Petition for Writ of Certiorari — Hendrix v. Bennett (No. 05-989)

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No- OFFICE OF 1 Tales

IN THE

Supreme Court of the United States

DENNIS LEE HENDRIX, Individually and in his Official

capacity as Sheriff of Forsyth County, EARL A.

SINGLETARY, Individually and in his Official Capacity

as Chief Deputy Sheriff of Forsyth County, DAVID W.

WATERS, Individually and in his Official Capacity as a

Deputy Sheriff of Forsyth County, PETITIONERS

DANNY M. BENNETT AND DANNY L. REID

PETITION FOR A WRIT OF CERTICRARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT CF CERTIORARI

PAUL R. KOSTER

Counsel of Record

PHILLIP BE. FRIDUSS

HALL, BOOTH,

SMITH & SLOVER, P.C.

1180 West Peachtree St,

N.W.

Atlantic Center Plazu,

Suite 900

Atlanta, Georgia 30309

(404) 954-5000

Attorneys for Petitioners

OR AAT OC A SEEN MAR « PR ORS EEA SM MS SE RSTRNT

CURRY & TAYLOR @ WAGH O.C. @ (202) 223-3160 @ USSCINFO.COM

QUESTIONS PRESENTED

This petition for writ of certiorari arises out of the

denial of Petitioners’ assertion of qualified immunity from

Respondents’ First Amendment retaliation claim.

Rejecting Petitioners’ qualified immunity defense, the

United States Court of Appeals for the Eleventh Circuit

decided an issue of first impression for that court: What

is the appropriate standard for assessing whether a

private citizen plaintiff has suffered an “adverse action"

sufficient to support a First Amendment retaliation claim.

In resolving this issue, the Eleventh Circuit,

joining several other Courts.of Appeals, determined the

appropriate test is the "ordinary firmness" test, under

which a plaintiff suffers an adverse action if the

defendant's allegedly retaliatory conduct would likely

deter a person of ordinary firmness from the exercise of

First Amendment rights. In so doing, the Eleventh

Circuit rejected decisions from the United States Courts

of Appeals for the First and Second Circuits applying an

"actual chilling" test, under which a plaintiff must show

that the defendant's actions had some actual, non-

speculative chilling effect on his or her First Amendment

rights.

This petition presents the following significant

issues:

1. Whether this Court should adopt the “actual

chilling" test (applied by the First and Second Circuits) or

the “ordinary firmness” test (applied by several Courts of

Appeals including the Fourth, Fifth, Sixth, Seventh,

Fighth, Ninth, Tenth, and Eleventh Circuits) in assessing

the adverse action requirement of a First Amendment

retaliation claim brought by a private citizen.

2. Whether the law can be sufficiently clearly

established to defeat a government official's qualified

immunity when the central issue of the case is one of first

impression in the governing circuit and conflicting

‘decisions exist on the issue outside that circuit.

ill

TABLE OF CONTENTS

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a: | SERRE IORI ROM eR EOI AA i

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POPU T TOT vocectensseieinise tanipsinsnisssucleuleg vbeciiiinimasaaciiicadbaaadaa ade) 1

RELEVANT PROVISIONS INVOLVED .........cccccscsecececceceseseccscecececes 2

SPORE IIIT sxstiissivtinestiscninibdlianncaibci neti e go Ree) 3

REASONS FOR GRANTING THE PETITION.......ccccccccccceccsecscecseceeee 6

Pas IPI cosh cttiinctasinihitauticinnatbeuiiaacaiattet ese ee ee 19

APPENDIX

CITE Cte0E GION accsiccsricheicenesaissinttiliniireamadabicicaisressed la

SAMO CORRIVE SII. ceisinicniinaneressiccichserhihieiinat tite uate 20a

Ovdar Domepttng ROG GIIG ceccccecscccnsciwnnestuiesteevenmmeiniesiseinaiaiin 34a

TABLE Oi AUTHORITIES

Page

CASES

ABANY V. FRIDOVICH, 1994 U.S. DIST. LEXIS 13049

(D. MASS. 1994) (UNPUBLISHED) .....cccccccccccseccccccesesevcoesesensoecoeese 8

AGOSTO-DE-FELICIANO V. APONTE-ROQUE, 889 F.2D

I eS BID sdicdnciniss cece cistcincia basa adesudsbeminis tbcatasiencdipgsissaon 6,7

BART V. TELFORD, 677 F.2D 622 (7 CIR. 1985) .......ccccsssecseees 6

BENNETT V. HENDRIX, 423 F.3D 1247 (11™ CIR. 20085) ........... 1

BURLINGTON NORTHERN SANTA FE RAILWAY Co.

V. WHRTTE, BG, CE. CAG NO. GG -Fe cinescvsccnscriocssictictesicsseceneesties 17

CAPOEMAN V REED, 754 F.2D 512 (9™ CIR. 1985) .0..........200 18

COLOMBO V. O’CONNELL, 310 F.3D 115 (2D CIR. 2002) ... 13, 14

CONNELL V. SIGNORACCI, 153 F.3D 74 (2D CIR. 1998) ............ s

CONSTANTINE V. RECTORS AND VISITORS OF

GEORGE MASON UNIV., 411 F.3D 474 (4 CL. 2005) .00....0.. 6

CRAWFORD-EL V. BRITTON, 523 U.S. 574 (1998) .............. 15-16

CURLEY V. VILLAGE OF SUFFERN, 268 F.3D 65 (2D

AIR SUED kaiicisshinesh daocsaubtniniiamiadeaciiastiivadaciemmicigestaaminid 8,9, 10, 13, 14

DAWES V. WALKER, 239 F.3D 489 (2D CIR. 2001)........... wee by AO

DUTKIEWICZ V. HYJEK, 135 FED. APPX. 482 (2D CIR.

i i)

GARCIA V. CITY OF TRENTON, 348 F.3D 726 (8"™ CIR.

GILL V. PIDLYPCHAK, 389 F.3D 379 (2D CIR. 2004)..........00:0000 9

GILL V. CALESCIBETTA, 2005 U.S. APP. LEXIS 26821

(2D CIR. DEC. 7, 2005) (UNPUBLISHED)..........ccccccsscossssveseses 9, 10

GRIFFIN-NOLAN V. PROVIDENCE WASHINGTON INS.

Co., 2005 U.S. DIST. LEXIS 12902 (N.D.N.Y. JUN. 20,

er EE ivicititddannnbicrsdcsvctuavnbiigrbbatiociikccninceadeunbubinniies 9,10

HANKARD V. TOWN OF AVON, 126 F.3D 418 (2D CIR.

i BRR SBOE ear iaent OF UB a eae SRNR A RS RR REET PERSIA D. Cn ARMED Para R EOD oe 14

HARTMAN V. MOORE, S. CT. CASE NO. 04-149526............ 16, 17

HIGGASON V. STEPHENS, 288 F.3D 868 (6™ CIR. 2002) ......... 18

KEENAN V. TEJEDA, 290 F.3D 252 (5™ CIR. 2002) ............ 11,12

RRO? Wx BO el ile MAP WF a ENA E ILE ccvicshndoscictdpcbusstvceetocenincnctitis 16

MARSH V. BUTLER COUNTY, 268 F.3D 1014 (11™ CIR.

Br Ne iii ivicdnscassscacksiatisoviisciiidss inhi scccedanabichiiciadteniandceiadld 18

MENDOCINO ENVTL. CTR. V. MENDOCINO COUNTY,

Fe ee ee FI, SOD vtech scvdnis: tachniccnsoubabtadintimivrcanibens 6,12

MITCHELL V. FORSYTH, 472 U.S. 511 (2985).........cccssccoccscocscceee 2

MITCHELL V. HORN, 318 F.3D 523 (2D CIR. 2008) ................006- 7

MOORE V. HARTMAN, 388 F.3D 871 (D.C. CIR. 2004),

CERT. GRANTED, 126 S. CT. ZO77 (200) cccecccccccosocscvedivcrcacsouescs 19

MORRISON V. JOHNSON, 429 F.3D 48 (2D CIR. 2005) ......0...0... 10

PENNEY V. TOWN OF MIDDLETON, 8&8 F’. SUPP. 2D

Ee Re ir PD acidiehiscnticasdatheiscbasceeiluadaiadinasiaecisucicelehcotaid cinaddiahlsastesdisate 8

POOLE V. COUNTY OF OTERO, 271 F.3D 955 (10™ CIR.

REES V. DAHL, 24 FED. APPX. 907 (10™ CIR. 2001)

RR NNO ID ssesiininecisestsisneinsliceiiceniaripeesnciesiitalinltbehinveiisihetblinsinceeanib 11

SINGER V. FULTON COUNTY SHERIFF, 63 F.3D 110

EPG, SOD vi cccascncinsssinjenstivcivervesihsiiettnninvetisesiacinisstetennorenisonts 8,14

SMITH V. PLATI, 258 F.38pD 1167 (10™ Cir. 2001)... sielibiahsam ill 12

SPEAR V. TOWN OF WEST HARTFORD, 954 F.2D 63

TIE III iicicsieriinsisctnmscsncictianshesds ucla tesielililalialabibanitecs diate 8, 11, 12, 14

SUAREZ CorP. INDUS. V. MCGRAW, 202 F.3D 676 (4™

ie PO iinienntdicemmiaseintciies sisal is ticags ca ari 12

SULLIVAN V. CARRICK, 888 F.2D 1 (1*" CIR. 1989) ...7, 8, 12, 14

THERRIEN V. HAMILTON, 849 F. Supp. 110 (D. MASS.

SITTITTTLDT ixsccthecsditcaivtce hecho deadline stacheaneaiat tees Ncecbccartii titania 8

TTOOLASPRASHAD V. BUREAU OF PRISONS, 286 F.3D

i eR RRS te Re a Se A te 7

TUCKER V. CITY OF RICHMOND, 388 F.3D 216 (6"

A 6,12

WASHINGTON V. COUNTY CF ROCKLAND, 373 F.3D

I I a 7, 9, 10

WILSON V. LAYNE, 526 U.S. 608 (1999) .0............cccecsssccceceeeeee 19

WORRELL V. HENRY, 219 F.3D 1197 (10™ CIR. 2000) ....0....... il

CONSTITUTIONAL PROVISIONS

Gh RP NS 4) See ae OE eS Sone Se 2

vii

STATUTES

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MUSOU i eo ae 2,3,4

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OTHER AUTHORITIES

Sg 3. | RRS Ree toro nee BOAO EE TEM 2

Bhs A Be, Bi i chnapessinetnbinan iach peeminniaasdplepainsedsddiniiaatitcdeatatilaadiaiel 2

OPINIONS BELOW

The publist« — sinion of the Eleventh Circuit in

Bennett v. Hendrix, Case No. 04-12256, 423 F.3d 1247

(11'" Cir. 2005), filed September 9, 2005, affirming the

district court's denial of Petitioners' assertion of

qualified immunity from suit on summary judgment, is

reproduced in the Appendix hereto. (Pet. App. la-19a).

