Petition for Writ of Certiorari — Edwards v. Acadia Realty Trust, Inc.

ae

Supreme Court, U.8. (>

FILED

ONt-1886 JUN 11 2002

OFFICE Or THe CLERA

IN THE

Supreme Court of the United States

HELEN EDWARDS,

CHRISTOPHER EDWARDS.

Petitioners,

V.

ACADIA REALTY TRUST, INC.,

WELLS FARGO GUARD SERVICE, INC.

OF FLORIDA,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Mark E. Tietig,

Counsel of Record

Lisa Kuhlman Tietig

Co-Counsel

Tietig & Tietig, P.A.

6065 South Tropical Trail

Merritt Island, FL 32952

Telephone: (321) 452-9944

Questions Presented

l. Regarding a claim under 42 U.S.C. §

1981 by a white husband and wife for retaliation for

opposition to unlawful racial discrimination where a

white security guard allegedly racially discriminated

against groups of young black children in a place of

public accommodation, must the plaintiffs prove that

the racial discrimination complained of actually

occurred, or is the plaintiffs’ reasonable, good faith

belief that unlawful racial discrimination occurred

enough to protect the plaintiffs from retaliation for

their opposition to the alleged discriminatory

conduct?

2. Does a white person have standing

under 42 U.S.C. § 1981 where the retaliation against

the white person was not based upon the white

person's own race, but upon the white person's

opposition to racial discrimination against black

people?

2. In a claim under 42 U.S.C. § 1983 fora

violation of First Amendment free speech rights

committed by a private corporation's employee acting

under color of state law, must the plaintiff prove that

the conduct that violated the plaintiffs rights was

pursuant to a custom, policy, or practice of the

defendant private corporation employer?

4. Are a husband and wife's constitutional

rights to free speech and association violated where

the husband and wife are both ejected from a place of

public accommodation after the wife's peaceable

vocalization of the couple's reasonable, good faith

opposition to racial discrimination against a group of

young, African-American children, and where the

basis for the ejectment is the husband's and wife's

association with the group of young African-American

children?

aaa

5. Are a husband's constitutional rights to

free speech and association violated where the

husband is ejected from aé_ place of public

accommodation after the wife's peaceable vocalization

of their reasonable, good faith opposition to racial

discrimination against a group of young, African-

American children, and where the basis for the

husband's ejectment is the husband's association

with his wife?

6. Regarding claims of violation of equal

protection rights where white people suffer retaliation

for opposing unlawful racial discrimination in a place

of public accommodation, whether the class of

similarly situated people is people in the place of

public accommodation who witness. the

discrimination but do not outwardly oppose the

discrimination?

‘ieee

TABLE OF CONTENTS

Questions Presented ....................... i

Constitutional Provisions, Statutes,

and Ordinances Involved................... 2

Statement of the Case ..................... 2

Grenemment Of Facts ....................... 3

Argument and Authorities.................. 7

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THE ELEVENTH CIRCUIT'S

RULING CONFLICTS WITH OTHER

CIRCUIT COURTS' HOLDINGS IN

ANALOGOUS CONTEXTS THAT

REASONABLE, GOOD-FAITH

OPPOSITION TO RACIAL

DISCRIMINATION IS PROTECTED

FROM RETALIATION, EVEN IF SUCH

BELIEF IS MISTAKEN. ...... .._____ 7

Il. BECAUSE THE ELEVENTH CIRCUIT'S

RULING CONFLICTS WITH THE

HOLDINGS OF THIS COURT AND

OF OTHER CIRCUIT COURTS, THIS

COURT SHOULD GRANT CERTIORARI

TO OVERTURN THE LAW OF THE

ELEVENTH CIRCUIT THAT A WHITE

PERSON DOES NOT HAVE STANDING

UNDER 42 U.S.C. § 1981 FORA CLAIM

OF RETALIATION FOR OPPOSING

-Ill-

Il.

RACIAL DISCRIMINATION AGAINST

BLACK PEOPLE WHERE THE

RETALIATION IS NOT BASED UPON

THE WHITE PERSON'S OWN RACE. ... 11

CERTIORARI SHOULD BE GRANTED

BECAUSE THE ELEVENTH CIRCUIT'S

RULING CONFLICTS WITH THE

RULINGS OF THIS COURT REGARDING

WHETHER PRIVATE ENTITY STATE

ACTORS SHARE THE SAME

IMMUNITIES AS MUNICIPALITIES. ... 12

A. No custom or policy need be

established to hold liable a private

entity in the role of state actor

vip t gk, OR Ome el: . \ Se is

B. Petitioners have adduced sufficient

evidence to establish Respondents’

custom or policy. ............. 16

CERTIORARI SHOULD BE GRANTED

BECAUSE THE ELEVENTH CIRCUIT'S

DISMISSAL OF PETITIONERS' FREE

ASSOCIATION CLAIMS UNDER THE

FIRST AMENDMENT AND 42 U.S.C.

§ 1983 CONFLICTS WITH RELEVANT

DECISIONS OF THIS COURT; OR,

ALTERNATIVELY, THE ELEVENTH

CIRCUIT HAS DECIDED IMPORTANT

QUESTIONS OF FEDERAL LAW

REGARDING FIRST AMENDMENT

RIGHTS OF FREE ASSOCIATION THAT

HAVE NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT........... 19

V. CERTIORARI SHOULD BE GRANTED

BECAUSE THE ELEVENTH CIRCUIT'S

DECISION CONFLICTS WITH

RELEVANT DECISIONS OF THIS

COURT IN DISMISSING PETITIONERS'

EQUAL PROTECTION CLAIMS........ 22

eT eee Pe care 23

Table of Cited Authorities

Cases

Adickes v. S.H. Kress & Co.,

ge re re ee 9

Alizadeh v. Safeway Stores, Inc.,

802 F.2d 111 (5th Cir. 1966). ......... 12

Aman v. Cort Furniture Rental Corp.,

85 F.3d 1074 (3d Cir. 1996) .......... oa

American Manufacturers Mutual Ins. Co. v.

Sullivan,

Be ee ree eg 17

Buckner v. Toro,

116 F.3d 450 (11th Cir. 1997) .... 13,14,15

Buettner v. Arch Coal Sales Co., Inc.,

216 F.3d 707 (6th Cir. 2000)... wc eens 8

City of Canton, Ohio v. Harris,

400 U.S. BIG CREE wa ks 606 ween te 18

Clark County School District v. Breeden,

GOS UD. DGS GHOah ck vc hee setae eb ae's 8

DeMatteis v. Eastman Kodak Co.,

511 F.2d 306 (2d Cir. 1975) .......... 1]

Dennis v. Sparks,

oo Re eee ee ee eee 18

Des Vergnes v. Seekonk Water Dist.,

OO F.2e O (let Car, Rae sis ne hewn ll

Disabled in Action of Metropolitan New York v.

