir. 2000) ...................... 24
Harnishfeger v. United States,
943 F.3d 1105 (7th Cir. 2019) .................... 24
Hyland v. Wonder,
972 F.2d 1129 (9th Cir. 1992) .................... 24
Janusaitis v. Middlebury Vol. Fire
Dep’t, 607 F.2d 17 (2d Cir. 1979) ............... 24
Jackson v. Bair,
851 F.2d 714 (4th Cir. 1988) ...................... 23
Kisela v. Hughes, 584 U.S. 100 (2018) ..... 34, 35, 37
Kuenzi v. Reese, No. 3:23-cv-00882-IM,
2024 U.S. Dist. LEXIS 196052
(D. Or. Oct. 28, 2024) .................................. 25
xi
Lakewood v. Plain Dealer Pub. Co.,
486 U.S. 750 (1988) ..................................... 31
LeFande v. District of Columbia,
841 F.3d 485 (D.C. Cir. 2016) ..................... 24
Lewis v. Casey, 518 U.S. 343 (1996) ...................... 33
Maciariello v. Sumner,
973 F.2d 295 (4th Cir. 1992) ....................... 23
Mayfield v. City of Oakland, no. C-07-0583,
2007 WL 2261555
(N.D. Cal. Aug. 6, 2007) .............................. 25
McKinley v. Kaplan,
262 F.3d 1146 (11th Cir. 2001) ................... 24
Miranda v. Arizona, 384 U. S. 436 (1966) ....... 31-32
Mitchell v. Forsyth, 472 U.S. 511 (1985) ............... 16
Mullenix v. Luna, 577 U.S. 7 (2015) ...................... 41
Mustapha v. Monken, no. 10 C 5473,
2013 WL 3224440
(N.D. Ill. June 25, 2013) .............................. 25
O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987) ...................................... 22
xii
Pell v. Procunier, 417 U.S. 817 (1974) ................... 22
Pickering v. Board of Education of Township
High School District 205,
391 U.S. 563 (1968) ............... i-ii, 1-2, 4, 13-27,
29-30, 37-39, 42
Rivas-Villegas v. Cortesluna,
595 U.S. 1 (2021) .......................................... 34
Rodin v. City of Coral Springs,
229 F. App’x 849 (11th Cir. 2007) ................ 24
Schweiker v. Hansen, 450 U. S. 785 (1981) ............ 41
Shands v. City of Kennett,
993 F.2d 1337 (8th Cir. 1993) ...................... 24
Stanton v. Sims, 571 U.S. 3 (2013) ........................ 41
Taylor v. Barkes, 575 U.S. 822 (2015) .................... 41
Thomas v. Chicago Park Dist.,
534 U.S. 316 (2002) ................................. 30-31
Turner v. Safley, 482 U.S. 78 (1987) ...................... 22
Vega v. Tekoh, 597 U.S. 134 (2022) ........................ 32
Versage v. Township of Clinton,
984 F.2d 1359 (3d Cir. 1993) ........................ 24
xiii
Waters v. Churchill, 511 U.S. 661 (1994) ............... 29
Wood v. Moss, 572 U.S. 744 (2014) .................... 36-37
STATUTES:
28 U.S.C. § 1254(1) ..........................…....................... 3
42 U.S.C. § 1983 ............................................. 3, 13, 32
RULES:
Supreme Court Rule 10 ........................................... 17
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. I .…........1-4, 13-17, 19-20, 23-24,
27-30, 32-33, 35, 37, 41
1
PETITION FOR WRIT OF CERTIORARI
This case presents First Amendment claims by
an applicant to a volunteer religious ministry
program at a local jail. Petitioners are a sheriff and
former jail administrator, who administered the
volunteer program to serve prisoners.
Respondent is an applicant who contends he
was excluded from the jail volunteer program
because of his view about baptism. Respondent
separately contends that previous policies describing
the volunteer program violated his First Amendment
rights due to “unbridled discretion” vested in
decision makers.
This is unsettled First Amendment territory,
but the Court of Appeals rejected petitioners’
qualified immunity defenses, in spite of a trenchant
dissent that pointed out the dearth of clearly
established law.
In Pickering v. Board of Education of
Township High School District 205, 391 U.S. 563
(1968), the Court established a framework (hereafter
the “Pickering-Garcetti framework”) for evaluating
First Amendment claims by government employees.
The Court extended Pickering to government
contractors in Bd. of Cty. Comm’rs v. Umbehr, 518
U.S. 668 (1996).
Excluding the Eleventh Circuit, seven circuits
have applied the Pickering-Garcetti framework to
First Amendment claims by government volunteers.
2
The Eleventh Circuit has applied Pickering-Garcetti
to volunteer firemen and a volunteer serving on a
government board. But in this particular case the
Eleventh Circuit deviated, finding that traditional
“forum” analysis applied to respondent’s First
Amendment claims.
This case is an ideal vehicle to resolve the
Eleventh Circuit’s divergence from other circuits and
provide guidance to the lower courts on the
application of the Pickering-Garcetti framework to
First Amendment claims by volunteers in
government programs.
Government volunteers continue to generate
litigation, and in the great majority of cases their
claims are evaluated under the Pickering-Garcetti
framework. The issue has public importance, not
least because it impacts the calculus that
government entities must undertake when they
consider whether to utilize volunteers in government
programs. And the Eleventh Circuit’s rule strikes
the wrong balance by disincentivizing government
programs that provide religious ministry to
prisoners.
Regardless of how those issues are resolved,
petitioners deserved qualified immunity because it is
not even arguable that the law was clearly
established in this area. Whether to clarify
Pickering’s reach or to clarify qualified immunity for
the lower courts, the Court should grant certiorari.
Alternatively, petitioners seek summary reversal to
3
correct the Eleventh Circuit’s erroneous denial of
qualified immunity.
OPINIONS BELOW
The Eleventh Circuit’s opinion is reported at
115 F.4th 1306 and reproduced at App.1-58. The
district court’s decision granting summary judgment
to petitioners is not reported in the Federal Reporter
but is reproduced at App.61-95.
JURISDICTION
The Eleventh Circuit issued its decision on
September 16, 2024, and denied a timely petition for
rehearing on November 12, 2024. App.1, 59. This
Court has jurisdiction under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the U.S. Constitution
provides:
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or 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.
42 U.S.C. § 1983 provides, as relevant here:
Every person who, under color of any
statute, ordinance, regulation, custom, or
4
usage, of any State . . . subjects, or causes to
be subjected, any . . . person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the
party injured. . . .
STATEMENT OF THE CASE
A. Legal Background
The legal backdrop for this case falls into
three general categories: (1) First Amendment
claims under the Pickering-Garcetti framework, (2)
First Amendment claims under “forum” analysis,
and (3) qualified immunity.
