Opposition Brief — Johnny Moats, Sheriff, Polk County, Georgia, et al., Petitioners v. Stephen Jarrard

No. 24-887

In the Supreme Court of the United States

________________

Johnny Moats, Sheriff, Polk County, Georgia, et al.,

Petitioners,

v.

Stephen Jarrard,

________________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

________________

BRIEF IN OPPOSITION

________________

Zack Greenamyre

MITCHELL SHAPIRO

GREENAMYRE & FUNT, LLP

881 Piedmont Ave. NE

Atlanta, GA 30309

W. Gerald Weber

LAW OFFICES OF GERRY

WEBER, LLC

P.O. Box 5391

Atlanta, GA 31107

April 4, 2025

John A. Meiser

Counsel of Record

Meredith H. Kessler

LINDSAY & MATT MOROUN

RELIGIOUS LIBERTY CLINIC

Notre Dame Law School

1338 Biolchini Hall of Law

Notre Dame, IN 46556

(574) 631-3880

jmeiser@nd.edu

QUESTIONS PRESENTED

The decision below rests on two long-settled First

Amendment rules. First, government officials may

not retaliate against or disfavor a person based on

their own disagreement with the viewpoints he

expresses. Pet.App.19. Second, the government must

establish basic criteria to channel the discretion of

officials who pick and choose what speech to allow in

government facilities and programs. Pet.App.24.

Applying those foundational rules to the facts in the

summary judgment record, the Eleventh Circuit held

that Polk County Jail officials clearly violate the First

Amendment when they ban a person from

participating in a volunteer ministry program because

he does not share the Sheriff’s reading of the Bible.

The questions presented are:

1. Does Pickering v. Board of Education’s exception to

normal First Amendment analysis for ordinary

workplace speech by government employees apply

to a volunteer jail minister whose activities look

nothing like employment?

2. Does an applicant who has been repeatedly denied

access to a volunteer ministry program under a

policy that affords officials unbridled discretion

have an actionable First Amendment claim?

3. Are County officials entitled to qualified immunity

when they exclude a person from participating in a

volunteer ministry program based on their own

disagreement with his religious views and when

they issue policies that give unbridled discretion to

pick and choose who may partake in that program?

ii

CORPORATE DISCLOSURE

The petition’s corporate disclosure statement is

correct with respect to Respondent.

iii

TABLE OF CONTENTS

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 3

A.

Factual background ..................................... 3

B.

Proceedings below ....................................... 5

REASONS FOR DENYING THE WRIT .................. 10

I.

This Case Implicates No Circuit Split .............. 10

II.

The Decision Below Is Correct .......................... 15

A.

The First Amendment plainly bars

Petitioners’ viewpoint discrimination....... 15

B.

This case presents no “tension” with

Pickering or Umbehr ................................. 17

C.

The standardless application policies are

plainly unlawful ........................................ 19

D.

Qualified immunity does not bar

Jarrard’s claims ......................................... 22

III. This Case Is an Unsuitable Candidate for this

Court’s Review ................................................... 25

A.

The decision below is fact-bound,

and critical disputes remain

to be litigated ............................................. 25

B.

Resolving the questions presented in

Petitioners’ favor will not prevent trial

and may not affect the result at all .......... 27

CONCLUSION .......................................................... 29

iv

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ................................................ 23

Barrett v. Walker Cnty. Sch. Dist.,

872 F.3d 1209 (11th Cir. 2017) .............................. 21

Bd. of Cnty. Comm’rs, Wabaunsee Cnty. v. Umbehr,

518 U.S. 668 (1996) .............................. 13, 17, 18, 19

CarePartners LLC v. Lashway,

545 F.3d 867 (9th Cir. 2008) .................................. 14

City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) .................................... 15, 20, 21

Connick v. Myers,

461 U.S. 138 (1983) .......................................... 17, 28

Cornelius v. NAACP Legal Def. & Educ. Fund,

473 U.S. 788 (1985) ................................................ 16

FW/PBS v. City of Dallas,

493 U.S. 215 (1990) .................................... 20, 21, 24

Garcetti v. Ceballos,

547 U.S. 410 (2006) .......................................... 17, 28

Hope v. Pelzer,

536 U.S. 730 (2002) ................................................ 25

Int’l Soc’y for Krishna Consciousness, Inc. v. Lee,

505 U.S. 672 (1992) ................................................ 16

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) ............................................ 28

Lewis v. Casey,

518 U.S. 343 (1996) ................................................ 21

McCullen v. Coakley,

573 U.S. 464 (2014) ................................................ 11

McKinley v. Kaplan,

262 F.3d 1146 (11th Cir. 2001) .............................. 13

v

Mullenix v. Luna,

577 U.S. 7 (2015) .................................................... 24

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................ 29

Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n,

460 U.S. 37 (1983) ............................................ 11, 16

Pickering v. Bd. of Educ. of Twp. High Sch.

Dist. 205, Will Cnty.,

391 U.S. 563 (1968) ...................................... 8, 17, 18

Procunier v. Martinez,

416 U.S. 396 (1974) ................................................ 16

Rodin v. City of Coral Springs,

229 F. App’x 849 (11th Cir. 2007) ......................... 13

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) .......................................... 11, 16

Texas v. Johnson,

491 U.S. 397 (1989) ................................................ 15

Thornburgh v. Abbott,

490 U.S. 401 (1989) ................................................ 16

Turner v. Safley,

482 U.S. 78 (1987) .................................................. 16

United States v. Lanier,

520 U.S. 259 (1997) ................................................ 25

United States v. Nat’l Treasury Emps. Union, 513

U.S. 454 (1995) ....................................................... 28

W. Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .......................................... 11, 16

Rules

Sup. Ct. R. 10 ....................................................... 15, 26

INTRODUCTION

This case does not warrant the Court’s review for

multiple reasons. Petitioners do not identify a single

court that splits on a single aspect of the questions

presented. The Eleventh Circuit’s decision below is

explicitly fact-bound and obviously correct. And even

resolving every question presented in Petitioners’

favor would not end this case or avoid a trial. This is

a manifestly poor candidate for this Court’s

intervention.