Hammonds,

202 F.3d 110 (@nd Cir. 2000) ......... 17

-Vi-

Edmonson v. Leesville Concrete Co..

Due U.S. GIS (IGE) 2k. cece cece. 9

Edwards v. Acadia Realty Trust, Inc..,

141 F. Supp. 2d 1340 (M.D. Fla. 2001) .1, 13

FYedler v. Marumsco Christian SchL.,

631 F.2d 1144 (4th Cir. 1980) ........ 12

George v. Pacific-CSC Work Furlough,

91 F.3d 1227 (9th Cir. 1996) ......... 17

Goldstein v. Chestnut Ridge Vol Fire Co..,

218 F.3d 337 (4th Cir. 2000) ......... 17

Goodman v. Lukens Steel Co..,

tee WP MO CRUD ov cc ence ceccccces 9g

Groom v. Safeway Inc.,

991 F. Supp. 987 (W.D. Wa. 1997) .. 13, 15

Hamner v. St. Vincent Hosp. &

Health Care Ctr., Inc.,

224 F.3d 701 (7th Cir. 2000) .......... 8

Harvey v. Harvey,

949 F.2d 1127 (11th Cir. 1992) .... 13.15

Higgins v. New Balance Athletic Shoe, Inc..

194 F.3d 252 (1st Cir.(Me.), 1999) ...... 8

Howell v. Evans,

922 F.2d 712 (11™ Cir. 1991) ......... 15

Jones v. Preuit & Mauldin.

851 F.2d 1321 (11th Cir. 1988) ....... 15

Lansing v. City of Memphis,

202 F.3d 821 (6th Cir. 2000) ......... 17

-Vil-

Liotta v. National Forge Co.,

629 F.2d 903 (3d Cir. 1980). .......... 11

Little v. United Technologies,

103 F.3d 956 (11th Cir. 1997). ...... 11,12

Lloyd Corporation, Ltd., v. Tanner,

ek tl ewer rae 17

Love v. RE/MAX of Am., Inc..,

738 F.2d 383 (10th Cir. 1984). ......... 8 .

Maynard v. City of San Jose,

37 F.3d 1396 (9th Cir. 1994) .......... 12

McDonald v. Santa Fe Trail Transp. Co.,

Se Wes BP CREE 6 8c eRe e eee tece ees 9

Messman v Helmke,

133 F.3d 1042 (7th Cir. 1998)......... 17

Monell v. Department of Social Serv.,

496 U.S. GSS (IGTE) on ccc ccscsves 13, 14

Patrick v. Miller,

953 F.2d 1240 (10th Cir. 1992). ....... 12

Perkins v. Londonderry Basketball Club,

196 F.3d 13 (let Cir. 1IGUG) .. ww cece 17

Pettway v. American Cast Iron Pipe Co.,

411 F.2d 998 (5th Cir. 1969)........... 8

Richardson v. McKnight,

$21 U.S..3G0 (1907) .......... 13, 14, 15

Roberts v. United States Jaycees,

466 U.S. GOR (ISR . nc cc cccevses 20, 21

-Vill-

Robinson v. Shell Oil Co..

O19 U.S. S77 (1GOT) ww. wc ccc ee, 10

Ross v. Communications Satellite Corp.,

759 F.2d 355 (4th Cir. 1985) .......... 8

Standard v. A.B.E.L. Services, Inc..

161 F.3d 1318 (11™ Cir. 1998) ......... 8

Sullivan v. Little Hunting Park,

396 U.S. 229 (1969) .............. 9,11

Sumner v. United States Postal Service,

899 F.2d 203 (2d Cir. 1990))........... 8

Taylor v. Plousis,

101 F. Supp. 2d 255

a ee rn 13, 15

Taylor v. Runyon,

175 F.3d 861 (11th Cir. 1999) ......... 8

Town of Hallie v. City of Eau Claire,

471 U.S. 34. (19GB) . 0. ccc cee 14

Trent v. Valley Electric Assn. Inc.,

41 F.3d 524 (9th Cir. 1994) ........... 8

Winston v. Lear-Seigler, Inc.,

958 F.2d 1266 (6th Cir. 1977) ........ 12

Wyatt v. Cole,

Ore UB. SSS (IGOR) onc cece cece 15

Statutes and Court Rules

Ue. Comet, memerd. bo... ccc wc cc ccc ccc, 2

U.S. Comet., amend. 14 . 0... ccc cece, 2

AR.

28 U.S.C. §

; te Coe 2 * ee 2

TUR ORS Om pt: .) Se Passim

PU Rie Com 2. - re 2

42 U.S.C. 8 1983 ... cece cece ee reecces Passim

USIP. fom Ol. <i ee ee 2

£9 U.G.C. 6 IGBS ..w wn ccc c er vesaeerrens 2

42 U.S.C. § 2000e-3 ....-- eee eee eres: 8,9

Rule 10 U.S. Sup. Ct. ... cece cecercrccenns 16

Saste 29 Pod. BR. Civ. BP... 0.0 e sec e eres veesrns 2

Rule 56 Fed. R. Civ. P. . 1... eee eee e ccc ccrees 2

<>: i GT “pee

a ——_— ~~.

Opinions Below

The Report and Recommendation of the

Magistrate Judge to the United States District Court

for the Middle District of Florida recommending the

granting in part of Respondents’ Motions to Dismiss

(A-37); the Order of the United States District Court

for the Middle District of Florida granting in part

Respondents’ Motions to Dismiss (A-3); the District

Court's Order granting Respondents’ Motions for

Summary Judgment and denying Petitioners’ Motions

for Summary Judgment (published as Edwards v.

Acadia Realty Trust, Inc., 141 F. Supp. 2d 1340 (M.D.

Fla. 2001)) (A-21); the District Court's Order denying

Petitioners’ Motion to Alter or Amend the Order

granting Defendants’ Motions for Summary Judgment

and denying Petitioners’ Motions for Summary

Judgment (A-63); the Order of the United States

Court of Appeals for the Eleventh Circuit affirming the

trial court (A-1); and, the Order of the United States

Court of Appeals for the Eleventh Circuit denying

Petitioners’ Motion for Rehearing (A-62); are included

in the Appendix to this Petition.

