Petition for Writ of Certiorari — Bennett v. Hendrix (No. 09-177)

Supreme Court brief2009

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

—__ 09-17 7 AUG 8 - 2009

OFFICE OF THE CLERK

Jn The William K. Suter, Clerk

Supreme Court of the United States

DANNY M. BENNETT AND DANNY L. REID,

Petitioners,

DENNIS LEE HENDRIX, EARL A. SINGLETARY

AND DAVID W WATERS

Responde rts

— *

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

“ 4

PETITION FOR WRIT OF CERTIORARI

MERIC S. CHOFNAS, ESQ.

Counsel of Record

ERIC S. CHOFNAS, P.C

1100 Powers Place

Alpharetta, Georgia 30009

(770) 8346-9696

ROBERT L. GOLDSTUCKER, ESQ

MARK D. LEFKOW, ESQ.

NALL & MILLER, LLP

235 Peachtree Street, NE

Suite 1500 — North Tower

Atlanta, Georgia 30303

(404) 522-2200

had hot ~ head

Attorneys for Petitioners

QUESTIONS PRESENTED

This petition arises out of Petitioners’ claims for

First Amendment retaliation under 42 U.S.C. § 1983

and defamation under Georgia law. The district court

denied qualified immunity in an April 13, 2004 order,

and the Eleventh Circuit affirmed the denial of

qualified immunity in a 2005 published opinion. In

2007, Petitioners’ claims were tried to a jury, which

returned a verdict for Petitioners of $9,515,000.

Following the verdict, the district court held that

Respondents were entitled to qualified immunity, and

granted their motion for judgment notwithstanding

the verdict as to the § 1983 claims. At the same time,

the district court denied Respondent Hendrix’s

motion for judgment notwithstanding the verdict on

the defamation claims, and entered judgment on

those claims. Six months later, on November Y, 2007,

the district court reversed itself and held that the

allegedly defamatory statements were protected by

the First Amendment. The district court therefore

granted Hendrix’s motion for judgment notwith-

standing the verdict on Petitioners’ defamation

claims, and vacated its previous judgment. The

Eleventh Circuit upheld the district court’s post-

verdict grant of qualified immunity. As to the

defamation claims, the Eleventh Circuit affirmed in

part, and reversed in part, the district court’s order

See. tabluiar breakdown

infra

QUESTIONS PRESENTED — Continued

sranting Hendrix’s motion for judgment notwith-

standing the verdict. It therefore remanded this case

to the district court for a retrial of part of Petitioners’

defamation claims.

This petition presents the following significant

iSSues:

l Whether the Eleventh Circuit’s affirmance of

the post-verdict grant of qualified immunity violates

the Seventh Amendment and the jury’s proper role

when the qualified immunity defense is denied on

Summary judgment, but again raised at trial follow-

ing a plaintiff’s verdict.

2. Whether the Eleventh Circuit’s affirmance of

the post-verdict grant of qualified immunity is

contrary to the law of the case doctrine, given that

the Eleventh Circuit’s 2605 opinion affirmed the

district court’s denial of qualified immunity, and both

courts explicitly upheld the sufficiency of Petitioners’

Summary judgment evidence to defeat qualified

immunity and establish a retaliatory conspiracy.

‘)

3. Whether the Eleventh Circuit’s affirmance of

the post-verdict grant of qualified immunity is

contrary to a long line of cases holding that the

existence of a § 1983 conspiracy is a jury issue; that

such a conspiracy may be proven by circumstantial

evidence; and that a “smoking gun” (i.e., a confession)

IS not required

QUESTIONS PRESENTED - Continued

{ Whether Respondent Hendrix’s dissemina-

tion of 36,000 copies of 3 separate campaign fliers

(the “Fliers”) labeling Petitioners as “Criminals,”

“Convicted Criminals,” “Convicted Felons,” “Real

Criminals” and “the Same Type of Criminals Who

Terrorize Forsyth County” and asserting they con

tributed “Criminal Cash” to Hendrix’s opponent in

the 2000 Sheriff’s election is protected by the First

Amendment under the “rhetorical hyperbole doc-

trine.”

5. Whether the Eleventh Circuit’s holding that

2 of the 3 fliers are “truthful”

conflicts with multiple fundamental principles of

as a matter of state law

Georgia defamation law.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...

TABLE OF AUTHORITIBES.......

OPINIONS BELOW...

JURISDICTION ..

RELEVANT PROVISIONS. ........

I oi bisa suds hep nanedanonndusadeeha NeGusaumele |

REASONS FOR GRANTING THE PETITION

CONCLUSION

APPENDIX

Circuit Court Opinion

RosBtrict Tout CPP IMION ... ....<.000 00 cesss0en0s

Trial Transcript Excerpts Containing Rulings

Granting Motion for Judgment Notwith-

standing the Verdict on Qualified Immunity

and Denying on Defamation

Circuit Court Opinion, Dated September 9,

2005 Denying Qualified Immunity

District Court Order, Dated April 13, 2004,

Denying Qualified Immunity on Summary

ere nonin incr aaniebacereentesees App. 7

Order Denying Rehearing ..... atvulcusect ees

Georgia Open Records Act App

TABLE OF CONTENTS ~ Continued

Schedule of Events Leading to 2000 Forsyth

County Sheriff’s Election

Letters from Jarrard to Lockhart, Dated July

28, 2000 and August 4, 2000

TABLE OF AUTHORITIES

CASES

Adams vu. Metiva, 31 F.3d 375 (6th Cir. 1994) ........

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

DUNT ne ca chaegint pacianerewsaune

American Broadcasting-Paramount Theaters,

Inc. v. Simpson, 106 Ga. App. 230, 126

S.E.2d 873 (1962)

Anderson v. Liberty Lobby, Inc., 477

(1986).

Ansley v. Heinrich, 425 F.2d 1339 (11th

aru cegheavatassduarneavers

Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir

L990)

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

2005)...

Burrell v. Bd. of Trustees of Ga. Mil. College,

970 F.2d 785 (11th Cir. 1992).........

Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979)...

Dvkes v. Ilosemann, 743 F.2d

1984)

Greenbelt Cooperative Publishing Assn

Bresler, 398 U.S. 6 (1970)..

Griffin v. Maryland, 378 U.S. 130 (1964)..

Hampton v. Hanrahan, 600 F.2d 600 (7th Cir

L979)

TABLE OF AUTHORITIES — Continued

Harcrow v. Struhar.

S.E.2d 545 (1999)....

Hardy v. Willtamson,. 86 Ga

¢). 0

Hoffman-Pugh v. Ramsey,

Cir. 2002)

Humphrey v. Mabry, 482

2007)...

Hunter v. Bryant, 502 U.S. 224 (1991)...

Jackson v. State of Alabama State Tenure

Comm., 405 F.3d 1276 (11th Cir. 2005)

Jaillett v. Ga. Televiston Co., 238 Ga. App. 885,

520 S.E.2d 721 (1999)

Johnson v. Breeden. 280 F.3d 1308 (llth Cir.

|. RE earn are MAN eer, & fe

Kelley v. LaForce, 288 F.3« (is ir. 2002)

Kerman. v. City of New York, 374 F.3d 93 (2nd

Cir. 2

Ledger-Enquirer Co. v. Brown, 214 Ga. 422,

105 S.E.2d 229 (1958)

McDade vu. West, 225 F:. 1135 (9th Cir. 2000)

Mead v. True Citizen Y 203 Ga. App. 361

417 S.E..2d 16 (1992

Milkovich v. Lorain

(1990)

TABLE OF AUTHIORITIES ~— Continued

Oladeinde v. City of Birmingham,

1275 (11th Cir. 2000)

Paul v. Davis, 424 U.S. 693 (1976)

Pulte Home Corp. v. Osmose Wood Preserving,

Inc., 60 F.3d 734 (11th Cir. 1995).

Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000) .

Ringuette v. City of Fall River, 146 F.3d 1 (1st

Coir. 1998)...

Rossignol v. Voorhaar, 316 F.3d 516 (4th

BIUS) ose

Rowe v. City of Ft. Lauderdale, 279 F.3d 127]

(11th Cir. 2002)..

Rubenstein l Lee. 56 Ga App. 49. 192 S kK. 85

Stalvey v. Atlanta Business Chronicle, Inc., 202

Ga. App. 597, 414 S.E.2d 898 (1992).

Triangle Publications v. Chumley, 253 Ga. 179.

317 S.E.2d 534 (1984)

Classic, 31! S. 299 (194]

Al ki it.

PROVISIONS

t. amend. |

amend. VII

AUTHORITIES — Continued

OTHER AUTHORITIES

Fed. R. C

Restatement of Torts 2d § 564A

Avery, Rudovsky and Blum, Police Misconduct,

Law and Litigation, § 3:22 (3rd ed. Thomson

West).

Merriam-Webster’s Collegiate Dictionary (llth

Eid. 20608)

OPINIONS BELOW

The unpublished opinion of the Eleventh Circuit

in Bennell ¢ Hendrix, Case. No. 0O7-12314, filed

March 31, 2009, affirming in part and reversing in

part the rulings of the district court. (Appendix A

The unpublished order of the district court, filed

November 9, 2007, granting Hendrix’s motion for

judgment notwithstanding the verdict on Petitioner

defamation claims. (Appendix B.)

The portions of the trial transcript setting forth

the district court’s rulings granting Respondents

motion for judgment notwithstanding the verdict

based on qualified immunity, and denying Respon

dents’ motion for judgment notwithstanding the

verdict as to Petitioners’ defamation claim

(Appendix C

The published opinion of the Eleventh Circuit

affirming the district court’s denial of qualified

immunity, filed September 9, 2005, in Bennett

Hendrix, 423 F.3d 1247 (11th Cir. 2005 \ppendix

).)

The unpublished order of the district court, filed

April 138, 2004, denying qualified immunity

summary judgment. (Appendix L.)

The unpublished orders of the Eleventh Circuit

denying Petitioners petitions for rehearing and

rehearing en banc, filed May 26, 2009. (Appendix FE

JURISDICTION

his petition for certiorari is filed within 90 days

of the Eleventh Circuit’s denial of Petitioners’ pet

tions for rehearing and rehearing en banc. This Court

has jurisdiction pursuant to 28 U.S.C. § 1254(]

RELEVANT PROVISIONS

amend. |

Congress shall make no law respecting

an establishment of religion, or prohibiting

the free exercise thereof; or abridging the

freedom of speech, or of the press; or the

right of the people peaceably to assemble

and to petition the Government for a redres:

of eprievances

amend. VII

ln Suits at common law, where the valu

In controversy shall exceed twenty dollars

the right of trial by jury shall be preserved

and no fact tried by a jury, shall be otherwise

reexamined in any Court of the United

States, than according

mmon lav

STATEMEN'!

Summary of Facts

Petitioners Danny Bennett and Danny |!

citizens and residents of Fors’ County, Georgia

Bennett is a licensed engineer and owns a general

contracting construction company Reid is the owner

of a grading company. As Forsyth County’s population

rapidly grew in recent years, Bennett and Reid

became partners in a number of real estate devel

opment projects. Both Bennett and Reid are al

founding directors of The Citizens Bank

County, a community bank formed in 1996

Neither Bennett nor Reid has ever run for public

office. Neither has ever spoken publicly regarding any

political race or issue. However, in 1998 they were

approached by several other citizens who were

organizing a committee to sponsor a public referen

dum to establish a countywide police force in Forsyth

County (the “1998 Referendum”). If the 1998 Referen

dum had passed, it would have transferred many

county law enforcement duties from the Sheriff

Department to the new police rorce

Nesp ndent Dennis Lee

Shenff of Forsyth County from 1997-2000. Durin

Hendrix's first year in office, the Sheriff's Depart

ment incurred a substantial budget overrun

Although under Georgia law the County Commissio!

could not control the Sheriff Department, the

county was responsible pay for its operation

he Shenft WwW | an ndependent ele t ¢

official, the countywide police force would have

operated under the direct control of the County

Commission. The impetus for the 1998 Referendum

was the desire of some citizens to prevent future

budget overruns. Bennett and Reid agreed to join the

1998 Referendum committee. However, they were not

officers of that committee. Their names appeared in

advertising supporting the 1998 Referendum, but

they never spoke publicly on this issue and never

publicly criticized Hendrix. The 1998 Referendum

was defeated at the polls in the Summer of 1998.

Since then, neither Bennett nor Reid has _ been

involved in any other political or public issue.

Bennett and Reid brought this action in

September 2000, shortly after Hendrix was defeated

in his election campaign for a second term as Sheriff.

They alleged that Hendrix viewed the 1998

Referendum as “a personal vendetta toward him as a

shenff,”” and, beginning at the time of the 1998

Referendum, initiated a conspiracy against a small

group of individuals that he believed was behind the

1998 Referendum. The goal of Hendrix’s conspiracy

was to retaliate against this group, and deter them

from opposing his reelection in 2000. Hendrix

referred to this group as “the good ol’ boy network,”

and as “thugs” and “criminals.” In addition to Bennett

and Reid, this group included some of the County

Commissioners, the publisher of the local newspaper

(The Forsyth County News), and the Mayor of the

City of Cumming, Georgia. Mark Thomas, a Major on

Hendrix’s Command Staff during 1998, testified that

Hendrix grouped these individuals together, and held

them responsible for the 1998 Referendum. Thomas

further testified that Hendrix threatened on numer-

ous occasions to run Bennett and Reid out of Forsyth

County.

From 1998 through the 2000 election, this

conspiracy engaged in various acts of surveillance

and harassment against this group of citizens,

including Bennett and Reid. Another of Hendrix’s

former deputies, William Miller, testified that in a

February 9, 1999 Command Staff meeting, Respon-

dent Earl Singletary, in Hendrix’s presence, an-

nounced that Miller would be transferred to the

Internal Affairs Division to run a “Strike Force” io

investigate 50 to 75 people who were “opposed to the

reelection of Sheriff Hendrix.” These citizens were not

suspected of any criminal! activity. Rather, the “Strike

Force” was formed solely because of their suspected

opposition to Hendmx’s reelection. Miller refused to

accept this transfer and resigned.

At trial, Respondents alleged that Muller

fabricated this testimony. But Buck Jones, the

Cumming Chief of Police, confirmed that Miller had

contemporaneously described these same events to

him in February 1999

@ Did he say anything to you about

what he was supposed to do once he was

transferred to Interna! Affairs?

A Yeah. He said that he was — would be

assigned to that department and that what

they were supposed to do was dig up any-

thing they could on anybody that was going

to oppose Sheriff Hendrix in the upcoming

election.

Q Do you recall whether Mr. Miller

used a specific term to identify those

investigations?

A Yes. He said that they had called it a

strike force.

The actions directed at Bennett and Reid inten

sified as the 2000 election approached. The events of

the final days before the August 8, 2000 primary

runoff are set out in a schedule at Appendix H to this

petition. These events included an attempt to arrest

them on or about July 29, 2000 on a trumped up

environmental charge related to one of their develop-

ments. Hendrix wanted Bennett and Reid arrested

just as the Fhers were being published on August

2nd, 3rd and 4th to underscore the Fhlers’ message

that “Criminals” were supporting his opponent.

Following a mecting with Bennett and Reid

regarding the threatened arrest, the County

Attorney, Ken Jarrard, told Deputy James Lockhart

that they had made a “palatable” argument that

they had done nothing wrong, and he wanted more

time to investigate the matter. However, according to

Jarrard, Lockhart adamantly refused to wait. °

Q@ All right. So at that time after the

meeting [in] the telephone conversation with

Bennett, there was no doubt in your mind

that Deputy Lockhart intended to arrest Mr.

oennett or Mr. Reid; is that not true?

A That is true. That was the basis for

my telephone call, yes.

If Lockhart had agreed to wait for even a short period

as the County Attorney requested, the election would

have been over. That would have defeated Hendrix's

true purpose for these fabricated charges.

Thus, as the Fhers were being published,

Bennett and Reid were aware that they were about to

be arrested on a trumped up charge. Although no

actual arrest was made, the intimidating effect of

such threats is obvious, particularly in conjunction

with the other events set out in Appendix H and the

publication of the Fliers.’ Reid testified that after

Jarrard’s phone call he was afraid to go home for fear

of being arrested.” Instead, he told his wife to come to

his grading business and pick him up. They then

went to their farm in a different county so that Reid

' Tr. 4/24/07, p. 52, k. 21-p. 53, - see, letters from Jarrard

to Lockhart at Appendix I, App. 128-13:

” App. 125-127

Appendix I, App. 128-130

wouldn’t be jailed over the weekend when he couldn’t

obtain bond.’

Because the qualified immunity issue hinges on

the sufficiency of Petitioners’ evidence, this Court

should note that during 7 years of pretrial ltigation

the lower courts held that Petitioners had presented

specific evidence of actions directed at them individ-

ually, which caused them particularized injury. For

example, on summary judgment the district court

wrote:

Plaintiffs’ position is that Lockhart, with

Hendrix and other officers, attempted to

interfere in the business and contractual

relationships of Plaintiffs in various ways.

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 “crimi-

nals” and “thugs” and vowed to drive them

out of Forsyth County. Allen and Cunard

testified that at least three of the construc-

tion inspectors under their supervision

expressed the opinion that Lockhart was

targeting, or “leaning heavy”, on projects

where Bennett and/or Reid were involved

(Deposition of ‘im Allen, pp. 55-56, 105-106;

Deposition of John Cunard, p. 35). Also,

Plaintiff Reid testified in his deposition

about specific problems that the Defendants

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 after 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 after Lockhart sent a letter to

that company alleging that Reid was

engaged in “open dumping” of the recovered

asphalt from an investigated construction

site. (Deposition of Danny Reid, pp. 27,

28).... Defendant’s Motion for Summary

Judgment as to the claim for tortious

interference with business relations is

denied.

The discussion above addresses only a small part

of Petitioners’ evidence. Petitioners alleged a _ pro-

longed conspiracy running from the 1998 Referendum

through the 2000 Sheriff’s election. As noted, the

number and intensity of the actions directed at Peti-

tioners increased as the 2000 election approached.

