Danny M. Bennett v. Dennis Lee Hendrix

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 9, 2005
No. 04-12256 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 00-02520-CV-TWT-1

DANNY M. BENNETT,
DANNY L. REID,
TAMMY R. BENNETT,

Plaintiffs-Appellees,

versus

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.

________________________

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

(September 9, 2005)

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.

___________________

*Honorable John F. Nangle, United States District Judge for the Eastern District of
Missouri, sitting by designation.

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 I. 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.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

1
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).

3
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

4
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

II. JURISDICTION AND STANDARD OF REVIEW

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 (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 (1986).

III. DISCUSSION

Our procedure in assessing qualified immunity is well-established.

Government officials acting within their discretionary authority are eligible for

2
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.

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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 (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, No. 02-11031 (11th Cir. July 25, 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

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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

3
In 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
plaintiffs have shown that there exists at least a genuine issue of material fact as to the third
(causation) prong.

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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

8
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 II Realty Co., 578 F.2d 461, 464 (2d Cir.

1978)).4 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 has 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.5 We agree with the courts that have

called the “ordinary firmness” test “well established,” Garcia, 348 F.3d at 728,

“widely accepted,” Toolasprashad, 286 F.3d at 585, and “settled law,” Keenan,

4
The defendants also cite Sullivan v. Carrick, 888 F.2d 1 (1st Cir. 1989), as adopting an
“actual chill” standard. However, the plaintiff there failed to allege any adverse action, and thus
could not show sufficient injury to create standing. Id. 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.
5
We note that cases from the Second Circuit appear to take contradictory positions.
Compare Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004) (objective
standard) with Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (subjective standard).
We leave it to that Court to settle this disparity.

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290 F.3d at 258.

Second, we are persuaded not only by the number of courts applying the

“ordinary firmness” test, but by the reasoning of those decisions as well. 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 very same conduct, depending upon the plaintiff’s will to fight.”

Constantine, 411 F.3d at 500. “[I]t would be unjust to allow a defendant to escape

liability for a First Amendment violation merely because an unusually determined

plaintiff persists in his protected activity. . . .” Mendocino Envtl. Ctr., 192 F.3d at

1300. There is no reason to “reward” government officials for picking on

unusually hardy speakers. At the same time, we recognize that government

officials should not be liable when the plaintiff is unreasonably weak-willed or

suffers only a “de minimis inconvenience to her exercise of First Amendment

rights.” Constantine, 411 F.3d at 500 (internal quotation omitted); see also Bart,

677 F.2d at 625 (“It would trivialize the First Amendment to hold that harassment

for exercising the right of free speech was always actionable no matter how

unlikely to deter a person of ordinary firmness from that exercise . . . .”). The

“ordinary firmness” test is therefore protective of the interests of both government

10
officials and plaintiffs alleging retaliation.

The defendants contend that “something more than the mere retaliatory act is

necessary to give rise to an actionable claim.” Appellants’ Brief at 12. They are

correct, but as we have explained, the “something more” is an adverse affect, and

“adverse effect” depends on context. Specifically, private citizens must establish

that the retaliatory acts 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 is 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 Stavropolous v. Firestone, 361 F.3d 610,

616 (11th Cir. 2004), cert. denied, 125 S. Ct. 1850 (2005). Plainly, private citizens

cannot suffer adverse employment actions at the hands of public officials who are

not their employers. As the Fourth Circuit explained,

Determining whether a plaintiff’s First Amendment rights were
adversely affected by retaliatory conduct is a fact intensive inquiry
that focuses on the status of the speaker, the status of the retaliator, the
relationship between the speaker and the retaliator, and the nature of
the retaliatory acts. See Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th
Cir. 1999) (“[T]he definition of adverse action is not static across
contexts.”). For example, in the public employment context, the
speaker is the employee and the retaliator is the public employer. The
employment relationship between the speaker and retaliator creates
competing interests between “the interests of the [public employee],
as a citizen, in commenting upon matters of public concern and the
interest of the [government], as an employer, in promoting the

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 efficiency of the public services it performs through its employees.”

Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2002) (quoting

Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-35 (1968))

(alterations in original). As the Fifth Circuit pointed out, “[i]n the employment

context, this court’s requirement of an adverse employment action serves the

purpose of weeding out minor instances of retaliation.” Keenan, 290 F.3d at 258

n.4. In other words, minor instances of retaliation would not chill a person of

ordinary firmness because they did not even amount to an adverse employment

action.

The balance of interests is different when the plaintiff is a private citizen,

and those interests require at least as much protection against retaliation for a

private citizen as they would for a public employee.6 See Thaddeus-X, 175 F.3d at

398 (“[P]ublic employees . . . may be required to tolerate more than average

citizens, before an action taken against them is considered adverse.”); see also

6
We note that several courts have applied the “ordinary firmness” test even in the prison
context. It follows that a private citizen, not subject to the expected deprivations of prison life,
deserves at least as much protection from retaliation. See Mitchell, 318 F.3d at 530;
Toolaprashad, 286 F.3d at 585; Thaddeus-X, 175 F.3d at 398. We have held that “[t]o state a
First Amendment claim for retaliation, a prisoner need not allege violation of a separate and
distinct constitutional right. . . . The gist of a retaliation claim is that a prisoner is penalized for
exercising the right of free speech.” Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003)
(alterations omitted) (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 is inconsistent with adopting an “ordinary
firmness” test for private citizens.