These bodies of law are interrelated here
because there is a lively debate about whether
Pickering-Garcetti or forum analysis properly applies
to the unique facts of this case. Petitioners take the
Pickering view, but for qualified immunity it only
matters that the law was unclear when petitioners
had to make decisions. The law was not settled in
respondent’s favor “beyond debate,” so qualified
immunity should apply.
B. Factual Background
Petitioner Johnny Moats was first elected as
Sheriff of Polk County, Georgia in 2012.
CA11.Appx.Vol.3.28. At most times relevant to this
case, Petitioner Al Sharp was the Jail Administrator.
5
CA11.Appx.Vol.3.122.
Respondent Stephen Jarrard is member of the
Church of Christ.1 App.2. For two time periods before
2017, he worked as a volunteer religious minister at
Polk County Jail. App.2, 61. He was terminated from
the jail volunteer program twice, once before Sheriff
Moats took office and the last time in December
2016.2 CA11.Appx.Vol.2.111.
In 2020 and 2021, during the pendency of this
lawsuit, respondent submitted two applications to
serve as a volunteer religious minister at the Polk
County Jail. CA11.Appx.Vol.1.211-230, 235 et seq.
Respondent’s claims arise from denial of his
2020 and 2021 applications, and from policies about
the Sheriff’s Office jail ministry program. App.91.
More detail will be provided below.
Before his dismissal in 2016, respondent
repeatedly taught Polk County inmates that baptism
by immersion is necessary for salvation. App.61-62.
Respondent contends petitioners denied both
applications “solely due to his teaching on baptism.”
App.83.3 The Eleventh Circuit held there was at
least enough evidence for a jury to draw that
1 Respondent says he is not a “reverend,” so that title is
not used here. CA11.Appx.Vol.2.71 (“Reverend won’t work.”).
No disrespect is intended.
2 Respondent sued about the 2016 termination but the
district court found the claim was time-barred, a ruling that is
not at issue here.
6
inference in respondent’s favor. App.21.
By contrast, petitioners presented evidence
that the applications were denied for reasons that
have nothing to do with Jarrard’s teaching about
baptism. App.20; CA11.Appx.Vol.1.232-233. In part
those reasons centered on respondent’s track record
of creating conflicts in jails. That track record is
summarized later.
1. The Jail Volunteer Ministry Program
The Polk County Jail is operated by the Polk
County Sheriff’s Office. CA11.Appx.Vol.3.30, 35, 39.
The Jail inmate population commonly has between
150 and 190 inmates, most of whom are pretrial
detainees. CA11.Appx.Vol.3.30-31.
Since before Sheriff Moats took office, the
Sheriff’s Office has utilized volunteers from the local
community to provide religious services to inmates
who wish to participate. For the time frame relevant
to this case, persons who wished to serve in the
volunteer program were required to submit an
application to the Sheriff’s Office.
The Sheriff’s Office application form refers to
jail ministry as “volunteer work.” App.78. It notes
applicants can be “terminat[ed]” once “hired.”
App.78. It requires applicants to sign the same
3 Respondent does not contend that petitioners denied his
applications due to any other form of his protected expression.
App.83.
7
confidentiality agreement as employees. App.78. It
requires applicants to sign other employment-like
forms, including a waiver of liability and a criminal
history check. App.78. The Sheriff’s Office also hired
a lead jail minister, gave him staff, put him in
charge of volunteer ministers, and gave him
authority to terminate those ministers. App.78.
Aside from application and qualification,
volunteers were required to complete a safetyrelated course focused on how to act in a jail setting.
CA11.Appx.Vol.3.42.
At Polk County and other jails, respondent’s
usual jail ministry meeting format consisted of a
Bible study rather than a traditional worship
service. CA11.Appx.Vol.2.95-98.
2. Respondent’s History of Conflicts at
Local Jails
After Sheriff Moats was elected in 2012,
respondent was re-admitted to jail ministry at the
Polk County Jail. CA11.Appx.Vol.2.103-104, 110;
CA11.Appx.Vol.3.59. After that, the head of the Polk
County Jail’s ministry program expressed to the
Sheriff’s administration numerous “concerns about
Mr. Jarrard upsetting his staff and upsetting a lot of
inmates in our jail. [H]e said that several of the
other preachers in jail refused to go into the same
pod as Mr. Jarrard because of his behavior … .”
CA11.Appx.Vol.3.45.
8
Sheriff Moats understood that respondent
“gets real confrontational [about theological
differences], and instead of just moving on from it, …
he just keeps pushing and pushing and pushing.
That’s why he was disrupting my [ministry] staff
that I had in place for years and was working in the
jail and disrupting our inmates.” CA11.Appx.
Vol.3.47-48.
Sheriff Moats understood part of the disputes
centered on the inmate ministry program’s
philosophy that the volunteers were supposed to be
helping inmates rather than agitating them, and
respondent’s conduct conflicted with that basic tenet
of the program. CA11.Appx.Vol.3.54, 56, 63.
Sheriff Moats was concerned because
respondent’s teaching stirred up inmates by making
them distraught due to his claim they had to be fullimmersion baptized to avoid going to Hell.
CA11.Appx.Vol.3.48-49, 52-53, 57.
The Sheriff’s Office wanted the program to
help inmates rather than agitate them, and
respondent was producing agitated inmates and
disruption of the ministry program. CA11.Appx.
Vol.3.48, 53, 62.
3. Sheriff’s Letter to the Attorney
Respondent contended that his viewpoint
discrimination contention is supported by a 2019
letter from Sheriff Moats in response to a demand
letter from respondent’s attorney. Sheriff Moats
9
wrote that Mr. Jarrard “was barred from the Polk
County Jail, not because of his insistence on
baptizing inmates, but because of his disruptive
behavior toward other members of the jail ministry
program that did not share his radical religious
views.” CA11.Appx.Vol.3.113.
The letter further explained that respondent
“was
verbally
abusive
and
argumentative,
challenging the denominational beliefs of the other
jail ministry personnel in the presence of the
inmates and causing doubt and confusion among
those he was attempting to convert.” CA11.Appx.
Vol.3.113.
In the letter Sheriff Moats explained he was
discussing inmate baptisms because it “was part of
[respondent’s attorney’s] assertions.” Id. The sheriff
explained his understanding about baptism, and
indicated that inmate baptisms could wait until
inmates were released. Id.
4. Respondent’s 2020 Jail Ministry
Application
In March 2020, the Sheriff’s Office adopted
what the Eleventh Circuit called the “Second Policy”
which in relevant part states:
Clergymen
and
religious
advisors
wishing to hold services or conduct
programs in the jail must make written
application to the Polk County Sheriff’s
10
Office with supporting documentation,
attend a training session and then be
approved by the Jail Administrator.
App.27.
The application form provides various criteria
for qualification to the volunteer ministry and rules
governing the program. CA11.Appx.Vol.1.211-230
(respondent’s April 2020 application).