This occurred despite the undisputed fact that

Petitioners never spoke publicly regarding the 2000

election. At tnal, Petitioners relied on the temporal

proximity and_ relationship of these events as

A ppe naix H App

circumstantial evidence of the conspiracy they

alleged. Petitioners also relied on the utter lack of

credibility of the testimony of Hendrix and his co-

conspirators.

At trial, Petitioners presented both direct and

circumstantial evidence of the retahatory conspiracy

they alleged. This Court’s limitation on the length of

petitions prevents as full an exposition of that evi-

dence as Petitioners would wish. However, the Court

should note that in its summary judgment order, the

district court specifically held that Petitioners’

summary judgment evidence was sufficient to estab-

lish this conspiracy:

The evidence that supports Plaintiffs’

conspiracy allegations is reviewed in Section

IiI of its lengthy brief. It includes direct

testimony from several Deputies’ that

throughout his term Defendant Hendrix

used the Department’s personnel and re-

sources against those he _ perceived as

political enemies. Their charges are corrobo-

rated by the testimony of other officers who

were not directly involved in these activities

such as Wewers, Hoffman and Millard. The

Deputies’ charges are also confirmed by the

testimony of former Forsyth County Com-

missioners. Defendants have failed to show a

complete absence of evidence that would

warrant summary judgment.

The record shows that these witnesses gave the same

testimony at trial. Therefore, the “direct testimony”

and “corroborating testimony” regarding this con-

Spiracy cited by the district court on summary

judgment did not transform to mere “speculation and

conjecture” at trial.

Procedural History

In an order dated April 13, 2004 (the “4/13/04

Order”), the district court denied qualified immunity

and expressly upheld the sufficiency of Petitioners’

evidence to defeat qualified immunity: *

The actions allegedly taken by the Defen

dants include ordering deputies to follow the

Plaintiffs for surveillance purposes; ordering

deputies to regularly “stake out” Plaintiff

Bennett’s residence; unlawfully accessing

county and state records to obtain confiden

tial information regarding the Plaintiffs to be

used for harassment; ordering deputies to

harass, intimidate and interfere with Plain-

tiffs Reid and Bennett in the lawful pursuit

of their business interests; and attempting to

obtain a warrant for the arrest of Plaintiff

Reid on false and pretextual grounds. The

Plaintiffs have put forth evidence which

indicates that they were targeted for this

retaliation because of their support of the

}

Appendix C, App. 56

Appendix E, App. 91-92

1998 referendum. The testimony of Mark

Thomas, a former major with the Depart-

ment and a member of Hendrix’s command

staff, suggests that Hendrix targeted the

Plaintiffs for surveillance. (Thomas Dep. at

38-39, 45, 103). The testimony of William

Miller, a former lieutenant during Hendrix’s

term, indicates that Hendrix stated that he

would require Miller to investigate 50 to 75

residents who might be opposed to Hendrix’s

re-election. (Miller Aff. 4/4] 7-13.) Miller also

stated that there was no indication that any

of these residents were suspected of any

criminai activity or other legitimate basis for

such investigations. Jd. Thus, the evidence

presented, viewed in the light most

favorable to the Plaintiffs, indicates

that the Defendants ordered or con-

ducted surveillance or harassment of

the Plaintiffs in retaliation for the

Plaintiffs’ public stance in favor of the

1998 referendum. (Emphasis supplied.)

The Eleventh Circuit upheld the denial of

qualified immunity in a published opinion dated Sep-

tember 9, 2005 (the “2005 Opinion”). The Fleventh

Circuit also explicitly held that Petitioners’ evidence

was sufficient to defeat qualified immunity. Bennell v.

Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (“taken

in the light most favorable to the Plaintiffs, the

record is replete with instances where the defendants

followed, pulled over, cited, intimidated, or otherwise

harassed the plaintiffs”)

Petitioners’ First Amendment and defamation

claims came to trial in April 2007. Following 9 days of

testimony, the jury deliberated for a full week, and

returned the following verdict

First Amendment Retaliation Claim in Favor of

Bennett:

Compensatory Punitive

Damages Damages

Hendrix $ 930.000 $ 1.030.000

Singletary 400,000 455,000

Subtotals $ 1.330.000 L.485.000

Total on Retaliation Claim: $92 815.000

Libel Claim in Favor of Bennett

and Reid:

Hendrix

(in favor of Bennett) $ 3,600,000

Hendrix 3,100,000

(in favor of Reid)

Total on Libel Claim $6.700.000

Total $9 515.000

Following the verdict, the district court granted

Respondents’ motion for judgment notwithstanding

the verdict on the issue of qualified immunity. At the

The yury failed to ( c] ‘ verdict

Amendment clain

same time, the district court denied Respondent

Hendrix’s motion for judgment notwithstanding th

verdict on Petitioners’ defamation claims, and entered

judgment on those claims in the amount of $6,700,000.”

Nevertheless, 6 months later, on November 9, 2007,

the district court reversed itself, and entered an order

the “11/9/07 Order”) holding that Hermdrix’s publica

tion of the Fliers was protected by the First Amend

ment It therefore vacated the judgment it had

previously entered on Petitioners’ defamation claims.

On appeal, the Eleventh Circuit affirmed the

district court’s post-verdict grant of qualified immu-

nity on Petitioners’ First Amendment retaliation

claims. It further held that 2 of the 3 Flers were

“truthful,” and therefore not defamatory as a matter

of Georgia law. However, it held that 1 of the Flier

could be defamatory as to Bennett. It therefore

reversed the 11/9/07 Order in part, and remanded the

case for a new trial solely on Bennett's defamation

. . — 1¢

claim based on 1 of the 3 Fliers

Appendix ¢

Appendix B

Ap pe ndix \

REASONS FOR GRANTING THE PETITION

he Qualified Immunity.

The lower courts’ ruling effectively makes the

district court the finder of fact for qualified immunity

purposes at trial. It violates the Seventh Amendment

and is contrary to the holdings of many circuit:

the jury must decide any disputed factual issue

qualified immunity purposes at trial. It also flie

the face of the lower courts’ rulings over 7 years

pretrial litigation explicitly upholding the ifficiens

of Petitioners’ evidence

At Trial, Qualified Immunity Must be

Decided Based on the Facts Found by

the Jury.

In Hunter v. Bryant, 502 U.S. 224, 228 (1991

this Court held that the qualified immunity issu

“ordinarily ‘ hould be decid d DY the court long before

trial.” In response, the lower courts have developed

procedures that focus on the pretrial resolution Oo}

qualified immunity. However. this Court has not

defined the role of the jury when qualified immunity

is denied on summary judgment, but again raised at

trial. More precisely, this Court has not yet decided

whether the district court may act as the finder of

fact where qualified immunity is dependent upon

resolution of disputed issues of material fact

Lafkor

he court

roceaure

Although “|w reco} that the immunity

juestion should be resolved, where possible,

in advance of trial,” pre-trial resolution

ometimes will be impossible because of a

lispute as to material facts. In such a c¢:

the factual issues must be decided by the

trier of fact, thereby precluding summary

judgment. Only after the facts have been

ettled can the court determine whether the

actions were objectively reasonable so as té

fall under the qualified immunity umbrella

We nave previously noted that tn

upreme Court has not clearly indicated

whether tne judge may act as fact-finder

when there is a factual dispute underlying

the qualified immunity defense or whether

this function must be fulfilled by a jury

In any event, when facts are in dispute,

doubt the Supreme Court intended

agaispute LO e ved re the bench

| }

something i ylackhole

to resolve {ac li dispute

Immunity when they cannot » resolved « ummary

udgment prior to trial.” Neverthele most cir

have held that : trial qualified immunity must

{

decided by the : matte tf law. but based on

Ke ryvricgy?

d Cir

2OO4

“tallthough the ultimate question of whether

defendant official is entitled to qualified immunity |

one for the court, when the relevant factual disput

have been resolved by a jury the court must base it

legal ruling on the facts as found by the jury

However, some circuits have continued to submit the

ultimate question of qualified immunity to the jury

Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007

(“t]he issue of qualified immunity may be submitted

to a jury only if the legal question of immunity 1

completely dependent upon which

|disputed| facts 1s accepted by the jury’

The Eleventh Circuit ; nominally held that

qualified immunity 1s a legal issue to be decided by

the district court based on the facts found by the jury

Ansley 1 Heinrich, 425 EF 2d 3 1348 (llth Ch

1991) (“once the defense of qualified immunity ha

been denied pretrial due to disputed issues of materi

al facts, the jury should determine the factual issue

without any mention of qualified immunity”). lL

Johnson Breeden ‘2 24() F.3d 1308, 1315 (1llth

2002), the court stated: “the jury itself decide

issues of historical fact that are determinative

qualified immunity defense.” Reyvarding the effect

pretrial denial of qualified immunity, in -/

Kleventh Circuit wrote

Defendants who are not succe

ir qualified immunity defense before trial

at the end ol! le plaintiff

] 62

motion will sometimes be denied because the

same evidence that led to the denial of the

summary judgment motion usually will be

included in the evidence presented during

the plaintiff’s case, although sometimes

evidence that is considered at the summary

judgment Stage may turn out not to be

admissible at trial. Where there is no change

in the evidence, the same evidentiary dispute

that got the plaintiff past a summary judg-

ment motion asserting the qualified immu-

nity defense will usually get that plaintiff

past a Rule 50(a) motion asserting the

defense, although the district court is

free to change its mind. 7d. at 1317-18

(Emphasis supplied.)

The problematic language for purposes of this

case is: “the district court is free to change its mind.”

How is this language applied after the district court

has denied qualified immunity and upheld the

sufficiency of the plaintiff’s evidence on summary

judgment, and the court of appeals has affirmed that

ruling? What if the jury resolves all disputed factual

issues in the plaintiff’s favor at trial? Is the district

court still simply “free to change its mind”? What

limits do the Seventh Amendment and the “light most

favorable” evidentiary standard under Fed. R. Civ. P.

50 (“Rule 50”) place on this power?

According to the Eleventh Circuit, there are no

such limits on the district court’s power. Referring to

Johnson, in this case the Eleventh Circuit stated:

Because “substantially different” evidence

was produced at trial, our 2005 opinion does

not constitute the law of the case....

Accordingly, the district court was “free to

change its mind” with respect to the

defense of qualified immunity. (Emphasis

supplied. )

Thus, according to the Eleventh Circuit, the “free

to change its mind” language in Johnson empowers

the district court to simply disregard the jury’s

findings. In granting Respondents qualified immunity

after the jury’s verdict, that is precisely what the

district court did:”

Taken in the light most favorable to the

Plaintiffs, the record is replete with in-

stances where the Defendants followed,

pulled over, cited, intimidated or otherwise

harassed the Plaintiffs. There is a complete

failure to produce evidence of that. There is a

complete failure to produce evidence of that

which related to these particular Plaintiffs,

Mr. Reid and Mr. Bennett. There’s a

complete failure of evidence to prove that

with respect to any personal participation by

Mr. Hendrix, Mr. Singletary or Mr. Waters in

Appendix A, App. 23

Appendix E, App. 91-92

any such campaign. And there’s a complete

failure of the evidence to show any over-

riding, overarching conspiracy to intimidate

or harass Mr. Reid or Mr. Bennett because

of their activities in connection with the

referendum on the countywide police force.

When the district court pronounced that there

was “a complete failure to produce evidence” of any

aspect of Petitioners’ retaliation claims, it was

obviously wrong. Both direct and circumstantial

evidence was presented over 9 days, and the jury

deliberated for a full week reviewing that evidence.

Further, it was the same evidence that led the lower

courts to deny qualified tmmunity over 7 years of

pretrial litigation. What the district court actually did

was to state the ultimate conclusion of its own mental

processes. Only the jury is authorized to make

credibility determinations, draw inferences’ and

balance the evidence. But when the trial judge

pronounced that there was “a complete failure to

produce evidence,” he was doing all of those things

internally, and overriding the jury’s factual determi-

nations under the guise of a qualified immunity

analysis.

This is contrary to the rule nominally adopted by

the Eleventh Circuit in cases such as Ansley and

Johnson, which requires the district court to decide

the legal issue of qualified immunity based on the

facts found by the jury. Moreover, neither the district

court nor the Eleventh Circuit applied Rule 50’s “light

most favorable” standard to the evidentiary record.

Nor did either court even attempt to explain how

Petitioners met that standard on summary judgment,

but not after the jury had resolved all disputed

factual issues in Petitioners’ favor. This Court should

also note that the district court improperly gave the

jury a charge on qualified immunity and a definition

of “arguable probable cause” to apply to the evi-

dence.’ But even after the jury failed to find such

“arguable probable cause,” the district court never-

theless posited itself as a super-juror and imposed its

own findings.

Further, this is not a case involving conflicting

versions of an isolated incident that admittedly

occurred, such that a single factual issue might

reasonably be determinative of qualified immunity.

Rather, Petitioners alleged a prolonged conspiracy by

Hendrix to investigate, harass and intimidate his

political enemies. Respondents denied that they

ordered such actions, and denied any retaliatory

intent. Thus, Respondents’ qualified tmmunity de-

fense was entirely dependent on the credibility of

their denials, and only the jury could accept or reject

that testimony. As the court explained in Adams uv.

Metiva, 31 F.3d 375, 387 (6th Cir. 1994):

it is the province of the jury, not the

court, to decide on the credibility of the

defendant’s account of the need for force . .

[Tlhe legal question of immunity

completely dependent upon which view of the

facts is accepted by the jury ... Because

there are contested issues of material facts in

regard to [defendant’s] actions in arresting

plaintiff and the use of force, the jury must

decide these issues in regard to qualified

immunity.

In such a case, it is reversible error to overturn

the jury’s verdict and grant qualified immunity as a

matter of law. As the court held in Price v. Kramer,

200 F.3d 1237, 1249 (9th Cir. 2000):

A substantial part of the defendants’

argument that they should have been

entitled to qualified immunity depends on

accepting their version of events and

rejecting the plaintiffs’ testimony and other

contrary evidence. The plain fact is that the

plaintiffs presented the jury with sufficient

evidence to justify the conclusion that the

defendants’ actions were such that no

reasonable officer would have considered the

conduct lawful in light of clearly established

law. The jury had the right to accept the

plaintiffs’ testimony and reject the defen-

cants’. Indeed, the district court would have

committed reversible error if it had granted

the defendants qualified immunity as a

matter of law.

The Eleventh Circuit’s denial of qualified immu-

nity in 2005 should have resolved this issue.

Thereafter, it should have been left to the jury to

determine who was lying. As one leading treatise

explains:

Few cases should still have a qualified

immunity issue at the point of jury

determination of hability. Cases involving

the Harlow-legal question of the state of the

law at the time of the incident will have

resolved this issue before trial. Even when

“conduct” is at issue and the parties present

conflicting versions of the incident, if the jury

accepts the plaintiff’s side, qualified immu-

nity will be inapplicable, since it would have

been considered on any pretrial motions.

For some unexplained reason, these principles were

stubbornly ignored in this case despite 7 years of

pretrial litigation. Thus, it is unlikely that a better

case will ever be presented for this Court to address

“the blackhole in the law ... as to how to resolve

factual disputes pertaining to qualified immunity” at

trial. 146 F.3d at 6.

B. The Law of the Case Doctrine.

In Oladeinde v. City of Birmingham, 230 F.3d

1275 (11th Cir. 2000), the court held that the “law of

the case” doctrine did not apply where qualified

immunity was denied on a motion to dismiss because

the complaint did not include all relevant facts. Here,

' Avery, Rudovsky and Blum, Police Misc

Litigation, § 3:22 (3rd ed. Thomson-West)

Petitioners’ summary judgment evidence included

more than 30 depositions and 21 affidavits, and Peti-

tioners devoted 120 pages in their summary judg-

ment brief just to reviewing and analyzing that

evidence.” This was the evidentiary record on which

the Eleventh Circuit denied qualified immunity in

the 2005 Opinion. It was fully developed and

thoroughly analyzed.

In their appellate briefs, Petitioners repeatedly

urged the Eleventh Circuit to compare that record to

the evidence presented at trial. If that court had done

so, it would have seen that Petitioners presented the

same witnesses and testimony at trial. Moreover,

neither the Eleventh Circuit nor the district court

identified any specific changes in Petitioners’ evi-

dence at trial. Conclusory statements are no sub-

stitute for such analysis. Unless a recognized excep-

tion to the “law of the case” doctrine applied, the

Eleventh Circuit was bound to follow its 2005 ruling

denying qualified immunity. Jackson v. State of

Alabama State Tenure Comm., 405 F.3d 1276, 1283

(11th Cir. 2005) (“[ulnder the law of the case doctrine,

both the district court and the appellate court are

generally bound by a prior appellate decision of the

Same case”).

Moreover, as early as 2004, the district court

explicitly held that the sufficiency of Petitioners’

evidence to establish a First Amendment violation

and conspiracy was part of the “law of the case”:”

The Defendants use the bulk of their

additional briefing to address the first part of

the /lope inquiry — whether their alleged

actions violated the Plaintiffs’ constitutional

rights. This effort is misplaced as this Court

has already held that the Plaintiffs’ claims of

First Amendment violations and conspiracy

survive summary judgment ... Viewing the

evidence presented in the light most

favorable to the Plaintiffs, this Court held

that: (1) the Plaintiffs’ speech enjoyed

constitutional protection; (2) the Defendants’

alleged retaliatory actions adversely affected

the Plaintiffs’ constitutionally protected

speech; and (3) there is a genuine issue of

material fact as to the causal connection

between the protected conduct and _ the

adverse action ... This Court also held that

the Plaintiffs sufficiently established a jury

question as to their section 1983 conspiracy

claims... .“A court required to rule upon the

qualified immunity issue must consider,

then, this threshold question: Taken in the

light most favorable to the party asserting

the injury, do the facts alleged show the

officer’s conduct violated a _ constitutional

right? This must be the initial inquiry.”

