Opposition Brief — Hendrix v. Bennett (No. 05-989)

2) FILED

No. 95-989 JUN 7 = 2006

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—_-—~

FSLERK :

SUPREME COUAT, U.S. |

In The

Supreme Court of the Anited States

¢

DENNIS LEE HENDRIX, EARL A. SINGLETARY

and DAVID W. WATERS,

Petitioners,

v.

DANNY M. BENNETT and DANNY L. REID,

Respondents.

~e

—

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

+

BRIEF IN OPPOSITION

.

ERIc S. CHOFNAS, Esq. MICHAEL D. HOSTETTER, ESQ.

Eric S. CHOFNAS, P.C. Counsel of Record

1100 Powers Place NALL & MILLER

Alpharetta, Georgia 30004 235 Peachtree Street, NE

(770) 346-9696 Suite 1500 — North Tower

Atlanta, Georgia 30303

(404) 522-2200

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether the Eleventh Circuit erred in adopting the

objective “ordinary firmness” test as the standard for

evaluating the “adverse action” element of First

Amendment retaliation claims.

Whether the law was “clearly established” where the

Eleventh Circuit had long applied an objective test in

First Amendment retaliation cases, but had not yet

affixed the “ordinary firmness” label to that test.

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............0:..ssccccssscsseeeseeees i

ye OF Rg fg eee a iii

Fe ee evivissiniinkailiieabisiniiendinssutimidenmnaie 1

STATEMENT OF THE CASE ..................sesceeeeseeseeses 5

REASONS FOR DENYING THE PETITION ............ 8

Set asitiecd cheaicaniithladeiiniiarenguntintivinbeniaigcuiiaiaeiiiedsies 30

APPENDIX

O.C.G.A. § 36-8-1(a) amd (Db) .........cccccesccecserereseereeees App. 1

TABLE OF AUTHORITIES

Page

CASES

Agosto-De-Feliciono v. Aponte-Roque, 889 F.2d 1209

OT ge ERE eae Sees Seen 16

Allah v. Seiverling, 229 F.3d 220 (3rd Cir. 2000).............. 12

Anderson v. Creighton, 483 U.S. 635 (1987) ...........c0000 2, 28

Bart v. Telford, 677 F.2d 622 (7th Cir. 1982)............ 11, 12, 16

Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 20065).......... 11

Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998).................000 12

Carroll v. Pfeffer, 262 F.3d 847 (8th Cir. 2001)................. 12

Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983).......... 2, 3, 30

City of Houston v. Hill, 482 U.S. 451 (1987)............cceeeeee 10

Constantine v. Rectors and Visitors of George Mason

Univ., 411 F.3d 474 (4th Cir. 2005) ................... 12, 13, 14

Crauwford-El v. Britton, 93 F.3d 813 (D.C. Cir. 1996) ....... 11

Curley v. Village of Suffern, 268 F.3d 65 (2nd Cir.

SS ITTITED hissinsiiechiinintbenainndtecshedibaichdviiaidenbiniiiacieeesitiinehaientanilinmetaslbdiionaivesiiuindn 2

Davidson v. Chestnut, 193 F.3d 144 (2nd Cir. 1999)......... 16

Davis v. Goord, 320 F.3d 346 (2nd Cir. 2003) ............. 16, 18

Dawes v. Walker, 239 F.3d 489 (2nd Cir. 2001)........... 16, 18

Ga. Assn. of Educators v. Gwinnett Co. School Dist.,

856 F.2d 142 (lith Cir. 1988) ....................cccccccccssces 2, 3,9

Garcia v. City of Trenton, 348 F.3d 726 (8th Cir.

UTE Seieiessesisdiisi daseietaritrigithaibinintalateal ditinieditabeitvaiadiiadinadeasalioes 1,12

Gill v. Pidlypchak, 389 F.3d 379 (2nd Cir. 2004).. 17, 18, 23

Goldman v. Belden, 754 F.2d 1059 (2nd Cir. 1985) .......... 17

Graham v. Connor, 490 U.S. 386 (1989) .....0.......eececeseeeee 10

iv

TABLE OF AUTHORITIES -~ Continued

Page

Harlow v. Fitzgerald, 457 U.S. 800 (1982)................cccccee0e 2

Holloman v. Harland, 370 F.3d 1252 (11th Cir.

| LR EEN Le SETA APPR Ia: SRLS 2, 29

Hope v. Pelzer, 536 U.S. 730 (2002) ...........csscesscessceeseeeees 30

Hoyt v. Andreucci, 433 F.3d 320 (2nd Cir. 2006)............... 17

Keenan v. Tejada, 290 F.3d 252 (5th Cir.

RRR SERD ts TSS ERAN SADT PS eR Seer BADD 1, 14, 22

Laird v. Tatum, 408 U.S. 1 (1972)............ccccccesseseeeseees 20, 21

Leslie v. Ingram, 786 F.2d 1533 (11th Cir. 1986).......... 3, 10

Meese v. Keene, 481 U.S. 465 (1987)...........c.cccecesesesesesseeees 20

Mendocino Environmental Ctr. v. Mendocino Co.,

192 F.3d 1283 (Sth Cir. 1999)..........cicccccccorsessesscrcecessees 12

Meyers v. Nebraska HHS, 324 F.3d 655 (8th Cir.

RAE RERT ACE AS ARR i NNR oe Apacs Ne Acepiee a eee Wen 12

Mitchell v. Horn, 318 F.3d 523 (3rd Cir. 20038) ................. 12

Morrison v. Johnson, 429 F.3d 48 (2nd Cir. 2005)............ 17

Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274

RET Ti cscidhcveliiasishiiaistsnabehieeiiieiebiiesisosdadiniiadidadadhtaldaieicteat 21

Nestor Colon Medina & Sucesores v. Custodio, 964

EAD COU EE TEED sacisdncasdacinvenicnodecuisedasnusebsineiedinaties 15

Pickering v. Bd. of Educ., 391 U.S. 563 (1968)...........c00 21

Poole v. Co. of Otero, 271 F.3d 955 (10th Cir. 2001).......... 12

Rauser v. Horn, 241 F.3d 330 (3rd Cir. 2001)................... 12

Riggs v. City of Albuquerque, 916 F.2d 582 (10th

I Ta tichcisipcies ns cinkcteieinatin scalp aside perennial 20

Vv

TABLE OF AUTHORITIES — Continued

Page

Stavropoulos v. telentt 361 F.3d 610 (11th Cir.

2004) ......... pcbilicinaintlbalindaieceneilitathcspinticnhaitindigebiventidleinuaneanesicicninany 20

Suarez Corp. Industries v. McGraw, 202 F.3d 676

I lala eal 10, 18

Sullivan v. Carrick, 888 F.2d 1 (1st Cir. 1989)................. 15

Suppan v. Dadonna, 203 F.3d 228 (3rd Cir. 2000)............ 12

Terminiello v. Chicago, 337 U.S. 1 (1949) ........cccccccceseeeereees 3

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir.

ieee inlduidtactighinidinvdcciteinscnsacoutetdenthsunieniectnnvonnien 10, 11, 12, 18

Toolasprashad v. Bureau of Prisons, 286 F.3d 576

AIEEE TIT hcrtinisutiniadbinidiseciibentnibeinvindbainelanimatoe 1, 11

Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002)............ 27

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

SUE TISEI TTT ositiscniniitiiseniedetiemmnptusinisimmensieits sebtaibameneiaies 1,17

White v. Lee, 227 F.3d 1214 (9th Cir. 2000)...............:cc000e 12

Wilson v. Layne, 526 U.S. 603 (1999) ..0.......cccccccceceressereeees 27

STATUTES

| EE MRC CPR eee T 6

ite SF IOI ceveseertvccsnnvecccsvevceeeees sinmesslamnisoumiiadalitidas 6

1

INTRODUCTION

The U.S. Court of Appeals for the Eleventh Circuit

adopted the “ordinary firmness” test to determine whether

governmental action is severe enough to constitute “adverse

actin” for purposes of a First Amendment retaliation claim.