After filing this lawsuit but having practically
all claims dismissed, respondent re-applied for
volunteer work in the jail ministry program.
CA11.Appx.Vol.1.211-230.
After
investigating
respondent’s history at other facilities and in Polk
County, petitioners learned respondent has a history
of being at the center of disruption and religious
disputes at other facilities, similar to his history in
Polk County. CA11.Appx.Vol.3.45, 47-48, 60, 168169.
Sheriffs in two other jurisdictions reported
that Mr. Jarrard had been ejected from jail
ministries at both places due to causing disruption.
CA11.Appx.Vol.3.60. The same was true for a third
agency. CA11.Appx.Vol.3.60-61, 168-169.
The Sheriff’s Office is interested in preventing
controversy in the jail, and the administration
recognized respondent has a history of promoting
conflicts. CA11.Appx.Vol.3.48-49, 61, 136, 159-160.
The Sheriff’s Office denied respondent’s 2020
application in part based on his history of conflict in
11
the course of jail ministry in Polk County and other
jail facilities. CA11.Appx.Vol.3.60, 62, 169, 173;
CA11.Appx.Vol.1.232-233.
Also, the Sheriff’s Office investigation
revealed respondent’s application did not indicate
the true nature of his dismissal from jail ministry at
other facilities. CA11.Appx.Vol.3.62, 168-169.
Information from an outside agency conflicted with
information from respondent’s application, casting
doubt on the application’s truthfulness. CA11.Appx.
Vol.3.62, 64, 66-67, 168-169.
Specifically, respondent’s application stated
he left the Paulding County program due to being
“rotated out,” whereas the Paulding County Sheriff
indicated Mr. Jarrard had been banned for
disruptive behavior. CA11.Appx.Vol.3.65. Lack of
truthfulness in an application is a disqualifier for all
Sheriff’s Office positions, whether employment or the
volunteer program. CA11.Appx.Vol.3. 62, 64. For
that additional reason, respondent’s application was
denied. CA11.Appx.Vol.1.232-233.
5. Revision of the Policy and
Respondent’s 2021 Application
In 2021, the Sheriff’s Office adopted a new
policy governing admission of volunteers to minister
to inmates at the Polk County Jail. The Eleventh
Circuit called this the “Third Policy”, which provides:
The
Polk
County
Sheriff’s
Office
12
encourages Clergy from the community to
minister to the inmates. Clergymen and
religious advisors wishing to hold
services or conduct programs in the jail
must submit a volunteer application.
Members of the clergy allowed within the
inner security perimeter or allowed
contact
visitation,
must
complete
background checks, including the jail
ministry program[.]
App27.4
As under the prior policy, the application form
for the volunteer ministry program details various
minimum qualifications for volunteer jail ministry,
including verification of basic ministry credentials,
criminal history check and other items. App.78;
CA11.Appx.Vol.1.235-247.
In order to preserve standing and avoid
mootness due to adoption of a new policy, Jarrard
submitted his last application in August 2021.
CA11.Appx.Vol.1. 235 et seq., Vol.2.192-193.
The jail ministry program was shut down for
most of 2020 and 2021 due to the Covid-19
pandemic, so the Sheriff’s Office did not take action
on that application until March 9, 2022. App.75 n.8;
The application was denied on the grounds of
“[f]ailed background due to not compliant with
4 The Third Policy was superseded by another policy,
which is not challenged in the lawsuit.
13
501(c)3 standards” and “[f]ailed background due to
being dismissed from Floyd County Sheriff’s Office
and Cobb County Sheriff’s Office Jail Ministry
Programs.” CA11.Appx.Vol. 3.221.
C. Proceedings Below
Respondent sued petitioners under 42 U.S.C.
§1983, claiming that they denied his applications for
volunteer jail ministry based on his teaching about
baptism, in violation of the First Amendment.
Respondent separately contended that policies
governing admission to the volunteer program
violated his First Amendment rights due to
“unbridled
discretion”
to
deny
volunteer
applications. App.2.
1. The district court granted petitioners
summary judgment on respondent’s claims, both on
the merits and due to qualified immunity. On the
merits, the court held that the Pickering-Garcetti
framework governs respondent’s First Amendment
retaliation claim, and that First Amendment forum
analysis does not apply. App.80. Under Pickering,
respondent’s view about baptism, expressed in the
jail ministry program, (1) was not citizen speech, and
(2) was not a matter of public concern. App.84. And,
given the employment-like context, the First
Amendment “unbridled discretion” doctrine arguably
does not apply to jail policies about the ministry
program. App.92.
14
The district court further held that qualified
immunity bars the claims. As for the retaliation
claim, case law indicated that the Pickering-Garcetti
framework applies, there is no viable claim under
Pickering-Garcetti, and no binding case clearly
established that respondent has a valid First
Amendment claim for denial of his applications. “The
Eleventh Circuit has not resolved any of these
[Pickering-Garcetti] issues in Plaintiff’s favor.”
App.88.
As for the policy claim, the district court found
that no authoritative court “has ever applied the
unbridled-discretion doctrine on facts like these. And
it is not clear they would.” App.92. So, regardless of
the theoretical answer, qualified immunity applied
because a “reasonable official could think the
unbridled-discretion doctrine does not apply to a
jail’s policies and procedures for appointing
volunteer ministers.” App.93.
2. The Eleventh Circuit reversed, both on the
merits and on qualified immunity, and remanded the
case for further analysis. App.36. On the merits, the
court found that “Pickering doesn’t provide the
proper framework for determining whether Jarrard’s
speech was “constitutionally protected” and that,
instead, Jarrard’s claim should be evaluated under
the “forum analysis” that traditionally governs
speech-related claims.” App.13.
Distinguishing government volunteer cases
that apply Pickering, the Eleventh Circuit held that
15
volunteer work in a jail religious program is unlike
government employment because (1) it does not
involve delivery of services traditionally provided by
the government, (2) volunteer jail ministers do not
“advise [jail administrators] or represent their
interests with prisoners” and (3) participation in the
ministry program lacks pay, mandatory attendance
requirements and so forth. App.16-18.
After finding that Pickering does not apply,
the Eleventh Circuit applied First Amendment
forum analysis to respondent’s discrimination and
policy claims. The court found that a jury could find
viewpoint discrimination was the basis for denial of
respondent’s applications, respondent’s “speech was
constitutionally protected and ... the Second and
Third Policies violated the unbridled-discretion
doctrine” due to lack of criteria that governed
officials’ decisions about admission to the volunteer
ministry program. App.21, 29.
Turning to qualified immunity, the two-judge
majority acknowledged that there are no previous
cases that dictate the outcome. App.32. Likewise, the
majority conceded this is not the kind of egregious
case where qualified immunity can be denied
“notwithstanding the lack of case law.” App.32.