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

Appendix E, App. 84-86

requires the Court to employ the same

standard of review used in summary

judgment determinations - to view the

evidence and any inferences that may be

drawn in the lght most favorable to the

nonmovant. See, e.g., Adickes v. S.H. Kress &

Co., 398 U.S. 144, 158-59 (1970). Thus, a

holding that the Plaintiffs’ constitu-

tional claims survive summary judg-

ment necessarily means that the initial

inquiry must be answered in_ the

affirmative: taken in the light most

favorable to the Plaintiffs, the facts

alleged indeed show that the officers’

conduct violated a constitutional right.

As these holdings represent the law of

the case, they shall not be reexamined

in deciding whether Defendants

Hendrix, Singletary, and Waters are

entitled to the defense of qualified

immunity. (Emphasis supplied.)

So why did the “law of the case” doctrine not apply

after the jury returned a verdict that resolved all

disputed issues of material fact in Petitioners’ favor?

The simple answer is that the district court usurped

the jury’s role as the finder of fact.

C. A§ 1983 Conspiracy May be Proven by

Circumstantial Evidence.

The lower courts’ ruling is also contrary to a long

line of precedents holding that a § 1983 conspiracy

may be proven by circumstantial evidence. In

Hampton v. Hanrahan, 600 F.2d 600, 621

1979), the court wrote:

(Tlo prove ...a civil conspiracy, a plaintiff is

not required to provide direct evidence of the

agreement between the conspirators; “(c)ir-

cumstantial evidence may provide adequate

proof of conspiracy.” ... Absent the testimony

of a coconspirator, it 1s unlikely that direct

evidence of a conspiratorial agreement will

exist. Thus, the question of whether an

agreement exists should not be taken from

the jury in a civil conspiracy case so long as

there is a possibility that the jury can “infer

from the circumstances (that the alleged

conspirators) had a ‘meeting of the minds’

and thus reached an understanding” to

achieve the conspiracy’s objectives.

Because circumstantial evidence requires the

factfinder to draw inferences based on human experi-

ence, that issue falls especially within the province of

the jury. In Adickes v. S.H. Kress & Co., 398 U.S. 144,

176 (1970), Justice Black wrote:

The existence or nonexistence of a conspiracy

is essentially a factual issue that the jury,

not the trial judge, should decide ... The

right to confront, cross-examine and impeach

adverse witnesses is one of the most funda-

mental rights sought to be preserved by the

Seventh Amendment provision for jury trials

in civil cases. The advantages of trial before

a live jury with live witnesses ... should not

be eliminated by _ substituting tmal by

c )

affidavit and the sterile bareness of sum

mary judgment.

[ronically, no circuit has enforced this rule more

consistently than the Eleventh Circuit. In Bendiburg

v. Dempsey, 909 F.2d 463, 468-69 (11th Cir. 1990), the

court held a plaintiff is not required to produce a

“smoking gun” to establish a § 1983 conspiracy. Rowe

uv. City of Ft. Lauderdale, 279 F.3d 1271, 1283 (11th

Cir. 2002) (“plaintiff does not have to produce a

‘smoking gun’ to establish ... a conspiracy”); Dykes v

Hosemann, 743 F.2d 1488, 1499 (llth Cir. 1984)

(“[bJecause a jury could draw inferences of a

conspiracy from the evidence presented ... summary

judgment... was unwarranted”); Crowe v. Lucas, 595

Fi2d 985, 993 (5th Cir. 1979) (proof of conspiracy

“must often be met by circumstantial evidence;

conspirators rarely formulate their plans in ways

susceptible of proof by direct evidence”)

Most explicitly, in Burrell v. Bd. of Trustees of Ga

Mil. College, 970 F.2d 785, 788-89 (llth Cir. 1992),

the Eleventh Circuit held:

After reviewing the briefs submitted by

the parties, it appears to the court that a

prima facie case of conspiracy to commit

unconstitutional acts under 42 U.S.C

$§ 1983 and 1985(3) can be based upon

circumstantial evidence. Circumstantial evi-

dence has no less weight than direct evi

dence as long as it reasonably establishes

that fact rather than anything else. The

Supreme Court, in Adickes v. S.H. Kress &

Company thought ‘it would be open to a

jury, in light of the sequence that followed, to

infer from the circumstance: ’ that the

state actor and private party had a ‘meeting

of the minds.’

The point of these cases is that, although “con

spirators rarely formulate their plans in ways

susceptible of proof by direct evidence,” a plaintiff will

not be denied redress for a constitutional violation

simply because the violator does not confess. Instead,

such a conspiracy may be proven by circumstantial

evidence calling into question the credibility of the

defendant's denials. Here, Petitioners alleged a

prolonged conspiracy against a small identifiable

group that Hendrix blamed for the 1998 Referendum,

and feared would oppose his reelection. Petitioners

introduced testimony from Thomas, and numerou:

other deputies, directly proving that Hendrix

included Petitioners as part of this group.’

( Did he believe or did he tell you that

he beheved that these people wer il

working together?

A Ye

ikoners?

\ Yes

That would inc!

isher of the paper?

That would includ

>of Cumming?

Yes

That would include Danny Bennett

sir

And Danny Re

criminals?

\ Yes, sir

@ Did he, with respect to in particular

Mr. Bennett and Mr. Reid, did he ever

express a desire to run them out of Forsvth

County?

A Ye

. Like | said early on it started with

the two commissioners. He had been at odds

with the commissioners early on. And then

vhen the talk came about bringing on or

voling on a police department, he grouped

Vir. Bennett. Mr. Reid. Mr. Gravitt. Stockt

all in with the two commissioner:

q I may have asked you but did he

ever express the view that this was [the]

sroup that was behind the 1998 referendum’?

A "That was what he thought, ye

Further, the lower courts’ ruling treats Pet

tioners’ testimony as having no evidentiary valu

whatsoever. In reality, it is undisputed evidence of the

events Petitioners experienced at the hands of th

Sheriff's Department. It was for the jury to deter

mine in light of - entire record whether thes

events were the result of a retaliatory conspiracy

Throughout his closing argument, Petitioners’ counsel

cited these events and asked the jury: “Was it policy

or was it coincidence?” Under the precedents cited

above and the Seventh Amendment, the lower court

were bound to respect the jury’s answer to that

question. Given the nature of Petitioners’ allegation

qualified immunity was entirely dependent on cred!

bility determinations, which only the jury could

make. Jackson, 405 F.3d at 1281 (in considering a

motion under Rule 50, the “court is 1 allowed

make credibility determinations

This Court has held that the standard to

judgment notwithstanding the veraict |

evidence I Oo one ided that © } party

as a matter of law.” Anderson v. Liberty Lobby, Incz.,

477 U.S. 242, 251-52 (1986). On appeal, a judgment

notwithstanding the verdict may be affirmed only

when “the facts and inferences point so _ over-

whelmingly in favor of the movant ... that reason

able people could not arrive at a contrary verdict.”

Pulte Home Corp. v. Osmose Wood Preserving, Inc., 60

F.3d 734, 739 (11th Cir. 1995). A Rule 50 motion ts not

a vehicle for the courts to substitute their factual

determinations for the jury’s, which they clearly did

nere.

D. The Flers Were Part of Hendrix’s

Retaliatory Scheme.

On summary judgment, the district court held

that the Fhers could not be considered as part of

Hendrix’s retaliatory scheme. At trial, the district

court repeatedly charged the jury that they could not

consider the Fliers as part of Petitioners’ retaliation

claims. Petitioners raised this issue on appeal.

Remarkably, the Eleventh Circuit simply ignored it.

In Paul v. Davis, 424 U.S. 693 (1976), this Court

adopted the “stigma plus” test for § 1983 defamation

claims. Under that test, defamation is not actionable

under § 1983 unless the plaintiff can show an

infringement of some federally protected interest;

either a protected property or liberty interest, or a

specific right protected by the Bill of Rights. There is

no logical or legal reason why a related First

Amendment claim volving non-speech based

retaliation cannot provide the requisite federal “plus”

under this test.

Further, apart from whether Hendrix’s dissem-

ination of the Fliers created an independent § 1983

defamation claim, the Fliers were indisputably part

of Hendrix’s retaliation for Petitioners’ support of the

1998 Referendum. Hendrix admitted this at trial.”

@ Well, let’s read your let’s look at

page 240 of your deposition if we could

Jason Williams testified — line 7.

@ Jason Williams testified that the

reason you said Bennett and Reid were on

your list was because they supported the

countywide police referendum.

Do you deny telling him that?

Answer: No. I told him that, but that’s

not targeting other {than] just educating the

people as to who these people are.

Did I read that properly?

A You read that properly.

Respondent Singletary also confirmed this caus:

connection.

@ (By Mr. Goldstucker) And tell me

what was said about Danny Reid at that

meeting:

A “That meeting,” you're referring to

the one with Jay Williams?

@ With Allyson, Petrotto, Hendrix and

Benton

A I understand. The gist of the

conversation, as I recall it, was Hendrix told

Jay Williams that he had people... who had

supported the referendum for a countywide

police department, that they were still out to

get him, that they were supporting his

opponent, and some of those people had

criminal records.

Jason Willams, Hendrix’s political consultant,

also confirmed that the Fliers were intended to strike

back at Petitioners as part of the “good ol’ boy

network.”

Q Do you know why Bennett and Reid

were included in this group?

A Because they originally or

apparently had been part of some scheme to

have a Cumming police department or

something.

@ Countywide police referendum?

A Something like that, yes

aa Depo })

@ How do you know that?

A Just that’s what Denny told me.

@© Do you remember any particulars

that he might have said about that?

A All | remember is that there were

like seven guys behind it, and they wanted to

take over so they can keep the power base

and continue being corrupt...

The district court also erred in holding that

Hendrix’s publication of the Fliers was not action

“under color of law.” It held that Hendrix’s reelection

campaign was “personal” in nature, and therefore his

publication of the Fliers was not “under color of law.”

However, that distinction is irrelevant. As this Court

stated in Griffin v. Maryland, 378 U.S. 130, 135

(1964):

If an individual is possessed of state

authority and purports to act under that

authority, his action is state action. It is

irrelevant that he might have taken the

same action had he acted in a purely private

capacity...

West v. Atkins, 487 U.S. 42, 49 (1988). Thus, this

’

issue actually turns on whether an official purported

to be acting pursuant to his official authority. U.S. v.

Classic, 313 U.S. 299, 326 (1941).

There are two basic reasons why Hendrix’s

publication of the Fliers was “under color of law.”

First, Hendrix exercised his official authority in

obtaining the photographs and government records

used to prepare the Fliers. The Hendrix election

campaign was required by state law to file an Open

Records Act’ request for any such records. However,

if it had done so, that request would have been subject

to an independent review by the County Attorney.

Certain information would have been’ redacted

pursuant to Georgia law, and the photographs used in

the Fliers would not have been produced. So instead,

Hendrix ordered 4 of his highest ranking deputies,

and his administrative and technical support statf, to

conduct a physical and computerized search over

several days for any records that mentioned Peti-

tioners. Janie Brumbelow, a computer specialist who

participated in that search, testified:~

@Q And did you pull these records like

you would pull them for people like off the

street, members of the public, or did you pull

them as if you were pulling them for your

boss?

A I pulled them as if I was pulling

them for my boss

@ Did you have a formal open records

request from any member of the public or

any member of Mr. Hendrix’s campaign?

1A. § 50-18-70, et seq. at Appendix G, App. 98

4/19/07 (Morning)

A No. sir.

@ Did you contact the county attorney

first before producing these records to Mr

Craig or Mr. Waters or Mr. Singletary or Mr.

Hendrix?

A No, sir. Because they were law

enforcement personnel.

Q Did you redact any Social Security

numbers or dates of birth from the records

which you provided?

A No, sir, you don’t have to for law

enforcement.

@ And do you have to redact those for

members of the general public?

A Yes, sir.

Not even Command Staff officers had access to

the photographs that Hendrix used in the Fliers:

Q And did that computer network have

security restrictions, ma’am?

A Yes, sir.

@ Could the general public, did they

have a public access terminal where they

could just pull up whatever they wanted on

anybody?

Q@ And did the pulling of mug shots

require a security clearance at that time?

A Yes

Q And the command staff of Sheriff

Hendrix, did they have such _ security

clearance?

A Not to the mug shot system, no.

Brumbelow testified that these Deputies were

only able to get these records because they were law

enforcement personnel acting on the Sheriff’s

orders. Referring to Hendrix’s search, Brumbelow

stated: “If I knew he was going to use it for reasons

without it pertaining to his job, I wouldn’t give him

the records.” Thus, Hendrix bypassed legal review

hy the County Attorney and obtained Petitioners’

unredacted files (and the files of numerous other

citizens)” through the exercise of his official author-

ity. In using his official authority to obtain these

records, Hendrix unquestionably acted “under color of

law.” McDade v. West, 223 F.3d 1135, 1140 (9th Cir.

2000) (“[blecause Ms. West’s status as a state em-

ployee enabled her to access the information, she

invoked the powers of her office to accomplish the

offensive act”).

Tr. 4/19/07 (Afternoon), p

Tr. 4/19/07 (Afternoon), pp

Secondly, Hendrix’s use of these records was not

“personal” as the district court held. Because the

Fliers were retaliation for Petitioners’ support of the

1998 Referendum, such “actions [were] more fairly

attributable to the state.” Rossignol v. Voorhaar, 316

F.3d 516, 524 (4th Cir. 2003). This mass libel was also

part of Hendrix’s scheme to suppress opposition to his

reelection, and was action “under coior of law” for

that reason as well. As the court held in Rossignol,

schemes to suppress opposition in an election are “a

classic example of the kind of suppression of political

criticism which the First Amendment was intended to

prevent.” /d. at 523. As the court noted, such schemes

are particularly pernicious when they occur on the

eve of an election. “In suppressing criticism of their

official conduct and fitness for office on the very day

that voters were heading to the polls, defendants did

more than compromise some attenuated or penum-

bral First Amendment right; they struck at its heart

Id. at 522.

Given the indisputable link between Petitioners’

protected activity in supporting the 1998 Referendum

and this deliberate libel, the lower courts should have

considered the Fliers as further evidence of retali-

ation. Since the post-verdict grant of qualified

immunity was based on an alleged lack of evidence of

retaliation, this issue was crucial. How could the

lower courts find “a complete failure to produce evi-

dence” of retaliation when Hendrix, openly admitting

his retaliatory intent, mailed 36,000 copies of the

Fliers throughout the county using his official

authority as Sheriff?

Il. Defamation.

At trial, the district court denied Hendrix’s

motion for judgment notwithstanding the verdict on

Petitioners’ defamation claims.” Six months later,

after 7 years of litigation, the district court had an

epiphany. In its 11/9/07 Order, the district court

discovered for the first time that the Fliers were

protected by the First Amendment under the “rhetor-

ical hyperbole doctrine.” That doctrine simply holds

that if, given the language used and the circum-

stances of its publication, “no reasonable person”

could believe that it was a literal assertion of

defamatory statement, it is protected by the First

Amendment as “rhetorical hyperbole.” Greenbelt Co-

op Pub. Assn., Inc. v. Bresler, 398 U.S. 6, 14 (1970).

Compare, Milkovich v. Lorain Journal Co., 497 U.S.

1, 21 (1990). Most states apply an identical limitation

on defamation actions; an allegedly defamatory

statement must be capable of reasonably being con

strued as factual : “of and concerning” the

plaintiff. Jaillett v. Ga. Television Co., 238 Ga. App.

885, 520 S.E.2d 721 (1999). Thus, Bresler is essen-

tially a federalization of this principle.

Appendix }& App

However, in this case the district court failed to

apply Bresler’ss “no reasonable person” test to the

Fliers. There is a lot of historical musing and ad hoc

reflection in the 11/9/07 Order. But nowhere does the

district court actually examine the language of the

Fliers and explain why “no reasonable person” could

believe they contained literal assertions, which is the

only pertinent issue. Presumably, the district court

ignored the “no reasonable person” test because it

didn’t like the result that it would yield

That suspicion is strengthened by the Eleventh

Circuit’s holding that 1 of the Fliers is not protected

as “rhetorical hyperbole”:”

[T]he front page of Plaintiffs’ Exhibit 2 is not

styled as a cartoon, parody, or editorial and

its tone is not satirical or exaggerated.

Rather, it involves an assertion by a law

enforcement officer regarding the criminal

history of one of his opponent’s supporters

accompanied by a mug_ shot of that

supporter. The tone of the flier supports our

conclusion that it is not protected by the

First Amendment.

The Eleventh Circuit’s holding that the “general

tenor” of the Fliers did not indicate that their

contents were not literal assertions applies equally to

the other 2 Fliers. In effect, the Eleventh Circuit held

that the “rhetorical hyperbole” doctrine did not apply

to any of the Flers. But, rather than reinstating the

jury’s verdict as it should have, the court held that 2

of the 3 Fhers were “truthful” as a matter of Georgia

law

With due respect, that holding is astounding and

violates virtually every basic principle of Georgia

defamation law. At oral argument, the panel sug

gested that, while an assertion of a criminal con

viction might be defamatory, an assertion of criminal

conduct is not. The panel’s opinion reflects that it

never abandoned that view. However, Georgia law

holds that any communication that falsely imputes a

crime to a person is defamatory. “Whether stated

directly or by implication or innuendo, it is libelous

per se to falsely state that a person is guilty of a

crime or has a criminal case pending against him.”