1. Start with the decision itself, which is dictated

by a straightforward application of long-settled First

Amendment rules to the egregious facts in this record.

For years, Polk County Jail officials have denied

Stephen Jarrard the opportunity to participate in the

Jail’s volunteer ministry program because they

personally reject his views on baptism. Jarrard has

long ministered at jails in Georgia, where he shares

his belief that baptism is necessary for salvation with

interested inmates. But Petitioners—the Sheriff of

Polk County, Johnny Moats, and the former Chief

Jailer of Polk County Jail, Al Sharp—read the Bible

differently. And, after Jarrard was removed from the

ministry program, they have repeatedly denied him

readmission because he held firm to his own views on

the role of baptism. The Jail’s “stance,” Moats

explained in writing to Jarrard, is that “baptism can

wait until after release since it is not a requirement

for salvation.” Pet.App.5 n.2. And, Moats explained,

Jarrard would not be welcomed back until he aligned

his teachings with the Sheriff’s view of salvation. But

Jarrard doesn’t and so, true to Petitioners’ word, they

have excluded him from the program.

2

Unsurprisingly, the Eleventh Circuit held that the

First Amendment prohibits Petitioners’ blatant

suppression of Jarrard’s disfavored views. It also

rightly determined that the Jail’s policies violated the

First Amendment because they failed to provide any

meaningful standards to guide officials’ review of

volunteer ministry applications. And, because these

bedrock First Amendment principles have long been

clear, the Eleventh Circuit properly concluded that

qualified immunity did not shield Petitioners from

damages. That straightforward application of this

Court’s precedents does not warrant review.

Nor can Petitioners evade the plain demands of the

First Amendment by attempting to recast this case as

a question of the government’s ability to control

workplace speech of its employees under the

standards set forth for First Amendment claims

against government employers in Pickering v. Board

of Education. As the decision below lays out at length,

the logic of Pickering and the particular details of

Jarrard’s volunteer ministry give no reason to believe

that this exception to normal First Amendment

analysis has any relevance on the facts here.

2. None of this implicates even the shallowest

circuit split. Indeed, Petitioners do not even attempt

to assert a split on the second and third questions

presented. And their passing efforts to conjure a split

on the first question fail. In fact, the decision below

explicitly agrees with Petitioners’ suggested rule—

that Pickering sometimes applies to non-employees,

including government volunteers. The decision below

simply declined to apply that exception on the facts

here, after concluding that the actual circumstances of

3

Jarrard’s volunteer ministry look nothing like

Pickering or its progeny. Petitioners do not identify a

single court that has—or would—answer that recordbound question differently. And their blind assertion

that the Eleventh Circuit announced a new “special

exception” from this Court’s government-employee

cases for volunteer ministers is flatly wrong.

3. Regardless, this case is an unsuitable candidate

for review. The decision below is fact-bound, with

disputes of fact that remain to be decided by a jury and

cannot be resolved here or now. What’s more, a

decision in Petitioners’ favor—even on every question

presented—would not avoid that trial. Reversal here

promises only more litigation, with potentially the

same result in the end.

The petition should be denied.

STATEMENT OF THE CASE

A. Factual background

Stephen Jarrard has visited Georgia jails and

prisons as a volunteer minister for nearly two decades.

Pet.App.3. As a member of the Church of Christ,

Jarrard believes that baptism by full immersion is

necessary for salvation. Pet.App.2-3. And he shares

those theological views with inmates, in hopes of

helping fellow believers get “baptized into

Christ . . . before Jesus returns.” Pet.App.3.

In 2012, Jarrard began ministering at Polk County

Jail through a volunteer program that broadly invited

community members of all faiths to visit the Jail and

share their religious beliefs with inmates. Pet.App.34. To participate, all a person needed to do was to go

to the Jail and “ask and put [his] name on [a] list.”

4

Pet.App.3-4. Indeed, the Jail approved Jarrard’s

application to participate in the program within

minutes. Pet.App.4. At one point, the participant list

included 140 volunteers, though only about 10

actually showed up. Pet.App.4.

Soon after he began volunteering, Jarrard faced

challenges to his religious views from others involved

in the program.

Another volunteer minister

personally objected to Jarrard’s beliefs on baptism,

and the “leader” of the volunteer ministry team told

Jarrard that he could continue his ministry only if he

stopped teaching about baptism. Pet.App.4. Sure

enough, after Jarrard refused, he was kicked out of the

program. Pet.App.4. Jarrard attempted to sort out

the issue with the newly elected Sheriff of Polk

County, Johnny Moats, but Moats too disagreed with

Jarrard’s views on baptism, and he declined to allow

him back in the Jail. Pet.App.4.

Sheriff Moats eventually allowed Jarrard to return

to the Jail, and over the next year, Jarrard ministered

without incident—including performing two baptisms

for inmates. Pet.App.4-5.

In 2015, the Jail suspended the volunteer ministry

program. Pet.App.5. Moats and Al Sharp, the Chief

Jailer, then implemented a new policy to govern the

ministry program and religious services in the Jail.

Pet.App.5. That policy banned “[r]eligious rituals

such as baptism and wedding ceremonies” for inmates.

Pet.App.5. In the Jail’s view, baptism was not

theologically necessary, and therefore could wait until

an inmate’s release. Pet.App.5. Indeed, Moats later

explained this reasoning in a letter to Jarrard’s

counsel. The letter quoted the Bible at length and

5

explained, “Our stance is since the Polk County Jail is

a short term detention center, baptism can wait until

after release since it is not a requirement for salvation.”

Pet.App.5 n.2 (emphasis added); see also Pet.App.6970.

At the same time the Jail issued its new policy,

Chief Jailer Sharp likewise told Jarrard that he could

not participate in the program if he continued to

express his views on baptism. Pet.App.5. Jarrard

nonetheless completed a training course on the new

policies and applied to resume his ministry.

Pet.App.5. The Jail denied his application without

explanation. Pet.App.5. Sheriff Moats later asserted

that Jarrard was barred from the ministry program

because of interactions with “other members of the jail

ministry program [who] did not share his radical

religious views” and because, Moats believed, Jarrard

had “some mental health issues.” Pet.App.5-6.