The unpublished order of the United States ~

District Court for the Northern District of Georgia

(Atlanta Division) in Bennett v. Hendrix, Case No. 1:00-

CV-2520-TWT, filed April 13, 2004, denying Petitioners'

assertion of qualified immunity on summary judgment,

is reproduced in the Appendix hereto. (Pet. App. 20a-

33a).

The unpublished order of the Eleventh Circuit in

Bennett v. Hendrix, Case No. 04-12256, filed November

7, 2005, denying Petitioners’ petition for rehearing en

banc, is reproduced in the Appendix hereto. (Pet. App.

34a).

JURISDICTION

In its September 9, 2005 opinion, the Eleventh

Circuit affirmed the district court's denial of

Petitioners’ assertion of qualified immunity on

summary judgment. Petitioners timely filed a petition

for rehearing en banc on September 30, 2005, which was

denied by the Eleventh Circuit on November 7, 2005.

(Pet. App. 34a).

This petition for writ of certiorari is filed within

90 days of the date of the Eleventh Circuit's denial of

Petitioners’ petition for rehearing en banc pursuant to

28 U.S.C. § 2101(c) and Supreme Court Rules 13.3 and

30. This Court has jurisdiction to review on a writ of

certiorari the Eleventh Circuit's opinion pursuant to 28

U.S.C. § 1254(a); 28 U.S.C. § 1291; and Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985).

RELEVANT PROVISIONS INVOLVED

U.S. CONST. amend. I:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

42 U.S.C. § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes te be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be Lable to the party

injured in an action at law, suit in equity, or cther

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaratory relief was unavailable. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District

of Columbia.

STATEMENT

This 42 U.S.C. § 1983 case arises out of Danny

Bennett's, Danny Reid's ("Respondents"), and Tammy

Bennett's! allegations that Sheriff Dennis Lee Hendrix,

Deputy Earl Singletary, and Major David Waters

("Petitioners") retaliated against them for their political

support of a referendum. This referendum would have

transferred the primary law enforcement powers from

the existing Sheriffs Department and create a new

county-wide police force that would be under the direct

supervision of the county commission. (R14-176-3; R16-

233-1). Sheriff Hendrix did not support the

referendum, and the referendum was_ ultimately

defeated. (R14-176-3; R16-233-2-3).

Respondents allege Sheriff Hendrix retaliated

against them as a result of their support for the

referendum by directing Deputy Singletary, Major

Waters, and other county officers to engage in acts of

surveillance and harassment. (R1-1-16-17; R14-176-14;

R16-233-3). Respondents also contend that Sheriff

Hendrix retaliated against them in connection with his

re-election campaign by disseminating campaign fliers

that personally attacked Respondents. (R14-176-4-5).

' The district court granted summary judgment to Petitioners as to

the claims brought by Tammy Bennett, and thus she is not a party

to this appeal. (Pet. App. 18a n.2).

On September 28, 2000, Danny Bennett, Danny

Reid, and Tammy Bennett filed this civil rights action.

(R1-1-1). As relevant here, Respondents alleged that

Petitioners violated the First Amendment by

retaliating against them as a result of their political

support for the Forsyth County referendum, conspired

to deprive them of their constitutional rights under 42

U.S.C. $§ 1983 and 1985(3), and violated their equal

protection rights by discriminating against them in

retaliation for the exercise of their First Amendment

rights. (R1-1-27, 39, 41, 43). Respondents also brought

claims against Petitioners for violations of the Fourth

Amendment and substantive due process, as well as a

supervisory liability claim against Sheriff Hendrix and

Deputy Singletary and various state law claims. (R1-1-

33, 38, 42). |

On June 21, 2001, the district court granted

Petitioners’ motion to dismiss as to all counts, except

for Respondents’ First Amendment, equal protection,

and § 1983 conspiracy claims. (R6-89-36; R14-176-7, 22).

Thereafter, on February 1, 2002, the district court

granted in part and denied in part Petitioners’ motion

for summary judgment. (R14-176-48).

In particular, the district court granted

Petitioners’ motion for summary judgment with respect

to (1) Respondents’ First Amendment retaliation claim

based upon Sheriff Hendrix’s campaign fliers; (2)

Tammy Bennetts’ First Arscndment retaliation claim;

and (3) Respondents’ equal protection claim. (R14-176-

12, 15, 23). The district court, however, denied

Petitioners’ motion with respect to (1) Respondents’

First Amendment retaliation claim based on

Petitioners’ alleged surveillance and harassment and (2)

Respondents’ § 1983 conspiracy claim. (R14-176-18, 21).

In regard to Petitioners’ assertion of qualified

immunity as to these claims, the district court

determined that based on the record before it, it must

“defer ruling on the qualified immunity defense until

after the evidence at trial has been presented.” (R14-

176-28).

Petitioners thereafter appealed the

deferral/denial of their qualified immunity to the

Eleventh Circuit. (R14-186-1; R16-209-1). Following

oral argument, the Eleventh Circuit vacated the

district court’s decision, concluding Petitioners had met

their initial burden on qualified immunity of showing

they were acting within their discretionary authority.

(R16-222-4-5). Accordingly, the Eleventh Circuit

remanded the case to the district court to analyze

whether Petitioners are entitled to qualified immunity.

(R16-222-5).

On April 13, 2004, the district court issued its

order following the Eleventh Circuit's remand, denying

Petitioners’ qualified immunity defense. (R16-233-15).

Following Petitioners’ appeal from this decision, (R16-

235-1), the Eleventh Circuit issued its opinion on

September 9, 2005, denying Petitioners qualified

immunity from suit. (Pet. App. la-19a). Petitioners

thereafter filed a timely petition for rehearing en banc

of this decision, which the full Eleventh Circuit denied

on November 7, 2005. (Pet. App. 34a).

REASONS FOR GRANTING THE PETITION

A. Certiorari Should Be Granted To Resolve The

Conflict Between The Courts of Appeals

This petition affords the Court with an

opportunity to clarify the law and resolve a conflict

between the Courts of Appeals concerning the

appropriate standard to apply in assessing whether a

private citizen plaintiff has suffered an “adverse action”

sufficient to support a First Amendment retaliation

claim.

The Eleventh Circuit, joining several other

Courts of Appeals, determined the appropriate test is

the “ordinary firmness” test; that is, “|a] plaintiff

suffers adverse action if the defendant’s allegedly

retaliatory conduct would likely deter a person of

ordinary firmness from the exercise of First

Amendment rights."” (Pet. App. 6a); see, e.g.,

Constantine v. Rectors and Visitors of George Mason

Univ., 411 F.3d 474, 500 (4° Cir. 2005); Keenan v.

Tejeda, 290 F.3d 252, 259 (5'" Cir. 2002); Tucker v. City

of Richmond, 388 F.3d 216, 220 (6'" Cir. 2004); Bart v.

Telford, 677 F.2d 622, 625 (7'" Cir. 1982); Garcia v. City

of Trenton, 348 F.3d 726, 728 (8' Cir. 2003); Mendocino

Envtl. Ctr. v. Mendocino, 192 F.3d 1288, 1300 (9"" Cir.

1999); Poole v. County of Otero, 271 F.3d 955, 960 (10""

Cir. 2001).”

* The Eleventh Circuit also cited decisions from the First, Second,

Third, and D.C. Circuits as support for the “ordinary firmness"

test. (Pet. App. 6a-7a). None of these decisions, however, involved

First Amendment claims brought by private citizens, such as this

cause. See Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209,

In so doing, the Eleventh Circuit rejected

Petitioners' assertion that the proper test is the "actual

chilling" test, under which a plaintiff must show that

the defendant's actions had some actual, non-

speculative chilling effect on his or her First

Amendment rights. Significantly, the Eleventh

Circuit's decision is in conflict with decisions of the

First and Second Circuits, which have applied the

"actual chilling" test. See Sullivan v Carrick, 888 F.2d

1, 4 (1“ Cir. 1989) (“To show a First Amendment

violation in this context [plaintiff] must allege that his

speech was in fact chilled or intimidated* by

1217 (1* Cir. 1989) (First Amendment retaliation claim brought by

public employee); Washington v. County of Rockland, 373 F.3d

310, 320 (2d Cir. 2004) (First Amendment retaliation claim brought

by public employee); Dawes v. Walker, 239 F.3d 489, 493 (2d Cir.

2001) (First Amendment retaliation claim brought by prisoner);

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (First

Amendment retaliation claim brought by prisoner); Toolasprashad

v. Bureau of Prisons, 286 F.3d 576, 585 (D.C. Cir. 2002) (First

Amendment retaliation claim brought by prisoner). Indeed, as

discussed infra, the Second Circuit has distinguished the private,

citizen line of cases from the prisoner and public employee cases.

. The Eleventh Circuit's suggestion that the First Circuit’s

use of the word “intimidated” somehow indicates the First Circuit

was not applying an actual chilling test, (Pet. App. 18a-19a n.4),

ignores_the manner in which the First Circuit applied its rule to

the facts of the case. Specifically, the First Circuit concluded the

absence of any chilling effect, in and of itself, negated any

suggestion that plaintiff was intimidated. See Sullivan, 888 F.2d

at 4 (“The facts indicate that [plaintiff] was anything but

intimidated. As shown by the December, 1985 filing of the present

action, [plaintiffs] alleged{] [retaliatory act] never intimidated

| plaintiff].”).

‘ Moreover, the Eleventh Circuit failed to recognize the

numerous courts within the First Cireuit that have cited Sullivan

|defendant’s alleged retaliatory conduct]. .... Absent

such an allegation, no violation occurred. .... Where a

chilling effect is speculative, indirect, or too remote,

finding an abridgment of First Amendment rights is

unfounded.”) (emphasis added); Curley v. Village of

Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (“[P Jlaintiff must

show .. that his First Amendment rights were “actually

chilled.” .... Where a party can show no change in

his behavior, he has quite plainly shown no chilling

of his First Amendment right to free speech.”)

(emphasis added); Connell v. Signoracci, 153 F.3d 74,

79 (2d Cir. 1998) (“A plaintiff asserting ... a First

Amendment claim must allege|, among other things, |

the defendant’s action effectively chilled the

exercise of the plaintiff's First Amendment

rights.”) (emphasis added); Singer v. Fulton County

Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (finding no

chilling effect where, after an arrest, the plaintiff

continued to publish his newspaper through which he

criticized the village government): Spear v. Town of

West Hartford, 954 F.2d 63, 67 (2d Cir. 1992) (finding

no chilling effect where, after the filing of the lawsuit,

the plaintiff continued to write criticizing editorials in

the same manner as before the lawsuit).