Harcrow v. Struhar, 236 Ga. App. 403, 404, 511

S.E.2d 545 (1999). Moreover, Exhibit 1, in red letters,

urges voters to “Vote to Keep Forsyth Safe From

Criminals and Convicted Felons.” Thus, the

Eleventh Circuit violated its own spurious distinc

tion

That distinction also violates the rule that an

allegedly defamatory statement must be construed

according to the meaning that “would be placed upon

it by the average reader.” Mead v. True Citizen, Inc.,

203 Ga. App. 361, 362, 417 S.E.2d 16 (1992)

Webster’s Dictionary defines criminal as _ follows:

“criminal n. 1. one who has committed a crime, 2. a

person who has been convicted of a crime.” Merriam-

Webster’s Collegiate Dictionary (1 Ith Ed. 2008). The

distinction drawn by the Eleventh Circuit between

“criminal” and “convicted criminal” is therefore con

trary to Georgia law and the plain meaning of

Fliers’ language. As stated in Rubenstein v. Lee,

Ga. App. 49, 192 S.E. 85, 87 (1937)

Webster’s Dictionary defines a ‘crook’ to be

a person given to crooked or fraudulent

practices; a swindler, sharper, thief, forger or

the like ... ’” To call a man a thief is

actionable per se, without the addition

of a colloquium. (Emphasis supplied

Georgia law also holds that the question of

defamation is a jury issue, unless the published mat

rial can reasonably have only one nondefamatory

meaning. Mead, 203 Ga. App. at 362. The Eleventh

Circuit’s huviding tnat Exhibits 1 and 3 are “truthful”

as a matter of law plainly violates this principle

Stalvey v. Atl. Bus. Chronicle, Inc., 202 Ga. App. 597

600, 414 S.E.2d 898 (1992) (“while the truth of the

charge may always be proved in justification

truthfulness 1s a question of fact for the jury’)

To reach thi: result, the Eleventh

repeatedly found that defamatory language

liers did not apply to Petitioners, but only to othe:

persons shown on the Fliers. However, only the jury

could make that factual determination. In so holding

the Eleventh Circuit also violated the “smal! group

defamation” rule in Restatement of Torts 2d, § 564A

whic h Ceorgia follows Hard, I Willtam son ob tra

551, 12 S.E.2d 874, 875 (1891 tlhough the word

used may at first sight appear only to apply toa cla

yf individual an action may be maintained by

any one individual of that class who can satisfy the

jury that the words referred especially to himself”);

American Broadcasting-Paramount Theaters, In

Simpson, 106 Ga. App. 230, 243, 126 S.E.2d

1962)

Further, in Triangle Publications, Inc. v. Chumley,

253 Ga. 179, 182, 317 S.B.2d 534 (1984), the Georgia

Supreme Court held that placing a plaintiff's photo

graph in an advertisement creates a jury issue as to

whether defamatory statements in the advertisement

are “of and concerning’ the plaintiff

Because of the bold print O} the

advertisement and the strategic placement of

appellee’s picture, a jury could reasonably

interpret the photograph as depicting Miss

Chumley as “Lori,” a pregnant teenager. The

trial court correctly denied summary judg

ment on this point

fhe Eleventh Circuit simply ignored this binding

cedent from Georgia's highest court

Kleventh Circuit also violated the require

ment that, in determining whether a “publication” 1s

defamatory, the “publication” must be strued as

whole. Ledger-Enquirer Co. v. Brown,

123, 105 S.E.2d 229 (1958 fF

Circuit parsed the most defamatory

the Fliers, and, usurping the jury ‘ole eld tha

they id not apply ItIONe! Rather than

construing the Fliers ru . whole he court

only considered the language tha

under Petitioners’ photograph

Finally, Hendrix published the Fliers in 3 way

of 12,000 each on August 2nd, 3rd and 4th. All

Flers went to the same households based on

mailing list Hendrix had purchased, and sent the

same message for the same purpose ‘Therefore in

determining whether a jury could find them defam

atory, all 3 Flhers must be construed together

Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11

Cir. 2002) (“liln determining whether a statement |!

defamatory, a court should read and construe the

publication as a whole tlhe ‘publication’ at issu

here ; the entire book’

CONCLUSION

For the foregoing reasons, Petitioners respect-

fully request that their petition for writ of certiorari

be granted.

ERIC S. CHOFNAS, ESQ

Counsel of Record

ERic S. CHOFNAS, P.C.

1100 Powers Place

Alpharetta, Georgia 30009

(770) 346-9696

ROBERT L. GOLDSTUCKER, ESQ

MARK D. LEFKow, ESQ.

NALL & MILLER, LLP

235 Peachtree Street, NE

Suite 1500 — North Tower

Atlanta, Georgia 30303

(404) 522-2200

Attorneys for Petitioner

App. |

APPENDIX A

Not Selected for publication in the

Federal Reporter

Cite as: 2009 WL 826837 (C.A.11 (Ga.))

United States Court of Appeals,

Eleventh Circuit.

Danny M. BENNETT, Danny L. Reid,

Plaintiffs-Appellants,

Dennis Lee HENDRIX, Individually and in

his Official Capacity as Sheriff of Forsyth County,

David W. Waters, Earl! A. Singletary, Individually

and in his Official Capacity as Chief Deputy

Sheriff of Forsyth County, Defendants-Appellees

Danny M. Bennett, Danny L. REid,

Plaintiffs-Appellants,

Dennis Lee Hendrix, Individually and in

his Official Capacity as Sheriff of Forsyth County,

Defendants-Appellees.

Nos. 07-12314, 07-14583.

March 31. 2009.

Cynthia M. Daley, Paul Robert Koster, Daley

Koster & Lavallee, LLC, Atlanta, GA, Phillip E.

Friduss, Landum & Friduss, L.L.C., Jasper, GA,

Ellen Louise Ash, Landrum & Friduss, LLC, Wood

stock, GA, fer Defendants-Appellees

Eric S. Cnofnas, Alpharetta, GA, Christopher Dean

Balch, Jarrard & Davis, Cumming, GA, Robert I. Gold-

stucker, Mark D. Lefkow, Nall, Miller, Owens, Hocutt

& Howard, Atlanta, GA, for Plaintiffs-Appellants

App. 2

Appeals from the United States District Court for

the Northern District of Georgia. D.C. Docket No. 00-

02520-CV-TWT-1.

Before EDMONDSON, Chief Judge, BLACK and

PRYOR, Circuit Judges.

BLACK, Circuit Judge:

Danny M. Bennett and Danny L. Reid appeal

from orders of the district court granting judgment

as a matter of law to Dennis Lee Hendrix, David

W. Waters, and Earl A. Singletary following jury ver-

dicts in favor of Bennett on First Amendment retali

ation claims under 42 U.S.C. § 1983 brought against

Hendrix and Singletary and in favor of both Bennett

and Reid on state law libel claims brought against

Hendrix. On appeal, Bennett and Reid contend (1) the

district court erred in granting qualified immunity to

the defendants on Bennett and Reid’s § 1983 First

Amendment retaliation claims, (2) the district court

erred in granting qualified immunity to the defen-

dants on Bennett and Reid’s § 1983 conspiracy

claims, and (3) the district court erred in concluding

the alleged defamatory statements were protected

under the First Amendment. Bennett and Reid also

challenge a number of pretrial and evidentiary rul-

ings. After review, we affirm in part and reverse and

remand in part for the reasons that follow.

App. 3

BACKGROUND

This controversy stems from a 1998 referendum

and a 2000 election for sheriff in Forsyth County,

Georgia. In 1998, Forsyth County voters considered a

referendum that would have established a county-

wide police force anc diminished the power of the

Forsyth County sheriff’s department. Most of the

department’s power would have been transferred to

the county police, which would have been under the

supervision of county officials. Hendrix, the sheriff at

the time, opposed the referendum. Bennett and Reid,

however, supported the referendum, forming a com-

mittee in support of it

The referendum was defeated at the polls, but

Bennett and Reid allege Hendrix (along with Single-

tary and Waters, members of Hendrix’s department

at the time) engaged in a campaign of retaliation and

intimidation against the plaintiffs because of their

support of the referendum. This campaign intensified

as the 2000 election for sheriff approached. Hendrix

was challenged by Ted Paxton; Bennett and Reid both

supported Paxton and made contributions to his

campaign.

During the summer of 2000, Hendrix’s campaign

created three fliers to distribute to voters. On August

2-4, 2000, Ilendrix mailed approximately 36,000 cop-

ies of the fliers to voters of Forsyth County. The fliers

bore photographs of Bennett and Reid, among others,

and announced “real criminals,” “convicted crimi-

nals,” and “criminal cash” were supporting Paxton

App. 4

The fliers also stated Bennett and Reid had been

arrested in Forsyth County and were funding Pax-

ton’s campaign. The fliers encouraged voters not to sup-

port a man whose campaign was backed by the “same

type of criminals that terrorize Forsyth County.”

On September 28, 2000, Bennett and Reid, along

with Tammy Bennett (Bennett’s wife), filed suit

against Hendrix, :ungletary, and Waters, as well as

seven other named defendants and various John

Does. The complaint included seventeen claims for

relief and alleged violations of the First, Fourth, and

Fourteenth Amendments, as well as a conspiracy to

violate civil rights. It a'so presented a number of

state law tort claims, including libel claims based

AES

upon the campaign fliers.

A. Preliminary Rulings by the District Court

In a June 21, 2001, order, the district court dis-

missed almost all of the federal law claims against

the named defendants. It held, however, the plaintiffs’

allegations were sufficient to withstand motions to

dismiss and motions for judgment on the pleadings as

to the First Amendment retaliation claims, the § 1983

conspiracy claims, and the equal protection claims

against Hendrix, Singletary, Waters, Deputy John

Lockhart, and Forsyth County. The court also de-

clined to rule on the defendants’ qualified immunity

defense based upon the pleadings. In the June order,

the district court stated it would maintain juris-

diction over all the state law claims asserted in the

App. 95

case, but it later jettisoned the state law claims as to

those defendants who had succeeded in having all the

federal law claims against them dismissed. Following

these rulings by the district court, Hendrix, Single-

tary, Waters, Lockhart, and Forsyth County were the

sole remaining named defendants.

On February 1, 2002, the district court granted

summary judgment to the detendants on Tammy

Bennett’s remaining federal law claims, effectively

dismissing her as a plaintiff. It also granted summary

judgment to Forsyth County and Lockhart on the

federal law claims and declined to exercise supple-

mental jurisdiction over the state law claims against

Lockhart, effectively dismissing those defendants

from the suit. With respect to Hendrix, Singletary,

and Waters, the district court dismissed all remaining

federal law claims except for the § 1983 First Amend-

ment retaliation claims and the § 1983 conspiracy

claims. It did rule, however, Bennett and Reid’s

§ 1983 retaliation claims premised on the campaign

fliers failed as a matter of law and “the campaign

liers should be considered separately” from the other

alleged acts of retaliation. Finally, the court deferred

a ruling on the defendants’ qualified immunity de-

fense until after presentation of evidence at trial.

Ultimately, among the state law claims.

claims against [lendmx survived to trial

App. 6

Hendrix, Singletary, and Waters appealed the

district court’s denial of qualified immunity to this

Court.

B. The Qualified Immunity Issue on Appeal

In July 2003, we vacated that part of the district

court’s February 2002 order addressing qualified

immunity. In an unpublished opinion, we decided the

facts in the record were sufficient to determine if the

defendants had met their initial burden of proving

they were acting within the scope of their discre-

tionary authority; we then remanded for the district

court to rule on qualified immunity. Upon remand,

the district court issued an order on April 13, 2004,

concluding Hendrix, Singletary, and Waters were not

entitled to qualified immunity and denying their mo-

tions for summary judgment. The defendants ap-

pealed, and this litigation made its second journey to

this Court.

In September 2005, this Court affirmed the dis-

trict court’s denial of qualified immunity to Hendrix,

Singletary, and Waters. Bennett v. Hendrix, 423 F.3d

1247, 1256 (11th Cir.2005). Addressing an issue of

first impression, we adopted the “ordinary firmness”

test in determining whether a defendant’s retaliatory

conduct adversely affected a plaintiff's protected

speech. /d. at 1254. Applying the test to the evidence

presented on summary judgment, this Court held

Bennett and Reid had presented evidence of a First

Amendment violation. /d. at 1255. Specifically, we

App

concluded “the acts alleged here, if true, are suffi-

ciently adverse that a jury could find they would chill

a person of ordinary firmness from exercising his or

her First Amendment rights.” /d. Turning to the sec-

ond prong of the qualified immunity inquiry, we held

the law was clearly established so as to put the de-

fendants on n.tice, stating “it is ‘settled law’ that the

government may not retaliate against citizens for the

exercise of First Amendment rights.” /d at 1256

In concluding Bennett and Reid had demon:

strated a constitutional violation, this Court explicitly

noted a record “replete” with instances in which the

defendants allegedly engaged the following retali

atory conduct: taking down license tag numbers of

cars at a forum in support of the referendum; setting

up roadblocks near the plaintiffs’ homes; stopping the

plaintiffs’ cars without reason and issuing false traffic

citations; accessing government databases to obtain

confidential information on the plaintiffs; attempting

o obtain arrest warrants against the plaintiffs on

trumped-up environmental charges; and mailing

fliers to homes in Forsyth County depicting the

plaintiffs as criminals terrorizing the county. /d. at

1249, 1254-55.

C. The Jury Trial

Following this Court’s decision affirming the

district court’s denial of qualified immunity, the case

proceeded to a jury trial on April 17, 2007. By that

time, only the following claims remained: (1) the

App. he

§ 1983 First Amendment retaliation claims against

Hendrix, Singletary, and Waters; (2) the § 1983

conspiracy claims against Hendmx, Singletary, and

Waters: and (3) the state law libel claims against

Hendrix

Muidence relating to the $¢ 1983 claims

against Hendrix, Singletary, and Waters

At tnal, Bennett and Reid attempted to establish

Hendrix had formed a “strike force” to harass and

intimidate his political opponents, including Bennett

and Reid, following the 1998 referendum. They

offered the testimony of former members of the

Forsyth County sheriff’s department to support their

allegations of a retaliatory ~.trike force.” For in

stance, William Miller, a lieutenant in the criminal

investigation division, testified Singletary informed

him during a February 1999 command staff meeting

he was being transferred to internal affairs to

investigate 50 to 75 of Hendrix’s political opponents

Several other sherff’s deputies testified they were

asked to conduct surveillance on county commis-

sioners, certain supporters of the 1998 referendum,

and a publisher of a local newspaper. None of the

deputies, however, testified Hendrix, Singletary, or

Waters asked them to perform surveillance on

Bennett or Reid.

As evidence of the alleged retaliatory acts taken

against them, Bennett and Reid presented evidence of

a 2000 investigation by Deputy Lockhart, a former

App. 9

defendant in the suit. Lockhart, who was the en

vironmental code enforcement officer in Hendrix's

department, investigated one of Bennett and Reid’s

work sites for violations of a solid waste ordinance

Lockhart informed the county attorney he planned to

arrest Bennett and Reid during the summer of 2000,

but he never arrested either man. He did, however.

advise a general contractor not to hire Reid. He also

filed a complaint with the Georgia Environmental

Protection Division, which ultimately issued a notice

of violation for debris located on the property.

Bennett also testified he was stopped by un

named sheriff’s deputies at a roadblock near his

home in April 2000. Although other cars were also

stopped at the roadblock, Bennett contended the

readblock was intended to harass him. He testified he

was the only driver to have to exit his vehicle and his

car was the only one examined by drug-sniffing dogs.

Bennett and Reid both testified sheriff's deputies

were patrolling their neighborhoods and work sites

during this time period. Bennett stated he saw two to

three deputy cars come by his house within an hour, a

marked increase. Reid also testified he saw a patrol

car sitting in his subdivision and across from his job.

Finally, Bennett presented evidence regarding

the alleged harassment and intimidation of his wife,

Tammy Bennett, by sheriff’s deputies. Tammy Ben-

nett received a citation for speeding from Deputy

Sheriff B.A. Finley on July 28, 2000, and a citation

for running a stop sign from Deputy Sheriff David

Witkowski on July 29, 2000. These citations were

App. 10

issued 14 hours apart at the same spot, Iess than a

quarter of a mile from her home. Bennett also

testified a deputy tailgated Tammy Bennett for eight

or nine miles to her home and flashed his blue lights

as she pulled into the driveway.

Evidence relating to the libel claim

against Hendrix

a. Plaintiffs’ Exhibits 1, 2, and 3

Bennett and Reid introduced the three alleged

defamatory campaign fliers as Plaintiffs’ Exhibits 1,

2, and 8 at trial. Plaintiffs’ Exhibit 1 features a front

page with text stating, “You know your Sheriff is

doing a good job when ... ” The top of the second

page completes the sentence with “... criminals are

supporting his opponents [sic] campaign.” Under

neath this text is a box with photographs of six men,

including Bennett and Reid, and a caption to the left

that reads, “The Ted Paxton Chain Gang.” The text

under Bennett's photograph reads, “Arrested and

housed in the Forsyth Jail, Bennett gave Paxton hun-

dreds for his smear campaign on two occasions.”

Under Reid’s photograph, the flier states, “Developer

was arrested for refusing to obey order to stop con

struction. He is now giving substantial amounts of

cash to Paxton.” The other men featured in the box

are Paxton; a former county commissioner who, ac-

cording to the flier, received money from a man

arrested for bribery; a man who was allegedly ar

rested for assault and making “terroristic threats”

and another former county commissioner’ who,

according to the flier, pled guilty to kidnapping. Text

In paragraph form appears below the box stating

among other things, “You know our Sheriff is doing a

good job when real criminals and their associates are

supporting his opponents [sic] campaign,” and “Ted

Paxton has heen running a malicious smear cam

paign against Shernff Denny Hendrix with support

he’s received from criminals.” It concludes, “On Au

gust 8th, let’s vote to keep Forsyth safe fror crim

inals and convicted felons.’

