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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## 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

a]

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

f

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 ... ....of Cumming?
Yes
That would include Danny Bennett
sir

And Danny Re

of
A,

so

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

ae
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.

7

@© 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.”

36

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?

38

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), p

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

39

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

40

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

4]

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

42

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

4

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’

46

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,
V.

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,

V

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
f

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

ry

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 e
If the statements alleged are defamatory, the claim
e
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,
v.

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

VIA FACSIMILE & U.S. MAIL

Deputy James Lockhart

Code Enforcement

Forsyth County Sheriff's Office
P.O. Box 41

Cumming, Georgia 30028

RE: Danny Reid
Dear Deputy Lockhart:

I am in receipt of your August 3, 2000 correspon.
dence. Based upon your letter, it seems apparent you
intend on swearing out a warrant for Mr. Reid in the
near future. As mentioned in my July 28, 2000
correspondence, it is not the County Attorney’s func
tion to prohibit any action you deem necessary to
take, nor is it proper for me to instruct you on how to
do your job.

My July 28, 2000, correspondence was delivered

for the sole purpose ef advising that, based upon
I 5

speaking with Mr. Reid, a palatable argument had
been made that the debris on his property was “recov-
ered material” and that caution should be exercised
in proceeding. I stand by that correspondence.
Nonetheless, if you believe you have investigated the
matter thoroughly and are otherwise confident in

your determination that probable cause exists for

arrest, [I am in no position to instruct otherwise.

Moreover, the county attorney’s office does not, and

.

will not, provide the sheriff’s department with “evi

dence” to affect pending investigations

Finally, although I am able to respond by 4:00
p.m., please be advised that the county attorney’s
office inability to meet an imposed “deadline” should
never be considered acquiescence or non-acquiescence

to proposed action

As always, please give me a call if you have

questions or comments.
Best regards

Sincerely.

MORRIS, MANNING &
MARTIN, L.L.P.

Ken E. Jarrard
Ken E.. Jarrard
KEJ:hm
ec: Mr. Bill Jenkins, Chairman,
Board of Commissioners
Lt. Jim Poe
Rachel K. Iverson, Esq

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0926%3A1. Public record. Not legal advice.