In an effort to dispel the conflict amongst the

Courts of Appeals, the Eleventh Circuit, citing

for the very same proposition as asserted by Petitioners, i.¢., that a

plaintiff must show an actual chilling of his or her First

Amendment rights to give rise to a viable claim. See, e.g., Penney

_v. Town of Middleton, 888 F. Supp. 382, 338 (D.N.H. 1994); Abany

“tv. Fridovich, 1994 U.S. Dist. LEXIS 13049, at **15-16 (D. Mass.

Jun. 20, 1994) (unpublished); Therrien v. Hamilton, 849 F. Supp.

110, 114 (D. Mass. 1994).

Washington v. County of Rockland, 373 F.3d 310, 320

(2d Cir. 2004) -- a case involving a First Amendment

retaliation claim brought by a public employee --

indicated that "cases from the Second Circuit appear to

take contradictory positions" concerning application of

the “actual chilling" versus the “ordinary firmness"

tests. (Pet. App. at 19a n.5). The Eleventh Circuit,

however, failed to recognize that the Second Circuit has

consistently applied the “actual chilling” test to First

Amendment retaliation claims brought by private

citizens, such as the case here.

Specifically, in Gill v. Pidlypchak, the Second

Circuit explained it has “impose{d] an actual chill

requirement” in the “line of cases .. . involving criticism

of public officials by private citizens” while the

“ordinary firmness” test has been applied in the

prisoner context. 389 F.3d 379, 381 (2d Cir. 2004).

Since Gill, cases within the Second Circuit have

continued to apply the “actual chilling” test in the

private citizen context. See, e.g., Gill v. Calescibetta,

2005 U.S. App. LEXIS 26821, at*4 (2d Cir. Dec. 7, 2005)

("the [d]istrict [clourt granted summary judgment on

the ground that plaintiff could not demonstrate that his

speech was ‘actually chilled’ -- a required element of

a First Amendment retaliation claim in non-prison

contexts.") (citing Curley, 268 F.3d at 72-73)

(emphasis added) (unpublished); Dutkiewicz v. Hyjek,

135 Fed. Appx. 482, 484 (2d Cir. 2005) (rejecting First

Amendment claim where, among other things,

“plaintiffs failed to allege that their speech was chilled”)

(unpublished); Griffin-Nolan v. Providence Washington

Ins. Co., 2005 U.S. Dist. LEXIS 12902, at *24-25

(N.D.N.Y. Jun. 20, 2005) (“All the Second Circuit cases

that the Court has found involving a private citizen

plaintiff who alleges the defendant arrested him in

retaliation for his exercise of First Amendment rights

have articulated the same formulation of the elements

of a First Amendment retaliation claim as did Curley.”)

(unpublished).

Moreover, along with differentiating its private

citizen versus prisoner cases, the Second Circuit has

distinguished its private citizen from its _ public

employee cases. See Morrison v. Johnson, 429 F.3d 48,

51 (2d Cir. 2005) ("Where the plaintiff is a public

employee alleging that he suffered an adverse

employment action as retaliation for the exercise of his

First Amendment rights, the standard is not the

principle applied in Curley."); Gill v. Calescibetta, 2005

U.S. App. LEXIS 26821, at **5-6 (2d Cir. Dec. 7, 2005)

("[I]n the narrow context of prisoner retaliation

suits, a prisoner need not demonstrate ‘an actual or

subjective chill.) (emphasis altered from original and

internal citations omitted) (unpublished).

Given the differentiating standards applied by

the Second Circuit in the private citizen, prisoner, and

public employee contexts, neither Washington nor

Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001) -- a

prisoner case quoted in Washington as support for the

"ordinary firmness" test -- change the fact that the

Second Circuit has applied and adopted an "actual

chilling" test for First Amendment retaliation claims

brought by private citizens.

In addition, the Eleventh Circuit's attempt to

dispel the fact that a “circuit split” exists on the issue,

(Pet. App. at 8a), is in conflict with the views of its

sister circuits which have recognized such a split exists:

noted:

For example, in Rees v. Dahl, the Tenth Circuit

Although we agree with the district

court’s ultimate conclusion that [plaintiffs’]

complaint should be dismissed for failure to state

a claim upon which relief can be granted, we rely

on our own standard, announced in Worrell /v.

Henry, 219 F.3d 1197 (10" Cir. 2000)] (objective

chilling), rather than the Second Circuit’s

standard announced in Spear /v. Town of West

Hartford, 954 F.2d 63 (2d Cir. 1992] (subjective

chilling). In Worrell, we expressed our own

three-part standard for evaluating First

Amendment retaliation claims, which differs from

the standard articulated by the Second Circuit in

Spear. Whereas Spear’s standard focuses on a

subjective chilling, Worrell, which binds us,

provides for an objective standard.

24 Fed. Appx. 907, 910-11 (10 Cir. 2001) (unpublished)

(emphasis in original).

Similarly, in Keenan v. Tejeda, the Fifth Circuit

recognized the differing views of the courts, comparing

decisions of the First, Second, and Fourth Circuits with

decisions of the Ninth and Tenth Circuits:

The district court correctly ruled that a

retaliation claim requires some showing that the

plaintiffs’ exercise of free speech has been

curtailed.* See Suarez Corp. Indus. v. McGraw,

202 F.3d 676, 686 (4'* Cir. 2000); Spear v. Town of

West Hartford, 954 F.2d 63, 67 (2d Cir. 1992);

Sullivan v. Carrick, 888 F.2d 1, 4 (1* Cir. 1989),

but see Mendocino Envtl. Ctr. v. Mendocino

County, 192 F.3d 1283, 1800 (9% Cir. 1999) (“Tt

would be unjust to allow a defendant to escape

liability for a First Amendment violation merely

because an unusually determined plaintiff

persists in his protected activity.”); Smith [v.

Plati), 258 F.3d [1167,] 1177 ((10" Cir. 2001)]

(“The focus . . . is upon whether a person of

ordinary firmness would be chilled, rather than

whether the particular plaintiff is chilled.”).

290 F.3d 252, 259-60 (5'" Cir. 2002); see also Tucker v.

City of Richmond, 388 F.3d 216, 220 (6 Cir. 2004)

(“this Circuit - unlike some others -— has held that the

relevant question is whether the defendants’ actions

are capable of deterring a person of ordinary firmness”)

(emphasis added and internal citations, quotations, and

emphasis omitted).

Petitioners respectfully maintain the Eleventh

Circuit's decision to adopt the “ordinary firmness” test

was in error and that the First and Second Circuit

decisions applying the “actual chilling” test are correct

for several reasons. First, § 1983 is a tort statute, and

as such, a § 1983 plaintiff should have to show an actual

injury to prevail on his or her claim. Indeed, the

' While the framework announced by the Fifth Circuit in Keenan

included the ordinary firmness test, 290 F.3d at 258, the court went

on to apply the test by inquiring whether plaintiffs showed some

actual chilling of their First Amendment rights. See id. at 259-60.

Second Circuit’s decision in Colombo v. O’Connell

‘captures the essence of Petitioners’ position:

To state a claim under Section 1983, a

plaintiff must allege facts indicating that some

official action has caused the plaintiff to be

deprived of his or her constitutional rights - in

other words, there is an injury requirement to

state a claim. In this case, [plaintiff] need not

show that she was silenced by [defendant’s]

threatened suit — the First Amendment protects

the right to free speech so far as to prohibit state

action that merely has a chilling effect on speech.

However, to. sustain her claim,

[plaintiff] is required to show that the

defendant’s actions had some actual, non-

speculative chilling effect. Because [plaintiff]

testified in her deposition that her speech was

not restricted in fact by [defendant’s] letter, that

she “still felt free to speak up about whatever she

wanted to say” after receiving [defendant’s]

letter, and alleged no actual chilling effect on the

exercise of her First Amendment rights at all,

[plaintiff's] claim fails.

310 F.3d 115, 117 (2d Cir. 2002) (emphasis added)

(citations omitted); see Curley, 268 F.3d at 73 (“Where a

party can show no change in his behavior, he has quite

plainly shown no chilling of his First Amendment right

to free speech.”).

Likewise, here, Respondents have produced no

legally sufficient evidence indicating any actual change

or curtailment of their First Amendment activities as a

result of Petitioners’ alleged conduct.’ In fact, the

evidence shows just the opposite: that Respondents

continued to exercise their First Amendment rights in

spite of Petitioners' alleged retaliatory conduct. See

Reid Depo. at 92, 95, 156, 246 (indicating Reid voted in

* In an effort to show their First Amendment rights were, in fact,

chilled, Respondents simply pointed to their self-serving,

conclusory deposition testimony in which they asserted they were

“less willing” and “more reluctant” to participate in the political

process as a result of Petitioners’ alleged retaliatory conduct.

(Respondents’ 11" Cir. Br. at 43-44).

Contrary to the Eleventh Circuit's suggestion, (Pet. App.

15a), such self-serving, speculative, and conclusory assertions are

insufficient to demonstrate an actual chilling of First Amendment

rights - particularly given the undisputed evidence showing

Respondents continued to participate in the political process

despite Petitioners’ alleged retaliatory conduct. See, e.g.,

Columbo, 310 F.3d at 117 (“(TJo sustain her claim, [plaintiff] is

required to show that the defendant’s actions had some aciual,

non-speculative chilling effect.”); Curley, 268 F.3d at 73

(concluding plaintiff showed no chilling of his First Amendment

rights when, although “he was arrested in retaliation for his

comments made during the 1993 mayoral campaign, he continued

his 1994 campaign for village trustee even after the arrest —.d ran

again for public office in 1995”); Hankard v. Town of Avon, 126

F.3d 418, 424 (2d Cir: 1997) (“| Plaintiff's allegations fall short of

constitutional significance. The chilling effect alleged by the

plaintiffs is speculative, indirect and remote, and there is no

evidence in the record that plaintiffs did in fact suffer a cognizable

constitutional deprivation.”); Singer, 63 F.3d at 120 (rejecting First

Amendment claim where plaintiff “failed to allege with sufficient

particularity any actual ‘chilling’ of his speech, or of his

participation in the political process”); Spear, 954 F.2d at 67 (2d

Cir. 1992) (rejecting First Amendment retaliation claim where

“(Plaintiffs] allegation of a chill . . . was conclusory and

speculative”); Sullivan, 888 F.2d at 4 ("Where a chilling effect is

speculative, indirect, or too remote, finding an abridgment of Firs

Amendment rights is unfounded.”).

the primary for sheriff; voted in the sheriff election run-

off; contributed to Sheriff Hendrix’s opponent’s election

campaign; and voted in general election); Bennett Depo.

at 71, 136, 253 (indicating Bennett attended fundraiser

for and contributed money to Sheriff Hendrix’s

opponent, attended Sheriff Hendrix’s opponent’s

election night party). Accordingly, Petitioners

respectfully maintain that Respondents have failed to

demonstrate a constitutional violation - let alone one

that was clearly established at the time of Petitioners’

alleged conduct - and thus Petitioners are «ntitled to

qualified immunity.