Nevertheless, the majority denied qualified
immunity on the basis that respondent’s “right to be
free from viewpoint discrimination and his right not
to be subject to decisionmakers’ unbridled discretion
were clearly established . . . in broad statements of
16
principle expressly articulated
caselaw.” App.33 (cleaned up).
in
governing
3. Judge Rosenbaum dissented from the denial
of qualified immunity. App.37 et seq. She explained
that reasonable officials could view this situation as
falling under Pickering and its progeny, which is
what prior case law suggested. App.42-44. The
dissent explained in detail that under the PickeringGarcetti framework respondent does not have a
viable First Amendment claim. App.46-57. And,
when Pickering-Garcetti applies, the unbridled
discretion doctrine has no application. App.41.
The dissent opined that respondent’s
“damages claim succumbs to qualified immunity
because he can point to neither case law with
indistinguishable facts nor a broad statement of
principle within the Constitution, statute, or case
law that directs us to disregard Pickering’s
framework.” App.41 (cleaned up).
In response to Judge Rosenbaum’s detailed
qualified immunity analysis, the majority opinion
expressed “doubt that [petitioners] have ever even
heard of Pickering or the multistep balancing
analysis that courts have fashioned around it—so
surely neither of those can be the object of the notice
required
that
modern
qualified-immunity
jurisprudence protects.” App.34-35 n. 20. Judge
Rosenbaum responded that qualified immunity is a
purely objective matter, so that petitioners’
subjective knowledge about legal doctrine (or lack
17
thereof) is irrelevant. App.46 n. 2 (citing Mitchell v.
Forsyth, 472 U.S. 511, 517 (1985)). See also Davis v.
Scherer, 468 U.S. 183, 191 (1984) (explaining the
purely objective nature of qualified immunity).
REASONS FOR GRANTING THE PETITION
There are two reasons to grant this petition,
and both merit the Court’s review. First, there is
now a circuit split about how to evaluate First
Amendment claims by government volunteers.
Second, the Eleventh Circuit’s qualified immunity
denial is grossly out of line with the Court’s
precedents.
1. The Eleventh Circuit’s decision created a
circuit split on a recurrent First Amendment issue
“that has not been, but should be, settled by this
Court.” Supreme Court Rule 10 (c). That issue is
whether the Pickering-Garcetti framework governs
First Amendment claims by government volunteers
in general, and if so, whether there is a special
exception for volunteers in religiously-oriented
government programs like the one in this case.
With the lone exception of the Eleventh
Circuit, seven circuits apply the Pickering-Garcetti
line of cases to First Amendment claims by
volunteers who serve in government programs. The
present case presents an outlier, a special exception
for volunteers who apply for government volunteer
roles that include a religious component.
18
The Eleventh Circuit’s deviation from the
consensus is reason enough for this Court to grant
certiorari. This petition presents an excellent
opportunity to resolve a frequently recurring
question of constitutional law on which the lower
courts seem united, with the lone exception of the
peculiar Eleventh Circuit judgment in this case.
2. The Eleventh Circuit’s denial of qualified
immunity squarely conflicts with the Court’s oftrepeated insistence on fact-specific evaluation of
qualified immunity claims, in the light of previous
precedent. As the Eleventh Circuit dissent points
out, reasonable officials were not even arguably on
notice that petitioners’ alleged conduct in this case
violated clearly established law.
Since at least 2004, the Court periodically has
found it necessary to re-explain the proper analysis
governing evaluation of the qualified immunity
defense. Regrettably, this case raises the need for
the Court to send that message again.
Below, petitioners elaborate why the Eleventh
Circuit decision is in error, and why this case is
worthy of the Court’s review.
I.
The Decision Below is in Tension With
Umbehr and Conflicts With Volunteer
Cases in Other Circuits
The crucial threshold question in this case is
whether the Pickering-Garcetti framework applies to
19
an applicant for religious volunteer work in a jail
setting.
In Pickering v. Board of Education of
Township High School District 205, 391 U.S. 563
(1968) (“Pickering”), the Court struck “a balance
between the interests of the [government employee],
as a citizen, in commenting upon matters of public
concern and the interest of the State, as an
employer, in promoting the efficiency of the public
services it performs through its employees.” Id. at
568. Pickering’s balance considered “the commonsense realization that government offices could not
function if every employment decision became a
constitutional matter.” Connick v. Myers, 461 U. S.
138, 143 (1983).
Under the Pickering-Ceballos line of cases, a
government employee’s First Amendment speech is
protected only if (1) the employee’s expression was
made as a citizen on a matter of public concern; and
(2) the “government entity [lacks] an adequate
justification for treating the employee differently
from any other member of the general public.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
If protected speech was a “substantial
motivating factor” in the government’s challenged
action, then the burden shifts to the government to
prove that it would have taken the same action even
in the absence of the protected speech. Bd. of Cty.
20
Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996)
(“Umbehr”).
A. The Decision Below is in Tension
With Umbehr
Since Pickering, the Court has refined
different aspects of the Pickering balancing
framework. The Court has never considered whether
Pickering applies to government volunteers.
However, in Umbehr the Court expanded Pickering
beyond traditional government employment to
encompass First Amendment retaliation claims by
government contractors. Bd. of Cnty. Comm’rs,
Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 673
(1996).
Umbehr resolved a circuit split about
“whether, and to what extent, independent
contractors are protected by the First Amendment”
when they contract with government entities.
Umbehr, 518 U.S. at 673. The Court invoked its
Pickering line of cases because “[t]he similarities
between government employees and government
contractors with respect to this issue are obvious.”
Id. at 674.
The Court explained that the “government
needs to be free to terminate both employees and
contractors for poor performance, to improve the
efficiency, efficacy, and responsiveness of service to
the public, and to prevent the appearance of
21
corruption.” Umbehr, 518 U.S. at 674. On the other
hand, contractors merited some First Amendment
protection from retaliation, since otherwise they
might refrain from airing valuable information of
public concern for fear of losing a financial benefit.
Id. So the Court ruled that the Pickering framework
applied to such claims.
With one minor exception, Umbehr’s reasoning
applies with equal force to volunteers in government
roles. The one minor distinction is that volunteers
serve for some reason other than an immediate
financial benefit. Yet presumably every volunteer
sees some benefit to volunteer service, even if the
benefit is not financial.
Umbehr
reasoned
that
“[i]ndependent
contractors … lie somewhere between the case of
government employees, who have the closest
relationship with the government, and our other
unconstitutional conditions precedents, which
involve persons with less close relationships with the
government.” Umbehr, 518 U.S. at 680. Applied to
this case, government volunteers “lie somewhere
between … government employees” and government
contractors. That logically puts volunteers squarely
into the Pickering-Garcetti framework.
Umbehr explained that “as in government
employment cases, the [government defendant]
exercised contractual power, and its interests as a
public service provider, including its interest in
being free from intensive judicial supervision of its
22
daily management functions, are potentially
implicated. Deference is therefore due to the
government’s reasonable assessments of its interests
as contractor.” Umbehr, 518 U.S. at 678.