The front of Plaintiffs’ Exhibit 2 contains a mug

shot of Bennett taken after his 1995 arrest accom

panied by text stating, “Should a Candidate for Sher

iff finance his campaign using cash from convicted

criminals?” Bennett’s photograph is the only one

appearing on the flier’s front page. Under his mug

shot, the text states, “This man, arrested and housed

save hundreds in cash to

in the Forsyth County Jail,

Paxton’s campaign on two different occasions.” The

second page of the flier answers the question from the

front of the flier with text stating, “Ted Paxton thinks

so.” The left side of the page features a box with

photographs of the same men from the first flier

minus Reid. The text accompanying Bennett’s photo

graph states, “Arrested and housed in the Forsyth

Jail, this man gave hundreds to Paxton’s smear cam

paign on two different occasions.” The right

ip pi

pondins

page contains text In paragraph form. A portion of

text reads, “It’s a scary thought isn't it? A can

didate for Sheriff taking money from convicted crim

inals and their associates. The same type of criminals

who terrorize For syth County.” Like the first flier, it

concludes, “On August 8th, let’s vote to keep Forsyth

afe from criminals and convicted felon

‘he last flier, introduced as Plaintiffs’ Exhibit 3,

‘consists of three pages. The front paye contains a

photograph of a local newspaper publisher with text

stating, “What do you think?” The next page features

a box at the top of the page. The question “Should

this Gang run your Sheriff’s Office?” appears at the

top of the box. To the left, the text reads, “The Ted

Paxton Chain Gang.” The box contains photographs

of the same six men featured on the first flier. The

text accompanying Bennett’s photograph reads, “Ar-

rested and housed in the Forsyth Jail, Bennett gave

Paxton hundreds to help finance Paxton’s smear

campaign.” Under Reid’s photograph, the text states,

‘Developer was arrested for refusing to obey order to

stop construction. He is now giving substantial

amounts of cash to Paxton.” Additional text in para-

eraph form appears under the box on the left side of

the page. This text makes two references to “criminal

cash.” The right side of the page features another box

with numerous slogans. Here too the flier references

‘cash from criminals” and “criminal cash.” The last

page of the flier contains endorsements from var1

individuals

At trial, evidence regarding the production of the

campaign fli consisted mostly ‘Stimony trom

Gerard Petrotto, Hendrix’s public information office:

and Jason Williams, Hendrix’s campaign consultant

as well as Hendrix himself. The process of creating

the fliers began at a meeting attended by Hendrix

Hendrix’s wife, Singletary, Petrotto, and Williams in

July 2000. At that meeting, Hendrix produced 60 t

/O manila files containing arrest information and

mug shots of certain individuals. One of the mug

shots was of Bennett, whom Hendrix called “wild

haire qd hoy

Hendrix obtained this arrest information from

sheriff’s department records. He testified he had

heard some of Paxton’s financial contributors had

“some skirmishes with the law.” Acting upon this in

formation, Hendrix asked the voter registrar for a list

of Paxton’s contributors. He took the names to Waters

and told Waters to have someone run the name

through the sheriff’s department computer system to

see if any of Paxton’s contributors had records. Per

Hendrix’s orders, two individuals in the sheriff’:

department, Marlyn Dressler Smith and Jamie

Brumbelow, searched the department's records for

information on Bennett and Reid. The searches on

Bennett and Reid turned up records of arrests for

both men in 1995 for refusing to obs y a Stop work

order and for obstruction: those charges were ult!

mately dismissed as t hoth men

App. 14

Sometime after the July meeting, Williams sug-

gested using the mug shots in campaign fliers.

Hendrix, Petrotto, and Williams all testified Williams

chose the wording and generated ideas for the fliers.

According to Hendrix, “[E]verything on the fliers

[Williams] developed and placed on there. Jt was his

idea, his creation.” At the same time, however,

Hendrix played an “active part” in creating the fliers

and came up with his own ideas.

Petrotto testified Williams would create drafts of

the fliers, email them to Petrotto, and Petrotto would

print them for Hendrix’s review. Hendrix approved all

the fliers through Petrotto. Hendrix testified he saw

the final proofs of the fliers before they were mailed

and made the decisions whether to change them and

whether to mail them. Ultimately, Hendrix claimed

full responsibility for his campaign and the fliers.

On the stand, Hendrix also testified he did not

beheve Bennett and Reid were convicted criminals:

@: You knew by your definition, the way

you defined criminal, as of August of

2000, you never thought that Mr. Reid or

Mr. Bennett were criminals?

A: I believe that to be correct.

He stated he knew the fliers would likely hurt

their reputations. Ilendmx added he believed it was

“very possible” someone could look at the front of

Plaintiffs’ Exhibit 2, which features a mug shot of

Bennett and the text of “Should a Candidate for Sher-

his campaign using cash from convicted

App. 15

criminals?” and think Bennett was a convicted crija-

inal. He admitted he thought the fliers were harsh

and he might get sued.

Other members of Hendrix’s campaign staff had

concerns regarding the fliers. Petrotto testified he

was particularly troubled by the front of Plaintiffs’

Exhibit 2. Petrotto sent Williams an email on July 24,

2000, suggesting a change in the text to “Should a

candidate for Sheriff finance his campaign from con-

victed criminals or those arrested for violating Geor-

gia Criminal Code?” According to Petrotto, Hendrix

wanted to make the change, but, for some reason, it

was not made. Williams, however, testified he had a

conversation with Hendrix’s campaign about omitting

the extra language, and the campaign agreed to leave

it out. Williams did not remember whether Hendrix

personally agreed or not.

Petrotto thought the fliers might result in a

lawsuit and suggested Hendrix have an attorney

review the fliers. Similarly, Williams told Petrotto

that Hendrix would be sued over the fhers. Mark

Hoffman, who was a major in the sheriff’s depart-

ment under Hendrix, testified there was concern at

sheriff's department command staff meetings the

fliers might resuit in lawsuits.

The fliers were mailed on August 2, 3, and 4,

2000. Afterward, Bennett and Reid testified they be-

came the subject of a number of jokes. A shareholder

of a bank on whose board Bennett and Reid served

also notified the Georgia Department of Banking and

App. 16

Finance regarding the allegations in the fliers. In re-

sponse to the shareholder’s letter, the Georgia De-

partment of Banking and Finance contacted the

president and CEO of the bank, requesting the bank

provide the department with information regarding

the validity of the allegations. The bank informed the

department the charges against Bennett and Reid to

which the fliers referred were dismissed and main-

tained Bennett and Reid “were victims of malicious

political mailings.” Its response was apparently the

end of the matter, and both men continued to serve as

directors of the bank.

3. The jury verdict

After nine days of testimony, the district court

finally gave the case to the jury on April 27, 2007. In

its charge, the court articulated the elements needed

to prove a First Amendment retaliation claim and

also instructed the jury regarding conspiracy liability

under § 1983. With respect to the state law libel

claims against Hendrix, the district court informed

the jury the plaintiffs were private figures and thus

an ordinary standard of care applied in determining

liability. Consistent with its February 2002 order, the

court further instructed the jury that “publication of

the campaign flicrs was not action under color of

state law and may not be considered by you as acts of

retaliation for the Plaintiffs’ First Amendment retal-

jation claims.” The district court judge gave the jury

a general verdict form, which listed the § 1983

First Amendment retaliation claims against Hendrix,

App. 17

Singletary, and Waters, and the state law libe] claims

against Hendrix.

On May 4, 2007, the jury returned its verdicts.

With respect to Bennett’s § 1983 First Amendment

retaliation claims, the jury found Hendrix liable for

$930,000 in compensatory damages and $1,030,000 in

punitive damages. Singletary was found hable for

$400,000 in compensatory damages and $455,000 in

punitive damages. The jury found in favor of Waters

on Bennett’s § 1983 First Amendment retaliation

claim. Meanwhile, the jury was hung as to Reid’s

§ 1983 First Amendment retaliation claims against

all three defendants. Regarding the state law libel

claims, the jury returned a verdict in favor of both

Bennett and Reid against Hendrix, awarding Bennett

$3,600,000 in damages and Reid $3,100,000 in

damages.

The district court’s judgment as a mat-

ter of law in favor of the defendants

At the conclusion of the plaintiffs’ case, the

defendants moved for judgment as a matter of law

under Federal Rule of Civil Procedure 50(a). The

district court deemed the motion timely but recom-

mended postponing argument. The defendants agreed

and made their arguments for judgment as a matter

of law at the close of evidence, at which time the

district court denied the motion as to the state law

libel claims against Hendrix and took under advise

ment the motion as to the § 1983 First Amendment

App. 18

retaliation claims, allowing the case to proceed to the

jury

After the jury verdict, however, the district court

granted Hendrix, Singletary, and Waters judgment

as a matter of law on the § 1983 First Amendment

retaliation claims, basing its decision on qualified

immunity. Ruling from the bench, the court went

through each of the alleged acts of retaliation this

Court considered in its 2005 decision and noted “a

complete failure to produce evidence” of participation

by Henurix, Singletary, or Waters in the acts:

There was a lot of evidence, of hearsay, of

gossip, of rumor, of innuendo, of reckless

talk. But in terms of actual proof of some-

thing being done to these Plaintiffs by these

Defendants, there was nothing. And for those

reasons, I don’t believe that the Plaintiffs

have shown a violation of their constitutional

rights; and I think the Defendants are

erititled to qualified immunity.

On May 17, 2007, Hendrix renewed his motion

for judgment as a matter of law under Rule 50(b) to

challenge the judgment against him on the libel claims.

On November 9, 2007, the district court granted

Hendrix’s motion, finding the campaign fliers were

“loaded with innuendo, half truths, and rhetorical

hyperbole” and protected by the First Amendment.

After reciting numerous examples of inflammatory

campaign speech from our nation’s history, the court

concluded the fliers “were political speech of the

App. 19

highest order and deserving of the highest protec-

tion.”

Bennett and Reid appealed to this Court

Il. STANDARD OF REVIEW

We review de novo a district court’s grant of a

Rule 50 motion for judgment as a matter of law,

applying the same standards as the district court.

Campbell v. Rainbow City, 434 F.3d 1306, 1312 (11th

Cir.2006). In doing so, we examine the evidence in

the light most favorable to the nonmoving party.

Thosteson v. United States, 331 F 3d 1294, 1298 (11th

Cir.2003). The nonmovant, however, “must put forth

more than a mere scintilla of evidence suggesting

that reasonable and fair-minded persons in the exer-

cise of impartial judgment might reach different con-

clusions.” Jd. (internal quotation marks omitted). “If

the nonmoving party failed to make a showing on an

essential element of his case with respect to which he

had the burden of proof, then the entry of judgment

as a matter of law is appropriate.” Johnson Enters. of

Jacksonviile, Inc. v. FPL Group, Inc., 162 F.3d 1290,

i308 (llth Cir.1998) (Cnternal quotation marks

omitted).

III. DISCUSSION

On this appeal, Bennett and Reid contend the

district court erred in granting the defendants iudg-

ment as a matter ot law on the $1983 First

App. 20

Amendment retaliation claims, the § 1983 conspiracy

claims, and the state law libel claims. For the reasons

stated below, we conclude Bennett and Reid failed to

show a constitutional violation by Hendrix, Single-

tary, and Waters, and thus the district court correctly

entered judgment as a matter of law in favor of the

defendants on the § 1983 claims. We hold, however,

the front of one of the campaign fliers displayed a

statement that was not protected by the First Amend-

ment and thus reverse the district court’s grant of

judgment as matter of law in favor of Hendrix on

Bennett’s libel claim.”

The $ 1983 First Amendment Retaliation

Claims

At the close of evidence, Hendrix, Singletary, and

Waters moved for judgment as a matter of law on

Bennett and Reid’s § 1983 claims, asserting the de-

fense of qualified immunity. The district court took

the motion under advisement and allowed the case to

proceed to the jury. After the jury returned verdicts in

favor of Bennett against Hendrix and Singletary on

the § 1983 claims, the district court granted the de-

fendants’ motion for judgment as a matter of law, con

cluding there was “a complete failure” to produce

evidence of a constitutional violation and Hendrix,

Bennett and Reid also challenge a number of the district

court’s other rulings. With respect to these issues, we conclude

their arguments are without merit

App. 21

Singletary, and Waters were thus entitled to qualified

immunity. Bennett and Reid argue the district court

erred in granting judgment as a matter of law in

favor of the defendants because its decision conflicts

with this Court’s 2005 opinion affirming the district

court’s denial of the defense of qualified immunity on

summary judgment, which, according to Bennett and

Reid, established the law of the case with respect to

the qualified immunity issue. Bennett and Reid also

contend they presented ample evidence of a constitu

tional violation and the district court improperly sub-

stituted its view of the evidence for the jury’s

determinations by concluding Bennett and Reid had

failed to establish a constitutional violation

1. The law of the case

When a district court denies a qualified immunity

defense on summary judgment, a defendant may

raise the defense again in a Rule 50 motion. Cottrell

v. Caldwell, 85 F.3d 1480, 1488 (11th Cir.1996). “That

type of motion will sometimes be denied because the

same evidence that led to the denial of the summary

judgment motion usually will be included in the

evidence presented during the plaintiff’s case

Johnson v. Breeden, 280 F.8d 13808, 1317-18 (llth

Cir.2002). When the evidence produced at trial mir

rors the evidence presented on summary judgment,

“the same evidentiary dispute that got the plaintiff

past a summary judgment motion asserting the quali-

fied immunity defense will usually get that plaintifi

past a Rule 50(a) motion asserting the defense

App. 22

although the district court is free to change its mind.”

Id. at 1318.

A district court may not change its mind, how-

ever, if a prior opinion of this Court has established

the law of the case. “Under the law of the case doc-

trine, both the district court and the appellate court

are generally bound by a prior appellate decision of

the same case.” Oladeinde v. City of Birmingham, 230

F.3d 1275, 1288 (1lth Cir.2000). The law of the case

doctrine pertains to “those legal issues that were

actually, or by necessary implication, decided in the

former proceeding.” Wallis v. Justice Oaks II, Ltd. (In

re Justice Oaks II, Ltd.), 898 F.2d 1544. 1549 n. 3

(llth Cir.1990). “Exceptions to this doctrine apply

when substantially different evidence is produced,

when there has been a change in controlling author

ity, or when the prior decision was clearly erroneous

and would result in manifest injustice.” Jackson ov.

Ala. State Tenure Comm’n, 405 F.3d 1276, 1283 (11th

Cir.2005).

Sennett and Reid contend this Court’s 2005

opinion in Bennett v. Hendrix, 423 F.3d 1247 (11th

Cir.2005), decided the qualified immunity issue and

the evidence presented at trial was not different than

the evidence presented at the summary judgment

stage. We disagree. Although the 2005 appeal in-

volved the same issue as this appeal — the qualified

immunity defense -- this Court’s opinion relied on a

number of alleged facts that Bennett and Reid failed

to demonstrate at trial or that the district court ruled

could not be considered for purposes of the § 1983

App. 23

First Amendment retaliation claim. See td. at 1249,

254-55. Because “substantially different” evidence

was produced at trial, our 2005 opinion does not

constitute the law of the case. See Jackson, 405 F.3d

at 1283. Accordingly, the district court was “free to

change its mind” with respect to the defense of

qualified immunity. See Johnson, 280 F.3d at 1318

_ ; ;

The finding of no constitutional viola

tron

To prevail on a First Amendment retaliation

claim and prove a constitutional violation, a plaintiff

must establish (1) his or her speech was protected by

the First Amendment, (2) the defendant’s retaliatory

acts would likely deter a person of ordinary firmness

from exercising his or her First Amendment rights,

and (3) a causal connection exists between the retali-

atory actions and the adverse effect on the protected

speech. Bennett, 423 F.3d at 1250, 1254. If a plaintiff

fails to make a showing on any of the three elements

judgment as a matter of law under Rule 50 is

appropriate. See Johnson Enters. of Jacksonville, 162

F.3d at 1308.

The district court concluded Bennett and Reid

failed to produce evidence of any participation by

Hendrix, Singletary, or Waters in retaliatory act

against Bennet and Reid, and, consequently, Bennett

and Reid had not demonstrated a constitutional viola

tion. After a thorough review of the record,

W1SsSe found no evidence ( any participation

App. 24

defendants in retaliatory acts against Bennett and

Reid. Because Bennett and Reid were unable to sat

isfy the second element of the First Amendment re

taliation analysis, judgment as a matter of law was

appropriate in this cese. See Johnson Enters. of

Jacksonville, 162 F.3d at 1308

B The § 1983 Conspiracy Claims

Bennett and Reid also argue the district court

erred in granting judgment as a matter of law on the

§ 1983 conspiracy claims, raising the same arguments

they presented in connection with the individual First

Amendment retaliation claims. Specifically, they con

tend the district court’s ruling conflicts with our 2005

opinion affirming the district court’s denial of the

defense of qualified immunity on summary judgment

and the district court improperly substituted its view

of the evidence for the jury’s determination:

“[T]o sustain a conspiracy action under § 1983, a

distinguished from § 1985, a plaintiff must show an

underlying actual denial of its constitutional right:

GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359

1370 (llth Cir.1998). In other words, “|t)he conspira

torial acts must impinge upon the federal right; the

plaintiff must prove an actionable wrong to support

the conspiracy.” Bendiburg v. Dempsey, 909 F.2d 463

168 (11th Cir .1990). A conspiracy claim is simply “the

legal mechanism through which to impose liability o1

each and all of the Defendant without regard to the

App

person doing the particular act

318 F.2d 110, 126 (5th Cir.1963

Kennett and Reid failed to show an underlying

denial of their constitutional right as we discussed

iui Part IILA. Therefore, Bennett and Reid cannot

sustain a conspiracy action under § 1983. See GJR

Invus., Inc., 132 F.3d at 1370. The district court thu:

did not err in granting judgment as a matter of law in

favor of Hendmx Singletar and Water the

conspiracy claim

The State ]

The district court denied Hendrix motion

judgment as : atte f law on Bennett

libel claim following the pre sentation of eVvidi nce al

trial. Hendrix, however, filed a renewed motion for

judgment as a matter of law on May 17, 2007, whic!

the district court granted on November 9, 2007. Anal

ogizing to some examples of offensive political speech

from our nation’s history, the district court found the

fliers were “loaded with innuend half truths. and

rhetorical hyperbole” and concluded “[t|he campaig1

flier noweve!l offensive v8 r ( | HNeec! |

App. 26

the highest order and deserving of the highest protec

tion.” Accordingly, the court held “the First Amend-

ment trumps the Plaintiffs’ right to recover damages

for defamation.” Bennett and Reid contend the

district court erred in granting judgment as a matter

of law in favor of Hendrix on the libel claims because

the statements on the fliers do not constitute rhe

torical hyperbole O! nonliteral assertions of fact

Specifically, they argue the fliers contain “straight-

forward factual assertions” identifying Bennett and

Reid as “convicted criminals” and thus are not pro

tected by the First Amendment

Under Georgia law. “libel is a false and malicious

defamation of another tending to injure the repu

tation of the person and exposing him to public

hatred, contempt, or ridicule.” O.C.G.A. § 51-5-1. To

maintain an action for libel, the communication must

be both false and malicious. Speedway Grading Corp

Gardner, 206 Ga App 439. 42. . HS i 676. 67/8

Ga.Ct.App.1992). “In determining whether a state

false. ‘|\dlefamation law overlooks minor ina¢

and concentrates upon substantial truth

atement is not considered false unle it

iave a different effect on the mind of the viewer

that which le; n would have produce

238 Ga Ap

1999) (quoting Br

App

defamation, including the type of speech that may be

the subject of state defamation actions. Milkovich v

Lorain Journal Co., 497 U.S. 1, 16, 110 S.Ct. 2695,

2704, 111 L.Ed.2d 1 (1990). “[Bloth the Supreme

Court and this Court of Appeals have long recognized

that a defamation claim may not be actionable when

the alleged defamatory statement is based on non

literal assertions of ‘fact.’” Horsley v. Rivera, 292 F.3d

695, 701 (11th Cir.2002). “This provides assurance

that public debate will not suffer for lack of ‘imag

inative expression’ or the ‘rhetorical hyperbole’ which

has traditionally added much to the discourse of our

Nation.” Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706

Consistent with this principle, the Supreme

Court has held use of the word “blackmail” to de

scribe a real estate developer’s negotiating position

was not slander when spoken at public meetings or

libel when reported in a local newspaper because,

within that specific context, “even the most careless

reader must have perceived that the word was no

more than rhetorical hyperbole,” and “|njo reade:

could have thought that either the speakers at

meetings or » newspaper articles reporting thei

words were charging |the developer] with the con

mission of a criminal offense.” Greenbelt Coop. Publ g

Bresler 35 rs 90 S.Ct. 153%

)

App. 28

“no reasonable viewer would have concluded that [the

commentator] was literally concluding that |the

show’s guest] could be charged with a felony in con-

nection with [the doctor’s] murder.” Horsley, 292 F.3d

at 702.