Jurisdictional Statement

The order sought to be reviewed was entered

on March 13, 2002 (A-62). The statutory provision

believed to confer upon this Court jurisdiction to

review on a writ of certiorari the judgment or order in

question is 28 U.S.C. 1254(1).

Constitutional Provisions, Treaties, Statutes,

Ordinances, and Regulations Involved in the Case

The text of the following constitutional

provisions and statutes are provided in the Appendix

to this Petition: U.S. Const., amend. 1 (A-65); U.S.

Const., Amnd. 14; 28 U.S.C. 1254(1) (A-65); 28

U.S.C. § 1331 (A-65); 28 U.S.C. § 1343 (A-66); 42

U.S.C. § 1981 (A-66); 42 U.S.C. § 1982 (A-67); and, 42

U.S.C. § 1983 (A-67).

Statement of the Case

This case was first filed in the United States

District Court for the Middle District of Florida. The

basis for federal jurisdiction in the District Court is

under 28 U.S.C. § 1331 and 28 U.S.C. § 1343. The

District Court granted Defendants/Responcents

Acadia and Wells Fargo's Rule 12(b)(6) Motions to

Dismiss Plaintiffs / Petitioners Helen and Christopher

Edwards’ claims for violation of their First

Amendment rights of free association, violation of

their Fourteenth Amendment rights of Equal

Protection, conspiracy under 42 U.S.C. § 1985(3), and

refusal or failure to prevent conspiracy under 42

U.S.C. § 1986. The Motions to Dismiss were denied

as to the remaining counts under 42 U.S.C. § 1981

and under the First Amendment regarding the

Edwardses' free speech rights.

On March 9, 2001, the District Court entered

summary judgment against the Edwardses, denying

the Edwardses' Rule 56 Motions for Partial Summary

Judgment and granting Acadia's and Wells Fargo's

Rule 56 cross Motions for Summary Judgment on the

remaining claims under 42 U.S.C. § 1981 and under

the First Amendment regarding the Edwardses' free

speech rights. The Edwardses moved to alter or

amend judgment, which motion was denied on April

17, 2001.

'

i)

'

— — ———— &—=&<&< oo CCC

Thereafter, notice for an appeal to the United

States Court of Appeals for the Eleventh Circuit was

timely filed on May 14, 2001. The case was fully

briefed and argued before a panel of three judges of

the Eleventh Circuit. On January 4, 2002, that panel

entered an order affirming all of the District Court's

rulings. The Edwardses then timely filed a Petition

for Rehearing En Banc, which was denied by an order

dated March 13, 2002. This Petition is being timely

filed within 90 days of the entry of that order.

Statement of Facts

At all times relevant, Petitioners Helen and

Christopher Edwards are white people married to

each other.’ (R4-111-23; R4-112-122; R4-112-

175,176; R3-57-2.) On November 20, 1998, the

Edwardses went to Searstown Mall in their hometown

of Titusville, Florida. (R3-57-3; R4-108-6.) The

Edwardses were quietly sitting on a bench in the

common area of the Mall in front of the Mall's movie

theater. (R4-105-7:19-25; R1-2-1; R4-101-1; R4-101-

1.) Alocal physician, Dr. Juan Perez, was sitting near

the Edwardses. (R1-2-1.) The Edwardses and Dr.

Perez, unacquainted with each other at the time, were

each waiting for their respective children to emerge

from the movie theater. (R4-105-7:19-25; R1-2-1; R4-

101-2; R4-102-2.)

At all times relevant, Appellee Wells Fargo

contracted with the owners of Searstown Mall to

provide security guards for the Mall. (R4-103-53:3-

55:19.) Andrew Bankowski was one of the Wells

Fargo employees assigned to provide security at the

Mall. (R4-105-6:1-6.) Part of his duties included

providing security for the State of Florida

IMrs. Edwards also is of Cherokee ancestry, but

that ancestry is irrelevant to this case. (R4-

112-175,176.)

unemployment office located inside the Mall. (R4-

105-39:24-40:12.)

While waiting, Dr. Perez and the Edwardses

witnessed Wells Fargo security guard Bankowski

brusquely accost and harass two different groups of

African-American children, (R4-108-66:3-67:1: R4-

111-44:20-46:20; R4-111-203:15-25), which

culminated in the guard rudely marching a group of

five well-behaved African-American girls (ranging in

age from about five to about fourteen), out of the Mall

and saying to them, "I've told you to get your black

asses out of the mall." (R4-111-203:15-25.) The girls

had been patronizing commercial establishments in

the Mall and had made purchases in the Mall. (R4-

108-46.)

The Edwardses witnessed that the security

guard was not harassing groups of caucasian children

in the Mall, even though those children exhibited the

Same or worse behavior than the African-American

children, and even though the guards were present

and observed the behavior of the white children. (R4-

111-106:6-13, 192:2-12; R8-230-1-2; R8-231-1-2:

R4-101-2; R4-102-2; R1-2-2.) The Edwardses were

certain that the Mall security guards were unlawfully

discriminating against the black children because of

the Negro race of those children, which the

Edwardses opposed and by which they were offended.

(R8-230-2; R8-231-2; R4-101-2; R4- 102-2; R4-101-2:

R4-102-2.) As Bankowski was walking past Mrs.

Edwards, Mrs. Edwards stated to Bankowski that he

should stop discriminating against the black children.

(R4- 101-3; R4-102-3; R4-105-8:1-3.)

After Mrs. Edwards made her statement to

Bankowski, he stalked up to Mrs. Edwards in a

threatening manner and told her, "Shut your mouth"

or "Shut up." (R1-2-2; R4-101-3; R4-102-3.)

Bankowski then drew his long, heavy Maglight

flashlight from a loop on his belt and brandished it

near Mrs. Edwards in a way that Mr. and Mrs.

Edwards perceived as threatening to Mrs. Edwards.

-4-

(R4-101-3; R4-102-3; R4-105-8:13-19, 11:1-9.) Mr.

Edwards asked Bankowski if Bankowski was

threatening Mrs. Edwards. (R4-105-1 1:7-9; R4-101-

3; R4-102-3.) Bankowski responded in the negative,

and Mr. Edwards quietly resumed his seat on the

bench. (R4-101-3; R4-102-3.) Mr. Edwards said

nothing else to Bankowski (or the other security

guard) at any other time. (R4-105-9:19-22. 11:1- 19;

R4-101-3; R4-102-3.)

Bankowski was angered because Mrs. Edwards

insinuated or said that he was racist. (R4- 105-9:2-5,

16:4-12.) He told the Edwardses to leave the Mall,

and he called the police to have them “trespassed"

(officially banned) from the Mall because he felt that

Mrs. Edwards would not listen to his explanation of

why he was making the black girls leave the Mall.