The Court’s recognition of government
concerns in Pickering and Umbehr should be
reflected, if not amplified, here. This case involves a
law enforcement agency’s provision of services to
inmates in a local jail, where harmony, order and
inmate discipline are of paramount concern.
The Court has long recognized the great
difficulty in operating an incarceration facility and
managing inmates, and has afforded corresponding
deference on questions about internal jail operations.
O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987)
(“We ... reaffirm our refusal ... to substitute our
judgment on … difficult and sensitive matters of
institutional
administration,
[cite]
for
the
determinations of those charged with the formidable
task of running a prison.” (cleaned up)); Turner v.
Safley, 482 U.S. 78 (1987) (“Running a prison is an
inordinately difficult undertaking that requires
expertise, planning, and the commitment of
resources, all of which are peculiarly within the
province of the legislative and executive branches of
government.”); Pell v. Procunier, 417 U.S. 817, 827
(1974) (stating “the institutional objectives furthered
by [the] regulation and the measure of judicial
deference owed to corrections officials in their
23
attempt to serve those interests are relevant in
gauging the validity of the regulation.”).
Following the Court’s lead, circuit courts have
long held that the jail environment heightens the
government interests in order and security when it
comes to First Amendment claims grounded in
employee speech. See Cygan v. Wis. Dep’t of Corr.,
388 F.3d 1092, 1101 (7th Cir. 2004) (holding that the
“time, place, and manner of [correction officer’s]
speech and its potential disruptiveness weigh
heavily against her. … GBCI, as a correctional
facility, has a very strong interest in maintaining
order and control over inmates… .”); Maciariello v.
Sumner, 973 F.2d 295, 300 (4th Cir. 1992)
(maintaining employer’s efficiency, integrity and
discipline is highly protected for “Police ... because
they are ‘paramilitary’—discipline is demanded, and
freedom must be correspondingly denied.”); Jackson
v. Bair, 851 F.2d 714, 722 (4th Cir. 1988), opinion
withdrawn due to en banc consideration, 863 F.2d
1162 (“The district court rightly considered that
employment in the prison context presents special
considerations favoring the public employer in the
balancing process.”).
The upshot is that the Pickering-Garcetti
framework provides the most reasonable and
workable fit for this case. The government has clear
and compelling interests in providing services to
inmates and effective jail administration. Pickering
provides a framework for balancing those interests
24
while still providing for First Amendment
protections to volunteers in the religious ministry
program.
B. The Decision Creates a Circuit Split
Seven federal circuit courts—and the Eleventh
Circuit in a different published case—have applied
the
Pickering-Garcetti
framework
to
First
Amendment claims by government volunteers.
LeFande v. District of Columbia, 841 F.3d 485, 488
(D.C. Cir. 2016) (reserve police officer volunteer);
Janusaitis v. Middlebury Vol. Fire Dep’t, 607 F.2d
17, 18, 25 (2d Cir. 1979) (volunteer firefighter);
Versage v. Township of Clinton, 984 F.2d 1359 (3d
Cir. 1993) (volunteer firefighter); Goldstein v.
Chestnut Ridge Vol. Fire Co., 218 F.3d 337, 339,
351–56 (4th Cir. 2000) (volunteer firefighter);
Harnishfeger v. United States, 943 F.3d 1105, 1109,
1113–19 (7th Cir. 2019) (Volunteer in Service to
America (VISTA) volunteer); Shands v. City of
Kennett, 993 F.2d 1337, 1340, 1342–48 (8th Cir.
1993) (volunteer firefighters); Hyland v. Wonder, 972
F.2d 1129, 1132, 1136–40 (9th Cir. 1992) (probationdepartment volunteer).
The Eleventh Circuit applied Pickering to an
unpaid appointee to a public advisory board, and
later to a volunteer firefighter. McKinley v. Kaplan,
262 F.3d 1146, 1150 n.5 (11th Cir. 2001) (unpaid
appointee); Rodin v. City of Coral Springs, 229 F.
App’x 849 (11th Cir. 2007) (firefighter).
25
Moving to religious workers, circuit courts
have applied Pickering to paid government
chaplains. Akridge v. Wilkinson, 178 F. App’x 474,
476, 481 (6th Cir. 2006); Baz v. Walters, 782 F.2d
701, 708 (7th Cir. 1986); Donahue v. Staunton, 471
F.2d 475, 479 (7th Cir. 1972).
Moving to volunteer religious workers, at least
four district courts have applied Pickering to
volunteer chaplains specifically. See, e.g., Kuenzi v.
Reese, No. 3:23-cv-00882-IM, 2024 U.S. Dist. LEXIS
196052, at *1 (D. Or. Oct. 28, 2024); Fox v. City of
Austin, No. 1:22-cv-00835-DAE, 2024 U.S. Dist.
LEXIS 159628, at *4 (W.D. Tex. Sep. 4, 2024)
(volunteer chaplain for fire department); Mustapha
v. Monken, 2013 WL 3224440, at *1, *7–8 (N.D. Ill.
June 25, 2013) (volunteer chaplain for the state
police); Mayfield v. City of Oakland, 2007 WL
2261555, at *1, *4–6 (N.D. Cal. Aug. 6, 2007)
(volunteers for city’s volunteer police chaplaincy
program).
The Eleventh Circuit’s decision in this case
seemingly stands alone. Before this decision, no
court recognized a “religious volunteer” exception to
Pickering’s scope.
The Court should grant certiorari and resolve
whether the Pickering-Garcetti framework applies to
claims by volunteers in government programs, and if
so, whether the religious component of this case
renders it different from the volunteer cases decided
26
under the Pickering-Garcetti framework by the
overwhelming majority of circuit courts.
II. The Decision Below Is Wrong on Multiple
Grounds
A.
Petitioners Should Prevail Under the
Pickering-Garcetti Framework
As the district court and the Eleventh Circuit
dissent explain, application of the Pickering-Garcetti
framework would entitle petitioners to summary
judgment. App.46-57, 84. Under that framework,
respondent’s expression about baptism in the jail
volunteer program context would be expressed as a
government volunteer, not as a citizen. Respondent’s
particular view on baptism is not a matter of public
concern. Additionally, a balancing of interests under
Pickering favors petitioners. These points are
elaborated briefly below.
First, regarding the citizen speech element, in
Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court
explained that the line between speaking as a citizen
or as a public employee turns on whether the speech
“owes its existence to a public employee’s
professional responsibilities.” Id. at 421-22. Applied
to the jail volunteer context, respondent’s basis for
speaking to inmates about his view of baptism would
be as part of the volunteer work he agreed to
perform at the jail.
