Bennett v. Hendrix, 04-12256.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtWilson
Citation423 F.3d 1247
PartiesDanny 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.
Docket NumberNo. 04-12256.,04-12256.
Decision Date09 September 2005

Phillip E. Friduss, Paul Robert Koster, Hall, Booth, Smith & Slover, PC, Atlanta, GA, for Defendants-Appellants.

Eric S. Chofnas, Alpharetta, GA, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

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 plaintiffs supported a county referendum opposed by the sheriff. After the district court entered an order denying the officers qualified immunity, they brought this appeal. We find no error in the district court's order, and therefore affirm.


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.1 Most of the Department's powers would have been transferred to the county police, and the Sheriff would have been under the supervision of county officials. Sheriff Hendrix opposed the referendum. The plaintiffs are local business owners who supported the referendum. Along with other citizens, they formed a committee in support of the referendum and sponsored a debate on the matter.

The referendum was defeated at the polls, but the plaintiffs allege that Hendrix (along with the other defendants, fellow Sheriff's Department officers) engaged in a campaign of retaliation and intimidation against the plaintiffs because of their support of the referendum. The plaintiffs allege that Hendrix formed a "Strike Force" within the Department to carry out this process of intimidation.

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 environmental charges, and mailed flyers to 35,000 homes in Forsyth County calling the plaintiffs the "real criminals," members of a "chain gang," and "the same type of criminals that terrorize Forsyth County."

According to the plaintiffs, most of these events occurred shortly before the 2000 election, and were designed to intimidate the plaintiffs from opposing Hendrix's re-election that year. The plaintiffs assert that the intimidation tactics were successful. Although the plaintiffs voted and made campaign contributions during the 2000 election cycle, they allege that the defendants' actions chilled them from engaging in further political activities like they did in 1998.

The plaintiffs sued under 42 U.S.C. § 1983 in 2000, alleging violations of the First, Fourth, and Fourteenth Amendments, as well as a conspiracy to violate their civil rights, along with several state tort laws. The district court granted summary judgment to the defendants on most of these claims, but denied summary judgment on the plaintiffs' claim of retaliation in violation of the First Amendment, their § 1983 conspiracy claim, and state law claims against Hendrix, Singletary, and Waters. The defendants moved for summary judgment based on the defense of qualified immunity. The court held that the defendants were not entitled to qualified immunity because they had violated the plaintiffs' constitutional rights, and those rights were clearly established at the time. Accordingly, the district court denied summary judgment.2


Although the defendants' appeal is interlocutory, we have jurisdiction to review the district court's decision on qualified immunity pursuant to 28 U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We review de novo the district court's decision denying qualified immunity, drawing all factual inferences in the nonmovant's favor. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir.2003). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).


Our procedure in assessing qualified immunity is well-established. Government officials acting within their discretionary authority are ineligible for qualified immunity from suit when the facts "[t]aken in the light most favorable to the party asserting the injury . . . show the officer's conduct violated a constitutional right" and "the right was clearly established." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001).

We have already determined, in an earlier appeal in this case, that "it is apparent that the defendants were acting within the scope of their discretionary authority." See Bennett v. Hendrix, 77 Fed.Appx. 504 (11th Cir.2003) (unpublished). The defendants had to establish this fact to be able to claim qualified immunity. Once they satisfied that burden, the burden shifted to the plaintiffs to establish a constitutional violation. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002).

A. Violation of a Constitutional Right

The precise test for determining whether the defendants' actions violated the plaintiffs' rights against retaliation is an issue of first impression in this Circuit. We first survey the law of other Circuits. To state a retaliation claim, the commonly accepted formulation requires that a plaintiff must establish first, that his speech or act was 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 issue here is the second.3 We must determine the standard for demonstrating an adverse effect on protected speech.

The other Circuits apply an objective test: "a plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter `a person of ordinary firmness' from the exercise of First Amendment rights." Constantine, 411 F.3d at 500; see also Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir.2004) ("In the context of a First Amendment retaliation claim, we have held that `[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action.'") (quoting Dawes v. Walker, 239 F.3d 489, 493 (2d Cir.2001)); Garcia v. City of Trenton, 348 F.3d 726, 728 (8th Cir.2003) ("The ordinary-firmness test is well established in the case law . . . ."); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003) (plaintiff must allege adverse action "sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights") (alteration in original); Keenan, 290 F.3d at 258 (ordinary firmness test is the "settled law of other circuits"); Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 585 (D.C.Cir.2002) ("The widely accepted standard for assessing whether harassment for exercising the right of free speech is actionable . . . depends on whether the harassment is likely to deter a person of ordinary firmness from that exercise.") (internal quotations and alterations omitted); Poole v. County of Otero, 271 F.3d 955, 960 (10th Cir.2001) ("[T]he 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) ("[A]n adverse action is one that would deter a person of ordinary firmness from the exercise of the right at stake."); Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1217 (1st Cir.1989) (retaliation cause of action is stated "only when the government's actions are sufficiently severe to cause reasonably hardy individuals to compromise their political beliefs and associations"); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982) (harassment for exercising the right of free speech not actionable if it was "unlikely to deter a person of ordinary firmness from that exercise").

The defendants point to other cases applying a subjective test, under which the...

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