(R1-2-2; R4- 101-3; R4- 102-3; R4-105-8:19-9:2. 10:1-

13.) Bankowski thought Mrs. Edwards was sincere in

her opposition to what she perceived as racial

discrimination. (R4-105-15:9-16:25.)

Dr. Perez observed that Bankowski acted

belligerently and rudely, without cause or

provocation, toward the black girls and toward Mr.

and Mrs. Edwards. (R1-2-2.) At all times relevant,

Mr. and Mrs. Edwards acted properly and peacefully.

(R1-2-2; R4-101-3; R4-102-3.) It was apparent to

anyone who observed Bankowski that he was acting

in a hostile manner toward Mr. and Mrs. Edwards

because of their opposition to and objections to the

racial discrimination against the black girls by

Bankowski. (R1-2-3; R4-101-3; R4-102-3.)

When the police officers arrived at Searstown

Mall to "trespass" the Edwardses, both of the

Edwardses explained to the officers that Bankowski

wanted them trespassed because Mrs. Edwards had

voiced opposition to racial discrimination against the

young black girls. (R4-101-4; R4-102-4.) Both of the

Edwardses objected to the police officers about

Bankowski's_ discrimination against the black

children and opposed the trespassing of themselves.

x

(R4-101-4; R4-102-4) Even though the group of

young black girls was standing nearby, the police

officers refused to speak to the young girls to confirm

the Edwardses' story. (R4-101-4; R4-102-4.)

While the Edwardses' children and other

people watched, the City of Titusville police officers

"trespassed"; i.e., officially banned; the Edwardses

from the Mall for two years. (R4-101-4; R4-102-4.)

The policy and practice of the City of Titusville is to

trespass everyone who a property owner or the

owner's representative asks to be trespassed. (R4-

101-7; R4-102-7.)

Wells Fargo management and Debra Hardy, the

Mall manager, knew of the trespassing of the

Edwardses within a few days of its occurrence. (R4-

105-17:13-18:18, 36:1-15; R4-103-79:1-11.) At all

times relevant, Ms. Hardy continuously was the

manager of the Mall. {R4-103-31:14-32:6, 53:24-

55:19.)

Hardy had the authority from the Mall owners

to make all day-to-day, operational decisions for the

Mall owners, including decisions about whether to

request execution or recision of trespasses of Mall

customers. (R4-103-64:22-65: 16; R4-104-15:4-16:4,

20:11-21:9.) Acadia, through Hardy, delegated the

authority and _ responsibility to Bankowski for

rescinding the trespass order against the Edwardses.

(R4-103-65:19-66:10, 81:17-25, 87:2-11.) Despite

pleas from the Edwardses and others on behalf of the

Edwardses beginning as early as November or

December, 1998, Hardy and Bankowski failed to

rescind the trespass order against the Edwardses.

(R4-112-128:9-129:10; R4-103-8:2-10, 79:15-80:25,

86:21-87:5; R4-101-4; R4-102-4.) Hardy told Mr.

Edwards that she did not want to hear the reasons

why Mr. Edwards should not have been trespassed by

a racist security guard and that she backed her

security guards "one hundred per cent." (R4-109-

179:16-180:6.) When the trespass order was not

rescinded pursuant to the repeated requests to do so,

6-

the Edwardses filed this lawsuit. (R4-103-11:3-10:

R4-101-4; R4-102-4.) Within a week or so of the filing

of this lawsuit, Acadia's successor owner of the Mall,

Searstown Mall Association, Inc., (SMA) and the City

of Titusville rescinded the trespass order. (R4-100-4.

Ex. 6; R4-101-4; R4-102-4.) As a result of the

trespassing, the Edwardses were injured and suffered

substantial economic and emotional distress

damages. (R3-57-7.)

Argument and Authorities

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THE ELEVENTH CIRCUIT'S

RULING CONFLICTS WITH OTHER CIRCUIT

COURT'S HOLDINGS IN ANALOGOUS

CONTEXTS THAT REASONABLE, GOOD-

FAITH OPPOSITION TO RACIAL

DISCRIMINATION IS PROTECTED FROM

RETALIATION, EVEN IF SUCH BELIEF IS

MISTAKEN.

This Court should grant certiorari to review

this case because, as explained in more detail

throughout this Petition, the Eleventh Circuit has

entered a decision in conflict with the decision of

other United States courts of appeals on the same

important matters, has decided important questions

of federal law that have not been, but should be,

settled by this Court, and/or has decided important

federal questions in ways that conflict with relevant

decisions of this Court. Furthermore, the

fragmentary and dated jurisprudence regarding

retaliation against people who oppose discrimination

in places of public accommodation is in desperate

need of comprehensive guidance from this Court.

The facts of this case make it plain that a

reasonable jury could find that Petitioners had a

reasonable, good-faith belief that the activity they

were witnessing was intentional racial discrimination

x

and that trey were banished from the Mall for their

opposition thereto. In all United States Courts of

Appeal that have addressed the issue of retaliation for

opposing unlawful discrimination in the employment

context, it is black-letter law that reasonable, good-

faith opposition to racial discrimination is protected

from retaliation under Title VII and Section 1981,

even if such belief were to be mistaken.” A typical

holding reads: "Under Title VII, it is well established

that an employee need not prove the underlying claim

of discrimination in order to establish a retaliation

claim. Instead, an employee's opposition to the

discrimination is protected if she can reasonably form

a good faith belief that the alleged discrimination

existed." Taylor v. Runyon, 175 F.3d 861, 869 (11th

Cir. 1999) (citation omitted); accord Higgins v. New

Ralance Athletic Shoe, Inc., 194 F.3d 252, 261-62

(1st Cir. 1999); Sumner v. United States Postal

Service, 899 F.2d 203, 209 (2d Cir. 1990)); Aman v.

Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d

Cir. 1996); Ross v. Communications Satellite Corp.,

759 F.2d 355, 357 n. 1 (4th Cir. 1985), overruled on

other grounds, 490 U.S. 228 (1989); Pettway v.

American Cast Iron Pipe Co., 411 F.2d 998, 1004-07

(5th Cir. 1969); Hamner v. St. Vincent Hosp. and

Health Care Ctr., Inc., 224 F.3d 701, 707 (7th Cir.

2000); Buettner v. Arch Coal Sales Co., Inc., 216 F.3d

707, 714 (8th Cir. 2000); Trent v. Valley Electric Assn.

Inc., 41 F.3d 524, 526 (9th Cir. 1994); Love v.