Thereafter, Jarrard held a regular vigil outside the

Jail to protest his exclusion from the program.

Pet.App.6. On multiple occasions, Moats and Sharp

stopped to talk with Jarrard—always about “baptism

and the officials’ theological disagreement with

Jarrard’s views on the subject.” Pet.App.6.

B. Proceedings below

Jarrard and Ollie Morris—a former inmate whose

request to be baptized was denied—sued Moats and

Sharp, seeking declaratory, injunctive, and monetary

relief. 1 Pet.App.6 & n.3. For his part, Jarrard alleged

1 Jarrard also sued Deputy Dustin Strop. Pet.App.6 n.3. The

district court granted summary judgment to Strop, and Jarrard

did not appeal that ruling. Pet.App.6 n.3.

6

that (1) Petitioners unlawfully retaliated against him

for exercising his First Amendment rights by

expressing his views on baptism, and (2) the Jail’s

policies governing the volunteer ministry program

violated the First Amendment by affording Jail

officials “unbridled discretion” over whom to allow to

take part in the program. Pet.App.6, 8, 62. Morris

likewise alleged that Petitioners violated the First

Amendment by banning baptism and denying his own

request to be baptized by Jarrard. Pet.App.62.

Throughout this litigation, Petitioners have

amended the policy governing religious services and

volunteer ministers several times. Pet.App.7. Each

time, Jarrard reapplied to resume his ministry under

the new policy.

Pet.App.7-8.

And each time,

Petitioners denied his application.

Pet.App.7-8.

These shifting policies first reallowed religious rituals

like baptism. Dist. Ct. Doc. 53-4 at 1. Then they

banned them again. Pet.App.7. Finally, they allowed

baptisms once more. Dist. Ct. Doc. 68-1 at 4. The

rules for how one applies to participate in the ministry

program and basic rules of conduct for volunteers also

shifted along the way. Pet.App.7-8. But it was not

until this last policy (the fourth) that the Jail specified

any criteria to guide Jail officials’ consideration of

those applications—or any reasons for which an

application could be denied. Pet.App.7-9.

Jarrard amended his complaint after each new

policy to keep up and to reflect the changes and

repeated denials of his applications. Pet.App.7-9.

Finally, after the fourth policy specified a timeline for

review of ministry applications and actual reasons

why one might be denied, Jarrard dropped his request

7

for injunctive relief on the policy claim.

He

maintained his claims for damages against the prior

deficient policies under which his applications had

previously been denied. Pet.App.9.

Eventually, Petitioners moved for summary

judgment and Jarrard moved for partial summary

judgment on his policy claim. Pet.App.8, 62.

First, the district court denied Petitioners’ motion

for summary judgment as to Morris’s challenge to the

denial of his requests for baptism. Pet.App.63. “A jury

could easily conclude,” the district court reasoned,

that Moats and Sharp imposed a substantial burden

on Morris’s religious exercise by “enact[ing] a written

policy outright banning baptism.”

Pet.App.66.

Petitioners’ “baptism-can-wait argument” failed, the

court continued, because it “is based on [their] own

reading of the Bible rather than [Morris’s] beliefs.”

Pet.App.68. Moreover, “[t]here is substantial evidence

that Defendants Sharp and Moats banned inmate

baptism and denied [Morris’s] baptism request

because they personally believe baptism is not

necessary for salvation.” Pet.App.69. The district

court thus concluded that, “[t]o the extent

[Petitioners] prevented [Morris] from getting baptized

simply because they believe baptism is theologically

unnecessary, their conduct . . . violates the First

Amendment.” Pet.App.70. And the court found

unpersuasive Petitioners’ assertions about their

actual reasons for banning baptism, noting that “the

only contemporaneous evidence” of motive “focuses on

theology” and rejecting their “after-the-fact testimony

about safety and security” concerns as “vague” and

“conclusory.” Pet.App.70.

8

The district court also declined to award qualified

immunity on Morris’s claim. Pet.App.73-74. “No

reasonable officer,” the court observed, “could think it

is lawful to ban inmate baptism, including for those

who believe baptism is essential for salvation, simply

because the officer personally holds a different

religious view.” Pet.App.73. But Petitioners “went

ahead anyway based solely on their own religious view

that baptism is unnecessary. That was an obvious

First Amendment violation.” Pet.App.73. Petitioners

thereafter settled Morris’s claim. Pet.App.6 n.3.

But, on Jarrard’s claims, the district court

nonetheless

granted

summary

judgment

to

Petitioners. Pet.App.63. The court first opined that

the First Amendment simply does not protect

Jarrard’s religious ministry under Pickering v. Board

of Education of Township High School District 205,

Will County, 391 U.S. 563 (1968). In the court’s view,

because Jarrard was effectively a “government

employee,” his religious expression as a volunteer

minister “count[ed] as employee speech” subject to the

Jail’s control. Pet.App.80-84. And even if Jarrard had

spoken as a citizen, the court concluded, his claim

failed because his “personal view of baptism” is not “a

subject of legitimate news interest” or of “concern to

the community.” Pet.App.86 (quotation omitted).

Next, the court concluded that qualified immunity

shielded Petitioners because it was not clearly

established that the First Amendment protected

Jarrard’s speech as a volunteer minister. Pet.App.8788. Finally, although the prior policies “arguably

violated” the First Amendment’s prohibition on

unbridled discretion, the court awarded qualified

immunity on that claim as well. Pet.App.92-94.

9

The Eleventh Circuit reversed. Pet.App.36. “[O]n

the particular facts of this case,” the court explained,

“Pickering doesn’t provide the proper framework for

determining

whether

Jarrard’s

speech

was

‘constitutionally protected.’” Pet.App.13. As the court

explained, Pickering “operate[s] as an exception of

sorts . . . in cases involving government employees.”

Pet.App.14.

But Jarrard wasn’t a government

employee, and, the court detailed, Pickering’s “logical

underpinnings” do not “readily apply to Jarrard’s

participation in a volunteer prison ministry.”