Under this test, “adverse action” is present where retaliatory

conduct is severe enough that it would likely deter a person

of “ordinary firmness” from engaging in protected activity.

The Eleventh Circuit’s ruling follows similar decisions in

virtually every other Circuit, which have already adopted the

“ordinary firmness” test. It is also consistent with earlier

Eleventh Circuit decisions in which that Court applied an

objective test without attaching the “ordinary firmness”

label. As the Eleventh Circuit observed:

[T]he courts . . . have called the “ordinary firmness”

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."

Faced with the widespread acceptance of the “ordi-

nary firmness” test, Petitioners attempt to conjure a

“circuit split” where none exists. They argue that the

Eleventh Circuit should have applied a subjective test that

requires a plaintiff to prove an “actual chilling” of his First

Amendment rights, and suggest that the Circuits are riven

over the “subjective” versus “objective” dichotomy. In

actuality, at most, there is uncertainty in the Second

Circuit as to whether it will apply the “ordinary firmness”

test to all First Amendment retaliation claims, or only te

retaliation claims by prisoners and public employees.’ As

the Eleventh Circuit noted, however, that is a nuance to be

resolved by the evolving case law of that Circuit.’

* Pet. App. 8a.

* See, Section I, D, infra.

* See, Pet. App. 19a, n. 5, where the Eleventh Circuit observed:

We note that cases from the Second Circuit appear to take con-

tradictory positions. Compare Washington v. County of Rock-

land, 373 F.3d 310, 320 (2nd Cir. 2004) (objective standard)

(Continued on following page)

2

Moreover, the reasons that the “ordinary firmness” test

has become so widely accepted are that it is: (1) consistent

with this Court’s precedents, (2) rooted in sound policy

factors, such as the need to ensure that guilty officials do not

escape punishment, and (3) susceptible to judicial application

in a consistent manner. Therefore, despite Petitioners’ pleas,

this Court does not need to intervene to stem the salutary

effects of the “ordinary firmness” test on First Amendment

jurisprudence. There is already virtual unanimity among the

Circuits on this issue.

Petitioners also argue that the law was not “clearly

established” when they retaliated against Respondents, and

therefore they are entitled to qualified immunity. For quali-

fied immunity purposes, the law is “clearly established” if, in

light of preexisting law, it would be apparent to a reasonable

officer in the defendant’s circumstances that his conduct was

unlawful. Harlow v. Fitzgerald, 457 U.S. 800 (1982); Ander-

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

Petitioners contend that the law regarding the “adverse

action” element of First Amendment retaliation claims could

not have been “clearly established” because the Eleventh

Circuit had not yet adopted the “ordinary firmness” label,

even though it had long applied an objective standard to this

issue.‘ Holloman v. Harland, 370 F.3d 1252, 1278 (11th Cir.

2004); Ga. Assn. of Educators v. Gwinnett Co. School Dist.,

856 F.2d 142 (11th Cir. 1988); Cate v. Oldham, 707 F.2d 1176,

1186 (11th Cir. 1983). However, this argument is dispelled by

the District Court’s factual findings regarding Petitioners’

retaliation. On remand from the first interlocutory appeal on

qualified immunity in this case, the District Court wrote:

The actions allegedly taken by the Defendants

include ordering deputies to follow the Plaintiffs

with Curley v, Village of Suffern, 268 F.3d 65, 73 (2nd Cir.

2001) (subjective standard). We leave it te that Court to set-

tle this disparity.

* See, further discussion of 11th Circuit cases in Respondents’ 11th

Cir. Brief at 37-41.

* Pet. App. 30a-32a.

Ce ee

3

for surveillance purposes; ordering deputies to

regularly “stake out” Plaintiff Bennett’s resi-

dence; unlawfully accessing county and state

records to obtain confidential information regard-

ing the Plaintiffs to be used for harassment;

ordering deputies to harass, intimidate and in-

terfere with Plaintiffs Reid and Bennett in the

lawful pursuit of their business interests; and at-

See ane 0 wee re eee

Plaintiff Reid on false and pretextual grounds . .

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 resi-

dents 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 investi-

gations ... The Defendants’ harassment and surveil-

lance of the Plaintiffs fall squarely within the

retaliatory conduct clearly proscribed by the settled

case law of the Supreme Court and the Eleventh Cir-

cuit. Terminiello v. Chicago, 337 U.S. 1 (1949) 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 i |

under color of law was a violation of their con-

stitutional rights. (Emphasis supplied.)

In its earlier summary judgment order, the District Court

described Petitioners’ retaliation in even greater detail:

* R14-176-4.

4

The actions allegedly taken by Sheriff Hendrix in-

clude ordering deputies to follow the Plaintiffs for

surveillance purposes; ordering deputies to regu-

larly “stake out” Plaintiff Bennett’s residence; on

two occasions stopping Plaintiff Tammy Bennett

near her residence without probable cause and is-

suing false and pretextual traffic citations; unlaw-

fully accessing County and State records to obtain

confidential information regarding the Plaintiffs to

be used for harassment; maliciously using such in-

formation to defame Plaintiffs Reid and Bennett;

ordering deputies to harass, intimidate and inter-

fere 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 aforementioned

intimidating activities. (Emphasis supplied.)

These allegations, which the District Court found to be

supported by competent summary judgment evidence,

answer the ultimate issue regarding qualified immunity. In

light of existing Eleventh Circuit and Supreme Court prece-

dents, no reasonable officer could fail to instantly recognize

that such egregious conduct was unlawful. Certainly, this

Court should not condone or encourage such actions by

providing immunity to the responsible officers.

Finally, Petitioners argue that granting certiorari

would make this case a nice, final piece of a trilogy that

“will allow the Court to cohesively clarify the standards

applicable to First Amendment retaliation claims and the

‘adverse action’ requirements of both First Amendment

retaliation and Title VII cases.” Perhaps. However,

Respondents Bennett and Reid filed this action on Sep-

tember 28, 2000, and have already faced two interlocutory

* Pet. 16-17.

5

appeals on qualified immunity, plus further court-ordered

briefing on remand. This case has now lingered for 5%

years without a trial. While qualified immunity is an

important legal principle, the First Amendment and

§ 1983 are of little practical use if the federal system

fosters delay, after delay, after delay.

Even the District Court has grown weary of Petition-

ers’ dilatory tactics. In an earlier Order, it wrote:

This is a civil rights action. It is before the Court

on Defendants’ Motion for Oral Argument [Doc.

231) on their claim of qualified iramunity. The

Court is generally inclined to grant requests for

oral argument. In this case, however, doing so

now would only add to the exorbitant delay in

getting this case resolved. This case has been

pending for three and one-half years. Proce-

durally, it is in the exact posture it was in after

the Court’s ruling on the summary judgment mo-

tions two years ago. The Court is not persuaded

that oral argument would be of significant bene-

fit. The Defendants’ Motion for Oral Argument

(Doc. 231] is DENIED.

The date of the above-quoted Order was April 14, 2004,

more than two years ago. Yet, in terms of reaching trial, this

case remains in “the exact posture it was in after the [Dis-

trict] Court’s ruling on .. . summary judgment.” Respondents

respectfully submit that this Court should decline Petition-

ers’ invitation to facilitate additional lengthy delays. Without

further delay, Respondents should be permitted to vindicate

their First Amendment rights at trial.