RE/MAX of Am., Inc., 738 F.2d 383, 385 (10th Cir.

1984); compare Clark County School District v.

Breeden, 532 U.S. 268, 270 (2001) (refraining from

ruling on the propriety of the Ninth Circuit's

2Both Title VII and Section 1981 "have the same

requirements of proof and use the same

analytical framework....". Standard v. A.B.E.L.

Services, Inc., 161 F.3d 1318, 1330 (11th Cir.

1998).

-8-

interpretation that opposition was protected under 42

U.S.C. § 2000e-3(a) "if she had a reasonable, good

faith belief that the incident involving the sexually

explicit remark constituted unlawful sexual

harassment"). The employment standard of

reasonable good faith should apply with as much or

more force in a shopping mall that is a place of public

accommodation where people have a right to be

regardless of race or other protected status. Here, the

Eleventh Circuit Court of Appeals has entered a

decision in conflict with the decisions of other United

States courts of appeals on the essentially identical

important matter. The instant case presents the need

and opportunity for this Honorable Court to clearly

and unambiguously establish that extremely

important matter in accordance with public policy

and legislative intent.

Furthermore, insofar as this issue has not

been decided in the context of a place of public

accommodation, the Eleventh Circuit has decided this

important question of federal law that has not been,

but should be, settled by this Court. However, based

on rulings of this Court that provide protection under

§ 1981 to a white woman who joined in a lunch-

counter sit-in opposing racial discrimination against

retaliatory banishment by the business and the

police, Adickes v. S.H. Kress & Co., 398 U.S. 144,

150-52 (1970), that provide damages and other relief

under § 1982 to a white citizen prohibited from

leasing his house and concomitant access to a

community swimming pool toa black person, Sullivan

v. Little Hunting Park, 396 U.S. 229 (1969), that afford

protection to white people under Section 1981,

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,

287 (1976), that require labor unions to oppose racial

discrimination against their members, Goodman v.

Lukens Steel Co., 482 U.S. 656 (1987), that grant

standing to litigants who oppose racial discrimination

in selection of jurors, Edmonson v. Leesville Concrete

Co., 500 U.S. 614 (1991), and that provide protection

§.

against retaliation against former employees under

Title VII, Robinson v. Shell Oil Co., 519 U.S. 377

(1997), the Eleventh Circuit's ruling is contrary to the

reasoning in those cases. Thus, the Eleventh Circuit

has decided an important federal question in a way

that conflicts with relevant decisions of this Court.

Also, Respondents appear to argue that the

"proof-of-intent" requirement under Section 1981 is

lacking in this case. However, any "proof-of-intent"

requirement under Section 1981 is satisfied if those

who suffer retaliation base their opposition on a

reasonable, good faith belief that intentional

discrimination is occurring. Clarification of this point

by this Court is another compelling reason for a grant

of certiorari.

Furthermore, it should be pointed out that the

errors of the lower courts in this case do not consist

of erroneous factual findings or the misapplication of

a properly stated rule of law. In the instant case, the

standard incorrectly applied by the lower courts is

that Petitioners and others who oppose discrimination

must first prove that the discrimination is unlawful.

In other words, the holding of the lower Courts in this

case is that people who are mistaken in their

reasonable, good-faith opposition to discrimination

are not protected from retaliation. Such a standard

is without precedent and is plainly contrary to

legislative intent and public policy.

Moreover, even if the no-mistake standard were

to apply, as a matter of law the evidence shows that

a reasonable jury plainly could find that not only was

Petitioners’ opposition reasonable and in good-faith,

the jury could find that Petitioners were not mistaken

in their belief that unlawful racial discrimination was

occurring. The Eleventh Circuit erred by ignoring the

great weight of evidence in favor of Petitioners and by

affirming the District Court's grant of summary

judgment in favor of Respondents. Therefore, for all

of the foregoing reasons, the matters at issue herein

should be addressed by this Court.

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I. BECAUSE THE ELEVENTH CIRCUIT'S

RULING CONFLICTS WITH THE HOLDINGS

OF THIS COURT AND OF OTHER CIRCUIT

COURTS, THIS COURT SHOULD GRANT

CERTIORARI TO OVERTURN THE LAW OF

THE ELEVENTH CIRCUIT THAT A WHITE

PERSON DOES NOT HAVE STANDING

UNDER 42 U.S.C. § 1981 FOR A CLAIM OF

RETALIATION FOR OPPOSING RACIAL

DISCRIMINATION AGAINST BLACK PEOPLE

WHERE THE RETALIATION IS NOT BASED

UPON THE WHITE PERSON'S OWN RACE.

Because the Eleventh Circuit did not provide a

detailed basis for its ruling in this case, it may have

been relying on its own precedent of Little v. United

Technologies, 103 F.3d 956 (11th Cir. 1997), which

held that the white plaintiff had no claim under §

1981 because the retaliation against him was not

based upon his own race, but upon his opposition to

racially derogatory remarks against black coworkers.

See id. at 961. However, the ruling in Little is

completely contrary to the long-established holdings

of this Court and of other Circuits that have

addressed this issue. See, e.g., Sullivan v. Little

Hunting Park, 396 U.S. 229, 237 (1969) (holding that

a white person who has been "punished for trying to

vindicate the rights of non-white minorities" has

standing to sue under 42 U.S.C. § 1982): Des Vergnes

v. Seekonk Water Dist., 601 F.2d 9, 14 (1st Cir. 1979)

(holding that housing developer and every other

person has an implied right of action under § 1981

against any other person who, with a racially

discriminatory intent, interferes with his right to

make contracts with non-whites); DeMatteis v.

Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir. 1975)

(holding that a white man who suffered retaliation for

selling his house to a black man had a cause of action

under § 1981), modified on other grounds, 520 F.2d

409; Liotta v. National Forge Co., 629 F.2d 903.

At.

906-07 (3d Cir. 1980) (holding that summary

judgment is inappropriate where material issues of

fact remain regarding § 1981 claim brought by

plaintiff allegedly discharged because he espoused the

rights of company's black employees); FYedler v.

Marumsco Christian Schl., 631 F.2d 1144, 1150 (4th

Cir. 1980) (holding that white people had a cause of

action under § 1981 for expulsion based on

association with a black person); Alizadeh v. Safeway

Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986)

(holding that a white plaintiff maintained a § 1981

claim alleging discrimination because of marriage to

a non-white person); Winston v. Lear-Seigler, Inc.,

558 F.2d 1266, 1268 (6th Cir. 1977) (reversing

summary judgment against a white man who was

fired for opposing racial discrimination against a

black coworker); Maynard v. City of San Jose, 37

F.3d 1396, 1403 (9th Cir. 1994) (holding that a white

person who assisted a black person had standing

under § 1981); Patrick v. Miller, 953 F.2d 1240, 1249-

90 (10th Cir. 1992) (holding that a white employee

who suffered retaliation for helping a black employee

file an anti-discrimination claim had standing under

§ 1981). Thus, This Court should grant certiorari to

overturn the Eleventh Circuit's legally erroneous and

socially destructive holding of Little.