Pet.App.17. Nor did his activities “bear any of the

traditional hallmarks of employment.” Pet.App.17.

Because in “no practical respect did Jarrard’s

participation in the ministry program resemble a

traditional government ‘job,’” there was no basis to

apply Pickering’s framework built upon the unique

interests of government employers. Pet.App.18.

Instead, the court determined that “Jarrard’s claim

should be evaluated under the ‘forum analysis’ that

traditionally

governs

speech-related

claims.”

Pet.App.13. Under that analysis, the governing rule

is clear: The First Amendment prohibits viewpoint

discrimination across all forums and all types of

government facilities. Pet.App.19. Moats and Sharp

violated this basic principle when they excluded

Jarrard from the Jail’s ministry program simply

because of “their disagreement with Jarrard’s beliefs

about baptism.” Pet.App.22. That was “viewpoint

discrimination, pure and simple.” Pet.App.22.

The Eleventh Circuit further held that the

standardless policies under which Jarrard’s many

previous applications were denied violated the First

10

Amendment because they failed to provide any

meaningful criteria or timeline to guide decisions on

volunteer applications. Pet.App.24, 27.

Finally, the court concluded that qualified

immunity did not bar either of Jarrard’s claims, given

the obvious First Amendment rules at stake.

Pet.App.29. That is, “Moats and Sharp were—had to

have been—on notice that excluding Jarrard from the

volunteer ministry program based on his views about

baptism was unlawful. And yet, given the facts as we

must construe them [on summary judgment], that’s

exactly what they did.” Pet.App.34 (emphasis added).

Likewise, “the law has long been clearly established

that decisionmakers like Moats and Sharp may not

exercise unbridled discretion in deciding who can (and

can’t) speak.” Pet.App.35. Judge Rosenbaum concurred in all parts but the court’s conclusion on

qualified immunity. She wrote that, even if Pickering

does not apply here, she disagreed that the answer to

that question was clear enough to overcome qualified

immunity. Pet.App.37.

Moats and Sharp petitioned for rehearing en banc,

but no judge called for a vote. Pet.App.60.

REASONS FOR DENYING THE WRIT

I.

This Case Implicates No Circuit Split.

The decision below is hardly surprising; it certainly

implicates no circuit split. Petitioners fail to identify

a single facet of the decision with which even one

circuit disagrees. They do not even try to assert a split

on the second and third questions presented. And in

their strain to manufacture a split on the first

question—on Jarrard’s First Amendment retaliation

11

claim—they ignore the actual decision below,

attacking instead a ruling of their own imagination.

The decision itself is straightforward.

The

Eleventh Circuit observed a bedrock First

Amendment rule, with which no circuit can or does

disagree: Government officials may not discriminate

against a person merely because he has expressed

religious beliefs which the officials dislike. See

Pet.App.23 (citing W. Va. Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943)). In more legalistic terms: “[A]ny

regulation of speech based on the speaker’s viewpoint

is presumptively invalid and must, at the very least,

satisfy strict scrutiny.” Pet.App.19 (citing McCullen v.

Coakley, 573 U.S. 464, 478 (2014); Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-29

(1995); Perry Educ. Ass’n v. Perry Loc. Educators’

Ass’n, 460 U.S. 37, 46 (1983)). The court then applied

that unassailable rule to the summary judgment

record in this case. After cataloging the “ample

evidence that . . . Moats and Sharp disagreed with

Jarrard’s views on baptism,” the court found that a

jury could reasonably “infer that they denied his

applications on the basis of that disagreement.”

Pet.App.20-21. Therefore, “[a]t least for summaryjudgment purposes, [the court] conclude[d] that Moats

and Sharp engaged in viewpoint discrimination,”

which could not withstand strict scrutiny. Pet.App.22.

Along the way, the court declined to apply “an

exception of sorts” to “usual” First Amendment

analysis—where, under Pickering, ordinary on-the-job

expression gets lesser protection “in cases involving

government employees.” Pet.App.14. The court

recognized that the Pickering exception “may be

12

validly applied even to some individuals who aren’t

traditional

government

employees,”

including

volunteers. Pet.App.15. But that rule is not in

dispute. Rather, “[t]he real and more granular

question [wa]s whether, given the particulars of Polk

County’s volunteer ministry program and Jarrard’s

participation in it, he was a de facto employee for

Pickering purposes.” Pet.App.15 (emphasis added).

The answer to that fact-intensive question was no.

Pet.App.15; see also Pet.App.19 (“[N]either Pickering’s

theoretical underpinnings nor the practical realities of

Jarrard’s situation support the application of the

Pickering analysis.”).

No surprise, Petitioners do not cite a single case

that would hold to the contrary. They instead ignore

the decision’s fact-bound reasoning, and blindly assert

that the court below announced a categorical “special

exception” to Pickering for “government volunteer

roles that include a religious component.” Pet.17, 42.

In their view, that rule would split from a consensus

view that Pickering can apply to “claims by government volunteers in general.” Pet.17-18; see Pet.24

(citing circuits that “have applied the PickeringGarcetti framework to . . . government volunteers”).

Petitioners are mistaken several times over.

First, the Eleventh Circuit did not craft any

“exception” to Pickering. Quite the opposite, the court

agreed with the “consensus” rule Petitioners describe:

Pickering can, and sometimes does, apply to unpaid

volunteers. 2 Indeed, the court began its discussion by

2 Curiously, Petitioners include the Eleventh Circuit among

the courts that follow this “consensus” rule—showing that their

13

observing that Pickering sometimes applies “beyond

traditional employment relationships”—for instance,

to government contractors, “an unpaid political

appointee,” or a volunteer firefighter. Pet.App.15-16

& n.12 (citing Bd. of Cnty. Comm’rs, Wabaunsee Cnty.

v. Umbehr, 518 U.S. 668, 674 (1996); McKinley v.