The dispositive question is thus whether a rea-

sonable factfinder could conclude the challenged state-

ments imply an assertion that “is sufficiently factual

to be susceptible of being proved true or faise.”

Milkovich, 497 U.S. at 21, 110 §.Ct. at 2707; see also

Edison v. Berry, 202 Ga.App. 587, 415 S.E.2d 16, 17

(Ga.Ct.App.1992) (“The pivotal questions are whether

[the challenged] statements can reasonably be inter-

preted as stating or implying defamatory facts about

plaintiff and, if so, whether the defamatory assertions

are capable of being proved false.”). In undertaking

this inquiry, we must consider the circumstances in

which the statements were expressed. Horsley, 292

F.3d at 702. If we conclude the statements consist of

“the sort of loose, figurative language that no rea-

sonable person would believe presented facts,” the

First Amendment provides protection, and a plaintiff

may not recover damages for libel. /d; see also

Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707 (finding a

newspaper column was not protected by the First

Amendment because the challenged statements were

not “the sort of loose, figurative, or hyperbolic lan-

suage which would negate the impression that the

writer was seriously maintaining that petitioner com-

mitted the crime of perjury”)

App. 29

Turning to the facts of this case, we conclude two

of the fliers, Plaintiffs’ Exhibits 1 and 3, cannot sus-

tain a damages award for libel under Georgia law

because they do not contain false statements. The

second page of both these fliers features a photograph

of a man who, according to the fliers, pled guilty to

kidnapping. Text on these pages insinuates “convicted

criminals,” “real criminals,” and “criminal cash” sup-

port Paxton’s campaign. A person who pleads guilty <o

kidnapping is a convicted criminal. See Black’s Law

Dictionary 358, 402 (8th ed.2004) (defining “convict”

as “[tlo find (a person) guilty of a criminal offense

upon a criminal trial, a plea of guilty, or a plea of nolo

contendere (no contest)” and “criminal” as “fo]ne who

has committed a criminal offense” and “[o]ne who has

been convicted of a crime”). Because the man who

pled guilty to kidnapping is a “convicted criminal,”

the statements on Plaintiffs’ Exhibits 1 and 3 assert-

ing “criminals,” “real criminals,” “convicted felons,”

and “criminal cash” support Paxton’s campaign are

not false.

Furthermore, the text specifically referring to

Bennett and Reid on Plaintiffs’ Exhibits 1 and 3 does

not contain false statements. On Plaintiffs’ Exhibit 1,

Bennett’s mug shot appears with the text, “Arrested

and housed in the Forsyth County Jail, Bennett gave

Paxton hundreds for his smear campaign on two

Additionally, Reid testified at tnal that he pled guilty to

driving under the influence in the early 1980s

App. 30

occasions.” On Plaintiffs’ Exhibit 3, the text accom-

panying Bennett’s photograph reads, “Arrested and

housed in the Forsyth County Jail, Bennett gave

Paxton hundreds to help finance Paxton’s smear

campaign.” Both these statements are true. On both

Plaintiffs’ Exhibits 1 and 3, Reid’s mug shot appears

with the text, “Developer was arrested for refusing to

obey order to stop construction. He is now giving sub-

stantial amounts of cash to Paxton.” Like the state-

ments accompanying Bennett’s photograph on the

fliers, the statements referring to Keid are true.

Accordingly, because both the statements assert-

ing “criminals” support Paxton’s campaign and the

text accompanying Bennett and Reid’s photographs

are true, Plaintiffs’ Exhibits 1 and 3 are not defam-

atory and cannot form the basis for a libel claim

under Georgia law. See O.C.G.A. § 51-5-1; see also

O.C.G.A. § 51-5-6. (stating truth may be proved as a

justification for an alleged libel). The same reasoning

applies to the statements on the second page of

Plaintiffs’ Exhibit 2, which also contains a _ photo-

graph of the man who pled guilty to kidnapping and

similar language accompanying Bennetts mug shot

as appears on Fiaintiffs’ Exhibits 1 and 3. We con-

clude Bennett and Reid cannot recover on their libel

claims with respect to these particular statements.

The front page of Plaintiffs’ Exhibit 2, however, is

a different matter. The front of this flier contains a

mug shot of Bennett accompanied with the text,

“Should a Candidate for Sheriff finance his campaign

using cash from convicted criminals?” Bennett is the

App. 31

only person featured on the front of this flier. Al-

though he has a record of an arrest from 1995,

Bennett is not a “convicted criminal” under any defi-

nition. Indeed, Hendrix, as a law enforcement officer,

understood the definition of “convicted criminals,”

and he testified at trial he knew Bennett was not one

when the fliers were published in August 2000. The

implication of a mug shot and the sentence, “Should a

Candidate for Sheriff finance his campaign using

cash from convicted criminals?”, is that the photo is of

a convicted felon, and it is defamatory of Bennett,

satisfying the definition of libel under Georgia law

See O.C.G.A. § 51-5-1.

The question remains, though, whether the chal-

lenged language on the front on Plaintiffs’ Exhibit 2 is

protected by the First Amendment. Finding it

constituted “rhetorical hyperbole,” the district court

held the speech was “deserving of the highest pro-

tection” and could not be the subject of a defamation

action. We disagree. The language on the front of the

flier is not “the sort of loose, figurative language that

no reasonable person would believe presents] facts.”

See Horsley, 292 F.3d at 702. A reasonable factfinder

could conclude that, with the photo, the sentence,

“Should a Candidate for Sheriff finance his campaign

using cash from convicted criminals?”, is an assertion

regarding Bennett — the only person featured on the

page — that “is sufficiently factual to be susceptible of

being proved true or false .” See Milkovich, 497 U.S.

at 21, 110 S.Ct. at 2707. Specifically, the challenged

language asserts Bennett is a convicted criminal

App. 32

Whether that assertion is false is verifiable from

Bennett’s criminal records. Accordingly, the front

page of Plaintiffs’ Exhibit 2 is not protected by the

First Amendment.

The context in which the language on the front of

the flier was expressed supports our conclusion that

the First Amendment does not provide protection.

The flier was published by the chief law enforcement

officer of Forsyth County. The only person who ap-

pears on its front page is Bennett. The photograph of

Bennett is a mug shot taken shortly after his 1995

arrest. In the photograph, Bennett has a disheveled

appearance, and his hair is not groomed. The in-

tended message is clear — Bennett is a convicted crim

inal — and a reasonable reader could conclude

Hendrix, the sheriff of Forsyth County, was stating

Bennett had been convicted of a criminal offense.

Indeed, Hendrix acknowledged during his trial testi-

mony it was “very possible” a recipient of the flier

In reaching this conclusion, we need not decide whether

the challenged language involved a public figure or a private

figure on a matter of public concern because the district court

concluded the speech was protected under the First Amendment

as rhetorical hyperbole. The First Amendment can provide

protection against state law defamation claims on two bases: (1)

the type of speech involved and (2) the person whom the speech

concerns and the culpability of the speaker. See Milkovich, 497

U.S. at 20, 110 S.Ct. at 2706-07. The inquiry associated with

each has developed under two separate lines -* Supreme Court

cases. See id .We analyze only the type of speech invelved here,

as the district court’s decision did not rest on the person whom

the speech concerned

App. 33

could read the flier and think Bennett was a con-

victed criminal. In this context, “convicted criminals”

is “not the sort of ‘'oose, figurative, or hyperbolic

language which wouid negate the impression that

|Hendrix| was serious mainiaining” Bennett was a

convicted criminal. See Milkovich, 497 U.S. at 21, 110

S.Ct. at 2707.

We recognize “debate on public issues should be

uninhibited, robust, and wide-open,” New York Times

Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Cv. 710, 721,

11 L.Ed.2d 686 (1964), and “language of the political

arena ...1is often vituperative, abusive, and inexact,”

Watts v. United States, 394 U.S. 705, 708, 89 S.Ct.

1399, 1401-02, 22 L.Ed.2d 664 (1969). As one of our

sister circuit courts has noted, “[PlJolitical statements

are inherently prone to exaggeration and hyperbole.

If nolitical discourse is to rally public opinion and

challenge conventional thinking, it cannot be sub-

dued. Nor may we saddle political speakers with im-

plications their words do not literally convey... .”

Planned Parenthood of the Columbia/Willamette, Inc.

v. Am. Coal. of Life Activists, 244 F.3d 1007, 1019 (9th

Cir.2001) (internal citation omitted). We are sensitive

to the fact this flier was published during a heated

political campaign, but this fact does not alter our

analysis. The language on the front page of Plaintiffs’

Exhibit 2 is exact, and the words literally convey the

assertion that Bennett is a convicted criminal. False

factual assertions are not protected under the First

Amendment, even if expressed within the context of

political debate. See Gertz v. Robert Welch, Inc., 418

App. 34

U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789

(1974) (“[TJhere is no constitutional value in false

statements of fact. Neither the intentional lic nor the

careless error materially advances society’s interest

in ‘uninhibited, robust, and wide-open’ debate on pub-

lic issues.” (quoting New York Times Co., 376 U.S. at

270, 848.Ct. at 721)).

We also recognize the tone of the speech and its

medium of expression can often signal opinion or non-

literal assertions of fact, especially within the polit-

ical arena. See Milkovich, 497 U.S. at 6, 110 S.Ct. at

2707 (noting “the general tenor of an article” may

negate a literal assertion); see also Secrist v. Harkin,

874 F.2d 1244, 1249 (8th Cir.1989) (noting a cam-

paign press release “is at least as likely to signal

political opinion as a newspaper editorial or political

cartoon”). That said, the front page of Plaintiffs’

Exhibit 2 is not styled as a cartoon, parody, or

editorial, and its tone is not satirical or exaggerated.

Rather, it involves an assertion by an law enforce-

ment officer regarding the criminal history of one of

his opponent’s supporters, accompanied by a mug

shot of that supporter. The tone of the flier supports

our conclusion that it is not protected by the First

Amendment.

The type of speech protected by the First Amend-

ment is a context-driven inquiry, and we thus empha-

size the unique circumstances of this case. If the

challenged language on the front page of Plaintiffs’

Exhibit 2 had been “criminals” instead of the mors

exact and literal phrase “convicted criminals,” this

App

might be a different case. If a photograph of a con-

victed criminal had appeared alongside Bennett's

mug shot on the front page ef the flier, this might be a

different case. If Bennett’s mug shot had been

omitted from the page, this might be a different case

Here, however, the use of only Bennett’s mug shot

and the precise language of “convicted criminals”

leads to one conclusion the speech constitutes a

false factual assertion and is not protected by the

First Amendment.

For these same reas we reject Hendrix’s argument

that the speech is pure opinion protected under the First

Amendment. Because the factual premises of the challenged

language are revealed in the fliers, Hendrix argues the speech

in addition to constituting rhetorical hyperbole, amounts to pur

opinion and is not actionable

The state of Georgia has immunized “not only state-

ments of rhetorical hyperbole bul also statements

clearly recognizable as pure opinion because their

factual premises are revealed.” Jaidlett, 520 S.E.2d at

726. “If an opinion is based upon facts already dis-

closed in the communication, the expression of the

opinion implies nothing other than the speaker

subjective interpretation of the facts.” Jd

Although the front page of Plaintiffs’ Exhibit 2 does

state Bennett was “arrested and housed in the Forsyth

County Jail,” the question “Should a Candidate for

Sheriff finance his campaign using cash from con

victed criminals?” ts not Hendrix’s subjective inter

pretation of these facts. Hendrix’s own testimony

undermines his argument, as he admitted at trial that

being arrested did not make an individual a “con

victed criminal.” The challenged language is not pro

tected under the First Amendment as pure opinion

App. 36

Finally, in reaching our conclusion, we note,

within the context of campaigns for law enforcement

offices, the particular relevance of information re

garding criminal and arrest records of candidates and

their supporters. This information is crucial for the

public to determine which individuals to entrust the

responsibility of maintaining and executing the laws

of this land. Such information, however, must be

truthful. Candidates for law enforcement offices can-

not misrepresent the criminal histories of their oppo-

nents and their opponents’ supporters with false

factual assertions. In this case, the challenged lan-

guage on the front of Plaintiffs’ Exhibit 2 misrep-

resents Bennett’s criminal history with false factual

assertions and crosses the line from healthy political

debate and pertinent public information to defama-

tion. Accordingly, we reverse the district court’s

judgment as a matter of law in favor of Hendrix on

Bennett's state law libel claim

The First Amendment, however, may stil yrovide pro-

: t }

tection to false factual assertions depending on the person whom

the speech concerns and the culpability of the speaker. See

Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706-07. Again, in this

case, we only determine the type of speech involved and whether

the First Amendment provides protection for it.

Hendrix has raised a number of alternative arguments on

appeal. Specifically, he contends (1) he is entitled to judgment as

a matter of law because the fliers did not constitute libel per se

and Bennett and Reid offered no proof of special damayes; (2) he

is entitled to judgment as a matter of law because Bennett and

Reid failed to prove actual injury; and (3) he is entitled to a new

trial or remittitur because the verdict was excessive, the district

(Continued on following page)

App. 37

IV. CONCLUSION

lor the foregoing reasons, we affirm the orders of

the district court granting the defendants’ motions for

judgment as a matter of law as to Bennett and Reid’s

§$ 1983 First Amendment retaliation claims and

conspiracy claims and Reid’s state law libel claim. We

reverse the district court’s grant of judgment as a

matter of law in favor of Hendrix on Bennett's state

law libel claim. We remand the case to the district

court with instructions to consider tlhe issues it did

not address from Hendrix’s motion for judgment as a

matter of law

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED WITH INSTRUCTIONS.