Ill. CERTIORARI SHOULD BE GRANTED

BECAUSE THE ELEVENTH CIRCUIT'S

RULING CONFLICTS WITH THE RULINGS OF

THIS COURT REGARDING WHETHER

PRIVATE ENTITY STATE ACTORS SHARE

THE SAME IMMUNITIES’ AS

MUNICIPALITIES.

The Eleventh Circuit plainly erred as a matter

of law by affirming summary judgment against

Petitioners based on a purported lack of evidence of a

custom or policy as required by Section 1983. First.

no proof of custom or policy should be required to

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-

show vicarious liability of a private entity in the role

of state actor. Second, even if such evidence of policy

or custom is required, Petitioners have adduced such

evidence on the record.

A. N r poli lished

to hol ] riv. ntity in the role

~ of state actor under 42 U.S.C. § 1983.

For the Eleventh Circuit to require a custom or

policy to establish the liability of a private entity in

the role of state actor decides an important question

of federal law that has not been. but should be,

settled by this Court. Moreover, the Eleventh

Circuit's decision decides an important federal

question in a way that conflicts with relevant

decisions of this Court. The District Courts in Taylor

v. Plousis, 101 F. Supp. 2d 255, 264 N. 4 (D. N.J.

2000), and in Groom v. Safeway Inc., 991 F. Supp.

987, 991 n. 3 (W.D. Wa. 1997), have recognized this

issue, and the District Court in the instant case

deferred consideration of the issue to the Eleventh

Circuit. See Edwards v. Acadia Realty Trust, Inc., 141

F. Supp. 2d 1340, 131347 n. 7 (M.D. Fla. 2001).

The current Eleventh Circuit rule is that

private entities acting under color of state law are not

subject to vicarious liability. See, e.g., Buckner uv.

Toro, 116 F.3d 450 (11th Cir. 1997); Harvey v.

Harvey, 949 F.2d 1127, 1129-30 (11th Cir. 1992).

With all due respect, the rule from Harvey and similar

cases is an unwarranted and unsupported extension,

without thorough analysis, of the policy and custom

requirements for municipal liability stated in Monell

v. Department of Social Serv., 436 U.S. 658 (1978). In

addition, this Court's holding in Richardson v.

McKnight, 521 U.S. 399 (1997), conflicts with the

Eleventh Circuit's decision here because the

Richardson holding restricts the right of private

corporations to share the immunities of municipal

corporations.

In Buckner, the Eleventh Circuit merely stated

- that when the private employer "performs a function

traditionally within the exclusive prerogative of the

state, . . . it becomes the functional equivalent of the

municipality.” 116 F.3d at 452. Here, the Edwardses

do not dispute that some functional equivalency in

the provision of the service itself is present, but the

important differences between public and private

corporations; €.§., profit motive, civil service,

competition, and accountability; still remain. See

Richardson, 521 U.S. at 399. Regarding the instant

case, it should be noted that Respondents, two

private corporations, act as state actors in only two

ways: through contract as landlord and security

providers for the government office located in the

shopping mall and through enlisting -- even usurping

--the police power of the City of Titusville in

trespassing the Edwardses. "We may presume,

absent a showing to the contrary, that the

municipality acts in the public interest. A private

‘party, on the other hand, may be presumed to be

acting primarily on his or its own behalf." Town of

Hallie v. City of Eau Claire, 471 U.S. 34, 45 (1985)

(footnote omitted). Here, the voluntary roles played

for profit by Respondents as state actors without

direct supervision by any governmental entity provide

little or no reason to afford Respondents a shield from

respondeat superior liability, while the traditional

rationales for vicarious liability do apply. See Monell,

436 U.S. at 693-94, n.58.

Buckner also states that Monell requires that

direct liability is “an element of the § 1983 claim.”

116 F.3d at 452. However, such analysis ignores the

strong distinction between municipal and private

corporations made by the United States Supreme

Court in Monell and Richardson that was based on

factors other than the limited functional equivalency

of the service itself. The Buckner Court went on to

"reject the notion that the policy or custom

requirement imposed by Monell may be equated with

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qualified immunity." 116 F.3d at 453. However, the

Howell holding upon which Buckner is based appears

to base its holding on the same overruled qualified

immunity case upon which Harvey relies. See Howell

v. Evans, 922 F.2d 712, 724 (11 Cir. 1991) (citing

Jones v. Preuit & Mauldin, 851 F.2d 1321 (11th Cir.

1988)). Nevertheless, the qualified immunity doctrine

as expressed in Richardson is a powerful analogy.

See Taylor, 101 F. Supp. 2d at 264 n.4; Groom, 991 F.

Supp. at 991 n.3. Thus, despite the Buckner and

Harvey opinions, a thorough analysis of the history

and intent of respondeat superior liability and civil

rights laws in general, and of Section 1983 in

particular, impel a finding that private corporations

are not entitled to the special protection afforded to

municipal corporations.

Also, the arguments noted by this Court in

Richardson, and by the courts in Taylor and Groom

apply with even more force to the instant case in light

of Respondents’ state action of essentially usurping

governmental functions in dictating the actions of the

police regarding the trespass order; i.e., that the

police had no choice but to do the bidding of the Mall

owner in trespassing the Edwardses. "Trespassing,"

like other self-help actions such as replevin, is

essentially a state action by private entities who are

denied qualified immunity. See Wyatt v. Cole, 504

U.S. 158, 168-69 (1992) (stating that private

defendants "faced with § 1983 liability for invoking a

state replevin, garnishment, or attachment statute"

are not entitled to immunity). Thus, even if

Respondents are state actors, respondeat superior

liability should apply.

Finally, the history and policy considerations

that underlie Section 1983, especially the federalism

concerns that shield state government entities from

respondeat superior liability, either do not apply to

private employers or counsel against shielding private

employer state actors from vicarious liability. Again,

the Eleventh Circuit's error does not consist of

-15-

erroneous factual findings or the misapplication of a

properly stated rule of law; instead, the Eleventh

Circuit has decided an ubiquitously important

question of federal law that has not been, but should

be, settled by this Court. The Eleventh Circuit has

also decided an important federal question in a way

that conflicts with relevant decisions of this Court.