Kaplan, 262 F.3d 1146, 1149 & n.5 (11th Cir. 2001);

Rodin v. City of Coral Springs, 229 F. App’x 849 (11th

Cir. 2007)). The court cautioned that Pickering might

apply even though Jarrard was neither “a Polk County

employee” nor “on the payroll.” Pet.App.14. The key,

the court explained, is not categories like contractor or

volunteer; rather, Pickering’s reach depends “on the

particular facts of th[e] case.” Pet.App.13. And the

court only rejected Pickering’s framework after

determining it is an ill fit for the facts here. See

Pet.App.15 (“Pickering’s logic doesn’t comfortably

apply to volunteer ministers like Jarrard.” (emphasis

added));

Pet.App.17

(Pickering’s

“delivery-ofgovernment-services rationale doesn’t readily apply to

Jarrard’s participation” in the ministry program.);

Pet.App.17 (“[E]ven setting aside Pickering’s logical

underpinnings, Jarrard’s participation in the ministry

program doesn’t bear any of the traditional hallmarks

of employment.”); Pet.App.18 (“In no practical respect

did Jarrard’s participation . . . resemble a traditional

government ‘job.’”).

Nothing in the decision below suggests that

Pickering never applies to volunteers, “religious” or

otherwise. That would have made for a much shorter

quibble is not with Eleventh Circuit law, but rather with how the

panel below applied that law to these particular facts. Pet.24.

14

opinion. The court’s thorough inspection of the facts

of the Jail’s ministry program and Jarrard’s

participation in it underscores the actual point:

Pickering can apply to volunteers, but it depends on

the details. Petitioners do not identify a single circuit

that disagrees or a single case that holds Pickering

must apply to all government volunteers, regardless of

their circumstances. Quite the opposite, circuits

around the country have “cautioned against extending

[Pickering] beyond the public employment context.”

CarePartners LLC v. Lashway, 545 F.3d 867, 881-82

(9th Cir. 2008) (collecting cases from First, Second,

Third, Fifth, Sixth, Seventh, and Tenth Circuits).

Second, Petitioners have identified no split on

Pickering’s application to volunteer ministers in

particular. In fact, Petitioners do not cite a single

circuit decision applying Pickering to a volunteer

minister—let alone a decision holding that Pickering

applies to all such volunteers or to ones in programs

that resemble Polk County’s. The cases cited reference roles that look nothing like Jarrard’s. See Pet.24

(five volunteer firefighters, volunteer police officer,

probation-department volunteer, AmeriCorps volunteer with Indiana National Guard, and unpaid

political appointee). Petitioners make no effort to

analogize Jarrard’s participation in the Jail’s ministry

program to the facts of those obviously different cases.

Pet.24-26. Regardless, reaching different conclusions

after applying the same legal rule to different facts

hardly suggests a “split” of authority, let alone one

worthy of this Court’s attention. The decision below

did not state any new or disfavored rule; it applied an

15

existing, utterly uncontroversial rule to a particular

set of facts. 3

II.

The Decision Below Is Correct.

The decision below is also manifestly correct. It

sits comfortably on two bedrock principles of First

Amendment law. First, government officials may not

suppress religious viewpoints with which they

disagree. Pet.App.22; see, e.g., Texas v. Johnson, 491

U.S. 397, 414 (1989). Second, officials may not wield

unbridled discretion when deciding whether to permit

or deny expressive activity in a government forum of

any kind. Pet.App.24; see, e.g., City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 769-70 (1988).

And because these foundational rules have long been

clear, the Eleventh Circuit correctly held that qualified immunity offers no shield for Petitioners’ blatant

violations of them. Pet.App.33. These unremarkable

conclusions do not warrant this Court’s review.

A. The First Amendment plainly bars

Petitioners’ viewpoint discrimination.

The upshot of the Eleventh Circuit’s decision is

simple: Petitioners may not ban Jarrard from the

volunteer ministry program because they personally

In a last-ditch effort to create a split, Petitioners cite a

handful of district court cases involving volunteer chaplains.

Pet.25. As the court below noted, the vast majority did not even

“assess[] whether [Pickering] was the proper analytical

framework but, rather, seemed to take it as a given.” Pet.App.17

n.13. And, regardless, these unreasoned district court decisions

cannot create conflict among courts of appeals warranting this

Court’s review. Sup. Ct. R. 10(a).

3

16

disagree with his religious beliefs. Pet.App.23. That

holding is narrow and, more importantly, correct.

As the Eleventh Circuit observed, the First

Amendment’s foundational prohibition of viewpoint

discrimination applies across all types of government

facilities and activities. Even if Polk County had not

opened a limited forum for the expression of a

“diversity of views” in the ministry program,

Rosenberger, 515 U.S. at 834, the rule is the same.

Pet.App.19. The government may never exclude

speech or speakers from a facility on the basis of his

viewpoint—even in a “nonpublic forum” like a jail that

has not been designated for expressive activity. Perry

Educ. Ass’n, 460 U.S. at 49; Cornelius v. NAACP Legal

Def. & Educ. Fund, 473 U.S. 788, 806 (1985); see also

Barnette, 319 U.S. at 642. The government has wider

latitude to regulate speech in nonpublic fora, but it

may do so only if “the regulation is not an effort to

suppress the speaker’s activity due to disagreement

with the speaker’s view.” Int’l Soc’y for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992).

Petitioners’ viewpoint-based exclusion fares no

better in a jail. Pet.22-23. To be sure, “[r]unning a

prison is an inordinately difficult undertaking that

requires expertise, planning, and the commitment of

resources.” Turner v. Safley, 482 U.S. 78, 84-85

(1987). But that difficulty does not permit “prison

officials and employees to apply their own personal

prejudices and opinions as standards” when deciding

what views to allow into the jail. See Thornburgh v.

Abbott, 490 U.S. 401, 416 n.14 (1989) (quoting

Procunier v. Martinez, 416 U.S. 396, 415 (1974)). And

Petitioners certainly cannot justify Jarrard’s exclusion

17

based on their view that his beliefs about baptism are

“highly undesirable to jail administrators.” Pet.29.

That is exactly the kind of value judgment about

contested ideas that the First Amendment proscribes.

See Barnett, 319 U.S. at 642. And even if Petitioners’

concerns were valid—and they are not—the Eleventh

Circuit rightly observed that Jarrard’s exclusion

would still fail strict scrutiny given the many more

narrowly tailored options to address them, an issue

the petition does not even address. Pet.App.22-23.