STATEMENT OF THE CASE

In 1996, Petitioner Dennis Lee Hendrix was elected

Sheriff of Forsyth County, Georgia. At one time, he was the

most popular and powerful political figure in that County.

Nevertheless, throughout his term in office, Hendrix used

the personnel and resources of his Department to engage in

* R16-234-1.

6

illegal surveillarce and harassment of his perceived

political “enemies.” The individuals targeted included

members of the Forsyth County Board of Commissioners,

the Mayor of the City of Cumming, Georgia, the publisher

of The Forsyth County News and local attorneys who filed

lawsuits against the Sheriff’s Department.” Hendrix's

targets also included respected citizens such as Bennett

and Reid, who Hendrix believed would oppose his reelec-

tion.

Hendrix initially focused his illegal actions against

County Commissioners who opposed his budget requests.”

However, in 1998 a group of private citizens. including

Bennett and Reid, formed a committee to sponsor a refer-

endum to establish a countywide police force in Forsyth

County.” The committee was femmed under the name

“Forsyth Citizens for Economical Law Enforcement,” and

was registered according to Georgia law.” If the proposed

resolution had been approved by the voters in a referendum,

* See, review of the evidentiary record in Plaintiffs’ Memorandum

of Law in Opposition to Defendants Dennis Lee Hendrix, Earl A.

Singletary, David W. Waters and John Does (1-10)’s Motion for Sum-

mary Judgment (R10-141-8-133).

* Bennett is a licensed engineer, and an owner of a genera!

contracting construction company. Reid owns a grading company.

Bennett and Reid have also been partners in a number of successful

real estate developments in Forsyth County. Both men are also

founders and directors of The Citizens Bank of Forsyth County.

Respondents’ ilth Cir. Brief at 13. At his deposition, Hendrix admitted

that he never believed Bennett or Reid were “criminals.” Hendrix alse

admitted that, other than an investigation of Reid for an alleged

violation of an environmental ordinance, which Respondents contend

was pretextual and was dropped after the 2000 Sheriff’s election, there

was never any criminal investigation of Bennett or Reid during his

term. R10-141-115-121.

“ Respondents’ 11th Cir. Brief at 9-10, 12-13.

” See, O.C.G.A. § 36-8-1(a) and (b), which are reproduced at

Appendix A (p. l1a-2a).

™ See, O.C.GA. § 21-5-30(a), which requires the registration of any

“campaign committee” organized to bring about the approval or

rejection of any proposal by means of a referendum.

7

it would have transferred much of the Sheriff’s general

law enforcement power to the new police force. However,

the referendum was defeated in the Summer of 1998.

Major Mark Thomas, a former member of Hendrix’s

Command Staff who at one time acted as Hendrix’s “body-

guard,” testified that after the 1998 referendum Hendrix

refocused his illegal actions against the citizens who had

supported it, principally Bennett and Reid. Thomas

testified that at numerous Command Staff meetings

Hendrix referred to Bennett and Reid as “thugs” and

“criminals.”“ On several occasions, Hendrix stated that he

would do “whatever he had to” in order to “dig up some

dirt” on Bennett and “run him out” of Forsyth County.

Thomas testified that Hendrix made such threats in at

least four or five Command Staff meetings, and on numer-

ous other occasions. Thomas further testified that

Hendrix’s animosity toward Bennett and Reid was directly

related to their support of the 1998 referendum.” Thomas

also testified that, after he left the Department, he learned

from other Deputies that Bennett and Reid were on the

“list of people that surveillances were being done on.””

A second former Deputy, Lt. William Miller, also

provided important testimony in this case. Miller testified

that at a Command Staff meeting on February 9, 1999

Petitioner Earle Singletary, as Chief Deputy Sheriff,

announced in Hendrix’s presence that Miller would be

transferred to the Internal Affairs Division (“IAD”), and

would be working under Petitioner David Waters, who was

also being transferred to IAD.” Singletary stated that

Miller’s job at IAD would be to head up a “Strike Force”

that was going to “investigate 50-75 residents of Forsyth

“ Thomas Affidavit {’s 4-7 (R12-143-Tab 19); Thomas Depo. p. 45,

l. 16-p. 47, 1. 15; p. 107, 1. 4-19 (R11-142-Tab 3). This is confirmed by

Petitioner Waters’ testimony. Waters Depo. ». i23, 1. 5-16; p. 174, 1. 18-

p. 175, 1. 8 (R11-142-Tab 11).

* Thomas Depo. p. 38, |. 24-p. 39, 1. 14 (R11-142-Tab 3).

* Thomas Depo. p. 76, 1. 21 — p. 77, l. 5 (R11-142-Tab 3).

” Miller Affidavit {’s 6-10 (R12-143-Tab 20).

8

County who might be opposed to Sheriff Hendrix’s reelec-

tion.” Singletary also announced that Miller would operate

the “Strike Force” under Waters’ supervision at IAD.”

Miller refused to accept this assignment and resigned

from the Sheriff’s Department on February 12, 1999.”

Miller’s testimony regarding the formation of the Strike

Force prior to the 2000 Sheriff’s election is corroborated

by consistent contemporaneous statements that he made

to Cumming Police Chief Buck Jones,” and by Deputies

Brian Millard and Daniel Rush, who both testified that

the formation of the Strike Force was widely known

among experienced Deputies in the Department.” The

retaliatory actions directed by Petitioners through the

Strike Force and otherwise, as summarized by the District

Court, have already been noted. The additional evidence

supporting Respondents’ allegations includes more than 30

depositions and 21 affidavits, and is reviewed in detail in

Respondents’ summary judgment brief.”

REASONS FOR DENYING THE PETITION

Contrary to Petitioners’ argument, there is no “circuit

split” over the application of the “ordinary firmness” test.

The Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth,

Ninth, Tenth, Eleventh and D.C. Circuits have now all

adopted that test. Moreover, the First Circuit has applied

an identical test to retaliation claims without attaching

the “ordinary firmness” label. As shown infra, Petitioners’

argument that such a split exists is based on conflicting

* Miller Depo. p. 142, 1. 18 — p. 143, 1. 8; p. 91,1. 9 — p. 92, 1. 4; p.

94, 1. 2—p. 95, 1. 12 (R11-142-Tab 10).

* Miller Affidavit ['s 11-12 (R12-143-Tab 20).

* Jones Affidavit 1's 4-8 (R12-143-Tub 5).

™ Millard Affidavit Y's 13-18 (R12-143-Tab 6); Rush Affidavit {’s 8-

13 (R12-143-Tab 7).

* See, Plaintiffs’ Memorandum of Law in Opposition to Defendants

Dennis Lee Hendrix, Earl A. Singletary, David W. Waters and John Does

(1-10)’s Motion for Summary Judgment (R10-141-8-133).

ue

9

statements by the Second Circuit regarding the factual

contexts in which it will apply the “ordinary firmness” test.

Petitioners also attempt to bolster their argument with

disparate analogies extracted from case law dealing with

public employee retaliation claims and Fourth Amendment

standing.” However, such issues are inapposite in analyzing

the “adverse action” element of retaliation claims by private

citizens. Simply stated, Respondents submit that none of

this amounts to a “circuit split” that justifies this Court’s

intervention.