27
That work is explicitly contemplated to
involve communication of religious content to
inmates in the jail. Therefore, under Garcetti,
respondent’s speech about baptism to inmates would
“owe[] its existence to [respondent’s] professional
responsi-bilities.” Id. at 421-22. So it is not protected
speech in the context of the volunteer program.
Second, respondent’s baptism view—allegedly
the basis for denial of his volunteer applications—is
not a matter of public concern. In terms of context,
form, and audience, respondent’s communication
about baptism would be expressed orally in a local
jail to inmates, who voluntarily listen during a
designated time for religious discussion. The nonpublic nature of these communications in a highly
restricted jail setting cuts against a finding of “public
concern.” As for the purpose, the point of baptism
speech is to tell inmates about a particular doctrinal
point. The content of that doctrine is that (according
to Mr. Jarrard) full immersion baptism is a condition
to eternal salvation, absent which every human
being is condemned to Hell.
Regardless of the importance that anyone may
attach to respondent’s baptism doctrine and/or view
of Biblical soteriology, it is not a matter of “public
concern” as that term of art has been defined in the
First Amendment Pickering-Garcetti context. See
App.86-87. While many people care deeply about
religious beliefs, any given person’s religious belief is
not a matter of “public concern.” See Daniels v. City
28
of Arlington, 246 F.3d 500, 504 (5th Cir. 2001)
(“Visibly wearing a cross pin ... obviously is a matter
of great concern to many members of the public,
[but] in this case it simply is not a matter of “public
concern” as that term of art has been used in the
constitutional sense.”); Akridge v. Wilkinson, 351 F.
Supp. 2d 750, 762 (S.D. Ohio 2004) (jail chaplain’s
doctrinal teachings did not “constitute matters of
public concern.”).
Third, even if respondent’s religious view in
the jail volunteer context is protected speech, the
resulting interest balancing test favors petitioners.
To further the purpose of effective and efficient
public service, “the Government … must have wide
discretion and control over the management of its
personnel and internal affairs. This includes the
prerogative to remove employees whose conduct
hinders efficient operation and to do so with
dispatch.” Connick v. Myers, 461 U.S. 138, 151
(1983). This concern is no less weighty when it comes
to government volunteers.
Moreover, the jail aspect of this case is
critical. “First Amendment rights must be applied in
light of the special characteristics of the
environment in a particular case.” Clark v. Holmes,
474 F.2d 928, 931 (7th Cir. 1972). In a jail
environment, harmony, order and discipline are of
paramount concern. For that reason the Court has
long exercised deference to jail administrators on
questions about internal jail operations.
29
Where a volunteer is supposed to “contribute
to an agency’s effective operation [but instead]
begins to do or say things that detract from the
agency’s effective operation, the government
employer must have some power to restrain [him].”
Waters v. Churchill, 511 U.S. 661, 675 (1994)
(plurality opinion). Applied to this case, respondent
adversely impacted jail administration in two ways.
First, he consistently had conflicts with other jail
ministers. This was the case at the Polk County Jail
and it happened at other jails too. Second,
respondent told inmates that they were condemned
to Hell if they died without being baptized in his
prescribed manner (full immersion). Predictably this
produced numerous upset inmates, which is highly
undesirable to jail administrators and cut against
the very point of the volunteer religious ministry
program.
Where a volunteer’s conduct adversely affects
the overall jail ministry program, adversely affects
inmates, and runs counter to the point of the jail
program, petitioners’ substantial interests in
effective and efficient jail management outweighed
respondent’s First Amendment interest in espousing
his particular theological view to inmates. See Baz v.
Walters, 782 F.2d 701, 708 (7th Cir. 1986) (rejecting
minister’s claim where his “religious activities ...
were detrimental to the best interests of the patients
and to the general maintenance of order at the
hospital.”).
30
To sum up, petitioners would prevail under
the Pickering-Garcetti framework, or at least be
entitled to qualified immunity. And under that
framework the “unbridled discretion” doctrine has no
application to jail policies. Yet even on a contrary
view, as discussed next, the Eleventh Circuit’s
unbridled discretion ruling has a flaw that merits
the Court’s review.
B.
The Unbridled Discretion Ruling
Confuses Breach of a First Amendment
Policy Requirement With Violation of
Respondent’s Individual Rights
Having
rejected
the
Pickering-Garcetti
framework for this case, the Eleventh Circuit found
that two superseded versions of the written jail
ministry policy ran afoul of the “unbridled
discretion” doctrine, thereby violating respondent’s
First Amendment rights. App.29, 35.
The unbridled discretion doctrine applies to
permitting schemes, wherein a citizen seeks
permission to use a government facility. See, e.g.,
Thomas v. Chicago Park Dist., 534 U.S. 316, 323
(2002) (“Where the licensing official enjoys unduly
broad discretion in determining whether to grant or
deny a permit, there is a risk that he will favor or
disfavor speech based on its content.”). The typical
unbridled discretion case involves a facial challenge
to a statute or ordinance regulating access to or
expression in a government space.
31
Under the unbridled discretion doctrine, “a
time, place, and manner regulation [must] contain
adequate standards to guide the official’s decision
and render it subject to effective judicial review.”
Thomas, 534 U.S. at 323. In a “limited public forum”
case, the Eleventh Circuit has imposed a
requirement for a “time limit within which [an
official] must make a decision on a permit
application.” Barrett v. Walker Cnty. Sch. Dist., 872
F.3d 1209, 1222 (11th Cir. 2017).
Here, the district court ruled that even if the
policies in this case ran afoul of the unbridled
discretion doctrine, respondent’s applications were
answered within a reasonable time under the
circumstances, and for much of the time there was
no ongoing jail ministry program due to the Covid-19
pandemic. App.75 n.8. In other words, the district
court correctly understood that an arguably
unconstitutional policy does not necessarily cause a
particularized constitutional violation. The Eleventh
Circuit missed that point.
The unbridled discretion doctrine is designed
to protect expression from censorship by (1) making
judicial review more efficient and (2) confining
official discretion to objective criteria that is
unrelated to protected expression. See Lakewood v.
Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988). The
doctrine aims to limit or eliminate opportunity for
unconstitutional censorship. The rule protects
32
against potential harm. Actual constitutional harm
may or may not be present.
In that respect, the rule operates like the Fifth
Amendment warnings required by Miranda v.
Arizona, 384 U. S. 436 (1966). Miranda warnings
protect Fifth Amendment rights, but lack of a
required Miranda warning does not necessarily lead
to a violation of a detainee’s Fifth Amendment
rights.
That was the ruling in Vega v. Tekoh, 597 U.S.
134 (2022), where the Court reiterated that the Fifth
Amendment requires Miranda warnings, but held
that “a violation of Miranda does not necessarily
constitute a violation of the Constitution, and
therefore such a violation does not constitute ‘the
deprivation of [a] right . . . secured by the
Constitution.’ 42 U. S. C. § 1983.” Vega, 597 U.S. at
150.