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Keenan, 290 F.3d at 258 (noting that “this case does not involve an employment or

other contractual relationship between 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.2d at 960 (same); Suarez Corp., 202 F.2d at

686-87 (distinguishing between public employee and private citizen plaintiffs).

In sum, language from the cases, including our decision in Stavropolous,

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 complained of are trivial or amount

to no more than de minimis inconvenience in the exercise of First Amendment

rights.

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 to sue. We disagree. The plaintiffs’ claim depends not on the denial of a

constitutional right, but on the harassment they received for exercising their rights.

“The reason why such retaliation offends the Constitution is that it threatens to

13
inhibit exercise of the protected right.” Thaddeus-X, 175 F.3d at 394 n.9

(quotation omitted). “For Article III standing purposes, then, the ‘plaintiff must

allege personal injury fairly traceable to the defendant’s allegedly unlawful

conduct and likely to be redressed by the requested relief.’ As long as the injury is

‘distinct and palpable’ rather than abstract, conjectural, or hypothetical, it is

sufficient to confer standing.” Id. at 394 (quoting Allen v. Wright, 468 U.S. 737,

751, 104 S. Ct. 3315, 3324 (1984)).

The defendants’ reliance on Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318

(1972), is misplaced. In that case, the plaintiffs alleged a chilling effect based on

the mere existence of the government’s alleged program of surveillance of citizens.

Id. at 2, 92 S. Ct. at 2320. The plaintiffs “freely admit[ted] that they complain of

no specific action of the Army against them.” Id. at 9, 92 S. Ct. at 2323. The

Supreme Court held that this alleged injury was insufficient to confer standing. Id.

at 13-14, 92 S. Ct. at 2325-26.

However, the Laird Court noted that, “[i]n recent years this Court has found

in a number of cases that constitutional violations may arise from the deterrent, or

‘chilling,’ effect of governmental regulations that fall short of a direct prohibition

against the exercise of First Amendment rights.” Id. at 11, 92 S. Ct. at 2324

(collecting cases). Moreover, “[t]he decisions in these cases fully recognize that

14
governmental action may be subject to constitutional challenge even though it has

only an indirect effect on the exercise of First Amendment rights.” Id. at 12-13, 92

S. Ct. at 2325. The standard established in Laird is that “[a]llegations of a

subjective ‘chill’ are not an adequate substitute for a claim of specific present

objective harm or a threat of specific future harm.” Id. at 13-14, 92 S. Ct. 2325-26.

The standard we adopt today is consistent with Laird. The objective “ordinary

firmness” test requires plaintiffs to allege that the retaliatory acts of the defendants

adversely affected them, which is an injury sufficiently adverse to give rise to

Article III standing. See Thaddeus-X, 175 F.3d at 394.

As a final reason for approving of the objective standard, we note that it is

consistent with statements in our own cases, even though we have not explicitly

adopted the “ordinary firmness” test. In Cate v. Oldham, 707 F.2d 1176 (11th Cir.

1983), we enjoined a malicious prosecution action filed by state officials in

retaliation against a citizen’s lawsuit against those officials. Id. at 1190. We noted

that “petitioner-appellant alleges more than that his freedom to exercise his right to

petition will be chilled in the future. He alleges current deprivation, in the form of

penalization for having exercised his right to petition in the past.” Id. at 1188. We

went on to state, “[t]his does not mean, however, that only if a plaintiff can prove

actual, current chill can he prove irreparable injury. On the contrary, direct

15
retaliation by the state for having exercised First Amendment freedoms in the past

is particularly proscribed by the First Amendment.” Id. at 1189. Thus, we did not

focus on the plaintiff’s subjective, actual chilling. Instead, we objectively assessed

the defendants’ actions and declared that an actual chill is not necessary to state a

First Amendment violation: “[T]he source of that chill . . . provides the critical

irreparable injury to those citizens, regardless of whether actual chill is proved.”

Id.; see also Holloman v. Harland, 370 F.3d 1252, 1268-69 (verbal censure from

school official for student’s silent protest during recitation of Pledge of Allegiance

was a punishment intended “to dissuade [student] from exercising a constitutional

right” and “cannot help but have a tremendous chilling effect on the exercise of

First Amendment rights”).

For all of the foregoing reasons, today we expressly adopt the following

standard: 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.

We now apply this standard to the plaintiffs’ allegations, and readily

conclude that the plaintiffs have alleged facts that a jury could find would deter a

person of ordinary firmness from the exercise of First Amendment rights. In Judge

Posner’s words, “[t]he effect on freedom of speech may be small, but since there is

16
no justification for harassing people for exercising their constitutional rights it need

not be great in order to be actionable.” Bart, 677 F.2d at 625.