B. This case presents no “tension” with

Pickering or Umbehr.

Petitioners ignore these core principles and argue

that the court should have instead applied Pickering’s

narrow exception to the First Amendment’s normal

protections. Pet.23. Far from it.

1. The Pickering exception affords the government

greater control over its employees’ speech to ensure

“the efficiency of [its] public services.” Connick v.

Myers, 461 U.S. 138, 142 (1983) (quoting Pickering,

391 U.S. at 568). But that doctrine is limited to the

government’s special interests in controlling speech on

ordinary workplace affairs. Indeed, Pickering rejected

the idea that government employees broadly sacrifice

their First Amendment rights to speak as individuals

on important matters, even while on the job. Connick,

461 U.S. at 142; see also Garcetti v. Ceballos, 547 U.S.

410, 417 (2006). Thus, Pickering “seek[s] a balance

between the interests of the 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.” Connick,

461 U.S. at 142 (quotation and alteration omitted).

18

The Eleventh Circuit correctly held that this

exception has no bearing on the facts here. Jarrard

wasn’t a Jail employee or anything like one.

Pet.App.14-18. The unique interests that animate

Pickering—“promoting the efficiency of the public

services [the government] performs through its

employees,” 391 U.S. at 568—are utterly absent.

Pet.App.17. Jarrard did not deliver messages on

behalf of the Jail, nor did he provide any other public

service the Jail would need to fill in his absence.

Pet.App.17. Moreover, Jarrard’s participation in this

community volunteer program looked nothing like

traditional government employment. Pet.App.17-18.

2. Nor is there any “tension” between the decision

below and this Court’s decision in Umbehr. Pet.20. In

Umbehr, this Court extended Pickering’s reach beyond

formal government employees to paid government

contractors. 518 U.S. at 674. But that short extension

merely reflects the government’s common interests in

regulating services performed through its employees

and its contractors. Id. In that case, this Court

“turn[ed] initially to [its] government employment

precedents for guidance” because “[t]he similarities

between government employees and government

contractors . . . are obvious.” Id. Like employees,

contractors are hired so that the government may

further “its interests as a public service provider.” Id.

at 678. And 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 corruption.” Id. at 674.

19

Those similarities are glaringly absent here.

Pet.App.17-18. The government didn’t hire Jarrard to

perform “a public service” or pay him “for the time he

spent teaching and counseling inmates.” Pet.App.1718. To join the program, he only had to “put his name

on a list” and he was approved “within minutes.”

Pet.App.18. The Jail did not direct his ministry or

even require him to show up. Pet.App.18. In fact, “no

more than 10 of the 140-some-odd people on the signup list ever showed up.” Pet.App.18. That volunteers

were eventually required to sign a confidentiality

agreement, execute a liability waiver, and pass a

criminal background check, see Pet.6-7, did not render

them “de facto employee[s].” Pet.App.18. Indeed, the

Jail subjected other visitors to “similar conditions.”

Pet.App.18. All told, in “no practical respect did

Jarrard’s participation in the ministry program

resemble a traditional government ‘job.’” Pet.App.18.

There is no good reason on the facts of this case to

deviate from the typical framework for analyzing

restrictions on speech. Pet.App.19. That conclusion is

consistent with this Court’s own caution in Umbehr

that even for government contractors—with their

many “obvious” similarities to employees—the

concerns of Pickering are less relevant than for actual

employees. 518 U.S. at 680. The Eleventh Circuit was

correct not to extend Pickering here, where the

similarities are altogether lacking.

C. The standardless application policies are

plainly unlawful.

Next, the Eleventh Circuit held that several of the

Jail’s policies violated the First Amendment because

they failed to provide any meaningful standards to

20

guide administrators’ evaluation of volunteer ministry

applications.

Pet.App.24.

There is no serious

argument that the Jail’s barebones policies were

actually constitutional.

1. The First Amendment requires the government

to set some basic rules to channel officials’ discretion

when deciding whether to allow certain speech. City

of Lakewood, 486 U.S. at 769-70. This Court has

identified at least “two evils” that such policies must

avoid. FW/PBS v. City of Dallas, 493 U.S. 215, 225

(1990). First, the government may not give an official

“unbridled discretion” to permit or deny expression.

Id. at 225-26 (quoting City of Lakewood, 486 U.S. at

757). Second, the government must “place limits on

the time within which the decisionmaker must” act.

FW/PBS, 493 U.S. at 226.

The Jail’s policies run afoul of both requirements.

As the Eleventh Circuit explained, the policies did not

“even attempt[] to provide the substantive standards”

required to constrain Petitioners’ discretion.

Pet.App.27. “Nor [did] they include a time limit within

which [Jail officials] must make a decision.”

Pet.App.27 (quotation omitted). And Jarrard then

suffered unconstitutional censorship based on his

viewpoint.

2. Petitioners argue that the Eleventh Circuit has

overprotected the First Amendment right by confusing

“potential harm” with “actual constitutional harm.”

Pet.31-32. In their view, “the most unconstitutional

policy imaginable” creates no First Amendment claim

unless officials actually deny an application for an

impermissible reason. Pet.34. But, they contend, if

officials quickly deny an application on a

21

“constitutionally permissible” ground, the applicant

has suffered no harm and has no claim. Pet.32. In

short, no harm, no foul. That argument fails for at

least two reasons.

First, Petitioners misunderstand the First

Amendment. As this Court has explained, the First

Amendment harm here comes from “the mere existence

of the [official’s] unfettered discretion,” which may

“intimidate[] parties into censoring their own speech,

even if the discretion and power are never actually

abused.” City of Lakewood, 486 U.S. at 757 (emphasis

added). In other words, it is not simply a prophylactic

rule to help guard against some “potential”

constitutional violation like Miranda. See Pet.32. The

point is that the First Amendment itself prohibits

policies that invite “censorship” and “arbitrary

suppression,” FW/PBS, 493 U.S. at 226-27—harms

that materialize independent of any particular

decision. Indeed, Petitioners’ call to inspect the actual

reasons for any given decision would not even work.