There also is no merit to Petitioners’ argument that

their retaliatory actions did not violate “clearly estab-

lished” law. Both this Court and the Eleventh Circuit have

broadly proscribed such retaliation in numerous decisions

that predate Petitioners’ deliberate misconduct. Moreover,

prior Eleventh Circuit decisions applied an objective

standard to retaliation claims that is consistent with the

“ordinary firmness” test. Because Petitioners had “fair

warning” that their actions would violate Respondents’

constitutional rights, the relevant federal law was “clearly

established.” As the Eleventh Circuit observed in this

case:

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 hold that the defendants

were on notice and had “fair warning” that re-

taliating against the plaintiffs for their support

of the 1998 referendum would violate the plain-

tiffs’ constitutional rights and, if the plaintiffs’ al-

rer igs are true, would lead to liability under

1983.

* Pet. App. 9a-12a.

* Pet. App. 17a.

10

I. There is No Circuit Split on the Question Pre-

sented.

A. Overview of First Amendment Retaliation

Claims.

The federal courts have long held that the First

Amendment proscribes not only prior restraints on pro-

tected activity, but also governmental retaliation for the

exercise of such freedoms. City of Houston v. Hill, 482 U.S.

45i, 462-63 (1987) (“[t]he 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 frem a police state”);

Leslie v. Ingram, 786 F.2d 1533, 1537 (11th Cir. 1986)

(“[a]Jn intentional and wrongful retaliation for the asser-

tion 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 ... ”), abrogated on

other grounds by Graham v. Connor, 490 U.S. 386 (1989).

Three elements must be shown to establish a retalia-

tion claim. First, the conduct in question must be pro-

tected under the First Amendment. Secondly, the alleged

retaliatory acts must have an adverse effect on the pro-

tected conduct. Thirdly, there must be a causal connection

between the protected conduct and the adverse action.

Suarez Corp. Industries v. McGraw, 202 F.3d 676, 685 (4th

Cir. 2000). This is precisely the test that the District Court

applied in upholding Respondents’ retaliation claim.”

The issue presented by the Petition relates only to the

“adverse action” element. The federal courts have held

that determining whether a plaintiff's First Amendment

rights were adversely affected by retaliatory action 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.” Suarez, 202 F.3d 686; Thaddeus-X v.

* R14-176-14-18.

11

Blatter, 175 F.3d 378, 398 (6th Cir. 1999). Accordingly,

“prisoners may be required to tolerate more than public

employees, who may be required to tolerate more than

average citizens, before an action taken against them is

considered adverse.” Jd. at 398. In considering Petitioners’

arguments, the Court should keep in mind that Respon-

dents, as private citizens, are entitled to the highest level

of protection from retaliation.

B. Development of the “Ordinary Firmness”

Test.

The “ordinary firmness” test appears to have origi-

nated with Judge Posner’s opinion in Bart v. Telford, 677

F.2d 622 (7th Cir. 1982). That case upheld a retaliation

claim brought by a public employee over a series of rela-

tively minor acts of alleged retaliation. In holding that

such minor acts may constitute “adverse action,” Judge

Posner wrote:

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. Yet

even in the field of constitutional torts de mini-

mis non curat lex. Section 1983 is a tort statute.

A tort to be actionable requires injury. It would

trivialize the First Amendment to hold that har-

assment for exercising the right of free speech

was always actionable no matter how unlikely to

deter a person of ordinary firmness from that ex-

ercise .. . (Id. at 625.)

Since its formulation, this test has been adopted by

virtually every Circuit. As the Court of Appeals for the

District of Columbia noted in Toolasprashad v. Bureau of

Prisons, 286 F.3d 576, 585 (D.C. Cir. 2002), the “ordinary

firmness” test has become “[t)]he widely accepted standard

for assessing whether ‘harassment for exercising the right

of free speech [is] ... actionable’,” quoting Crawford-El v.

Britton, 93 F.3d 813, 826 (D.C. Cir. 1996). See, e.g., Bennett

v. Hendrix, 423 F.3d 1247, 1251 (11th Cir. 2005) (“[flor the

12

reasons that follow, we join our sister Circuits in adopting

an objective test for proving a retaliation claim”); Constan-

tine v. Rectors and Visitors of George Mason Univ., 411

F.3d 474, 500 (4th Cir. 2005); Garcia v. City of Trenton, 348

F.3d 726, 728 (8th Cir. 2003) (“[t]he ordinary-firmness test

is well established in the case law”); Meyers v. Nebraska

HHS, 324 F.3d 655, 659 (8th Cir. 2003); Mitchell v. Horn,

318 F.3d 523 (3rd Cir. 2003); Poole v. Co. of Otero, 271 F.3d

955, 960 (10th Cir. 2001); Carroll v. Pfeffer, 262 F.3d 847,

850 (8th Cir. 2001); Rauser v. Horn, 241 F.3d 330, 333 (3rd

Cir. 2001); Allah v. Seiverling, 229 F.3d 220, 224 (3rd Cir.

2000); White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000);

Suppan v. Dadonna, 203 F.3d 228, 235 (3rd Cir. 2000);

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)

(“[a] retaliation claim [requires] ... an adverse action ...

that would deter a person of ordinary firmness from

continuing to engage in that conduct”); Bloch v. Ribar, 156

F.3d 673, 678 (6th Cir. 1998) (“to prove a claim for retalia-

tion, a plaintiff must establish ... that the defendant’s

adverse action ... would likely chill a person of ordinary

firmness”); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.

1982) (“[iJt 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”).

The most often cited benefits of an objective standard

are that it “provides notice to government officials of when

their retaliatory actions violate a plaintiff’s First Amend-

ment rights,” and does not “allow a defendant to escape

liability for a First Amendment violation merely because

an unusually determined plaintiff persists in his protected

activity.” Such a test also recognizes that the “injury in

fact” in such cases is the punishment inflicted on the

plaintiff for exercising protected rights, and that injury is

not dependent on his response to the punishment. Simply

* Pet. App. 8a.

*” Mendocino Environmental Ctr. v. Mendocino Co., 192 F.3d 1283,

1300 (9th Cir. 1999).

13

stated, the “injury in fact” caused by such punishment is

real and immediate, regardless of the plaintiff’s reaction

to it.

Summarizing these benefits in Constantine, 411 F.3d

at 500, the Fourth Circuit recently wrote:

We have never held that a plaintiff must prove

that the allegedly retaliatory conduct caused her

to cease First Amendment activity altogether.

The cause of action targets conduct that tends to

chill such activity, not just conduct that freezes it

completely. Moreover, such a subjective standard

would expose public officials to liability in some

cases, but not in others, for the very same con-

duct, depending upon the plaintiff’s will to fight.

We believe that an objective standard better

instructs public officials as to their obligations

under the First Amendment. Thus, for purposes

of a First Amendment retaliation claim under

§ 1983, 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....

While the plaintiff’s actual response to the re-

taliatory conduct provides some evidence of the

tendency of that conduct to chill First Amend-

ment activity, it is not dispositive. (Citations

omitted.)

C. Petitioners’ Response to the Consensus of

Case Law Endorsing the “Ordinary Firm-

ness” Test.

Petitioners contend that all of the Circuit Courts that

have adopted the “ordinary firmness” test were mistaken.

They argue that such an objective test allows a plaintiff to

recover who has suffered no “actual injury in fact.” Since

§ 1983 is a tort statute, Petitioners reason, a plaintiff may

only recover if he can show that he has actually curtailed

his protected activity. To complete their syllogism, Peti-

tioners argue that, because Respondents voted in the 2000

Sheriff’s election and made minor campaign contributions

14

to Hendrix’s opponent, as a matter of law they cannot

show an “actual chilling.”