Second, by adopting the “ordinary firmness” test

as opposed to the “actual chilling” test, the Eleventh

Circuit has transformed retaliation claims into a

“subspecies of First Amendment claims” which are

given heightened protection. As former Chief Justice

Rehnquist observed in his dissent in Crawford-El v.

Britton:

If the purpose of § 1983 is to deter state actors

from using the badge of their authority to

deprive individuals of their federally guaranteed

rights and to provide relief to victims if such

deterrence fails, it is hard to see how that

purpose is substantially advanced if petitioner’s

suit is allowed to proceed. Petitioner has already

fully exercised his federally guaranteed rights.

Providing compensation to him, even if his claim

is meritorious, will foster increased constitutional

freedoms only for the hypothetical subsequent

individual who, given the imposition of liability in

this case, will not be deterred from exercising his

First Amendment rights out of fear that

respondent will retaliate ....

523 U.S. 574, 608-09 (1998) (Rehnquist, C.J., dissenting)

(joined by O'Connor, J.) (internal citations and

quotations omitted).

Finally, the “actual chilling” test is consistent

with the injury-in-fact requirement of federal

justiciability law and the Court’s instruction that

“allegations of a subjective ‘chill’ are not an adequate

substitute for a claim of specific present objective harm

or a threat of specific future harm.” Laird v. Tatum,

408 U.S. 1, 13-14 (1972).

In view of the conflict between the Courts of

Appeals concerning the appropriate standard for

assessing whether a private citizen plaintiff has

suffered an “adverse action” sufficient to support a

First Amendment retaliation claim, as well as the

justifications supporting the adoption of the “actual

chilling” test, Petitioners respectfully maintain that

certiorari is warranted.

B. Deciding This Case Together With Two

Related Cases For Which Certiorari Has

Already Been Granted Will Allow The Court

To Clarify The Standards Applicable To

First Amendment Retaliation Claims And

The Adverse Action Requirements Of Both

First Amendment Retaliation And Title VII

Cases

In Hartman v. Moore, Case No. 04-1495, the

Court will be considering whether a First Amendment

retaliatory prosecution claim can exist when the

prosecution was supported by probable cause.

Moreover, in Burlington Northern Santa Fe Railway

Co. v. White, Case No. 05-259, the Court will be

deciding the appropriate test wv be applied to determine

whether a _ plaintiff has suffered an “adverse

employment action” under ‘Title VII of the Civil Rights —

Act of 1964.

Deciding this case together with Hartman and

White will allow the Court te cohesively clarify the

standards applicable to First Amendment retaliation

claims and the "adverse action" requirements of both

First Amendment retaliation and Title VII cases.

C. This Case Presents The Court With The

Opportunity To Clarify Whether The Law

Can Be Sufficiently Clearly Established To

Defeat A Government Official's Qualified

Immunity When The Central Issue Of The

Case Is One Of First Impression In The

Governing Circuit And Conflicting Decisions

Exist On The Issue Outside That Circuit

Despite the lack of binding precedent on the

central issue of this case (what constitutes an "adverse

action" sufficient to give rise to a valid First

Amendment retaliation claim by a private citizen) and

conflicting decisions from the Courts of Appeals that

have addressed this question, the Eleventh Circuit

rejected Petitioners’ qualified immunity defense.

While the Courts of Appeals are split as to which

decisional sources may be utilized when assessing the

"clearly established" prong of the qualified immunity

analysis,® this Court has indicated that the law is too

undeveloped to overcome qualified immunity where

there is an absence of binding precedent from the

governing circuit on the issue presented and conflicting

decisions exist from the other circuits that have

addressed the issue:

Petitioners have not brought to our attention any

cases of controlling authority in their jurisdiction

at the time of the incident which clearly

established the rule on which they seek to rely,

nor h..ve they identified a consensus of cases of

persuasive authority such that a reasonable

officer could not have believed that his actions

were lawful. .... Given such an undeveloped

state of the law, the officers in this case cannot

have been expected to predict the future course

* Compare Higgason v. Stephens, 288 F.3d 868, 876 (6" Cir. 2002)

("In inquiring whether a constitutional right is clearly established,

we must look first to decisions of the Supreme-Court, then to

decisions of this court and other courts within our circuit, and

finally to decisions of other circuits.") (internal quotations and

citation omitted) with Capoeman v Reed, 754 F.2d 512, 514-15 (9""

Cir. 1985) ("[I]n the absence of binding precedent, a court should

look to whatever decisional law is available to ascertain whether

the law is clearly established .... Where ... there are relatively

few cases on point, and none of them are binding, an additional

factor that may be considered in ascertaining whether the law is

‘clearly established' is a determination of the likelihood that the

Supreme Court or this circuit would have reached the same results

as courts which had previously considered the issue.") with Marsh

v. Butler County, 268 F.3d 1014, 1032-33 n.10 (11 Cir. 2001) (en

banc) ("When case law is needed to "clearly establish" the law

* applicable to the pertinent circumstances, we look to decisions of

the U.S. Supreme Court, the United States Court of Appeals for

the Eleventh Circuit, and the highest court of the pertinent

state.").

of constitutional law. Between the time of the

events of this case and today's decision, a split

amongst the Federal Circuits in fact developed

on the question whether media ride-alongs that

enter homes subject the police to money

damages. If judges thus disagree on a

constitutional question, it is unfair to subject

police to money damages for picking the losing

side of the controversy.

Wilson v. Layne, 526 U.S. 603, 617-18 (1999) (internal

citations and quotations omitted); see also Moore v.

Hartman, 388 F.3d 871, 885 (D.C. Cir. 2004), cert.

granted, 125 S. Ct. 2977 (2005) ("The law of other

circuits may be relevant to qualified immunity, but only

in the event that no cases of ‘controlling authority’ exist

in the jurisdiction where the challenged action

occurred.").

Given the Eleventh Circuit's implicit decision to

the contrary, this case presents the Court with the

opportunity to clarify whether the law can be

sufficiently clearly established to defeat a government

official's qualified immunity when the central issue of

the case is one of first impression in the governing

circuit and conflicting decisions exist on the issue

outside that circuit.

CONCLUSION

For the foregoing reasons, Petitioners

respectfully request that their petition for writ of

certiorari ve granted.

Respectfully submitted,

PAUL R. KOSTER

Counsel of Record

PHILLIP E. FRIDUSS

HALL, BOOTH,

SMITH & SLOVER, P.C.

1180 West Peachtree St, N.W.

Atlantic Center Plaza,

Suite 900

Atlanta, Georgia 30309

(404) 954-5000

Attorneys for Petitioners

(any footnotes trail end of each document)

No. 04-12256

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

DANNY M. BENNETT, DANNY L. REID, TAMMY

R. BENNETT,

Plaintiffs-Appellees,

versus

DENNIS LEE HENDRIX, Individually and in his

Official capacity as Sheriff of Forsyth County, EARL

A. SINGLETARY, Individually and in his Official

Capacity as Chief Deputy Sheriff of Forsyth County,

DAVID W. WATERS, Individually and in his Official

Capacity as a Deputy Sheriff of Forsyth County,

Defendants-Appellants,

JAMES L. LOCKHART, Individually and in his

Official Capacity as a Deputy Sheriff of Forsyth

County, JOHN DOES, 1-10, Individually and in their

Official Capacities as Deputy Sheriffs and/or Officers of

the Forsyth County Sheriff's Department, et al.,

Defendants.

September 9, 2005, Decided

September 9, 2005, Filed

COUNSEL: For Dennis Lee Hendrix, Earl A.

Singletary, Appellants: Phillip E. Friduss, Hall, Booth,

Smith & Slover, PC, At'inta, GA.

For David W. Waters, Appellee: Phillip E. Friduss,

Hall, Booth, Smith & Slover, PC, Atlanta, GA.

For Danny M. Bennett, Danny L. Reid, Tammy R.

Bennett, Appellees: Eric S. Chofnas, Attorney at Law,

Alpharetta, GA.

JUDGES: Before BLACK and WILSON, Circuit

Judges, and NANGLE *, District Judge.

OPINION BY: WILSON

OPINION: WILSON, Circuit Judge:

Plaintiffs Danny M. Bennett and Danny L. Reid filed a

complaint alleging that Dennis L. Hendrix, former

Sheriff of Forsyth County, Georgia and Earl A.

Singletary and David W. Waters, deputies who served

under Hendrix, violated their civil rights. Plaintiffs

alleged that these officers carried out a campaign of

police harassment and retaliation after plaintiffs

supported a county referendum opposed by the sheriff.

After the district court entered an order denying the

officers qualified immunity, they brought this appeal.

We find no error in the district court's order, and

therefore affirm.

I. BACKGROUND

In 1998, Forsyth County, Georgia voters considered a

referendum that would have established a county-wide

police force and diminished the power of the Forsyth

County Sheriffs Department.' Most of the

Department's powers would have been transferred to

the county police, and the Sheriff would have been

under the supervision of county officials. Sheriff

Hendrix opposed the referendum. The plaintiffs are

local business owners who supported the referendum.

Along with other citizens, they formed a committee in

support of the referendum and sponsored a debate on

the matter.

The referendum was defeated at the polls, but the

plaintiffs allege that Hendrix (along with the other

defendants, fellow Sheriff's Department officers)

engaged in a campaign of retaliation and intimidation

against the plaintiffs because of their support of the

referendum. The plaintiffs allege that Hendrix formed a

"Strike Force" within the Department to carry out this

process of intimidation.

Ameng many other acts of intimidation, they allege the

defendants took down license tag numbers of cars at a

forum in support of the referendum, surveilled the

plaintiffs' homes and businesses, set up roadblocks near

their homes, stopped their cars without reason and

issued false traffic citations, accessed government

databases to obtain confidential information on the

plaintiffs, attempted to obtain a warrant for their arrest

on trumped-up environmental charges, and mailed

flyers to 35,000 homes in Forsyth County calling the

plaintiffs the "real criminals," members of a “chain

gang,” and "the same type of criminals that terrorize

Forsyth County."

According to the plaintiffs, most of these events

occurred shortly before the 2000 election, and were

designed to intimidate the plaintiffs from opposing

Hendrix's re-election that year. The plaintiffs assert

that the intimidation tactics were successful. Although

the plaintiffs voted and made campaign contributions

during the 2000 election cycle, they allege that the

defendants' actions chilled them from engaging in

further political activities like they did in 1998.

The plaintiffs sued under 42 U.S.C. § 1983 in 2000,

alleging violations of the First, Fourth, and Fourteenth

Amendments, as well as a conspiracy to violate their

civil rights, along with several state tort laws. The

district court granted summary judgment to the

defendants on most of these claims, but denied

summary judgment on the plaintiffs' claim of retaliation

in violation of the First Amendment, their § 1983

conspiracy claim, and state law claims against Hendrix,

Singletary, and Waters. The defendants moved for

summary judgment based on the defense of qualified

immunity. The court held that the defendants were not

entitled to qualified immunity because they had

violated the plaintiffs’ constitutional rights, and those

rights were clearly established at the time.