One of the many problems of a standardless policy is

that it may prevent a court from ever answering

“whether an official’s . . . decision was impermissibly

based on content or viewpoint”—because we don’t

know what it was based on at all. Barrett v. Walker

Cnty. Sch. Dist., 872 F.3d 1209, 1221 (11th Cir. 2017)

(emphasis added). 4

4 Petitioners’ reference to situations in which a plaintiff has

suffered no Article III injury are likewise beside the point.

Certainly, plaintiffs lack standing to vindicate constitutional

violations that they merely hypothesize might occur. See Pet.33;

Lewis v. Casey, 518 U.S. 343, 350-51 (1996). And, sure, a person

22

Tellingly, Petitioners do not even attempt to

identify a circuit split on this issue. The Eleventh

Circuit’s straightforward application of this Court’s

precedents does not warrant review.

Second, even if it mattered, Petitioners’ suggestion

that Jarrard’s applications were denied quickly and for

valid reasons is simply wrong—and not for this Court

to decide. This case arrives on summary judgment

and, as the court below noted, there is “ample

evidence” for a jury to find that Jarrard’s applications

were denied based on viewpoint discrimination,

Pet.App.20-21, and sometimes after great length,

supra n.4. Petitioners cannot escape a trial by

attempting to litigate those facts here.

D. Qualified immunity does not bar Jarrard’s

claims.

Finally, the Eleventh Circuit rightly held that

qualified immunity does not bar Jarrard’s First

Amendment claims. Petitioners were plainly on notice

that their actions violated these bedrock First

Amendment rules. Pet.App.33.

1. First, a foundational point Petitioners omit:

Qualified immunity cannot resolve this case in their

favor because Jarrard still has live claims for

who has his application quickly approved might have no grounds

to complain. Pet.33-34. But that says nothing about this case,

where officials repeatedly denied Jarrard’s applications,

including sometimes after great length. Dist. Ct. Doc. 53-10

(Application, August 8, 2021); Dist. Ct. Doc. 69-1 (Denial of

Application, March 9, 2022). Of course he can challenge the

constitutional infirmities of the process that has held him out of

the Jail for years.

23

injunctive and declaratory relief. Pet.App.34 n.19.

Qualified immunity or not, a trial will commence.

2. Second, there is simply no error in the lower

court’s qualified immunity analysis. Once again,

Petitioners suggest no split on the legal standards that

apply. Qualified immunity does not shield officials

from liability where “in light of pre-existing law[,] the

unlawfulness” of officials’ actions is “apparent.”

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

Constitution’s prohibition of viewpoint discrimination

could not be more firmly rooted or readily apparent.

As discussed, across contexts and regardless of the

type of government facility, officials may not suppress

viewpoints or exclude speakers with which they

personally disagree. Supra Part II.B; Pet.App.34.

Against this backdrop, the “contours of the right”

could not be clearer. Anderson, 483 U.S. at 640. Any

“reasonable official would understand,” id., that

banning volunteer ministers because they hold the

“wrong” religious views violates the First Amendment.

See Pet.App.34.

Petitioners’ invocation of Pickering cannot save

them. As cleanly laid out below, Jarrard looks nothing

like a government employee, and no reasonable official

could have believed otherwise. Pet.App.14-19; see also

Pet.App.35 n.20 (“Nor . . . could Moats and Sharp have

reasonably thought, as a matter of fact, that Jarrard

was a government employee.”). Even Petitioners

didn’t think that Jarrard was some kind of quasiemployee whose speech they could control in the

“workplace” until well into this litigation. They did

not recast this claim as a novel extension of Pickering

until they failed to dismiss it under straightforward

24

application of standard government forum analysis.

See Dist. Ct. Doc. 18-2 (Brief in Support of Pre-Answer

Motion to Dismiss) (not mentioning Pickering); Dist.

Ct. Doc. 34 (Opinion & Order) (same). Still now,

Petitioners cite only a handful of unreasoned district

court decisions to support their theory that Pickering

is even relevant to so-called “volunteer religious

workers.” Pet.25. And they cannot cite a single case,

at any level, in which a court has held—under

Pickering or otherwise—that a person can be excluded

from a volunteer program like this simply because the

Sheriff doesn’t like his religious beliefs.

Likewise, any reasonable official would have

known that the Jail’s policies affording unrestrained

discretion to officials were unconstitutional. The First

Amendment requires that policies provide objective

standards and time limits to constrain officials’

discretion in choosing whether to permit or deny

expressive activity. FW/PBS, 493 U.S. at 225-26. No

reasonable official could think that the Jail’s policies

containing no approval criteria satisfied this basic

requirement. Pet.App.35-36. Petitioners do not

dispute this, arguing instead that the requirement

doesn’t apply to “public employment.” Pet.40. That

argument is wrong for all the same reasons as their

resort to Pickering. Supra Part II.B; Pet.App.14-19.

3. In the end, Petitioners errantly demand that

the Eleventh Circuit identify a case with the same

“particular circumstances” as this. Pet.37. They build

that argument from a scattershot of Fourth

Amendment cases, where this Court has held that

“specificity is especially important” given the often

split-second decisions involved. Mullenix v. Luna, 577

25

U.S. 7, 12 (2015) (per curiam). But it is black-letter

law that not all constitutional violations need precise

factual analogues to be clear, and this Court has

emphasized that “officials can still be on notice that

their conduct violates established law even in novel

factual circumstances.” Hope v. Pelzer, 536 U.S. 730,

741 (2002) (emphasis added); see also id. at 740-41

(quoting United States v. Lanier, 520 U.S. 259, 270-71

(1997)). It has warned lower courts against “a rigid,

overreliance on factual similarity” where the right is

otherwise clear. Id. at 742.

Here, the right is clear, and an official could not

miss the point: The First Amendment does not allow

officials to pick and choose who comes into the Jail, or

who participates in volunteer programs, based on

whether they share the Sheriff’s reading of the Bible.

No “specific case” is needed to understand that or to

appreciate the egregiousness of Petitioners’ actions.

The Sheriff of Polk County removed Jarrard from the

volunteer ministry program and told him—in

writing—he could not come back unless he aligned his

baptismal teachings with the Sheriff’s own beliefs.