Because voting and making campaign contributions

represent minimal First Amendment activities, Petitioners

would, in effect, require a plaintiff to show a complete

cessation of protected activity in order to assert a retalia-

tion claim. Petitioners adamantly deny that they are

advocating a “complete cessation” standard.” However, the

only post-retaliation protected activity that Petitioners can

point to is that Respondents voted in 2000 and made

minor campaign contributions to Hendrix’s opponent. If

such minimal activities establish as a matter of law that

Respondents’ rights were not chilled, Petitioners are

certainly advocating a “complete cessation” test in fact, if

not in name.

Such a draconian standard is not supported by any

federal decision. See, e.g., Constantine, 411 F.3d at 500

(“[w]e have never held that a plaintiff must prove that the

alleged retaliatory conduct caused her to cease First

Amendment activity altogether”); Keenan v. Tejada, 290

F.3d 252, 260 (5th Cir. 2002) (“[a] required showing of

actual injury does not ... mean that a plaintiff must cease

criticizing government officials altogether ... to have a

claim for retaliation”). Moreover, as Respondents noted in

their Eleventh Circuit brief, the protected activity in

question was not voting or making campaign contribu-

tions. It was supporting public initiatives such as the 1998

referendum, and the record is clear that after Petitioners’

retaliation Respondents never again engaged in such

* See, Petitioners’ 11th Cir. Reply Brief at 2, where they state:

Nor have Appellants argued, as Appellees incorrectly

state, that there must be a complete cessation of First

Amendment conduct for a plaintiff to have a viable retalia-

tion claim. Rather, Appellants’ position is simply that ...a

plaintiff is required to show that the defendants’ actions had

some actual, non-speculative chilling effect on the plaintiffs’

First Amendment rights . . .

15

activity.” Thus, if applied with respect to the correct

protected activity, Respondents meet even Petitioners’

incorrect “complete cessation” test.

D. Petitioners Mischaracterize the Case Law

In Order to Argue That There is a Circuit

Split.

The fulcrum for Petitioners’ .rgument is their conten-

tion that “the Eleventh Circuit’s decision is in conflict with

decisions of the First and Second Circuits, which have

applied the ‘actual chilling’ test.”"” However, an analysis of

the cases cited by Petitioners shows that they cannot

reasonably be construed as creating a circuit split. For

example, Petitioners point to Sullivan v. Carrick, 888 F.2d

1 (1st Cir. 1989), to support their contention that the First

Circuit is aligned with them. However, as the Eleventh

Circuit noted, Sullivan does not actually support this

contention. In its opinion, the Eleventh Circuit wrote:”

The defendants also cite Sullivan v. Carrick, 888

F.2d 1 (1st 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 stand-

ing. Id. at 4. Moreover, the court noted that the

proper standard was whether the plaintiff’s

“speech was in fact chilled or intimidated.” Id.

Therefore, we do not read Sullivan to adopt un-

equivocally a subjective test.

Moreover, in other cases the First Circuit has applied

the “ordinary firmness” test’s objective standard. In a case

decided three years after Sullivan, the First Circuit

upheld a retaliation claim by a landowner based on the

denial of a permit to build a residential complex. Nestor

Colon Medina & Sucesores v. Custodio, 964 F.2d 32 (1st

* Respondents’ 11th Circuit Brief at 45.

” Pet. 7.

™ Pet. App. 18a, n. 4.

16

Cir. 1992). On summary judgment, the First Circuit held

that allegations of a material adverse action (denial of the

permit) were sufficient to support a retaliation claim

without requiring the plaintiff to show that he had cur-

tailed his protected activities. Jd. at 41.

In Agosto-de-Feliciono v. Aponte-Roque, 889 F.2d 1209,

1218-20 (1st Cir. 1989), the First Circuit also applied an

objective standard to a public employee’s retaliation claim.

Citing Bart v. Telford, the First Circuit stated that the

“adverse action” element was present “only when the

government’s actions are sufficiently severe to cause

Sarat hardy individuals to compromise their political

beliefs and associations.” Jd, at 1217. Respondents submit

that the First Circuit’s “reasonably hardy individuals”

language is the “ordinary firmness” test. Thus, Petitioners’

contention that the case law of the First Circuit supports

their argument is, at best, an exaggeration.

Petitioners’ “circuit split” argument ultimately rests

on certain conflicting statements by the Second Circuit. It

appears that the Second Circuit first endorsed the “ordi-

nary firmness” test in 1999 in Davidson v. Chestnut, 193

F.3d 144 (2nd Cir. 1999). On appeal from summary judg-

ment, the Second Circuit noted that neither party had

raised the issue of whether the alleged retaliation was de

minimis, and suggested that the District Court’s final

judgment should address tiis question. Jd. at 150. The

Second Circuit cited the “ordinary firmness” test as the

standard under which it would eventually review this

issue. Id.

Davidson involved a prisoner's retaliation claim.

However, in endorsing the “ordinary firmness” test, the

Second Circuit did not distinguish prisoner claims from

retaliation claims by other plaintiffs. Later Second Circuit

decisions involving prisoner claims cited Davidson and

applied the “ordinary firmness” test, but also did not

distinguish prisoner claims from retaliation claims by

other plaintiffs. Davis v. Goord, 320 F.3d 346, 353 (2nd Cir.

2003): | Dawes v. Walker, 239 F.3d 489, 493 (2nd Cir. 2001).

The Second Circuit also later extended the “ordinary

17

firraness” test to retaliation claims by public employees.

Hoyt v. Andreucci, 433 F.3d 320, 328 (2nd Cir. 2006);

Morrison v. Johnson, 429 F.3d 48, 51 (2nd Cir. 2005);

Washington v. County of Rockland, 373 F.3d 310, 320 (2nd

Cir. 2004).

It was in Gill v. Pidlypchak, 389 F.3d 379 (2nd Cir.

2004), that the Second Circuit suggested that the older

“actual chill” line of cases that Petitioners rely on might

have survived its adoption of the “ordinary firmness” test,

at least in one context. Gill was a pro se retaliation case

brought by a prisoner against correction officers. On

appeal from a Rule 12(b)\(6) dismissal, the defendants

argued that both the “actual chill” test and the “ordinary

firmness” test must be applied to such claims. Jd. at 381.

Rather than holding that the “ordinary firmness” test had

supplanted its earlier “actual chill” line of cases, the

Second Circuit engaged in a hypothetical analysis of three

alternative approaches under which it might resolve this

apparent conflict. Jd. at 381-84.

Ultimately, the Second Circuit decided not to adopt

any of these three approaches, and instead left this issue

unresolved. After analyzing each alternative, the Second

Circuit stated:”

We need not, however, choose among these vari-

ous possibilities to decide the case before us to-

day. Our hoiding does not depend on an analysis

particular to any of them, for our undertaking

here is “merely to determine whether the com-

plaint itself is legally sufficient.” Goldman v.

Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). And

under each approach, this plaintiff has articu-

lated a First Amendment retaliation claim. suffi-

cient to survive defendants’ motion to dismiss.

Later Second Circuit cases have suggested that the

“actual chill” test may still apply to retaliation claims by

private citizens, despite that Court’s adoption of the

™ 389 F.3d at 384. /

18

“ordinary firmness” test for prisoner and public employee

claims.” However, with due respect to the Second Circuit,

it is illogical even to consider imposing a more stringent

test on retaliation claims by private citizens than on

claims by prisoners and public employees. As other Cir-

cuits have noted, this is not a static inquiry but depends

“on the status of the speaker, the status of the retaliater

[and] the relationship between the speaker and the re-

taliator.” Suarez, 202 F.3d at 686. In the prisoner and

public employee contexts, there are substantial govern.

mental interests that must be balanced against the plain-

tiffs First Amendment rights. Such countervailing interests

simply do not apply to retaliation claims by private citi-

zens. Therefore, the federal courts have consistently held

that “prisoners may be required to tolerate more than

public employees, who may be required to tolerate more

than average citizens, before an action taken against them

is considered adverse.” Thaddeus-X, 175 F.3d at 398.