The same is true of a policy that runs afoul of
the unbridled discretion doctrine. A citizen who
submits an application under a constitutionally
deficient policy does not necessarily suffer a
constitutional violation. The application may be
ruled upon on the same day, and it may be denied on
a ground that is constitutionally permissible. Yet
seemingly the Eleventh Circuit would still authorize
a federal damages lawsuit in that scenario, for
anyone who submits an application under a policy
found to contain a First Amendment deficiency.
33
In holding that respondent’s rights were
violated by the Second and Third Policies, the
Eleventh Circuit erred by removing the fundamental
requirement for constitutional harm. The text of 42
U.S.C. § 1983 only provides for redress of actual
“deprivation of ... rights, privileges, or immunities
secured by the Constitution … .” And “[i]t is the role
of courts to provide relief to claimants ... who have
suffered, or will imminently suffer, actual
harm… .” Lewis v. Casey, 518 U.S. 343, 349 (1996)
(emphasis supplied).
In Lewis the Court applied that principle by
holding that inmates who have no federally
protected reason to access a law library have no
claim when a law library is not provided. Lewis, 518
U.S. at 351. Likewise, Lewis explained that healthy
inmates cannot recover for violation of their right to
medical care, no matter how deficient the prison
medical care might be. Lewis, 518 U.S. at 350.
Moving back to the the licensing context,
consider a hypothetical city policy for issuing parade
permits, where the policy has no time limit for a
decision and no criteria about reasons for denial of a
permit. Suppose that the ABC Organization applies
to hold a parade and a permit is granted the next
day. Under that scenario ABC Organization applied
under an unconstitutional policy, but the defective
policy did not lead to a violation of its rights. In that
scenario there should be no First Amendment claim
34
under § 1983 because there is no constitutional
injury.
The point is that the most unconstitutional
policy imaginable does not create § 1983 liability
without an actual constitutional violation. The
Eleventh Circuit’s unbridled discretion ruling errs
in finding otherwise.
C.
Petitioners Plainly Are Entitled to
Qualified Immunity
“Qualified immunity attaches when an
official’s conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known.” Kisela v.
Hughes, 584 U. S. 100, 104 (2018) (per curiam)
(internal quotation marks omitted). Qualified
“immunity protects all but the plainly incompetent
or those who knowingly violate the law.” Id. (quoting
White v. Pauly, 580 U. S. 73, 79 (2017)). For the
reasons detailed below, petitioners were not plainly
incompetent and did not knowingly violate the law,
so they should be entitled to immunity.
1. General Rules Do Not Overcome
Qualified Immunity in This Case
The Eleventh Circuit’s qualified immunity
ruling commits a cardinal error that the Court has
been condemning for decades. The Court’s qualified
immunity cases emphasize over and over again that
normally officials cannot be held liable in the
35
absence of “existing precedent [that] placed the …
constitutional question beyond debate. This
inquiry must be undertaken in light of the specific
context of the case, not as a broad general
proposition.” Rivas-Villegas v. Cortesluna, 595 U.S.
1, 5-6 (2021) (cleaned up; emphases supplied). The
Court has been explaining that for over 20 years
now. See Brosseau v. Haugen, 543 U.S. 194, 198-199
(2004) (per curiam).
The Court has “repeatedly told courts … not to
define clearly established law at a high level of
generality.” Kisela v. Hughes, 584 U.S. 100, 104.
(2018).
So, for example, nobody doubts that officers
cannot use excessive force. But that truism is not a
basis for denying qualified immunity. “Where
constitutional guidelines seem inapplicable or too
remote, it does not suffice for a court simply to state
that an officer may not use unreasonable and
excessive force, deny qualified immunity, and then
remit the case for a trial on the question of
reasonableness.” Kisela, 584 U.S. at 105.
The Eleventh Circuit majority’s qualified
immunity ruling did exactly what Kisela says should
not be done, except that the Eleventh Circuit
substituted First Amendment truisms for the Fourth
Amendment truism against excessive force, featured
in Kisela.
In other words, the Eleventh Circuit majority
36
relied solely on broad general propositions to deny
qualified immunity in a case where its opinion is a
clear outlier, and the critical legal issues were
unsettled and hotly debated. Specifically, the twojudge majority relied upon two general rules, namely
that viewpoint discrimination is prohibited, and that
“any permitting-like scheme must entail both (1)
substantive criteria to guide and cabin the
decisionmakers’ discretion and (2) a timeline
specifying how long those decisionmakers have to
respond to applications.” App.34-35.
If the Eleventh Circuit is correct that the
general prohibition against viewpoint discrimination plus evidence supporting viewpoint
discrimination is sufficient for denial of qualified
immunity, then it is quite curious that the Court
unanimously granted qualified immunity in Wood v.
Moss, 572 U.S. 744 (2014). There the Ninth Circuit
denied qualified immunity to officers whose actions
supported the inference of viewpoint discrimination.
Id. at 756.
The Court reversed, finding that “[n]o decision
of this Court so much as hinted that [officers’] onthe-spot action was unlawful because they failed to
keep the protesters and supporters, throughout the
episode, equidistant from the President.” Wood, 572
U.S. at 748. Instead of relying on general rules,
Wood considered the specific context of the case, the
specific officers and the specific situation that
confronted them. Finding no case that held the
37
officers’ actions clearly unlawful in their particular
circumstances, the Court granted qualified
immunity. Id. at 764.
That is how the qualified immunity evaluation
should have occurred in the court below. Instead, the
Eleventh Circuit took the Ninth Circuit approach.
The Eleventh Circuit’s truism-based qualified
immunity analysis misses the realities that all prior
government volunteer decisions pointed to the
Pickering-Garcetti framework as the proper body of
law for this claim, respondent’s speech in the jail
program context probably has no protection under
that framework, and this case concerns a volunteer
program designed to serve prisoners in a jail, which
is quite unlike any “permitting-like” scheme that any
binding court decision has ever addressed.
The clearly established law inquiry asks
whether a “reasonable . . . similarly situated”
official
“would
have
comprehended”
the
constitutional right in question. Wood v. Moss, 572
U.S. 744, 748 (2014) (emphasis supplied). General
rules from First Amendment cases involving highly
dissimilar settings say little or nothing about how
the First Amendment requires an officer to
administer a volunteer jail ministry program.
Put differently, reasonable jail administrators
easily “could miss the connection between the
situation confronting” non-jail officials in cases that
had nothing to do with jail administration or
38
government volunteers. See Kisela, 584 U.S. at 108
(“a reasonable police officer could miss the
connection between the situation confronting the
sniper at Ruby Ridge and the situation confronting
Kisela in Hughes’ front yard.”).
Aside from the Eleventh Circuit’s flawed
methodology, the fact is that no decision pointed
petitioners to a clear answer in this case. In other
words, the law was not clearly established “beyond
debate” that petitioners’ actions violated the First
Amendment. That point is amplified next.