That is unconstitutional, and obviously so.

III.

This Case Is an Unsuitable Candidate for

this Court’s Review.

Even if any of the questions presented warranted

this Court’s attention, this fact-bound, interlocutory

decision is a poor candidate for their review.

A. The decision below is fact-bound, and

critical disputes remain to be litigated.

1. The decision below involves the application of

uncontroversial principles of First Amendment law to

26

“the particular facts of this case.” Pet.App.13. There

is no serious question—let alone a recognizable split

on—what principles of law govern. There are only

fights over the “granular question” of how the First

Amendment’s protections apply to the “particulars of

Polk County’s volunteer ministry program and

Jarrard’s participation in it.” Pet.App.15. Petitioners

argue that the Eleventh Circuit got the application of

settled law to those facts wrong; that complaint does

not warrant this Court’s review. Sup. Ct. R. 10.

2. Petitioners’ own arguments reveal their hope to

litigate facts here. They repeatedly suggest that the

law might allow officials to exclude a volunteer for

reasons other than religious viewpoint—like

disruption or dishonesty. Pet.23, 28. And, Petitioners

claim, they in fact excluded Jarrard for those reasons.

Pet.7-9, 29. That is all beside the point now. Those

factual disputes were not before the Eleventh Circuit

on summary judgment review, and they certainly are

not to be brought to this Court now.

The Eleventh Circuit’s decision remands the case

for trial to determine the ultimate question that

matters:

“[W]hether

Moats

and

Sharp

unconstitutionally barred Jarrard from the volunteer

ministry program because they disagreed with his

viewpoint concerning baptism.” Pet.App.13; see also

Pet.App.23 (remanding to allow trial “court to consider

the ‘adverse conduct’ and ‘causal relationship’ prongs”

of retaliation claim “in the first instance”). As the

court recognized, there is “ample evidence” on

Jarrard’s side of that question. Pet.App.20-21. It is

now the role of the jury to decide it.

27

B. Resolving the questions presented in

Petitioners’ favor will not prevent trial

and may not affect the result at all.

Even if this Court were to grant review and rule in

Petitioners’ favor, that decision would not resolve this

case, could not avoid trial, and might not change the

outcome below at all.

1. The primary question below was whether the

district court correctly dismissed Jarrard’s retaliation

claim by finding that his speech in the Jail was

unprotected under Pickering.

Pet.App.13. That

question includes two steps: (1) whether the district

court was even right to apply Pickering in the first

place; and if so (2) whether, under Pickering, Jarrard’s

ministry is the kind of workplace speech that gets

lesser First Amendment protections. See Pet.App.13.

The Eleventh Circuit reversed after determining the

district court erred at the first step—that Pickering

does not apply to these facts at all.

For the reasons discussed, that decision was right.

But even if it were wrong, it would only raise the

second question: Under these facts, is Jarrard’s

ministry nonetheless protected under Pickering? That

is a question that will require substantial re-litigation

of other arguments that were pressed below, but were

ultimately unnecessary to resolve. And it is a question

likely to be answered in Jarrard’s favor once again. As

Jarrard demonstrated below, even under Pickering,

the answer is the same: A volunteer minister’s

religious expression is not the kind of routine

“workplace” expression that loses First Amendment

protection under Pickering. See Eleventh Circuit Doc.

28

37 (Appellant’s Opening Brief) at 27-41; Eleventh

Circuit Doc. 50 (Appellant’s Reply Brief) at 10-17.

Indeed, there is no serious argument that Jarrard

“speak[s] on the government’s behalf” or delivers a

message “the government itself ha[s] commissioned or

created” when he shares his views on salvation.

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407,

2423-25 (2022); see also Garcetti, 547 U.S. at 421. And

his religious expression and exercise obviously touch

on matters of broader First Amendment significance,

not merely workplace concerns. See Connick, 461 U.S.

at 146-47; United States v. Nat’l Treasury Emps.

Union, 513 U.S. 454, 465-66 (1995); see also Kennedy,

142 S. Ct. at 2423. Nor can Petitioners show that any

concerns aside from theology actually motivated their

suppression of Jarrard’s speech as workplace matter.

See Dist. Ct. Doc. 34 (Opinion & Order) at 42 (rejecting

other concerns as pretextual). Jarrard’s ministry is

constitutionally protected, even under Pickering.

2. Second, and similarly, reversal on the second

question presented would only raise the factual

question on which Petitioners’ theory of unbridleddiscretion rests: why they denied Jarrard’s

applications and whether it was actually for a

“constitutionally permissible” reason. Pet.32; see

supra Part II.C. Given the “ample evidence” for a jury

to find that Jarrard’s applications were denied based

on

impermissible

viewpoint

discrimination,

Pet.App.20-21, it is highly unlikely they ever prevail

on that factual point at trial.

3. Third, even a reversal on qualified immunity

will not resolve this case or prevent trial. Qualified

immunity, of course, shields Petitioners only from

29

monetary damages. Pearson v. Callahan, 555 U.S.

223, 242-43 (2009). But, as the court below held,

Jarrard’s request for injunctive relief against

Petitioners’ unconstitutional retaliation still remains.

Pet.App.34 n.19.

Qualified immunity is no

impediment to that. Pearson, 555 U.S. at 242-43.

Thus, regardless whether this Court intervenes on

qualified immunity, Petitioners must stand trial.

Their assertion otherwise is simply wrong. See Pet.43.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

Zack Greenamyre

MITCHELL SHAPIRO

GREENAMYRE & FUNT, LLP

881 Piedmont Ave. NE

Atlanta, GA 30309

W. Gerald Weber

LAW OFFICES OF GERRY

WEBER, LLC

P.O. Box 5391

Atlanta, GA 31107

April 4, 2025

John A. Meiser

Counsel of Record

Meredith H. Kessler

LINDSAY & MATT

MOROUN RELIGIOUS

LIBERTY CLINIC

Notre Dame Law School

1338 Biolchini Hall

of Law

Notre Dame, IN 46556

(574) 631-3880

jmeiser@nd.edu