The alleged retaliatory acts complained of here include a prolonged and

organized campaign of harassment by local police officers. 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. The

defendants allegedly accessed confidential government databases containing

information on the plaintiffs, attempted to obtain arrest warrants against the

plaintiffs without probable cause, and produced and mailed to Forsyth County

residents flyers depicting the plaintiffs as criminals terrorizing the county.

Other courts applying the “ordinary firmness” test have concluded that

similar or less harassing acts constitute an adverse effect. See Garcia, 348 F.3d at

729 (the retaliatory issuance of parking tickets totaling $35 created a jury issue

because the defendant “engaged the punitive machinery of government in order to

punish Ms. Garcia for her speaking out”); Keenan, 290 F.3d at 259 (one plaintiff

stated a retaliation claim that would chill a person of ordinary firmness with

allegations that officers stopped his car and detained him for an unreasonable time,

“allegedly with their guns drawn during part of the traffic stop, and ultimately

issued only a minor traffic citation that was later dismissed”); Bloch v. Ribar, 156

17
F.3d 673, 680-81 (6th Cir. 1998) (in response to plaintiff’s criticism, sheriff

publicly released confidential and humiliating details of plaintiff’s rape; such act

was sufficiently adverse to chill a person of ordinary firmness); Bart, 677 F.2d at

624-25 (“campaign of petty harassments” against the plaintiff including “[h]olding

her up to ridicule for bringing a birthday cake to the office” stated a cause of action

for retaliation). Likewise, we held in Cate that a civil malicious prosecution suit

brought by public officials could be sufficiently retaliatory to chill the plaintiffs’

exercise of First Amendment rights. Cate, 707 F.2d at 1189.

Additionally, the plaintiffs testified that they were, in fact, actually chilled in

the exercise of their rights because they did not participate in the 2000 election to

the degree they would have but for the defendants’ alleged actions. We note that

“[t]he question is not whether the plaintiff herself was deterred, though how

plaintiff acted might be evidence of what a reasonable person would have done.”

Garcia, 348 F.3d at 729; see also Constantine, 411 F.3d at 500 (“While the

plaintiff’s actual response to the retaliatory conduct provides some evidence of the

tendency of that conduct to chill First Amendment activity, it is not dispositive.”).

In sum, we conclude that the acts alleged here, if true, are sufficiently adverse that

a jury could find they would chill a person of ordinary firmness from exercising his

or her First Amendment rights.

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B. Clearly Established Law

The final step in the qualified immunity inquiry is determining whether the

law was clearly established so as to put the defendants on notice that their behavior

violated the plaintiffs’ rights. A right is clearly established if, in light of already-

existing law, the unlawfulness of the conduct is “apparent,” see Anderson v.

Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987), and if a constitutional

rule applies with “obvious clarity” to give an official “fair warning” that violating

that right is actionable. Vinyard, 311 F.3d at 1350-52. We conclude that the law

was clearly established at the time of the defendants’ alleged actions that retaliation

against private citizens for exercising their First Amendment rights was actionable.

This Court and the Supreme Court have long held that state officials may not

retaliate against private citizens because of the exercise of their First Amendment

rights. See Cate, 707 F.2d at 1186 (punishment for exercise of First Amendment

rights violates First Amendment); see also City of Houston v. Hill, 482 U.S. 451,

462-63, 107 S. Ct. 2502, 2510 (1987) (“The freedom of individuals verbally to

oppose or challenge police action without thereby risking arrest is one of the

principal characteristics by which we distinguish a free nation from a police

state.”); see also Leslie v. Ingram, 786 F.2d 1533, 1537 (11th Cir. 1986) (“An

intentional and wrongful retaliation for the assertion of a constitutionally protected

19
right is a substantive civil rights violation which may be prosecuted in a federal

court pursuant to 42 U.S.C. § 1983. . . .”), abrogated on other grounds by Graham

v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989) ; Ga. Ass’n of Educators v.

Gwinnett County Sch. Dist., 856 F.2d 142, 145 (11th Cir. 1988) (“The Government

may not retaliate against individuals or associations for their exercise of First

Amendment rights ‘by imposing sanctions for the expression of particular views it

opposes.’”) (quoting Smith v. Ark. State Highway Employees, 441 U.S. 463, 464,

99 S. Ct. 1826, 1827-28 (1979)).

Because this Court has held since at least 1988 that it is “settled law” that the

government may not retaliate against citizens for the exercise of First Amendment

rights, Ga. Ass’n of Educators, 856 F.3d at 145, we hold that the defendants were

on notice and had “fair warning” that retaliating against the plaintiffs for their

support of the 1998 referendum would violate the plaintiffs’ constitutional rights

and, if the plaintiffs’ allegations are true, would lead to liability under § 1983.

IV. CONCLUSION

For the reasons stated above, we conclude that, taking the facts in the light

most favorable to the plaintiffs, the defendants’ “conduct violated a constitutional

right” and that “the right was clearly established.” Saucier, 533 U.S. at 201, 121 S.

Ct. at 2156. Accordingly, we affirm the order of the district court denying

20
summary judgment and denying the defendants qualified immunity from suit.

AFFIRMED.

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