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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0794%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

2) FILED
No. 95-989 JUN 7 = 2006

SS aaEEEnenneeaeaiioet
—_-—~

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0794%3A2. Public record. Not legal advice.