PRYOR, Circuit Judge, concurring in part and

dissenting 1n part:

I would affirm the judgment as a matter of law

entered against Reid and Bennett. I do not see a

court erred in refusing to allow evidence of a clarification and in

refusing to charge presumed damages are a rebuttal presump

tion, and there was confusion of issues for the jury. We need not

address these issues because the district court did not consider

them in granting Hendrix judgment as a matter of law on

the ground the fliers were protected by the First Amendment

Hendrix preserved all his arguments challenging the jury ver

dict in his Motion for Judgment as a Matter of Law, or Alter

natively, a New Trial, or Alternatively, to Amend Judgment, and

thus we remand for thc district court to consider these issues in

the first instance

App Te!

critical difference between flyer 2 and the other

flyers. Flyer 2 uses the term “convicted criminals” on

the front alongside a photograph of Danny Bennett,

but the other flyers use the terms “convicted felons”

and “convicted criminals” on the same page that ha:

a photograph Bennett. What protects the other flyers

is the explanation beneath the photograph of Bennett

(“Arrested and housed in the Forsyth Jail, Bennett

gave Paxton hundreds for his smear campaign on two

occasions.”), but a nearly identical explanation (“Thi:

man, arrested and housed in the Forsyth County Jail

gave hundreds in cash to Paxton’s campaign on two

different occasions.”) appears below the photograph of

Bennett on the front of flyer 2. That explanation i:

important to all the flyers because all the flyers also

display a photograph of at least one convicted felon

We should not read the front of flyer 2 in iso

lation. The flyer has two pages, front and back. ‘he

two sides should be read together for the same reason

that we read the statements and photographs on each

side of each flyer together. The front of flyer 2 uses

the term “convicted criminals,” and the back of the

flyer has a photograph of a convicted criminal. The

front of the flyer has a truthful assertion immediately

below the photograph of Bennett (“This man, arrested

and housed in the Forsyth County Jail, gave hun

dreds in cash to Paxton’s campaign on two different

occasions.’ ). The reference to “convicted criminals” on

the front of the flyer does not name or identify any

one. The reference to convicted criminals is included

in a general question (“Should a Candidate for Sheriff

finance his campaign using cash from convicted crim

inals?’) that 1s answered on the back of the flyer (“Ted

Paxton thinks so.”). The ar wer on the back appeal

on the same page with the photograph of Julier

Bowen and a caption that identifies him as a con

victed criminal (“Deteated Commissioner plead guilty

to kidnapping his wife at gunpoint. His contributor

are now giving thousands to Paxton The answer or

the back al appear: above the gener: question

“It's scary isnt 1t?”, followed by tatement \

candidate for Shenff taking money from convict

criminals and their associate

he question

ploy in political propaganda that invites t!

turn over the flyer and read the back. All three

e this ploy The | ises the beginn.l

ot a statement (— you! S riii i doing

rood iob when ) t] s finished on the back of tl

flyer (“ criminals are supporting h oppone!

lsic| campaign.’ ). The front of flyer 3 uses a questio

(‘What do you think?”) that is followed by

pecific question on the back Should this G

Sheriff Office?

medium,

toncal hyperbol

Sheriff Dennis

assertion po ible below

SOT) depicted ‘| he reade! We uld

convicted criminals in the

App. 40

damning assertion about Bennett is that he had been

arrested and housed tin the jail. The reader also would

read the answer on the back of the flyer alongside a

photograph yf i perso! identified a a convicted

Critmmifial

| admit that this question is a close one, and |!

fully concur in the other aspect f the majority

opinion Perhaps the district court will be able to

resolve this controversy on one of the alternativ:

rounds for a judgment as a matter of law. A new trial

of the claim of defamation as it relates only to flyer

evel i] years after the election 1n whi n Hendrix Wa

defeats would appeal to vpe i colos al waste ol

resource | respectfully dissent from that part of thi

majority opimion that reverss the judgment a

re 6 er eg, ey rer a rr a a er ae FOR TT Go ara ee

App 1]

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

DANNY M. BENNETT

et al.,

Plaintiff

CIVIL ACTION FILE

DENNIS LEE HENDRIX NO. 1:00-CV-2520-TW'

Individually and in hi:

official capacity a sheriff

of Forsyth County. et al

| de fend mnt

mn} l 1 Cast in which Lhe Pilaintift

claims for First Amendment retal

A erve

lation and detama

tion by the former Sheriff

At the conclus of tt

ion he trial. the Court

ment in favor of the Defe

of Forsyth County, Georgia

entered judg

ndant Or! their defen (

col

qualified immunity to the First Amendment retal

ation claims. The jury returned verdicts for the Plain

tiff on their libel cla TY ind juagement entered

for the Plaintifls against the Defendant Hendrix. Th

case } now before the Court T the Defendar

l{fendrix’s Motion for Judgment as a Matter of La

aiternatively Kor 1 New lrial il t

ATTit d Judgment Ter ve

App 42

This action allegedly arises out of Plaintiffs’ sup-

port for a referendum seeking to estabiish a county-

wide police force in Forsyth County. They allege that

the former Sheriff, who opposed the referendum, re-

taliated against them and deprived them of their

constitutional rights through a campaign of illegal

surveillance, harassment and defamation. At tmial,

the Plaintiffs were unable to present any evidence

that they (as opposed to other political opponents of

the Sheriff) were subject to illegal surveillance or

harassment in retaliation for their support of the

referendum. They did present evidence that in July,

2000, in the midst of the Sheriff’s re-election cam-

paign, Hendrix’s campaign published fliers bearing

photographs of Reid and Bennett, among others. The

fllers announced that “real criminals” were support-

ing Hendrix’s opponent. The fliers essentially stated

that Plaintiffs had been arrested in Forsyth County

and were now funding the campaign of Hendrix’s

opponent. The fliers encouraged voters not to support

aman whose campaign was backed by the “same type

of criminals that terrorize Forsyth County.” Approxi-

mately 36,000 of the campaign fliers were distmb-

uted. The jury found that the campaign fliers were

defamatory and awarded Bennett $3.6 million in

damages and Reid $3.1 million in damages against

Defendant Hendrix

App. 43

II.

Hendrix contends that the Court should enter

judgment as a matter of law as to the defamaiion

claims on the grounds that the alleged defamatory

statements constitute non-literal assertions of fact,

rhetorical hyperbole, and pure opinion that are

protected speech under the First Amendment. In

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990),

Chief Justice Rehnquist traced the progression of

First Amendment protection for allegedly defamatery

speech. Initially, the common law afforded a cause of

action for damage to a person’s reputation by the

publication of false and defamatory statements. /d. at

11. However, due to concerns that unduly burden-

some defamation laws could stifle valuable public de-

bate, the privilege of “fair comment” was allowed as

an affirmative defense to an action for defamation.

The privilege of “fair comment” afforded legal immu-

nity for “the honest expression of opinion on matters

of legitimate public interest when based upon a true

or privileged statement of fact.” Jd. at 13.

In 1964, the Supreme Court decided New York

Times Co. v. Sullivan, 376 U.S. 254 (1964) which held

that the First Amendment to the United States Con-

stitution placed hmits on the application of the state

defamation law. There the Court recognized the need

for “a federal rule that prohibits a public official from

recovering damages for a defamatory falsehood relat-

ing to his official conduct unless he proves that the

statement was made with ‘actual malice’ — that 1s,

with knowledge that it was false or with reckless

App. 44

disregard of whether it was false or not.” [d. at 279-

80. This rule was later extended to “public figures”

as well as “public officials.” Curtis Publishing Co. v.

Butts, 388 U.S. 130 (1967). Importantly, for this case,

the Supreme Court held that the New York Times

“actual malice” standard was inappropriate for a pri-

rate person attermpting to prove he was defamed on

matters of public interest. Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974); Milkovich, 497 U.S. at 15.

The Court has also recognized constitutional lim-

its on the type of speech which may be the subject of

state defamation actions. Milkovich, 497 U.S. at 16.

Included within the protected area is “rhetorical hy-

perbole” such as calling a developer’s negotiating

position “blackmail.” Greenbelt Cooperative Publish-

ing Assn., Inc. v. Bresler, 398 U.S. 6 (1970); Milkovich,

497 U.S. at 16-17. “This provides assurance that

public debate will not suffer for lack of ‘imaginative

expression’ or the ‘rhetorical hyperbole’ which has tra-

ditionally added much to the discourse of our Nation.”

Milkovich, 497 U.S. at 20.

Other courts have extended the protected area to

cover statements made in the context of political

debate “which is all too often composed of equal parts

of bombast, hyperbole, and billingsgate.” Desert Sun

Publishing Co. v. Superior Court, 97 Cal.App.3d 49,

93-54 (1979). In this context, the manner and me-

dium of publication may be of significance. With re-

spect to defamatory statements in campaign fliers, it

has been recognized that “a reasonable person would

realize that such communications are the type of

App. 45

critical commentary typically filled with political

innuendo and should not be taken at face value or

viewed as a statement of fact.” Arrington v. Palmer,

971 P.2d 669, 673 (Colo.App.,1998).

III.

Chief Justice Rehnquist did not exaggerate in

describing American political debate as including

imaginative expression and rhetorical hyperbole.

Indeed, the political rhetoric of today is pretty pale

stuff compared to that of the early days of our Re-

public. In the first contested election of 1796, John

Adams was accused of being a monarchist who was

plotting to make his sons “Seigneurs or Lords of this

country.” Paul F. Boller, Jr., Presidential Campaigns 8

(Oxford University Press 2004). The Federalists

called Thomas Jefferson an atheist, anarchist, cow-

ard, mountebank, trickster, and Franco-maniac whose

Supporters were “cut-throats who walk in rags and

sleep amidst filth and vermin.” /d. In the election of

1800, the Connecticut Courant said that the election

of Thomas Jefferson as President meant:

Murder, robbery, rape, adultery, and incest

will all be openly taught and practiced, the

air wiil be rent with the cries of the dis-

tressed, the soil will be soaked with blood,

and the nation black with crimes.

Id. at 12. Another Federalist wrote of Jefferson that

he was “a mean-spirited, low-lived fellow, the son of a

half-breed Indian squaw, sired by a Virginia mulatto

App. 46

father ... raised wholly on hoe-cake ... with an occa-

sional change of fricaseed bullfrog.” Jd. at 11. None-

theless, the subject of these scurrilous attacks said in

his inaugural address: “If there be any among us who

would wish to dissolve this Union, or to change its

Republican form, let them stand undisturbed as

monuments of the safety with which error of opinion

may be tolerated where reason is left free to combat

it.” Jd. at 17. In the 1804 election, Jefferson remained

silent in the face of charges that he had sired children

by a black slave concubine, saying that “the man who

fears no truth has nothing to fear from lies.” Jd. at 19

The supporters and relatives of now revered fig-

ures were regularly subjected to the most vicious and

scurrilous attacks. Andrew Jackson was reduced to

tears when he read in a newspaper supporting his

opponent:

General Jackson’s mother was a COMMON

PROSTITUTE, brought to this country by

the British soldiers. She afterward married a

MULATTO MAN, with whom she had sev-

eral children, of which number General

JACKSON IS ONE!!!

Id. at 46. Nor did General Jackson’s wife escape the

wrath of opposing editors. One asked: “Ought a con

victed adultress and her paramour husband to be

placed in the highest offices of this free and Christian

land?” [d. When his beloved Rachel died a few days

after the election, Jackson was convinced that her

death was due to the slanderous charge of immor

ality. “May God Almighty forgive her murderers,” he

App. 47

said at her funeral, “as I know she forgave them. |

never will.” Jd. Jackson himself was accused of adul-

tery, gambling, cock fighting, bigamy, slave-trading.,

. 5 5 5 & 5 ‘ ut

drunkenness, theft, lying, and murder. /d. at 45

IIT.

The Hendrix campaign fliers introduced in evi-

dence during the trial are loaded with innuendo, half

truths, and rhetorical hyperbole. The Sheriff was des-

perate to hold on to his office and slinging mud

seemed to him and his advisors to be the most effec-

tive way to snatch victory from the jaws of defeat.

The innuendo that Bennett and Reid were convicted

criminals and part of the “chain gang” is pretty

repulsive. But the smear campaign did not work

Hendrix was defeated and has never held public office

since. Bennett and Reid were not public figures in the

traditional sense. However, in the politics of Forsyth

County, Georgia, they were in the fray. They were

public supporters of the countywide police force

referendum, and were known supporters of Hendrix’s

opponent in the 2000 Republican primary. The

campaign fliers — however offensive — were political

speech of the highest order and deserving of the

highest protection. In this situation, the First

Amendment trumps the Plaintiffs’ right to recover

damages for defamation

App. 48

[V.

For the reasons set forth above. the Defendant

Hendrix’s Motion for Judgment as a Matter of Law

[Doc. 371] is GRANTED. The judgment in favor of the

Plaintiffs is vacated and the Clerk is directed to enter

judgment in favor of the Defendant Hendrix on the

defamation claims. The alternative Motion for New

Trial [Doc. 371] and Motion to Amend Judgment [Doc.

371] are DENIED.

SO ORDERED, this 9th day of November, 2007.

s/ Thomas W. Thrash __

THOMAS W. THRASH, JR.

United States District Judge

App. 49

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

DANNY M. BENNETT

et al,

2|\ ar , fo

Plaintiffs, CIVIL ACTION FILE

" NO. 1:00-CV-2520-TW1

DENNIS LEE HENDRIX. ) ATLANTA. GEORGIA

et al,

Defendants.

TRIAL PROCEEDINGS HAD BEFORE

THE HONORABLE THOMAS W. THRASH, JR.,

UNITED STATES DISTRICT JUDGE, AND A JURY

Thursday, April 26, 2007

APPEARANCES OF COUNSEL:

On behalf of the Plaintiffs: Eric Steven Chofnas

Robert L. Goldstucker

Mark Daniel Lefkow

On behalf of the Defendants: Cynthia Matthews Daley

Paul Robert Koster

Phillip Edward Friduss

Christopher D. Balch

\pp HO

Proceedings recorded by mechanical stenography

and computer-aided transcript produced by

SUSAN C. BAKER, RMR

2194 U.S. Courthouse

75 Spring Street, S.W.

Atlanta, GA 30303

(404) 215-1558

[118] organization. They did it in the Sheriff’s De-

partment which has to be hierarchical. But I think in

this case it’s clear that you follow Sheriff Hendrix’s

orders or you are not going to be around for long.

They also did it in the military campaign or the

political campaign. We heard we saw documents

referring to these fliers that bombed

THE COURT: You are not responding to

the Defendants’ arguments at this point, Mr. Chofnas.

You are just arguing your case.

MR. CHOFNAS: I probably am, and I apol

ogize for that

My only response on the Federal claims is that

there’s a lot of evidence, and the conspiracy is a jury

issue and that it should not be taken from the jury

particularly at this point unless there's other specific

issues

THE COURT | t. lam going to take

under advisement

MR. KOSTER: Your Honor, can I just point

out one thing?

App. 51

THE COURT: No

MR. KOSTER: Okay. Thank you

THE COURT: Iam going to take under ad-

visement the Defendants’ motion with respect to the

sufficiency of the evidence as to the First Amendment

retaliation claim and as to their claims for qualified

immunity, and I will rule on those [119] after the jury

returns its verdict

l am going to deny the motion with respect to the

Plaintiffs’ defamation claim. I am going to grant it as

to the Plaintiffs’ false light invasion of privacy claim

based upon the case of Bollea versus World Cham

pionship Wrestling, Inc., 271 Ga.App 555 where in

‘ootnote 1e Georgia Court of Appeals said: In or

Footnote 1 the ¢ g [

der to survive as a separate cause of action, a false

light claim must allege a non-defamatory statement.

om] > e

If the statements alleged are defamatory, the claim

would be for defamation only, not false light invasion

of privacy.

And I think that’s precisely the situation we have

here. So I’m not going to submit the false light in

vasion of privacy claim to the jury. But I do deny the

motion as with respect to the hbel claim, and we will

submit it and the First Amendment claim to the jury.

All mght, Ms. Daley, m going to give you 40 min

utes for closing argument

MS. DALEY: ‘Thank you, Your Honor

App. 52

THE COURT: And, Mr. Balch and Mr.

Friduss, I am going to give each of you 20. And, Mr.

Goldstucker, I am going to give you an hour

All mght. We will do the charge conference after

lunch. Are y’all going to be ready to argue the case

this afternoon?

MR. BALCH Yes, sir

App re

IN THE UNITED STATES DISTRICT COUR’

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

DANNY M. BENNETT

et al,

Plaintiff CIVIL ACTION FILE

V NO. 1:00-CV-2520-TWT

DENNIS LEE HENDRIX. ) ATLANTA. GEORGIA

et al,

Defendant

TRIAL PROCEEDINGS HAD BEFORE

THE HONORABLE THOMAS W. THRASH, JR..,

UNITED STATES DISTRICT JUDGE, AND AJURY

Friday, May 4, 2007

APPEARANCES OF COUNSEL

On behalf of Plaintiff Eric Steven Chofna

Mark Daniel Lefkow

On behalf of the Defendant Cynthia Matthews Daley

Paul Robert Koster

Philip Edward Fridus

( ynristopher 1). Balch

129s recorded by mec! r al tenograpl!

puter aided trans ripl produc ed b

SUSAN C. BAKER, RMR

2194 U.S. Courthouse

75 Spring Street, 5.W

Atlanta, GA 30303

(404) 215-1558

3] sure we have. And I'm sure it’s in the llth Ci

cuit opinion that what we have alleged is a conspiracy

with Mr. Hendrix and Mr. Singletary at the top and

directing various officers to do all these things. And

[ think the case law shows that you need to con

sider the entire pattern of retaliation in determining

whether, in fact, there is retaliation and also whether

it meets the ordinary firmness test

It is an objective standard despite what Mr

Kriduss says, and the llth Circuit has spoken on

that. And [I think if you look at the case law, as you

know, the 11th Circuit was the last or one of the last

ones to officially adopt the ordinary firmness stan

dard. If you look at the other circuits, you will see

that the actions that we have alleged and we have

proved through the jury's verdict would clearly meet

the ordinary firmness test. It’s not that high a thresh

old, and I think we would easily meet that

Balch’s comment ve the Court has a

declared rs | | "lal cl | Mr Reid ) Section

‘lain

vou let that

due time

the Defendants’ motion for yuagment as a matter ol

law on the qualified immunity defenses to all of the

Plaintiffs’ claims, 124] both as to Mr. Reid and as t

Mr. Bennett. The llth Circuit affirmed my earlier

denial of qualified immunity by stating that the

alleged retaliatory acts complained of here included a

prolonged and organized campaign of harassment by

local police ottics r

Taken in the lig! favorab! o the Plain

tiffs, the record is replete with instances where thi

Defendants followed, pulled over, cited, intimidated

or otherwise harassed the Plaintiffs. There is a com

plete failure to produce evidence of that. There is a

complete failure to produce evidence of that which

related these particular Plaintiffs, Mr. Reid and

Mr. Bennett. There’s a complete failure of evidence t

prove that with re pect to any pel! ) participation

by Mr. Hendrix, Mr. Singletary or Mr. Waters in any

such campaign. And there's a complete failure of the

evidence to show any overriding, overarching conspi!

acy to intimidate or harass Mr. Reid or Mr. Bennett

because of their acti\ In connection

re erendum ()T)

‘The Court went

CQAOlY acct ed O!

App 56

containing information on the Plaintiffs. That just did

not happen. The only evidence was that Mr. Waters I

believe it was directed one of the clerks in the Sher-

iff’s Office to get information out of the public or that

would have been available to any member of [25] the

public if they had asked for it.

The Court goes on to say: Attempted to obtain

arrest warrants against the Plaintiffs without prob-

able cause. Again, there’s a complete failure of the

evidence to show that. The two deputies who testified

at worst had arguable probable cause to cite Mrs.