2. The Law Was Not Clearly
Established
It hardly needs saying that where a
substantial debate exists about what body of law to
apply to a particular situation, the law is not clearly
established. Here, there is a strong basis to apply the
Pickering-Garcetti
framework,
under
which
respondent has no viable claims. Perhaps the
Eleventh Circuit’s surprising choice to employ forum
analysis to a quasi-employment context will prevail.
But when petitioners had to make decisions, they
could not have known that.
For qualified immunity it raises a red flag
when an experienced and competent district judge
followed a majority of circuit courts in applying the
Pickering-Garcetti framework. That was followed by
Judge Rosenbaum’s dissent in this case, which
explains in painstaking detail why the law was not
39
even remotely clear enough to deny qualified
immunity. App.39-57.
As the Court pointed out decades ago, if
“judges . . . disagree on a constitutional question, it
is unfair to subject [officials] to money damages for
picking the losing side of the controversy.” Wilson v.
Layne, 526 U.S. 603, 618 (1999). Likewise, “[l]aw
enforcement officers should never be subject to
damages liability for failing to anticipate novel
developments in constitutional law.” Brosseau v.
Haugen, 543 U.S. 194, 202 (2004) (Stevens, J.,
dissenting from the grant of qualified immunity).
Here the Eleventh Circuit found that certain
unique circumstances of this case, including a
religious component, make other volunteer cases
distinguishable. Even if that is so, these newly
identified distinctions strongly favor qualified
immunity because no jail administrator could
possibly know ahead of time that the court of
appeals would find cherry-picked, particular unique
facts important enough to remove the case from the
ambit of other government volunteer cases that
apply the Pickering-Garcetti framework.
Likewise, in regard to the unbridled discretion
doctrine the district court correctly observed that no
binding opinion “has ever applied the unbridleddiscretion doctrine on facts like these. And it is not
clear they would.” App.92. There is no binding case
holding a policy and application process for volunteer
40
service in a jail religious ministry program is subject
to the unbridled discretion rule. In fact the great
weight of authority strongly indicates that a jail
volunteer program is governed by standards
applicable to public employment, where the
unbridled discretion rule has no application.
Nevertheless, the Eleventh Circuit majority
held that in crafting a volunteer ministry policy and
application process petitioners must have known
based on “clearly established law” that they had to
account for the “unbridled discretion” doctrine,
which has never before been applied to a jail policy of
this type. The Eleventh Circuit failed to identify a
single case for that point, and manifestly the matter
was not established “beyond debate.”
No existing precedent told petitioners that
their conduct, as alleged by respondent, was clearly
illegal. The unsettled questions raised by this case
are subject to substantial debate by reasonable legal
professionals. The Eleventh Circuit’s unique answer
comes years after the operative events; its
conclusions about a variety of previously unsettled
issues are far from obvious; and there was no way for
petitioners to anticipate this ruling when they had to
make decisions. So, this is a case where qualified
immunity obviously should apply.
It cannot be said that existing precedent
“placed beyond debate the unconstitutionality of”
petitioners’ actions when they decided to adopt
41
policies and rejected respondent’s applications to the
jail ministry program. See Taylor v. Barkes, 575 U.S.
822, 825 (2015). Therefore, the Eleventh Circuit
erred in denying qualified immunity. Judge
Rosenbaum’s dissent is entirely correct about
qualified immunity. App.37 et seq.
3. The Court Should at Least Exercise
Summary Reversal
In the event that the Court declines to
consider the substantive First Amendment issues
raised by this case, the Eleventh Circuit’s qualified
immunity ruling is appropriate for summary
reversal. The Court’s immunity standards are
“settled and stable, the [summary judgment record
is] not in dispute, and the decision below is clearly in
error” about qualified immunity. See Schweiker v.
Hansen, 450 U. S. 785, 791 (1981) (Marshall, J.,
dissenting).
The Court frequently has exercised its
“summary reversal procedure . . . to correct a clear
misapprehension of the qualified immunity
standard.” Brosseau, 543 U.S. at 198 n.3; see also
Mullenix v. Luna, 577 U.S. 7 (2015); Taylor v.
Barkes, 575 U.S. 822 (2015); Stanton v. Sims, 571
U.S. 3 (2013). The Eleventh Circuit’s qualified
immunity ruling reflects “clear misapprehension”
that merits at least summary reversal of its qualified
immunity holding.
42
III.
The Questions Presented Are Critically
Important, and This is an Ideal Vehicle
to Resolve Them
The
questions
presented
are
plainly
certworthy. The Eleventh Circuit decision creates a
circuit split over how to evaluate First Amendment
claims by government volunteers in general, and by
volunteers in government programs that have a
religious component, in particular.
Aside from that, the Eleventh Circuit decision
provides an incentive for government agencies to
shut down programs (or parts of programs) that
utilize volunteers in any type of role that arguably
involves religious teaching, instruction or ministry.
The issue is of great practical importance, because it
is likely to impact government decisions about (1)
whether to create programs using religious
volunteers at all, and (2) how such programs must be
administered.
Even under a narrow reading that the decision
below merely carves out a special exception for
volunteers performing some religious function, the
decision disincentivizes programs like the jail
ministry program in this case by exposing
government administrators to protracted litigation
by disgruntled volunteers. If problematic volunteers
cannot be rejected or dismissed without the
protections provided to government agencies and
personnel under the Pickering-Garcetti framework,
43
that is a price many astute policy makers will be
unwilling to pay.
The likely result is closure of government
volunteer programs, or retraction of government
entities from volunteer programs that would
otherwise benefit communities. That is not good for
government administrators, it is not good for wellintentioned volunteers who provide important
services through government programs, and it is not
good for the populations (like prisoners) who benefit
from religiously-motivated volunteers serving in a
government program.
On the other side of the ledger, there appears
to be no countervailing value to the Eleventh
Circuit’s deviation from the constitutional and
practical balance struck long ago in Pickering.
This case is an ideal vehicle to resolve these
issues. The facts are not particularly complicated,
the issues are clear and the record is well-developed.
Turning to qualified immunity, absent this
Court’s intervention petitioners will face a trial, with
all of the costs and risks that this Court’s Pickering
and qualified immunity jurisprudence are designed
to prevent. Respectfully, the Court should grant
certiorari to review the Eleventh Circuit’s resolution
in this case.
44
CONCLUSION
For the foregoing reasons, this Court should
grant the petition.
Respectfully submitted,
TERRY E. WILLIAMS
Counsel of Record
JASON C. WAYMIRE
Williams & Waymire, LLC
4330 S. Lee Street
Bldg. 400, Ste. A
Buford, GA 30518
678-541-0790 ext.4
terry@wmwlaw.com
jason@wmwlaw.com
Counsel for Petitioners
February 10, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.