Accordingly, the district court denied summary

judgment.”

Il. JURISDICTION AND STANDARD OF REVIEW

Although the defendants’ appeal is interlocutory, we

have jurisdiction to review the district court's decision

on qualified immunity pursuant to 28 U.S.C. § 1291 and

Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806,

2817, 86 L. Ed. 2d 411 (1985). We review de novo the

district court's decision denying qualified immunity,

drawing all factual inferences in the nonmovant's favor.

Durruthy v. Pastor, 351 F.8d 1080, 1084 (11th Cir.

2003). Summary judgment is appropriate only "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265

(1986).

III. DISCUSSION

Our procedure in assessing qualified immunity is well-

established. Government officials acting within their

discretionary authority are not eligible for qualified

immunity from suit when the facts "taken in the light

most favorable to the party asserting the injury .. .

show the officer's conduct violated a constitutional

right" and "the right was clearly established.” Saucier v.

Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed.

2d 272 (2001).

We have already determined, in an earlier appeal in

this case, that “it is apparent that the defendants were

acting within the scope of their discretionary

authority." See Bennett v. Hendrix, 77 Fed. Appx. 504

(11th Cir. 2003) (unpublished). The defendants had to

establish this fact to be able to claim qualified

immunity. Once they satisfied that burden, the burden

shifted to the plaintiffs to establish a constitutional

violation. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th

Cir. 2002).

A. Violation of a Constitutional Right

The precise test for determining whether the

defendants’ actions violated the plaintiffs’ rights

against retaliation is an issue of first impression in this

Circuit. We first survey the law of other Circuits. To

state a retaliation claim, the commonly accepted

formulation requires that a plaintiff must establish first,

that his speech or act was constitutio.ially protected;

second, that the defendant's retaliatory conduct

adversely affected the protected speech; and third, that

there is a causal connection between the retaliatory

actions and the adverse effect on speech. Constantine v.

Rectors and Visitors of George Mason Univ., 411 F.3d

474, 499 (4th Cir. 2005); Keenan v. Tejeda, 290 F.3d 252,

258 (5th Cir. 2002). The only prong at issue here is the

second.*? We must determine the standard for

demonstrating an adverse effect on protected speech.

The other Circuits apply an objective test: "a plaintiff

suffers adverse action if the defendant's allegedly

retaliatory conduct would likely deter 'a person of

ordinary firmness’ from the exercise of First

Amendment rights." Constantine, 411 F.3d at 500; see

also Washington v. County of Rockland, 373 F.3d 310,

320 (2d Cir. 2004) ("In the context of a First

Amendment retaliation claim, we have held that ‘only

retaliatory conduct that would deter a_ similarly

situated individual of ordinary firmness from exercising

his or her constitutional rights constitutes an adverse

action."") (quoting Dawes v. Walker, 239 F.3d 489, 493

(2d Cir. 2001)); Garcia v. City of Trenton, 348 F.3d 726,

728 (8th Cir. 2003) ("The ordinary-firmness test is well

established in the case law... ."); Mitchell v. Horn, 318

F.3d 523, 530 (8d Cir. 2003) (plaintiff must allege

adverse action "sufficient to deter a person of ordinary

firmness from exercising his [constitutional] rights")

(alteration in original); Keenan, 290 F.3d at 258

(ordinary firmness test is the "settled law of other

circuits"); Toolasprashad v. Bureau of Prisons, 351 U.S.

App. D.C. 64, 286 F.3d 576, 585 (D.C. Cir. 2002) ("The

widely accepted standard for assessing whether

harassment for exercising the right of free speech is

actionable . . . depends on whether the harassment is

likely to deter a person of ordinary firmness from that

exercise.") (internal quotations and alterations omitted);

Poole v. County of Otero, 271 F.3d 955, 960 (10th Cir.

2001) ("The alleged injury should be one that would chill

a person of ordinary firmness from continuing to

engage in that activity.") (internal quotations omitted);

Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d

1283, 1300 (9th Cir. 1999) ("The proper inquiry asks

whether an official's acts would chill or silence a person

of ordinary firmness from future First Amendment

activities.") (internal quotations omitted); Thaddeus-X

v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (en banc)

("An adverse action is one that would deter a person of

ordinary firmness from the exercise of the right at

stake."); Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d

1209, 1217 (1st Cir. 1989) (retaliation cause of action is

stated "only when the government's actions are

sufficiently severe to cause reasonably hardy

individuals to compromise their political beliefs and

associations"); Bart v. Telford, 677 F.2d 622, 625 (7th

Cir. 1982) (harassment for exercising the right of free

speech not actionable if it was "unlikely to deter a

person of ordinary firmness from that exercise").

The defendants point to other cases applying a

subjective test, under which the plaintiffs would have

to show that they were actually chilled in the exercise

of their First Amendment rights. See Curley v. Village

of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (plaintiff must

show that First Amendment rights were “actually

chilled") (quoting Davis v. Vill. Park IT Realty Co., 578

F.2d 461, 464 (2d Cir. 1978)).. For the reasons that

follow, we join our sister Circuits in adopting an

objective test for proving a retaliation claim.

First, although their decisions are not binding on us, we

find the fact that every other Circuit has adopted the

objective "ordinary firmness" test to be persuasive.

Even accepting the defendants’ premise that a few

scattered cases applying a subjective “actual chill" test

amounts to a "circuit split," the vast majority of cases

apply the objective test. n5 We agree with the courts

that have called the "ordinary iirmness" test "well

established," Garcia, 348 F.3d at 728, "widely accepted,"

Toolasprashad, 286 F.3d at 585, and "settled law,"

Keenan, 290 F.3d at 258.

Second, we are persuaded not only by the number of

courts applying the “ordinary firmness" test, but by the

reasoning of those decisions as well. An objective

standard provides notice to government officials of

when their retaliatory actions violate a plaintiff's First

Amendment rights. In contrast, "a subjective standard

would expose public officials to liability in some cases,

but not in others, for the very same conduct, depending

upon the plaintiff's will to fight." Constantine, 411 F.3d

at 500. "It would be unjust to allow a defendant to

escape liability for a First Amendment violation merely

because an unusually determined plaintiff persists in

his protected activity... ." Mendocino Envtl. Ctr., 192

F.3d at 1300. There is. no reason to "reward"

government officials for picking on unusually hardy

speakers. At the same time, we recognize that

government officials should not be liable when the

plaintiff is unreasonably weak-willed or suffers only a

"de minimis inconvenience to her exercise of First

Amendment rights." Constantine, 411 F.3d at 500

(internal quotation omitted); see also Bart, 677 F.2d at

625 ("It would trivialize the First Amendment to hold

~ that harassment for exercising the right of free speech

was always actionable no matter how unlikely to deter

a person of ordinary firmness from that exercise .. . .").

The "ordinary firmness" test is therefore protective of

the interests of both government officials and plaintiffs

alleging retaliation.

The defendants contend that "something more than the

mere retaliatory act is necessary to give rise to an

actionable claim." Appellants' Brief at 12. They are

correct, but as we have explained, the “something

more" is an adverse affect, and "adverse effect" depends

on context. Specifically, private citizens must establish

that the retaliatory acts would deter a person of

ordinary firmness from exercising his or her First

Amendment rights. The defendants’ reliance on

retaliation cases in the public employment context is

misplaced, because different interests are at stake

there. In the employment context, the required adverse

action in a retaliation claim is an "adverse employment

action." See Stavropoulos v. Firestone, 361 F.3d 610, 616

(11th Cir. 2004), cert. denied, 161 L. Ed. 2d 727, 125 S.

Ct. 1850 (2005). Plainly, private citizens cannot suffer

adverse employment actions at the hands of public

officials who are not their employers. As the Fourth

Circuit explained,

Determining whether a plaintiffs First Amendment

rights were adversely affected by retaliatory conduct is

a fact intensive inquiry that focuses on the status of the

speaker, the status of the retaliator, the relationship

between the speaker and the retaliator, and the nature

of the retaliatory acts. See Thaddeus-X v. Blatter, 175

10a

F.3d 378, 398 (6th Cir. 1999) ("The definition of adverse

action is not static across contexts."). For example, in

the public employment context, the speaker is the

employee and the retaliator is the public employer. The

employment relationship between the speaker and

retaliator creates competing interests between "the

interests of the [public employee], as a citizen, in

commenting upon matters of public concern and the

interest of the [government], as an employer, in

promoting the efficiency of the public services it

performs through its employees."

Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th

Cir. 2002) (quoting Pickering v. Board of Educ., 391

U.S. 563, 568, 88 S. Ct. 1731, 1734-35, 20 L. Ed. 2d 811

(1968)) (alterations in original). As the Fifth Circuit

pointed out, "In the employment context, this court's

requirement of an adverse employment action serves

the purpose of weeding out minor instances of

retaliation.” Keenan, 290 F.3d at 258 n.4. In other

words, minor instances of retaliation would not chill a

person of ordinary firmness because they did not even

amount to an adverse employment action.

The balance of interests is different when the plaintiff is

a private citizen, and those interests require at least as

much protection against retaliation for a private citizen

as they would for a public employee. n6 See Thaddeus-

X, 175 F.3d at 398 ("Public employees . . . may be

required to tolerate more than average citizens, before

an action taken against them is considered adverse.");

see also Keenan, 290 F.3d at 258 (noting that "this case

does not involve an employment or other contractual

relationship, between the plaintiffs and the

governmental officials" and instead concerns “an

lla

ordinary citizen"); Naucke v. City of Park Hilis, 284

F.3d 923, 927-28 (8th Cir. 2002) (applying ‘ordinary

firmness" test to private citizen's retaliation suit);

Poole, 271 F.3d at 960 (same); Suarez Corp., 202 F.3d at

686-87 (distinguishing between public employee and

private citizen plaintiffs).

In sum, language from the cases, including our decision

in Stavropoulos, requiring an adverse employment

action in order for a public employee to state a

retaliation claim does not necessitate that a private

citizen plaintiff plead more than that the defendant's

retaliatory acts are such as would chill a person of

ordinary firmness. As we have stated, for private

citizen plaintiffs, the objective test allows for a

"weeding out" function when the injuries complained of

are trivial or amount to no more than de minimis

inconvenience in the exercise of First Amendment

rights.

The defendants next assert that the "ordinary firmness"

test allows plaintiffs to state a claim even when they

have not suffered an injury sufficient to give them

standing to sue. We disagree. The plaintiffs’ claim

depends not on the denial of a constitutional right, but

on the harassment they received for exercising their

rights. "The reason why such retaliation offends the

Constitution is that it threatens to inhibit exercise of

the protected right." Thaddeus-X, 175 F.3d at 394 n.9

(quotation omitted). "For Article III standing purposes,

then, the ‘plaintiff must allege personal injury fairly

traceable to the defendant's allegedly unlawful conduct

and likely to be redressed by the requested relief.’ As

long as the injury is ‘distinct and palpable’ rather than

abstract, conjectural, or hypothetical, it is sufficient to

12a

confer standing." /d. at 394 (quoting Allen v. Wright,

468 U.S. 737, 751, 104 8. Ct. 3315, 3324, 82 L. Ed. 2d 556

(1984)).