Bennett for the traffic violations. As I previously held,

Deputy Lockhart had arguable probable cause to in-

vestigate the alleged dumping of waste asphalt on the

Plaintiffs’ construction site. And no arrest occurred as

a result of that.

The Court goes on to say: It produced and mailed

to Forsyth County residents fliers depicting the Plain-

tiffs as criminals terrorizing the county. Although

that 1s contained in the 11th Circuit opinion, I don't

believe that the Court intended that to reverse my

ruling that the fliers were not state action and could

not be considered as retaliatory state action for which

a 1983 claim could be made. Certainly that could not

be considered a violation of clearly established con-

stitutional law.

Though I recognize I am mixing up a little bit the

two prongs of qualified immunity, but I just don’t

think that the Plaintiffs produced evidence as opposed

to speculation and conjecture as to what they alleged

Pi ar

App >

and what the llth Circuit said would constitute a

claim of First Amendment retaliation that would

overcome the Defendants’ qualified immunity de

fense

{26] There was a lot of evidence, of hearsay, of

gossip, of rumor, of innuendo, of reckless talk. But in

terms of actual proof of something being done to these

Plaintiffs by these Defendants, there was nothing.

And for those reasons, I don’t believe that the Plain-

tiffs have shown a violation of their constitutional

rights; and I think the Defendants are entitled to

qualified immunity.

So I will direct the clerk to enter the judgment

for the Plaintiffs on the libel claims against Mr.

Hendrix but to enter judgment against the Plaintiffs

and for the Defendants on their qualified immunity

defenses.

Thank you very much, Counsel. Court’s in recess

until further order.

(Proceedings adjourned at 4:52 p.m

App. 58

APPENDIX D

3d 1247

United States Court of Appeals,

Eleventh Circuit.

Danny M. BENNETT, Danny L. Reid,

Tammy R. Bennett, Plaintiffs-Appellees,

Dennis Lee HENDRIX, Individually and in his

Official capacity as Sheriff of Forsyth County,

Earl A. Singletary, Individually and in his Official

Capacity as Chief Deputy Sheriff of Forsyth County,

David W. Waters, Individually and in his Official

Capacity as a Deputy Sheriff of Forsyth County,

Defendants-Appellants,

James L. Lockhart, Individually and in his Official

Capacity as a Deputy Sheriff of Forsyth County,

John Does, 1-10, Individually and in their Official

Capacities as Deputy Sheriffs and/or Officers of the

Forsyth County Sheriff’s Department, et al.,

Defendants.

No. 04-12256.

Sept. 9, 2005.

Phillip E. Friduss, Paul Robert Koster, Hall,

Booth, Smith & Slover, PC, Atlanta, GA, for

Defendants-Appcellants

Eric S. Chofnas, Alpharetta, GA, fer Plaintiffs-

Appellees.

Appeal from the United States District Court for

the Northern District of Georgia

App. 59

Before BLACK and WILSON, Circuit Judges,

and NANGLE*, District Judge

WILSON, Circuit Judge

Plaintiffs Danny M. Bennett and Danny L. Reid

filed a complaint alleging that Dennis L. Hendrix,

former Sheriff of Forsyth County, Georgia and Earl A

Singletary and David W. Waters, deputies who served

under Hendrix, violated their civil rights. Plaintiffs

alleged that these officers carried out a campaign of

police harassment and retaliation after plaintiff:

supported a county referendum opposed by the

sheriff. After the district court entered an order

denying the officers qualified immunity, they brought

this appeal. We find no error in the district court’

order, and therefore affirm.

BACKGROUND

In 1998, Forsyth County, Georgia’ voters

considered a referendum that would have established

a county-wide police force and diminished the power

of the Forsyth County Sheriff’s Department.’ Most

of the Department’s powers would have been

transferred to the county police, and the Sheriff

would have been under the supervision of county

* Honorable John F. Nangle, United States District Judg«

for the Eastern District of Missouri, sitting by designation

We present the facts in the light most favorable to the

plaintiffs, the party opposing summary judgment. Young v. City

of Palm Bay, 358 F.3d 859, 860 (11th Cir.2004

App. 60

officials. Sheriff Hendrix opposed the referendum.

The plaintiffs are local business owners who sup-

ported the referendum. Along with other citizens,

they formed a committee in support of the referen-

dum and sponsored a debate on the matter.

The referendum was defeated at the polls, but

the plaintiffs allege that Hendrix (along with the

other defendants, fellow Sheriff’s Department

officers) engaged in a campaign of retaliation and

intimidation against the plaintiffs because of their

support of the referendum. The plaintiffs allege that

Hendrix formed a “Strike Force” within the Depart

ment to carry out this process of intimidation.

Among many other acts of intimidation, they

allege the defendants took down license tag numbers

of cars at a forum in support of the referendum,

surveilled the plaintiffs’ homes and businesses, set up

roadblocks near their homes, stopped their cars

without reason and issued false traffic citations,

accessed government databases to obtain confidential

information on the plaintiffs, attempted to obtain a

warrant for their arrest on trumped-up environ-

mental charges, and mailed flyers to 35,000 homes

in Forsyth County calling the plaintiffs the “real

criminals,” members of a “chain gang,” and “the same

type of criminals that terrorize Forsyth County

According to the plaintiffs, most of these events

occurred shortly before the 2000 election, and were

designed to intimidate the plaintiffs from opposing

H{lendmx’s re-election that year. The plaintiffs assert

App. 61

that the intimidation tactics were _ successful.

Although the plaintiffs voted and made campaign

contributions during the 2000 election cycle, they

allege that the defendants’ actions chilled them from

engaging in further political activities like they did in

1998.

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

2000, alleging violations of the First, Fourth, and

Fourteenth Amendments, as well as a conspiracy to

violate their civil rights, along with several state tort

laws. The district court granted summary judgment

to the defendants on most of these claims, but denied

summary judgment on the plaintiffs’ claim of

retaliation in violation of the First Amendment, their

§ 1983 conspiracy claim, and state law claims against

Hendrix, Singletary, and Waters. The defendants

moved for summary judgment based on the defense of

qualified immunity. The court held that’ the

defendants were not entitled to qualified immunity

because they had violated the plaintiffs’ consti-

tutional rights, and those rights were clearly

established at the time. Accordingly, the district court

denied summary judgment.’

The court granted summary judgment for the defendants

as to the claims brought by plaintiff Tammy Bennett, and she is

not a party to this appeal. Likewise, the district court granted

summary judgment on the plaintiffs’ claims against the

additional defendants. Thus, the only issue before us is the

entitlement of Hendrix, Singletary, and Waters to qualified

Immunity

App. 62

Il. JURISDICTION AND STANDARD OF REVIEW

Although the defendants’ appeal is interlocutory,

we have jumsdiction to review the district court’s

decision on qualified immunity pursuant to 28 U.S.C.

§ 1291 and Mitchell v. Forsyth, 472 U.S. 511, 530, 105

S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We review de

novo the district court’s decision denying qualified

immunity, drawing all factual inferences in the

nonmovant’s favor. Durruthy v. Pastor, 351 F.3d 1080,

1084 (11th Cir.2003). Summary judgment is appro-

priate only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as to any material fact.” Fed.R.Civ.P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.

2548, 2552, 91 L.Ed.2d 265 (1986).

II. DISCUSSION

Our procedure in assessing qualified immunity is

well-established. Government officials acting within

their discretionary authority are ineligible for quali-

fied immunity from suit when the facts “[t]laken in

the iight most favorable to the party asserting the

injury ... Show the officer’s conduct violated a consti-

tutional right” and “the right was clearly estab-

lished.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct.

2151, 2156, 150 L.Ed.2d 272 (2001).

We have already determined, in an earlier appeal

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

were acting within the scope of their discretionary

App. 63

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

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

establish this fact to be able to claim qualified

immunity. Once they satisfied that burden, the bur-

den shifted to the plaintiffs to establish a constitu-

tional violation. Vinyard v. Wilson, 311 F.3d 1340,

1346 (11th Cir.2002).

A. Violation of a Constitutional Righi

The precise test for determining whether the

defendants’ actions violated the plaintiffs’ rights

against retaliation is an issue of first impression in

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

To state a retaliation claim, the commonly accepted

formulation requires that a plaintiff must establish

first, that his speech or act was constitutionally

protected; second, that the defendant’s retaliatory

conduct adversely affected the protected speech; and

third, that there is a causal connection between the

retaliatory actions and the adverse effect on speech.

Constantine v. Rectors and Visitors of George Mason

Univ., 411 F.3d 474, 499 (4th Cir.2005); Keenan v

Tejada, 290 F.3d 252, 258 (5th Cir.2002). The only

prong at issuc here is the second. We must determine

[n the district court, the defendants conceded the first

prong, that the plaintiffs’ support for the 1998 referendum was

protected speech. In addition, the defendants have never pointed

to any indication in the record that they would have undertaken

their allegedly retaliatory actions even absent the plaintiffs

speech. Accordingly, we agree with the district court that the

(Continued on following page)

App. 64

the standard for demonstrating an adverse effect on

protected speech.

The other Circuits apply an objective test: “a

plaintiff suffers adverse action if the defendant’s

allegedly retaliatory conduct would likely deter ‘a

person of ordinary firmness’ from the exercise of First

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

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

320 (2d Cir.2004) (“In the context of a_ First

Amendment retaliation claim, we have held that

‘fo]nly retaliatory conduct that would deter a simi-

larly situated individual of ordinary firmness from

exercising his or her constitutional rights constitutes

an adverse action. ”) (quoting Dawes v. Walker, 239

F.3d 489, 493 (2d Cir.2001)); Garcia v. City of Trenton,

348 F.3d 726, 728 (8th Cir.2003) (“The ordinary-

firmness test is well established in the case law... .”);

Mitchell v. Horn, 318 F.3d 523, 530 (8d Cir.2003)

(plaintiff must allege adverse action “sufficient to

deter a person of ordinary firmness from exercising

his [constitutional] rights”) (alteration in original);

Keenan, 290 F.3d at 258 (ordinary firmness test is the

“settled law of other circuits”); TYoolasprashad ov.

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

(“The widely accepted standard for assessing whether

narassment for exercising the rmght of free speech is

actionable depends on whether the harassment is

plaintiffs have shown that there exists < ¥ a genuine

of material fact as to the third (causation

App 65

likely to deter a person of ordinary firmness from

that exercise.”) (internal quotations and alterations

omitted); Poole v. County of Otero, 271 F.3d 955, 960

(10th Cir.2001) (“[TJhe alleged injury should be one

that would chill a person of ordinary firmness from

continuing to engage in that activity.”) (internal

quotations omitted); Mendocino Envtl. Ctr v

Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999)

(“(T]he proper inquiry asks whether an official’s acts

would chill or silence a person of ordinary firmness

from future First Amendment activities.”) (internal

quotations omitted); Thaddeus-X v. Blatter, 175 F.3d

378, 396 (6th Cir.1999) (en banc) (“[Aln adverse action

is one that would deter a person of ordinary firmness

from the exercise of the right at stake.”); Agosto-de-

Feliciano v. Aponte-Roque, 889 F.2d 1209, 1217 (lst

Cir.1989) (retahation cause of action is stated “only

when the government’s actions are sufficiently severe

to cause reasonably hardy individuals to compromise

their political beliefs and associations”); Bart uv.

Telford, 677 F.2d 622, 625 (7th Cir.1982) (harassment

for exercising the right of free speech not actionable if

it was “unlikely to deter a person of ordinary firmness

from that exercise’ )

The defendants point to other cases applying a

subjective test, under which the plaintiffs would have

to show that they were actually chilled in the exercise

of their First Amendment rights. See Curley v. Village

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

must show that First Amendment rights were

“actually chilled”) (quoting Davis v. Vill. Park ITI

Realty Co., 578 F.2d 461, 464 (2d Cir.1978) ' For the

reasons that follow, we join our sister Circuits in

adopting an objective test for proving a retaliation

claim.

First, although their decisions are not binding on

us, we find the fact that every other Circuit ha

adopted the objective “ordinary firmness” test to be

persuasive. Even accepting the defendants’ premise

that a few scattered cases applying a _ subjective

“actual chill” test amounts to a “circuit split,” the vast

majority of cases apply the objective test.’ We agree

with the courts that have called the “ordinary

firmness” test “well established,” Garcia, 348 F.3d at

728, “widely accepted,” Zoolasprashad, 286 F.3d at

585. and “settled law.” Keenan, 290 F.3d at 258

Second, we are persuaded not

number of courts applying the “ordinary firmne

The defendants also cite Sullivan v. Carrick, 888 F.2d

(lst Cir.1989), as adopting an “actual chill” standard. However

the plaintiff there failed to allege any adverse action, and thus

could not show sufficient injury to create standing. Jd. at 4

Moreover, the court noted that the proper standard was whether!

the plaintiff’s “speech was in fact chilled or intimidated.” Id

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

unequivocally a subjective test

We note that cases from the Second Circuit appear te

contradictory positions. Compare Washington v. County

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

with Curley v. Village of Suffern, 268 F.3d 65, 73 ( ir.20O01)

(subjective standard). We leave hat Court te

disparity

test. but by the rea oning of those decision a “

An objective standard provides notice to government

officials of when their retaliatory actions violate a

plaintiff's First Amendment rights. In contrast, “a

subjective standard would expose public officials to

liability in some cases, but not in others, for the ve

same conduct, depending upon the plaintiff’s will

fight.” Constantine, 411 F.3d at 500 iit would

unjust to allow a defendant to escape hability for

First Amendment violation merely because

unusually determined plaintiff persists in hi

tected activity ”" Mendocino Envtl. Ctr, 192

at L300. There 1s no reason to “reward” government

officials for picking on unusually hardy speaker:

At the ame time, we recognize that government

official hould not be lable when the plaintiff 1

unreasonably weak-willed or suffers only a

minimis inconvenience to her exercise

Amendment rghts.” Constantine 111 F.3d

(internal quotation omitted); » also Bart, 67

at 625 (“It would trivialize the First Amendment t

hold that harassment for exercising the right of free

speech was always actionable no matter how unlikely

to deter a person of ordinary firmness from that

exercise ’). The “ordinary firmness” test 1s there

fore provective of the interest: ol both vovernment

officials and plaintiffs alleging retaliation

Che di fendant: contend that

than the mere retaliatory act } nece

to an actionable claim.” Appellants’ Brief

are correct buta We have explained tne

App (

nore’ i ad" ' affect, and adverst effect

depends on context. Specifically, private citizens must

establish that the retaliatory act would deter a

person of ordinary firmness from exercising his or her

First Amendment rights. The defendants’ reliance on

retaliation cases in the public employment context 1:

misplaced, because different interests are at stake

there. In the employment context, the required

adverse action in a retaliation claim is an “adverse

employment action.” See Stavropoulos 1 ‘irestone

361 F.3d 610, 616 (llth Cir.2004

U.S. 976, 125 S.Ct. 1850, 161 L.Ed.2d 7: (2005)

Plainly private citizen cannot suffer advers«

employment act s at the hands of public official:

who are not t! t ; As the Fourth Circuit

explained,

Determining whether a plaintiff First

Amendment rights were adversely affected

by retaliatory conduct a fact intensive

inquiry that focuses the status of the

peaker, the status of the retaliator, the

relationship between the speaker and the

retaliator, and the nature of the retaliator

See Thaddeus-X | Blatter. L7d E.3d Wie:

Cir.1999) (“|Tlhe definition o

e action 18 not static across context

For example, | the public employment

context, the speaker Is the employee and the

retaliator is the public employer. The em

ployment relationship between the speaker!

and retaliator cre: ‘Ss competing interest

i¢ intere ay the publi e TY

n commenting upor

App (4%)

matters of public concern and the 11

the [government], as an employer

moting the efficiency of the public

performs through its employee

Suarez Corp di v. McGraw, 2'

391 U.S. 563, 568, 88 S.Ct. 1731. 17384

1] 1968)) (alterations in original). A

Circuit pointed out, iin the employment contex

this courts requirement of an adverse employment

action ‘rves the purpose of weeding out minor

instances of retaliation.’ Aeenan, 290 F.3d at 258 n. 4

In other words. min istances of retali: n would

t chill a per ordinary firmne: because they

nent}

plaintill

require

tion {or

employe ¢

lirmne

private

life,

Mitche

Thaddeus-X, 17:

First Amendment

iolation

App. 70

employees ... may be required to tolerate more than

average citizens, before an action taken against them

is considered adverse.”); see also Keenan, 290 F.3d

at 258 (noting that “this case does not involve an

employment or other contractual relationship be-

tween the plaintiffs and the governmental officials”

and instead concerns “an ordinary citizen”); Naucke v.

City of Park Hills, 284 F.3d 923, 927-28 (8th Cir.2002)

(applying “ordinary firmness’ test to private citizen’s

retaliation suit); Poole, 271 F.3d at 960 (same);

Suarez Corp., 202 F.2d at 686-87 (distinguishing be-

tween public employee and private citizen plaintiffs).

In sum, language from the cases, including our

decision in MStavropoulos, requiring an adverse

employment action in order for a public employee to

state a retaliation claim does not necessitate that a

private citizen plaintiff plead more than that the

defendant’s retaliatory acts are such as would chill a

person of ordinary firmness. As we have stated, for

private citizen plaintiffs, the objective test allows for

a “weeding out” function when the injuries com-

plained of are trivial or amount to no more than

de minimis inconvenience in the exercise of First

Amendment rights.

(quoting Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir.1989))

For example, a prisoner can state a claim of retaliatory transfer

even though he does not have a constitutional right not to be

transferred. Bridges v. Russell, 757 F.2d 1155, 1157 (11th

Cir.1985). Thus, nothing in our prisoner retaliation cases 1s

Inconsistent with adopting an “ordinary firmness” test for

private citizens

App. 7]

The defendants next assert that the “ordinary

firmness” test allows plaintiffs to state a claim even

when they have not suffered an injury sufficient to

give them standing t

This text is long and has been trimmed here. Open the source document for the complete record.

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