Even the Second Circuit decisions that apply the

“ordinary firmness” test recognize this tiered approach to

First Amendment protection. In Davis v. Goord, 320 F.3d

at 353, the Second Circuit wrote:

“Only retaliatory conduct that would deter a

similarly situated individual of ordinary firmness

from exercising his or her constitutional rights

constitutes an adverse action for a claim of

retaliation.” Dawes, 239 F.3d at 493. See also

Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th

Cir. 1999) (retaliation against an inmate must be

likely to “chill a person of ordinary firmness from

continuing to engage” in a protected activity).

“Otherwise the retaliatory act is simply de

minimis and therefore outside the ambit of con-

stitutional protection.” Dawes, 239 F.3d at 493.

In making this determination, the court’s inquiry

must be “tailored to the different circumstances

™ Pet. 9-10. Respondents note that virtually all of the post-Gill

decisions cited by Petitioners are unpublished opinions.

19

in which retaliation claims arise,” bearing in

mind that “[pJrisoners may be required to

tolerate more ... than average citizens, be-

fore a [retaliatory] action taken against

them is considered adverse.” Id. (quoting

Thaddeus-X, 175 F.3d at 398). (Emphasis sup-

plied.)

See, also, Dawes, 239 F.3d at 493 (“[t]he objective inquiry

is not ‘static across contexts, ... ‘[plrisoners may be

required to tolerate more than public employees, who may

be required to tolerate more than average citizens’... ”

(citations omitted)).

Thus, a two-headed test under which prisoners and

public employees are protected against the potential

suppression of their protected activities, while private

citizens are protected only where such activities have

actually been suppressed, conflicts with the fundamental

precept that private citizens are entitled to the highest

level of First Amendment protection. In this case, the

Eleventh Circuit also recognized the paradoxical conse-

quences of such a test and stated:”

We note that several courts have applied the

“ordinary firmness” test even in the prison con-

text. It follows that a private citizen, not subject

to the expected deprivations of prison life, de-

serves at least as much protection from retalia-

tion. (Citations omitted.)

For the Court’s present purpose, the point is simply

that the uncertainty in the Second Circuit engendered by

Gill v. Pidlypchak does not rise to the level of a circuit

split. Accordingly, the Court should not grant certiorari to

resolve a nonexistent split. Respondents also respectfully

submit that, if the Court wishes to resolve the uncertainty

within the Second Circuit’s decisions, it would be more

appropriate to do so in a Second Circuit case.

* Pet. App. 19a, n. 6.

20

II. Certain Other Issues Raised by Petitioners Are

Simply Irrelevant.

To buttress their “circuit split” argument, Petitioners

also argue by analogy to cases that address different legal

issues. For example, Petitioners cite the Court’s holding in

Laird v. Taium, 408 U.S. 1 (1972), that a plaintiff must

allege more than a “mere subjective chill.” However, the

issue in Laird was whether a plaintiff who had not been

individually surveilled by the government had standing to

assert a Fourth Amendment claim.” Here Respondents

allege that they were individually targeted and retaliated

against by Petitioners, and therefore they clearly meet

Laira’s test for standing. Meese v. Keene, 481 U.S. 465, 473

(1987) (allegation of harm to “personal, political and

professional reputation” satisfies Laird’s standing re-

quirement); Riggs v. City of Albuquerque, 916 F.2d 582,

584-86 (10th Cir. 1990) (lawyers and political activists who

were targets of illegal surveillance by intelligence unit of

city police department in connection with mayoral election

had standing under Laird and Meese v. Keene).

Therefore, Petitioners’ argument that “the ‘actual

chilling’ test is consistent with the injury-in-fact require-

ment of federal justiciability law ... [and] Laird v.

Tatum”” is misplaced. Petitioners’ contentions are neither

consistent nor inconsistent with Laird. The two cases

present different issues.

In their Eleventh Circuit brief, Petitioners also argued

by analogy to public employment decisions .om the

Eleventh Circuit such as Stavropoulos v. Firestone, 361

F.3d 610, 616 (11th Cir. 2004), cert. denied, 161 L. Ed.2d

727, 125 S. Ct. 1850 (2005). Stavropoulos reaffirmed that,

* In a First Amendment retaliation case, the plaintiff would have

to prove a causal connection between the protected activity and the

retaliation as part of his prima facie case. Therefore, by definition, all

such First Amendment plaintiffs must have been individually targeted,

and satisfy Laird.

* Pet. 16.

21

in order to state a retaliation claim, a public employee

must show an “adverse employment action.”” However, it

is well established that in the public employment context

the interests of the governmental employer must be

balanced against the First Amendment rights of the

employee. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S.

274 (1977); Pickering v. Bd. of Educ., 391 U.S. 563, 568

(1968). Recognizing this, the Eleventh Circuit held that

“(t]he defendants’ reliance on retaliation cases in the

public employment context is misplaced, because different

interests are at stake there.” Thus, neither Laird nor the

public employee cases actually strengthen Petitioners’

argument.

lil. In This Case, Respondents Meet Any Potential

“Adverse Action” Test, and Have Unquestiona-

bly Incurred an Actionable Injury.

As part of their argument, Petitioners represent

that:”

Respondents have produced no legally suffi-

cient 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 Re-

spondents contiaued to exercise their First

Amendment rights in spite of Petitioners’ alleged

retaliatory conduct.

Petitioners have mischaracterized the evisentiary

record. In actuality, the record shows that Respondents

were “chilled” in the exercise of their First Amendment

rights, and that they meet any potential “adverse action” test

the courts may apply.“ Both Bennett and Reid testified that

* Petitioners’ 11th Cir. Brief at 12-13 and Petitioners’ 11th Cir.

Reply Brief at 21, 22-23.

* Pet. App. 9a.

* Pet. 13-14.

“ Respondents’11 Cir. Brief at 44-45.

22

Petitioners’ retaliation made them less likely to engage in

protected activity such as the 1998 referendum. For

example, Bennett testified:”

Q Let me ask you if your experience with the

surveillance and the activity by Sheriff Hendrix

that you allege in your Complaint and the bro-

chures, let me ask you if that has made you less

willing or unwilling to be involved with political

process?

A Absolutely.

Q Has it made you more reluctant to get in-

“~ volved in political issues and voice your opinion

on political issues?

A Yes.

Petitioners scoff at Respondents’ testimony, labeling it

“self-serving, speculative, and conclusory.” However,

Petitioners fail to inform the Court that Respondents’

testimony is indistinguishable from testimony that the

Fifth Circuit held sufficient to show an “actual chill” in a

case relied upon by Petitioners. In Keenan v. Tejada, 290

F.3d at 260, the Fifth Circuit wrote:

The district court clearly erred, however, in

finding that the plaintiffs made no showing of an

injury. In his affidavit, Keenan explained that after

the incidents in June 1997 and December 1997, he

ras afraid to travel in Precinct 5 and he “backed

off from direct involvement in helping expose

unlawful practices” in the constable’s office ...

Przybylski made similar assert:. 1s in his affidavit.

Thus, both plaintiffs have stated, without con-

tradiction, that they curtailed their protected

speech activities in response to the defendazits’

actions ... A required showing of actual injury

does not necessarily mean that plaintiffs must

cease criticizing the government officials

“ Bennett Depo. Tr. p. 278, 1. 23 — p. 279, |. 7 (R11-142-Tab 2).