The defendants’ reliance on Laird v. Tatum, 408 U.S. 1,

92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972), is misplaced. In

that case, the plaintiffs alleged a chilling effect based on

the mere existence of the government's alleged

program of surveillance of citizens. Jd. at 2, 92 S. Ct. at

2320. The plaintiffs "freely admit{ted] that they

complain of no specific action of the Army against

them." Jd. at 9, 92 S. Ct. at 2323. The Supreme Court

held that this alleged injury was insufficient to confer

standing. Id. at 13-14, 92 S. Ct. at 2325-26.

However, the Laird Court noted that, "in recent years

this Court has found in a number of cases that

constitutional violations may arise from the deterrent,

or ‘chilling,’ effect of governmental regulations that fall

short of a direct prohibition against the exercise of

First Amendment rights." Jd. at 11, 92 S. Ct. at 2324

(collecting cases). Moreover, "the decisions in these

cases fully recognize that governmental action may be

subject to constitutional challenge even though it has

only an indirect effect on the exercise of First

Amendment rights." Jd. at 12-13, 92 S. Ct. at 2325. The

standard established in Laird is that "allegations of a

subjective ‘chill’ are not an adequate substitute for a

claim of specific present objective harm or a threat of

specific future harm." /d. at 13-14, 92 S. Ct. 2325-26. The

standard we adopt today is consistent with Laird. The

objective "ordinary firmness" test requires plaintiffs to

allege that the retaliatory acts of the defendants

adversely affected them, which is an injury sufficiently

adverse to give rise to Article III standing. See

l3a

Thaddeus-X, 175 F.3d at 394.

As a final reason for approving of the objective

standard, we note that it is consistent with statements

in our own cases, even though we have not explicitly

adopted the "ordinary firmness" test. In Cate v.

Oldham, 707 F.2d 1176 (11th Cir. 1983), we enjoined a

malicious prosecution action filed by state officials in

retaliation against a citizen's lawsuit against those

officials. Jd. at 1190. We noted that "petitioner-

appellant alleges more than that his freedom to

exercise his right to petition will be chilled in the

future. He alleges current deprivation, in the form of

penalization for having exercised his right to petition in

the past." Jd. at 1188. We went on to state, "this does

not mean, however, that only if a plaintiff can prove

actual, current chill can he prove irreparable injury. On

the contrary, direct retaliation by the state for having

exercised First Amendment freedoms in the past is

particularly proscribed by the First Amendment." /d. at

1189. Thus, we did not focus on the plaintiff's

subjective, actual chilling. Instead, we objectively

assessed the defendants’ actions and declared that an

actual chill is not necessary to state a First Amendment

violation: "The source of that chill . . . provides the

critical irreparable injury to those citizens, regardless

of whether actual chill is proved." /d.; see also

Holloman v. Harland, 370 F.3d 1252, 1268-69 (verbal

censure from school official for student's silent protest

during recitation of Pledge of Allegiance was a

punishment intended "to dissuade |student| from

exercising a constitutional right" and "cannot help but

have a tremendous chilling effect on the exercise of

First Amendment rights").

l4a

For all of the foregoing reasons, today we expressly

adopt the following standard: A plaintiff suffers

adverse action if the defendant's allegedly retaliatory

conduct would likely deter a person of ordinary

firmness from the exercise of First Amendment rights.

We now apply this standard to the plaintiffs’

allegations, and readily conclude that the plaintiffs have

alleged facts that a jury could find would deter a person

of ordinary firmness from the exercise of First

Amendment rights. In Judge Posner's words, "the

effect on freedom of speech may be small, but since

there is no justification for harassing people for

exercising their constitutional rights it need not be

great in order to be actionable." Bart, 677 F.2d at 625.

The alleged retaliatory acts complained of here include

a prolonged and organized campaign of harassment by

local police officers. Taken in the light most favorable to

the plaintiffs, the record is replete with instances where

the defendants followed, pulled over, cited, intimidated,

or otherwise harassed the plaintiffs. The defendants

allegedly accessed confidential government databases

containing information on the plaintiffs, attempted to

obtain arrest warrants against the plaintiffs without

probable cause, and produced and mailed to Forsyth

County residents flyers depicting the plaintiffs as

criminals terrorizing the county.

Other courts applying the “ordinary firmness" test have

concluded that similar or less harassing acts constitute

an adverse effect. See Garcia, 348 F.3d at 729 (the

retaliatory issuance of parking tickets totaling $ 35

created a jury issue because the defendant "engaged

the punitive machinery of government in order to

15a

punish Ms. Garcia for her speaking out"); Keenan, 290

F.3d at 259 (one plaintiff stated a retaliation claim that

would chill a person of ordinary firmness with

allegations that officers stopped his car and detained

him for an unreasonable time, "allegedly with their guns

drawn during part of the traffic stop, and ultimately

issued only a minor traffic citation that was later

dismissed"); Bloch v. Ribar, 156 F.3d 673, 680-81 (6th

Cir. 1998) (in response to plaintiff's criticism, sheriff

publicly released confidential and humiliating details of

plaintiff's rape; such act was sufficiently adverse to chill

a person of ordinary firmness); Bart, 677 F.2d at 624-25

("campaign of petty harassments" against the plaintiff

including “holding her up to ridicule for bringing a

birthday cake to the office’ stated a cause of action for

retaliation). Likewise, we held in Cate that a civil

malicious prosecution suit brought by public officials

could be sufficiently retaliatory to chill the plaintiffs’

exercise of First Amendment rights. Cate, 707 F.2d at

1189.

Additionally, the plaintiffs testified that they were, in

fact, actually chilled in the exercise of their rights

because they did not participate in the 2000 election to

the degree they would have but for the defendants'

alleged actions. We note that "the question is not

whether the plaintiff herself was deterred, though how

plaintiff acted might be evidence of what a reasonable

person would have done." Garcia, 348 F.3d at 729; see

also Constantine, 411 F.3d at 500 ("While the plaintiff's

actual response to the retaliatory conduct provides

some evidence of the tendency of that conduct to chill

First Amendment activity, it is not dispositive."). In

sum, we conclude that the acts alleged here, if true, are

sufficiently adverse that a jury could find they would

l6a

chill a person of ordinary firmness from exercising his

or her First Amendment rights.

B. Cleariy Established Law

The final step in the qualified immunity inquiry is

determining whether the law was clearly established so

as to put the defendants on notice that their behavior

violated the plaintiffs’ rights. A right is clearly

established if, in light of already-existing law, the

unlawfulness of the conduct is “apparent,” see Anderson

v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97

L. Ed. 2d 523 (1987), and if a constitutional rule applies

with “obvious clarity" to give an official "fair warning"

that violating that right is actionable. Vinyard, 311

F.3d at 1350-52. We conclude that the law was clearly

established at the time of the defendants’ alleged

actions that retaliation against private citizens for

exercising their First Amendment rights was

actionable.

This Court and the Supreme Court have long held that

state officials may not retaliate against private citizens

because of the exercise of their First Amendment

rights. See Cate, 707 F.2d at 1186 (punishment for

exercise of First Amendment rights violates First

Amendment); see also City of Houston v. Hill, 482 U.S.

451, 462-63, 107 S. Ct. 2502, 2510, 96 L. Ed. 2d 398

(1987) ("The freedom of individuals verbally to oppose

or challenge police action without thereby risking

arrest is one of the principal characteristics by which

we distinguish a free nation from a police state."); see

also Leslie v. Ingram, 786 F.2d 1533, 1587 (11th Cir.

1986) ("An intentional and wrongful retaliation for the

assertion of a constitutionally protected right is a

substantive civil rights violation which may be

17a

prosecuted in a federal court pursuant to 42 U.S.C. §

1983. . . ."), abrogated on other grounds by Graham v.

Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443

(1989); Ga. Ass'n of Educators v. Gwinnett County Sch.

Dist., 856 F.2d 142, 145 (llth Cir. 1988) ("The

Government may not retaliate against individuals or

associations for their exercise of First Amendment

rights ‘by imposing sanctions for the expression of

particular views it opposes.) (quoting Smith v. Ark.

State Highway Employees, 441 U.S. 468, 464, 99 S. Ct.

1826, 1827-28, 60 L. Ed. 2d 360 (1979)).

Because this Court has held since at least 1988 that it is

"settled law" that the government may not retaliate

against citizens for the exercise of First Amendment

rights, Ga. Ass'n of Educators, 856 F.2d at 145, we held

that the defendants were on notice and had "fair

warning” that retaliating against the plaintiffs for their

support of the 1998 referendum would violate the

plaintiffs’ constitutional rights and, if the plaintiffs’

allegations are true, would lead to liability under § 1983.

IV. CONCLUSION

For the reasons stated above, we conclude that, taking

the facts in the light most favorable to the plaintiffs, the

defendants' "conduct violated a constitutional right" and

that "the right was clearly established." Saucier, 533

US. at 201, 121 S. Ct. at 2156. Accordingly, we affirm

the order of the district court denying summary

judgment and denying the defendants qualified

immunity from suit.

AFFIRMED.

18a

* Honorable John F. Nangle, United States District

Judge for the Eastern District of Missouri, sitting by

designation.

nl We present the facts in the light most favorable to

the plaintiffs, the party opposing summary judgment.

Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.

2004).

n2 The court granted summary judgment for the

defendants as to the claims brought by plaintiff Tammy

Bennett, and she is not a party to this appeal. Likewise,

the district court granted summary judgment on the

plaintiffs' claims against the additional defendants.

Thus, the only issue before us is the entitlement of

Hendrix, Singletary, and Waters to qualified immunity.

n3 In the district court, the defendants conceded the

first prong, that the plaintiffs' support for the 1998

referendum was protected speech. In addition, the

defendants have never pointed to any indication in the

record that they would have undertaken their allegedly

retaliatory actions even absent the plaintiffs’ speech.

Accordingly, we agree with the district court that the

plaintiffs have shown that there exists at least a

genuine issue of material fact as to the third (causation)

prong.

n4 The defendants also cite Sullivan v. Carrick, 888

F.2d 1 (ist Cir. 1989), as adopting an "actual chill"

standard. However, the plaintiff there failed to allege

any adverse action, and thus could not show sufficient

injury to create standing. /d. at 4. Moreover, the court

noted that the proper standard was whether the

plaintiff's "speech was.in fact chilled or intimidated." Id.

19a

(emphasis added). Therefore, we do not read Sullivan

to adopt unequivocaily a subjective test.

n5 We note that cases from the Second Circuit appear

to take contradictory positions. Compare Washington v.