Therefore, ‘compelling reasons warrant certiorari

review of this case by this Court.

B. Petitioners have adduced _ sufficient

evidence to establish Respondents'

custom or policy.

Certiorari should be granted on this issue

because the Eleventh Circuit has entered a decision

in conflict with the decision of another United States

court of appeals on the same important matter of

establishing policy and custom. Additionally, even if

the Eleventh Circuit's error consists of erroneous

factual findings or the misapplication of a properly

stated rule of law, the error should be rectified

because it is intertwined with the Eleventh Circuit's

other decisions on the § 1983 claims that are

erroneous under United States Supreme Court Rule

10(a) and 10(c).

As a preliminary step to determining that

evidence of a custom or policy exists, it may be useful

to describe the basis for establishing that

Respondents Acadia and Wells Fargo are state

actors.* Respondents are state actors under two

tests: the public function test and the nexus/joint

action test. Respondents are state actors under the

3Whether or not Acadia and Wells Fargo were

state actors is relevant only to the First

Amendment count under section 1983 because

claims under 42 U.S.C. § 1981 do not require

state action.

-16-

S

e

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a.

te

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=

a

2

public function test because they are acting as

gatekeeper and guard to a State of Florida

unemployment benefits office. The First and

Fourteenth Amendments safeguard the rights of free

speech and assembly by limitations on state action,

including on action by the owner of private property

partially used for public purposes. See Lloyd

Corporation, Ltd., v. Tanner, 407 U.S. 551, 567 (1972)

(holding that a shopping center owner is not a state

actor when the shopping center is used for private

purposes only). Here, because the public State of

Florida unemployment office is located at the Mall,

the Mall is a public forum, subject only to reasonable

time, place, and manner restrictions. Here,

Respondents trespassed the Edwardses from the

vicinity of a government office based on the content of

the Edwardses' speech and association; i.e.,

Respondents impermissibly trespassed the Edwardses

because the Edwardses expressed their opposition to

racial discrimination, insinuated that Bankowski was

a racist, and refused to listen to his "explanation."

Therefore, Wells Fargo and Acadia are state actors

under the public function test.

Acadia and Wells Fargo also are state actors

under the nexus/joint action test because the City of

Titusville government so far insinuated itself into a

position of interdependence with Respondents that

the City was a joint participant in the enterprise. See

American Manufacturers Mutual Insurance Company

v. Sullivan, 526 U.S. 40 (1999): Perkins ov.

Londonderry Basketball Club, 196 F.3d 13 (1st Cir.

1999); Disabled in Action of Metropolitan New York v.

Hammonds, 202 F.3d 110 (2d Cir. 2000); Goldstein v.

Chestnut Ridge Vol Fire Co., 218 F.3d 337 (4th Cir.

2000); Lansing v. City of Memphis, 202 F.3d 821 (6th

Cir. 2000); Messman v Helmke, 133 F.3d 1042 (7th

Cir. 1998); George v. Pacific-CSC Work Furlough, 91

F.3d 1227 (9th Cir. 1996). For instance, the evidence

shows contacts among and between Acadia, Wells

Fargo, and the City of Titusville that could prove the

-|7-

| MMMM i i i

actors reached an_ undersianding to violate

Petitioners’ rights. See Dennis v. Sparks, 449 U.S. 24,

27 (1980) (holding that willful participation in joint

action with the State or its agents constitutes state

action).

Also, Petitioners show that an agreement

existed regarding Wells Fargo and the police and that

Wells Fargo had a major part in the original

"trespassing" of Petitioners. The police officers were

activated by a municipal policy and custom to

automatically implement and enforce the demands of

property owners and the agents of property owners to

eject and banish people from those owners’ property.

Thus, the evidence shows that Wells Fargo and

Acadia were acting under color of state law also

because they are jointly engaged with City of

Titusville police officers in the actions against the

Edwardses. |

Under either or both theories of state action,

Acadia and Wells Fargo had a policy, custom, and

practice resulting in the violation of Petitioners’

rights: Hardy and Bankowski were delegated the

authority to set and implement trespassing policy by

Acadia; Acadia delegated all responsibility for Mall

management, including the trespassing of customers,

to Hardy; and, Acadia's policies are delegated to

Bankowski, as shown by the "one hundred per cent"

backing and ratification by Hardy of Bankowski's

trespassing and all other activities, even though the

Edwardses attempted to notify Hardy that the

trespassing was due to their speaking out regarding

unlawful racial discrimination. In fact, the only

arguably non-racism "policy" of Wells Fargo is its mild

admonitions for its employees not to discriminate

against each other. Besides, a single or initial

incident can provide evidence of a custom or policy,

particularly if the Appellee is negligent about training

and/or supervising to prevent the violation of rights.

See City of Canton, Ohio v. Harris, 489 U.S. 378, 380

(1989). Here, the evidence is unrefuted that neither

-18-

SG te sedis lod Sia atl

Kipih on

Hardy nor Bankowski received training regarding

opposition to unlawful discrimination or other

practices, even in time to rescind the Edwardses'

banishment before the lawsuit was filed; and, no

training was given regarding direct racial

discrimination against mall customers. Therefore, for

all of the foregoing reasons, custom and policy

evidence exists, even if it were necessary to establish

liability for a private corporation in the role of state

actor; aid, the Eleventh Circuit's affirmation conflicts

with relevant case law from this Court and from other

Courts of Appeal.

IV. CERTIORARI SHOULD BE GRANTED

BECAUSE THE ELEVENTH CIRCUIT'S

DISMISSAL OF PETITIONERS' FREE

ASSOCIATION CLAIMS UNDER THE FIRST

AMENDMENT AND 42 U.S.C. § 1983

CONFLICTS WITH RELEVANT DECISIONS

OF THIS COURT; OR, ALTERNATIVELY,

THE ELEVENTH CIRCUIT HAS DECIDED

IMPORTANT QUESTIONS OF FEDERAL LAW

REGARDING FIRST AMENDMENT RIGHTS

OF FREE ASSOCIATION THAT HAVE NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS

COURT.

The Eleventh Circuit has decided important

federal questions regarding First Amendment rights

of intimate and expressive association in a way that

conflicts with relevant decisions of this Court; or,

alternatively, the Eleventh Circuit has decided

important questions of federal law regarding First

Amendment rights of free association that have not

been, but should be, settled by this Court. The

Edwardses adequately allege a violation of their rights

of free association because, inter alia, the relatively

quiet Mr. Edwards could be found to have been

banished from the Mall solely because of his intimate

association with his wife, who voiced her opposition

-19-

to discrimination; and, Respondents associated Mr.