© Pet. 14, n. 5.

23

altogether in order to have a claim for re-

taliation. (Citations omitted; emphasis supplied.)

It is also illogical for Petitioners to argue for a subjec-

tive test, and then insist that the victims’ testimony

regarding their reaction to the retaliation must be disre-

garded. Petitioners can’t have it both ways. Moreover, in

many retaliation cases the only evidence available to

establish an “actual chill” is the victim’s testimony. Indeed,

one serious flaw in a subjective test is that it gives the

courts no guidelines to divine the metaphysical question:

which protected activities did the victim not engage in?

To support their argument, Petitioners point solely to

the fact that Respondents voted and made minor cam-

paign contributions to Hendrix’s opponent in the 2000

election. As noted supra, that is the wrong protected

activity. Petitioners’ retaliation was not in response to

Respondents’ voting or campaign contributions. It was in

direct respo:se to Respondents’ support of a public refer-

endum initiative that Hendrix opposed, and the record

shows that neither Bennett nor Reid have engaged in

similar activity after Petitioners’ retaliation.“ Therefore,

as applied to the correct protected activity, Respondents

meet even Petitioners’ incorrect “complete cessation” test.

Respondents also submit that any test under which a

private citizen forfeits his First Amendment protection

simply by voting and making minor campaign contribu-

tions is inherently wrong.

However, the most glaring defect in Petitioners

argument is that it ignores the fact that a First Amend-

ment retaliation claim may be based on an injury other

than the actual or likely suppression of the plaintiff’s

protected activities. As the Second Circuit wrote in the

case on which Petitioners principally rely, Gill v. Pidlyp-

chak, 389 F.3d at 383:

Indeed, even in certain cases involving public

official/private citizen retaliation claims, we have

_ © Respondents’ 11th Cir. Brief at 45, and n. 31.

24

seemingly not imposed a subjective chill re-

quirement where some other harm is asserted

... Under this approach, standing is no issue

whenever the plaintiff has clearly alleged 2 con-

crete harm independent of First Amendment

chilling. It is only a problem where no harm in-

dependent of the First Amendment is alleged.

For there, the only injury is the chilling itself.

In this case, the District Court has already held that

Respondents submitted competent summary judgment

evidence to establish such independent “concrete harm”:

In his affidavit and deposition testimony, former

Deputy Mark Thomas testified that in command

staff meetings beginning around the time of the

1998 Referendum, Hendrix repeatedly referred to

Plaintiffs as “criminals” and “thugs” and vowed

to drive them out of Forsyth County. Allen and

Cunard“ testified that at least three of the con-

struction inspectors under their supervision ex-

pressed the opinion that Lockhart was targeting,

or “leaning heavy”, on projects where Bennett

and/or Reid were involved. (Deposition of Tim Al-

len, pp. 55-56, 105-106; Deposition of John Cu-

nard, p. 35). Also, Plaintiff Reid testified in his

deposition about specific problems that the De-

fendants’ actions caused with Nix-Fowler, the

general contractor on a project which Defendant

Lockhart often targeted. (Deposition of Danny

Reid, pp. 22, 24-25, 195). Reid also testified that af-

ter Lockhart’s investigation began, Nix-fowler had

several jobs in Forsyth County that the company

did not ask Plaintiff Reid to bid on. (Deposition of

Danny Reid, pp. 27-28). He further stated that a

draw check was held by Nix-Fowler for a period af-

ter Lockhart sent a letter to that company alleging

“ R14-176-43.

“ Tim Allen and John Cunard are, respectively, the Assistant

County Engineer and County Engineer of Forsyth County. See, R1l-

142-Tabs 16 and 17.

25

that Reid was engaged in “open dumping” of the

recovered asphalt from an investigated construc-

tion site. (Deposition of Danny Reid, pp. 27, 28).

Plaintiffs submit, as Reid’s testimony indicates,

that Lockhart’s actions retarded and made the

performance of Reid’s obligations under the con-

tract with Nix-Fowler more difficult, causing a

draw to be withheld and costing Reid the prom-

ised opportunity to bid on future projects with

Nix-Fowler in Forsyth Cour*v. Defendants point

out in their brief that there was no damage to

Reid’s relationship with Nix-Fowler because

“Plaintiff Reid’s testimony shows he still works

for Nix-Fowler.” (Defendant Lockhart’s Brief in

Support of his Motion for Summary Judgment, p.

14). However, the testimony cited in Lockhart’s

Brief shows that as of the date of Plaintiff Reid’s

deposition, he was finishing up the previous pro-

ject for Nix-Fowler that was the target of Lock-

hart’s investigation. Reid’s actual testimony, as

set out above, was that he believed that Lock-

hart’s actions damaged his relationship with Nix-

Fowler to the point that the company backed off

of its promise to work with him on future projects

in Forsyth County.

Based on this evidence, the District Court upheld

Respondents’ state law claims for tortious interference

with contractual and business relations. The record

further shows that, as the result of Petitioners’ retaliation:

(1) both Bennett’s and Reid’s businesses were damaged,”

(2) Bennett and Reid experienced difficulty in obtaining

public support for rezoning in connection with their

development projects,” and (3) a complaint was filed with

the Georgia Department of Banking and Finance (“DBF ” )

“ Bennett Depo. Tr. p. 65, 1. 7— p. 66, l. 19 (R9-120); p. 171, 1.9-p.

172, 1. 6 (R11-142-Tab 2); Reid Depo. Tr. p. 17, 1. 4—p. 18, 1. 1; p. 107, 1.

9 — p. 108, |. 12; p. 118, 1. 21 p. 119, 1. 3; p. 123, 1. 8 — p. 125; 1. 9; p.

129, 1. 6-12 (R11-142-Tab 4).

“ Bennett Depo. Tr. p. 65, 1. 7— p. 66, }. 9 (R9-120).

26

regarding Bennett's and Reid’s positions as directors of

The Citizens Bank of Forsyth County, which led to a DBF

investigation.”

For example, Bennett gave the following testimony:

Q In what way has Hendrix or Singletary

or Waters gone after you and Mr. Reid in the law-

ful pursuit of your business interests?

_ A Well, goodwill is a big part of my busi-

ness. Most of it’s negotiated work. We started out

in 1987, we did bid work until about probably

1989, and from then on everything we got was

negotiated.

For people to negotiate with you, they can’t

get a flier from the sheriff saying you're a crimi-

nal. I mean, that’s part of the goodwill part of be-

ing able to negotiate a contract.

We've had to go out and basically work in

other counties. We’re working in Dawson County

and our volume has went down as a result of

people thinking we’re criminals.

Q Name somebody. Because earlier I

thought you said you didn’t know somebody.

A Name somebody, what?

Q That you’ve lost business from or that

you weren't aliowed to do business for because

.. of these fliers.

A I think what I just said is I have to go

outside the county to work; I mean I’m having to

work in Dawson County. My volume has went

down. The people that I don’t get contracts with

are people that I never hear from.

There’s instances where we're trying to buy a

piece of property from — we're trying to get a

piece of property re-zoned and Mr. Reid goes and

talks to this lady and says, “We want to get this

“ See, Affidavit of Timothy M. Perry, R12-143-Tab 16.

“” Bennett Depo. Tr. p. 65, 1. 7 — p. 66, 1. 19 (R9-120).

27

property re-zoned,” and she says, “Well, I don’t

want to deal with you because your partner is a

crook.” He says, “Who?” “Danny Bennett, he’s a

crook. I don’t want to deal with him.”