County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004)

(objective standard) with Curley v. Village of Suffern,

268 F.3d 65, 73 (2d Cir. 2001) (subjective standard). We

leave it to that Court to settle this disparity.

n6 We note that several courts have applied the

“ordinary firmness" test even in the prison context. It

follows that a private citizei, not subject to the

expected deprivations of prison life, deserves at least .as

much protection from retaliation. See Mitchell, 318 F.3d

at 530; Toolasprashad, 286 F.3d at 585; Thaddeus-X,

175 F.3d at 398. We have held that "to state a First

Amendment claim for retaliation, a prisoner need not

allege violation of a separate and distinct constitutional

right. .. . The gist of a retaliation claim is that a

prisoner is penalized for exercising the right of free

speech." Farrow v. West, 320 F.3d 1235, 1248 (11th Cir.

2003) (alterations omitted) (quoting Thomas v. Evans,

880 F.2d 1235, 1242 (11th Cir. 1989). For example, a

prisoner can state a claim of retaliatory transfer even

though he does not have a constitutional right not to be

transferred. Bridges v. Russell, 757 F.2d 1155, 1157

(llth Cir. 1985). Thus, nothing in our prisoner

retaliation cases is inconsistent with adopting an

“ordinary firmness" test for private citizens.

20a

CIVIL ACTION FILE NO. 1 :00-C V-2520-T W T

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

DANNY M. BENNETT, et al., Plaintiffs,

DENNIS LEE HENDRIX, Individually and in his

official capacity as Sheriff of Forsyth County, et al.,

Defendants.

Filed 4/13/2004

ORDER

This is a civil rights action brought under 42 U.S.C. §$§

1983 and 1985(3). It is before the Court pursuant to an

order from the Court of Appeals for the Eleventh

Circuit vacating this Court's order deferring a ruling on

qualified immunity until trial. For the reasons set forth

below, this Court holds that the Defendants are not

entitied to qualified immunity.

I. BACKGROUND

The Plaintiffs supported a referendum to establish a

county-wide police force in Forsyth County, Georgia.

They allege that the former Sheriff of Forsyth County,

who opposed the referendum, retaliated against them,

and deprived them of their constitutional rights

‘. through a campaign of illegal surveillance, harassment,

and defamation. Plaintiff Danny L. Reid is a grading

contractor doing business though his company, Reid &

2la

Reid, LLP, in Gumming, Georgia. Plaintiff Danny M.

Bennett is an engineer and a general contractor.

Bennett's company is Georgia North Contracting, Inc.,

operating out of Gainesville, Georgia. Plaintiff Tammy

R. Bennett is Danny Bennett's wife. Defendant Dennis

Lee Hendrix was Sheriff of Forsyth County, Georgia

during the time of the events at issue. Defendants Earl

A. Singletary and David W. Waters served as Chief

Deputy Sheriff and Deputy Sheriff, respectively, under

Sheriff Hendrix.

In 1998, the Plaintiffs', along with other Forsyth

County residents, supported a referendum to create a

county-wide police force in Forsyth County. The

Plaintiffs and others formed a committee to help

advance the referendum and support the establishment

of a county police force. The committee met all the

requirements mandated by law for such committees as

set out in O.C.G.A. § 21-5-30. The creation of a county

police force would have effectively transferred the law

enforcement powers of the sheriff to the county police.

The Plaintiffs allege that Sheriff Hendrix adamantly

opposed the referendum effort. They allege that the

Sheriff and his deputies engaged in conduct that was

meant to threaten and intimidate public discourse on

the subject. For example, the Plaintiffs allege that

Sheriff Hendrix ordered his deputies to patro! the

parking lot where a public debate on the issue was held

and to write down the automobile tag numbers of the

citizens who attended the debate. The referendum to

establish a county police force was defeated.

The Plaintiffs allege that Sheriff Hendrix and his

department retaliated against them because they took a

public stance in favor of the referendum. The actions

22a

allegedly taken by Sheriff Hendrix include ordering

deputies to follow the Plaintiffs for surveillance

purposes; ordering deputies to regularly "stake out"

Plaintiff Bennett's residence; on two occasions stopping

Plaintiff Tammy Bennett near her residence without

probable cause and issuing false and pretextual traffic

citations; unlawfully accessing county and state records

to obtain confidential information regarding the

Plaintiffs to be used for harassment; maliciously using

such information to defame Plaintiffs Reid and Bennett;

ordering deputies to harass, intimidate and interfere

with Plaintiffs Reid and Bennett in the lawful pursuit of

their business interests; and attempting to obtain a

warrant for the arrest of Plaintiff Reid on false and

pretextual grounds. Sheriff Hendrix allegedly

announced the formation of a "Strike Force" at a staff

meeting on February 9, 1999. The purpose of this

special force was to carry out the intimidation

campaign.

In an order dated June 21, 2001, this Court dismissed

the Plaintiffs' claims based upon the Fourth

Amendment, the Due Process Clause of the Fourteenth

Amendment, and section 1983 supervisory liability. The

Court also dismissed several other state law claims

against Defendants Hendrix, Singletary, Waters, and

John Does ( 1-10). The Defendants subsequently moved

for summary judgment on the remaining claims for

violations of the First Amendment and section 1983

conspiracy liability. In an order dated February 1, 2002,

this Court granted summary judgment as to the claims

based on retaliatory speech (the campaign fliers) and

equal protection, and denied summary judgment as to

the claims based on retaliatory conduct against the

Plaintiffs. Due to inadequate briefing, the Court

23a

deferred ruling on the Defendants’ qualified immunity

defense until after the presentation of evidence at trial.

Defendants Hendrix, Singletary, and Waters filed an

interlocutory appeal challenging this Court's decision to

defer determination of qualified immunity until trial.

On July 25, 2003, the Court of Appeals for the Eleventh

Circuit vacated the order deferring ruling on qualified

immunity and remanded. The Court of Appeals found

the facts in the record sufficient to determine that the

Defendants had met their initial burden to prove that

they were acting within the scope of their discretionary

authority. The Court of Appeals remanded for this

Court to rule on qualified immunity before trial. The

mandate was issued on September 3, 2003. Rebriefing

on the issue was completed on December 18, 2003.

Il. DISCUSSION

This action is before the Court for a pretrial ruling on

whether the Defendants Hendrix, Singletary, and

Waters are entitled to the defense of qualified

immunity. "Qualified immunity offers complete

protection for government officials sued in their

individual capacities if their conduct “does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known."

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)

(quoting Harlow v. Fitzgerald 457 U.S. 800, 818 (1982)).

The purpose underlying qualified immunity is to allow

government officials to carry out their duties without

the fear of personal liability or harassing litigation. Lee

v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). "|All

but the plainly incompetent or one who is knowingly

violating the federal law" find protection in qualified

24a

immunity. Id.

The Eleventh Circuit has adopted a two-pronged

analysis to determine whether a public official is

entitled to qualified immunity. See, e.g., Vinyard, 311

F.3 d at 1846-47; Lee, 284 F.3d at 1194; Rich v. Dollar,

841 F.2d 1558, 1563-64 (1ith Cir. 1988). First, the

official must show that he acted within the scope of his

discretionary authority when the challenged conduct

occurred. Vinyard 311 F.3d at 1346. In this case, the

Court of Appeals has held that all of the challenged

actions were representative of standard law

enforcement practices, and "it is apparent that the

defendants were acting within the scope of their

discretionary authority." Bennett v. Hendrix, No. 02-

11031 (11th Cir. July 25, 2003). Thus, the Defendants

have met their preliminary burden.

Once the defendant official satisfies this initial

requirement, the burden shifts to the plaintiff to show

that the challenged actions violated the plaintiff's

federal rights under clearly established law. This is a

two step process. The court must first inquire whether

the plaintiffs allegations, if true, establish a

constitutional violation. Hope v_. Pelzer, 536 U.S. 730,

736-42 (2002); Saucier v. Katz, 533 U.S. 194, 201 (2001).

If a constitutional right has been violated, "the next,

sequential step is to ask whether the right was clearly

established" at the time of the challenged action.

Saucier, 533 U.S. at 201; Lee, 284 F.3d at 1194.

A. Constitutional Violation

The Defendants use the bulk of thei. additional briefing

to address the first part of the Hope inquiry - whether

25a

their alleged actions violated the Plaintiffs’

constitutional rights. This effort is misplaced as this

Court has already held that the Plaintiffs’ claims of

First Amendment violations and conspiracy survive

summary judgment. See Bennett v. Hendrix, Ne. 1:00-

CV-2520-TWT (Order of Feb. 1, 2002 [Doc. 17b], at 18).

To determine whether the Defendants' retaliation

claims survived summary judgment, this Court applied

the three-part test in Suarez Cord. Industries v.

McGraw, 202 F.3d 676, 685 (4th Cir. 2000). Viewing the

evidence presented in the light most favorable to the

Plaintiffs, this Court held that: (1) the Plaintiffs’ speech

enjoyed constitutional protection; (2) the Defendants'

alleged retaliatory actions adversely affected the

Plaintiffs’ constitutionally protected speech; and (3)

there is a genuine issue of material fact as to the causal

connection between the protected conduct and the

adverse action. Bennett v. Hendrix, No. 1 :00-CV-2520-

TWT (Order of Feb. 1, 2002 |Doc. 176], at 14-18). This

Court also held that the Plaintiffs sufficiently

established a jury question as to their section 1983

conspiracy claims. Id. at 18. "A court required to rule

upon the qualified immunity issue must consider, then,

this threshold question: Taken in the light most

favorable to the party asserting the injury, do the facts

alleged show the officer's conduct violated a

constitutional right? This must be the initial inquiry."

Saucier, 533 U.S. at 201. This initial inquiry requires

the Court to employ the same standard of review used

in summary judgment determinations - to view the

evidence and any inferences that may be drawn in the

light most favorable to the nonmovant. See, e.g.,

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59

(1970). Thus, a holding that the Plaintiffs’ constitutional

claims survive summary judgment necessarily means

26a

that the initial inquiry must be answered in the

affirmative: taken in the light most favorable to the

Plaintiffs, the facts alleged indeed show that the

officers' conduct violated a constitutional right. As

these holdings represent the law of the case, they shall

not be reexamined in deciding whether Defendants

Hendrix, Singletary, and Waters are entitled to the

defense of qualified immunity. Accordingly, the only

task remaining for this Court is to determine whether

the second part of the Hope test is met - whether the

relevant federal law was clearly established when the

events at bar occurred.

B. "Clearly Established" Law

The doctrine of qualified immunity originated in

Harlow v. Fitzgerald, 457 U.S. 800 (1982), where the

Supreme Court held that immunity will be denied only

where the official's conduct violated a _ clearly

established federal right! Applying Harlow, the

Eleventh Circuit held that such rights are clearly

established when they have been previously developed

in "such a concrete and factually defined context to

make it obvious to all reasonable government actors, in

the [official's] place that “what he is doing’ violates

federal law."' Lassiter v. Alabama A&M University, Bd.

of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994). Until

recently, in the Eleventh Circuit, the law was that a

plaintiff must show that the federal right in question

has been defined by prior cases with "concrete

circumstances" and "materially similar" facts. Marsh

v. Butler County. Ala., 268 F.3d 1014 (11th Cir. 2001)

(en banc); Lassiter, 28 F.3d at 11502 This stringent

requirement was satisfied only in the rarest of

circumstances, making qualified immunity a “nearly

27a

insuperable obstacle" in the Eleventh Circuit. Omar ex

rel. Cannon v. Lindsey, 334 F.3d 124b, 1249 (11th Cir.