Edwards with his wife. Also, the Respondents

associated Mrs. Edwards with her husband, who was

trespassed because he stood up to Bankowski and

the police regarding the retaliation against himself

and Mrs. Edwards. Hence, the Edwardses allege that

Respondents subjected each of the Edwardses to

punishment, pains, penalties, and exactions; e.g.,

ejection, banishment, and the concomitant injuries

suffered by the Edwardses; unlike those to which

white persons were subjected by Respondents

because of Respondents’ violative actions taken

against each of the Edwardses, as each of the

Edwardses was accompanied by and associated with

the other. (R3-57-6, Par. 23.) In so stating, the Third

Amended Complaint alleges that the Edwardses'

association with each other is a constitutionally

protected intimate relationship. The right of intimate

association encompasses the personal relationships

that attend the creation and sustenance of a family,

including marriage. See Roberts v. United States

Jaycees, 468 U.S. 609, 619 (1984).

Also, the Edwardses adequately alleged that

they were associating with the black children for the

purpose of expressing their First Amendment rights.

Expressive association concerns the freedom to

associate for the purpose of engaging in activities

protected by the First Amendment. See id. at 61 7-18.

Mrs. Edwards can obtain protection for an asserted

associational right if she can demonstrate either that

the asserted association closely enough resembles a

family relationship to be protected by the right to

intimate association, or that the purpose of the

association is to engage in activities independently

protected by the First Amendment. See id. The

Edwardses were trespassed because of their anti-

discrimination association with the black children

when the black children communicated with the

Edwardses and the Edwardses took the side of the

black children. It was not necessary for the

-20)-

Edwardses to have spoken with the black children or

that the black children became aware of the

Edwardses' actions. It is enough, as contained in the

Third Amended Complaint, that the Edwardses spoke

out on behalf of the black children and that the

Edwardses' opposition to discrimination, in the minds

of the security guards, the Mall Manager, and by

Respondents, associated the Edwardses with people

of color. (R3-57-4, Par. 16.) Similarly, the Third

Amended Complaint alleges that Respondents

subjected each of the Edwardses to punishment,

pains, penalties, and_ exactions: €.g., ejection,

banishment and the concomitant injuries suffered by

the Edwardses; unlike those to which white persons

were subjected by Respondents because of

Respondents’ violative actions taken against each of

the Edwardses, as each of the Edwardses was

associated with people of color. (R3-57-6, Par. 23.)

The Edwardses also allege that at all times relevant,

Respondents acted toward the Edwardses because of

the Respondents' association of the Edwardses with

people of color. (R3-57-9, Par. 41.) Thus, the

Edwardses clearly allege that they were associating

with the black children for the purpose of expressing

the Edwardses' First Amendment rights. Thus, the

Edwardses adequately allege a violation of their rights

of expressive association with the black children.

Additionally, a single association may coincide

and possess both intimate and expressive features

and, therefore, fall within the scope of not only the

right of intimate association but also the right to

expressive association." Id. at 618. Clearly, under the

liberal standards of notice pleading, the Edwardses

have alleged claims of violations of their rights of both

intimate and expressive association. Therefore,

because the Eleventh Circuit has decided important

federal questions regarding First Amendment rights

of intimate and expressive association in a way that

conflicts with relevant decisions of this Court; or,

alternatively, because the Eleventh Circuit has

-2]-

_—

decided important questions of federal law regarding

First Amendment rights of free association that have

not been, but should be, settled by this Court, this

Court should grant review of this case.

V. CERTIORARI SHOULD BE GRANTED

BECAUSE THE ELEVENTH CIRCUIT'S

DECISION CONFLICTS WITH RELEVANT

DECISIONS OF THIS COURT IN DISMISSING

PETITIONERS’ EQUAL PROTECTION

CLAIMS.

In affirming the dismissal of the Equal

Protection claims, the Eleventh Circuit has decided

an important federal question in a way that conflicts

with relevant decisions of this Court. Here, the

District Court states, "Plaintiffs have not alleged that

others who were similarly situated were treated

differently than Plaintiffs." However, the Edwardses

allege that Respondents’ conduct deprived them of the

rights, privileges, or immunities secured by the

Constitution or laws of the United States through the

Fourteenth Amendment and that are enjoyed by white

people -- particularly by white people who do not

oppose unlawful racial discrimination. (R3-57-1 1.)

Also, the Edwardses allege that Respondents

subjected each of them to punishment, pains,

penalties, and exactions; e.g., ejection, banishment

and the concomitant injuries suffered by Petitioners,

unlike those to which white persons -- particularly

white persons who do not oppose unlawful racial

discrimination -- were subjected by Respondents

because of Respondents’ violative actions taken

against each of the Edwardses, as each of the

Edwardses was accompanied by and associated with

the other; and, as each of the Edwardses associated

with people of color. (R3-57-13.) Here, the proper

comparator to the Edwardses for Equal Protection

purposes are people such as Dr. Perez; as alleged in

the Third Amended Complaint, a white patron of the

2).

a

iy

Mall who witnessed the discrimination but did not

oppose the discrimination in a way apparent to the

discriminator. Dr. Perez, of course, was not subjected

to the humiliating and costly banishment from the

Mall.

Also, the Edwardses_ allege racially

discriminatory animus when they state that they are

denied by all Respondents the full and equal

enjoyment of the benefits of the Mall because of their

opposition to the discrimination or segregation of the

black children on the basis of the race and/or color of

the black children, and because of Respondents’

animus thereto. (R3-57-11.) Thus, the Edwardses

adequately allege their Equal Protection claim and

certiorari should be granted to address this issue.

Conclusion

Because of the high value placed on people

who legitimately oppose unlawful discrimination,

because of the ubiquity and sacredness of free speech

and of spousal association, because of the far-

reaching injustice and inequity of allowing private

employers to evade accountability behind the

municipal standard of custom or policy, and because

of the drastic and unwanted consequences to those

and other relationships that are likely to occur if the

Eleventh Circuit Court of Appeals’ affirmance of the

District Court's decisions that conflict with decisions

of this Court and of other Courts of Appeal and/or

that decide important questions of law that should be

decided by this Court are to stand, this Honorable

Court should grant Petitioners Petition for Writ of

Certiorari.

Respectfully submitted,

Mark E. Tietig - Lisa Kuhlman Tietig

Counsel of Record Co-Counsel of Record

Tietig & Tietig, P.A.

6065 S. Tropical Trail

Merritt Island, FL 32952

(321) 452-9944

June 10, 2002

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