So here we are trying to get something re-

zoned, and we can't do it because people think

we're criminal.

Given this record, Petitioners’ contention that Respon-

dents suffered no actionable injury as the result of their

retaliatory actions borders on frivolous.

IV. The Law Was “Clearly Established” at the Time

of Petitioners’ Retaliation.

Petitioners’ argument that the law was not “clearly

established” at the time of their retaliation against Re-

spondents also has no merit. The Eleventh Circuit held

that it is “settled law” that the “government may not

retaliate against citizens for the exercise of First Amend-

ment rights,”” and that, at the time Petitioners retaliated

against Respondents, that principle applied with “obvious

clarity,” and gave Petitioners’ “fair warning” that their

actions would violate Respondents’ constitutional rights.”

Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002)

(where a constitutional right is established with “obvious

clarity,” a plaintiff need not point to factually similar cases

to defeat qualified immunity).

Even Petitioners cannot directly dispute the Eleventh

Circuit’s conclusion. Instead, they circumvent it by pre-

supposing that if the Eleventh Circuit had not yet adopted

the “ordinary firmness” test, the law could not be clearly

established. They then argue by analogy to cases in which

the law truly was unsettled. E.g., Wilson v. Layne, 526

U.S. 603 (1999). However, there are at least two basic

flaws in this argument.

” Pet. App. 17a.

" Pet. App. 16a.

28

First, the test for qualified immunity is not whether

every legal nuance that might apply te a defendant’s

conduct was immutably fixed at the time he acted. It is

simply whether “in light of already-existing law, the

unlawfulness of the conduct is ‘apparent’”™’ to a reasonable

officer in the defendant’s circumstances.” Petitioners do

not dare to suggest that a reasonable officer would have

believed that their actions were lawful. Instead, they

circuitously argue that if a Sheriff and his senior deputies

are contemplating political retaliation and correctly guess

that the targeted citizens will vote anyway, then it is

“objectively reasonable” for them to proceed with the

retaliation.” However, this argument conflicts with this

= Pet. App. 16a.

© A leading treatise on § 1983 frames this test as follows:

It is obviously to the advantage of plaintiffs to approach

the clearly settled law inquiry at a general level, and to the

advantage of defendants to approach it at a fact-specific

level. After Anderson v. Creighton, it must now be ap-

proached at a fairly fact-specific level, but a case on all fours

is not required. In making this inquiry, courts determine the

extent to which the relevant constitutional doctrine is de-

veloped in the context of similar or analogous fact patterns.

What should be uppermost here is one of the purposes of the

qualified immunity defense: fair warning to potential defen-

dants who should not have to predict constitutional! law de-

velopments. Thus, the clearly settled law inquiry after

Anderson is a practical as weil as a legal one: would a rea-

sonable person in defendant’s situation have known that he

or she was violating constitutional law? Or, in Anderggn’s

words: “The contours of the right must be sufficiently €lear

that a reasonable officer would understand that what he is

doing violates that right.”

S. Nahmod, Civil Rights and Civil Liberties Litigation (4th ed.) § 8.18,

at p. 8-61.

“ See, Petitioners’ 11th Cir. Brief at 23, where Petitioners argued

that “reasonable government officials in [Petitioners] position would

not know that an actionable First Amendment retaliation claim . .. may

exist where the evidence shows plaintiffs suffered no ‘actual chilling’ of

their First Amendment rights as a result of their allegedly retaliatory

conduct.”

Court’s precedents because it relies on events that occur

after the retaliation, rather than the circumstances that

29

exist at th. \e of the defendant’s actions.

Secona._, Petitioners’ argument ignores the fact that

the Eleventh Circuit has long applied an objective stan-

dard in First Amendment retaliation cases. The Eleventh

Circuit recognized this, and wrote:”

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 firm-

ness” test. In Cate v. Oldham, 707 F.2d 1176

(11th Cir. 1983), we enjoined a malicious prose-

cution action filed by state officials in retaliation

against a citizen’s lawsuit against those officials.

Id. 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 pe-

nalization of having exercised his right to peti-

tion 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.” Jd. at 1189.

Thus, we did not focus on the plaintiff’s subjec-

tive, actual chilling. Instead, we objectively as-

sessed the defendants’ actions and declared that

an actual chill is not necessary to state a First

Amendment violation: “The source of that chili

... provides the critical irreparable injury to

those citizens, regardless of whether actual chill is

proved.” Id. 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

* Pet. App. 13a.

30

“to dissuade [student] from exercising a constitu-

tional right” and “cannot help but have a tre-

mendous chilling effect on the exercise of First

Amendment rights”).

The Eleventh Circuit's conclusion was exactly right.

Petitioners’ argument also fails because they had “fair warn-

ing” under prior decisions such as Cate and Ga. Assn. of

Educators that the Eleventh Circuit applies an objective

standard to First Amendment retaliation claims. “Fair warn-

ing” is all that was required in order for the law to be “clearly

established.” Hope v. Pelzer, 536 U.S. 730 (2002). Tellingly,

Petitioners cite no case in which the Eleventh Circuit applied

an “actual chilling” test, much less the de facto “complete

cessation” test that they urge this Court to adopt.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

ERIC S. CHOFNAS, Esq.

Eric S. CHOFNAS, P.C.

1100 Powers Place

Alpharetta, Georgia 30004

(770) 346-9696

MICHAEL D. HOSTETTER, Esa.

NALL & MILLER

235 Peachtree Street, NE

Suite 1500 — North Tower

Atlanta, Georgia 30303

(404) 522-2200

Attorneys for Respondents

App. 1

APPENDIX A

O.C.G.A. § 36-8-1(a) and (b)

(a) The county governing authority shall have

authority to elect or appoint such number of county police

as in its discretion it deems proper, provided that the

county governing authority complies with the provisions of

this Code section. Any person elected or appointed to the

county police shall possess the qualifications prescribed in

Code Section 35-8-8.

(b)(1) Each county governing authority may author-

ize, through proper resolution or ordinance, the creation of

a county police force. No resolution or ordinance adopted

pursuant to this paragraph shall become effective until the

governing authority of the county has submitted to the

qualified electors of the county the question of whether the

resolution or ordinance shall be approved or rejected. The

county governing authority shali establish the date of the

election in compliance with Code Section 21-2-540, which

shall be not less than 30 days after the call of the election,

and shall notify the county election superintendent of its

decision as to the date. The election superintendent shall

issue the cail for the election and shall specify that the

election shall be held on the date determined by the

county governing authority. The election superintendent

shall cause the date and purpose of the election to be

published once a week for two weeks immediately preced-

ing the date thereof in the official organ of the county. The

ballot shall have written or printed thereon the following:

“) YES Shall the resolution or ordinance

adopted by the governing authority of (Name of

County) to create a

( ) NOcounty police force be approved?”

—

App. 2

(2) Those persons desiring to vote in favor of the

creation of a county police force shall vote “Yes,” and those

persons opposed to the creation of a county police force

shall vote “No.” If more than one-half of the votes cast on

- the question are in favor of the creation of a county police

force, then the county governing authority shail be author-

ized to create a county police force pursuart to the provi-

sions of this chapter; otherwise, a county police force shall

not be created. If the resolution or ordinance is rejected by

the qualified electors, the question of the creation of a

county police force may not again be submitted to the

voters of the county within 48 months immediately follow-

ing the month in which such election was held. The county

election superintendent shall hold and conduct the election

under the same rules and regulations as govern special

elections, except as otherwise provided in paragraph (1) of

this subsection. He shall canvass the returns and declare

and certify the result of the election to the Secretary of

State. The expense of any such election shall be borne by

the county wherein the election was held.