2003).

In Hope v. Pelzer, 536 U.S. 730 (2402), the Supreme

Court rejected the "materially similar" facts test

developed by the Eleventh Circuit to determine

whether a right is clearly established. The Court relied

on its earlier decision in United States v. Lanier, S20

U.S. 259 (1997), which stated:

[Gleneral statements of the law are not inherently

incapable of giving fair and clear warning, and in other

instances a general constitutional rule already

identified in the decisional law may apply with obvious

clarity to the specific conduct in question, even though

the very action in question has [not] previously been

held unlawful.

Id. at 271. The Court described the "materially similar"

facts test as a "rigid gloss on the qualified immunity

standard [that] is not consistent with our cases." Hope,

536 U.S. at 739. Rejecting this requirement, the Court

restated the standard for determining whether a right

is clearly established:

Our opinion in Lanier . . . makes clear that officials can

still be on notice that their conduct violates established

law even in novel factual circumstances. indeed in

Lanier, we expressly rejected a requirement that

previous cases be "fundamentally similar"

Accordingly, pursuant to Lanier, the salient question

that the Court of Appeals ought to have asked is

whether the state of the law [at the time of the

challenged action] gave respondents fair warning that

28a

their alleged treatment of Hope was unconstitutional.

Id. at 741. Thus, the Supreme Court rejected the

Eleventh Circuit's "materially similar" facts test in

favor of a "fair warning" test.

In the wake of Hope, the Eleventh Circuit has given

texture to the requirement that an official have fair

warning that his action violates a claimant's rights. In

Vinyard v. Wilson, 311 F.3d 1340, 1349-55 (11th Cir.

2002), the Court of Appeals identified three categories

of cases in which the unlawfulness of an official's

conduct is deemed clearly established: (1) where

specific words in the federal statute or constitutional

provision render the law applicable to the challenged

conduct; (2) where judicial decisions clearly apply to a

wide variety of factual circumstances; and (3) where

precedents involve materially similar facts. Id. at 1350-

51. As the first two categories suggest, a plaintiff may

overcome the qualified immunity defense without

relying on fact-specific case law when a preexisting

constitutional rule applies with "obvious clarity" to the

conduct in question. Id. at 1352.

The Plaintiffs present no case law with "materially

similar" facts declaring the Defendants' specific conduct

violative of the Plaintiffs’ constitutional rights.

Nevertheless, preexisting = constitutional law

established by the Supreme Court and the Eleventh

Circuit apply with “obvious clarity" to the Defendants’

alleged actions. The Supreme Court has long held that

actions by the police which interfere with the free

exercise of speech protected by the First Amendment

are subject to suit pursuant to section 1983. City of

Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987); Hague v.

29a

Committee for Indus. Organization, 307 U.S. 496,519

(1939). In Terminiello v. City of Chicago, 337 U.S. 1

(1949), the Court underscored the importance of

protecting political speech against coercion by public

officials:

[A] function of free speech under our system of

government is to invite dispute. It may indeed best

serve its high purpose when it induces a condition of

unrest, creates dissatisfaction with conditions as they

are, or even stirs people to anger. Speech is often

provocative and challenging. It may strike at prejudices

and preconceptions and have profound unsettling

effects as it presses for acceptance of an idea. That is

why freedom of speech, though not absolute, is

nevertheless protected against censorship or

punishment, unless shown likely to produce a clear and

present danger of a serious substantive evil that rises

far above public inconvenience, annoyance, or unrest.

There is no room under our Constitution for a more

restrictive view.

Id. at 4 (citations omitted). The Eleventh Circuit has

echoed the Supreme Court's concern that citizens be

protected from retaliatory punishment for speech. In

Gate v. Oldham, 707 F.2d 1176 (11th Cir. 1983), the

Court of Appea!s stated:

[T]he test for determining a violation of First

Amendment rights has never been whether or not the

speaker or petitioner was successful in delivering his

message before he was arrested er otherwise penalized

for speaking or petitioning. What is relevant is whether

any burden on First Amendment freedoms, either in

the form of a prior restraint or a sanction imposed to

30a

prohibit or to punish exercise of First Amendment

rights is justified by sufficiently compelling state

interests. Although prior restraints are especially

suspect under the First Amendment, subsequent

punishments too can present an infringement of First

Amendment rights.

Id. at 1186 (citations omitted). To protect against such

conduct, the Eleventh Circuit has held that police

retaliation against a private citizen for the exercise of a

constitutional right creates an action pursuant to

section 1983. Lesiie v. Ingram, 786 F.2d 1533, 1537 (11th

Cir. 1986) ("An intentional and wrongful retaliation for

the assertion of a constitutionally protected right is a

substantive civil rights violation which may be

prosecuted in a federal court pursuant to 42 U.S.C. §

1983."); Wilson v. Thompson, 593 F.2d 1375 (5th Cir.

1979).* Indeed, the Eleventh Circuit has stated that it is

"settled law" that state officials may not retaliate

against individuals for the exercise of First

Amendment rights. Georgia Assn of Educators v.

Gwinnett County School Dist., 856 F.2d 142, 145 (11th

Cir. 1988).

Pursuant to Vinyard, if these broad statements of

settled law clearly proscribe the challenged acts as

unconstitutional, the officials committing the acts would

have fair warning that the acts were unlawful and, thus,

are not entitled to qualified immunity. Vinyard, 311

F.3d at 1351. The actions allegedly taken by the

Defendants include ordering deputies to follow the

Plaintiffs for surveillance purposes; ordering deputies

to regularly "stake out" Plaintiff Bennett's residence;

unlawfully accessing county and state records to obtain

confidential information regarding the Plaintiffs to be

sla

used for harassment; ordering deputies to harass,

intimidate and interfere with Plaintiffs Reid and

Bennett in the lawful pursuit of their business

interests; and attempting to obtain a warrant for the

arrest of Plaintiff Reid on false and pretextual grounds.

The Plaintiffs have put forth evidence which indicates

that they were targeted for this retaliation because of

their support of the 1998 referendum. The testimony of

Mark Thomas, a former major with the Department

and a member of Sheriff Hendrix's command staff,

suggests that Hendrix targeted the Plaintiffs for

surveillance. (Thomas Dep. at 38-39, 45, 103). The

testimony of William Miller, a former lieutenant during

Hendrix's term, indicates that Hendrix stated that he

would require Miller to investigate 50 to 75 residents

who might be opposed to Hendrix's re-election. (Miller

Aff. Pars. 7-13).‘ Miller also stated that there was no

indication that any of these residents were suspected of

any criminal activity or other legitimate basis for such

investigations. Id. Thus, the evidence presented,

viewed in the light most favorable to the Plaintiffs,

indicates that the Defendants ordered or conducted

surveillance and harassment of the Plaintiffs in

retaliation for the Plaintiffs’ public stance in favor of

the 1998 referendum. The Plaintiffs’ political speech

falls squarely within the ambit of the First

Amendment. The Defendants’ harassment and

surveillance of the Plaintiffs fall squarely within the

retaliatory conduct clearly proscribed by the settled

case law of the Supreme Court and the Eleventh

Circuit. Terminiello, 337 U.S. at 4; Georgia Assn of

Educators, 856 F. 2d at 145; Leslie, 786 F.2d at 1537;

Cate, 747 F.2d at 1186. Indeed, it is difficult, if not

impossible, to fathom that a reasonable officer in the

Defendants’ position would not recognize that

32a

retaliatory surveillance and harassment of political

opponents under color of law was a violation of their

constitutional rights. As settled case law applied with

obvious clarity to the Defendants' alleged retaliatory

acts, the Defendants had fair warning that these acts

violated the Plaintiffs’ constitutional rights. Thus, the

Defendant officers' invocation of qualified immunity is

improper, and summary judgment on the

Plaintiffs’ claims of retaliation based on the Defendants'

immunity from suit would be inappropriate.

Ill. CONCLUSION

For the reasons set forth above, the Defendants’

Motion for Summary Judgment on qualified immunity

is DENIED.

SO ORDERED, this 12 day of April, 2004.

THOM 4S W. THRASH, JR.

United States District Judge

Footnotes

nlUnless otherwise noted, the Court will refer to

Danny M. Bennett and Danny L. Reid as the

"Plaintiffs."

n2The Eleventh Circuit also made qualified immunity

unavailable in the "slender category" of cases in which

the official's conduct was so obviously at the core of

what the federal right prohibits that the unlawfulness

of the conduct would be unquestionably apparent to any

official. Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.

33a

1997).

n3In Bonner vy. City of Prichard, Ala., 661 F.2d 1206,

1207 (11th Cir. 1981) (en hanc), the Eleventh Circuit

adopted as binding precedent all decisions the former

Fifth Circuit rendered prior to the close of business on

September 30, 1981.

n4Miller, unwilling to accept a transfer from the

Criminal Investigation Division to Internal Affairs to

conduct this illegitimate investigation under Defendant

Waters, resigned from the Department on February 12,

1999. (Miller Aff. Pars. 7-13).

34a

FILED 11/7/2005

No. 04-12256

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

DANNY M. BENNETT, DANNY L. REID, TAMMY

R. BENNETT,

Plaintiffs-Appellees,

versus

DENNIS LEE HENDRIX, Individually and in his

Official capacity as Sheriff of Forsyth County, EARL

A. SINGLETARY, Individually and in his Official

Capacity as Chief Deputy Sheriff of Forsyth County,

DAVID W. WATERS, Individually and in his Official

Capacity as a Deputy Sheriff of Forsyth County,

Defendants-Appellants,

JAMES L. LOCKHART, Individually and in his

Official Capacity as a Deputy Sheriff of Forsyth

County, JOHN DOES, 1-10, Individually and in their

Official Capacities as Deputy Sheriffs and/or Officers of

the Forsyth County Sheriff's Department, et al.,

Defendants.

September 9, 2005, Decided

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF GEORGIA ATLANTA DIVISION

35a

JUDGES: Before BLACK and WILSON, Circuit

Judges, and NANGLE *, District Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court, having requested that the Court

be polled on rehearing en banc (Rule 35, Federal Rules

of Appellate Procedure; Eleventh Circuit Rule 35-5),

the Petition(s) for Rehearing En Banc are Denied.

ENTERED FOR THE COURT,

United States Circuit Judge

Footnote

* Honorable John F. Nangle, United States District

Judge for the Eastern District of Missouri, sitting by

designation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.