Orlando Bethel v. Town of Loxley

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12197 DEC 26, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00373-CV-KD-M
ORLANDO BETHEL,
GLYNIS BETHEL,
Plaintiffs-Appellants,
versus
TOWN OF LOXLEY,
TOWN OF LOXLEY POLICE DEPARTMENT,
CLIFF YETTER,
AL ATKINS,
KEVIN BROCK, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 26, 2006)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
The district court granted the Town of Loxley, the Town of Loxley Police
Department, Chief of Police Cliff Yetter, Assistant Chief of Police Al Adkins,
Police Officers Kevin Brock, Kerry Mitchum, Dale Maddox, and Raymond Lovell,
Magistrate Kay Hicks, and Mayor Billy Middleton summary judgment on the
several claims Orlando and Glynis Bethel brought against them in this case. The
Bethels now appeal. We affirm.
The events giving rise to this law suit are thoroughly stated in the district
court’s 38-page Memorandum Opinion and Order issued March 23, 2006, and
accordingly will not be restated here. Hence, we move directly to the claims at
issue in this appeal.
First Amendment Claim
The Bethels contend that (1) their speech was constitutionally protected; (2)
defendants had a retaliatory motive and intent in curbing their speech; (3)
defendants’ actions chilled their protected speech; (4) “the act of a police officer
ordering a person to cease their actions comes with the threat” that they will be
arrested if they do not cease; and (5) the defendants’ actions need not have actually
deterred them from continuing to engage in their speech to cause injury. With
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regard to the chilling of their speech, the Bethels further argue that Taylor v.
Atlanta Police Dep’t, 2006 WL 304038 (N.D. Ga., Feb. 7, 2006), cited by the
district court for the proposition that “[s]imply being told to leave without any
threat of consequences or imposition of consequences for failing to obey would not
likely deter a person of ordinary firmness from the exercise of First Amendment
rights[,]” is distinguishable because, unlike plaintiffs in that case, they had suffered
“repeat false arrests[,]” and the city official in Taylor was without “immediate
power to place the plaintiff under arrest . . . .”
It is well settled that oral and written dissemination of religious views and
doctrines is protected by the First Amendment. Heffron v. International Soc. for
Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 2563, 69 L. Ed. 2d
298 (1981). The First Amendment right of free speech includes not only the
affirmative right to speak, but also the right to be free from retaliation by a public
official for the exercise of that right. See Ratliff v. DeKalb County, Ga., 62 F.3d
338, 340 (11th Cir. 1995).
To state a claim for retaliation for exercising their First Amendment rights a
plaintiff must establish that: (1) the speech or act was constitutionally protected;
(2) the defendant’s retaliatory conduct adversely affected the protected speech; and
(3) a causal connection existed between the retaliatory conduct and the adverse
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effect on speech. Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).
First Amendment retaliation is actionable because “it threatens to inhibit
exercise of the protected right.” Id. at 1253. Although the Bethels need not
actually have been deprived of their First Amendment rights in order to establish a
claim of retaliation – because conduct that tends to chill the exercise of a
constitutional right might not itself deprive a citizen of such a right – to recover for
retaliation, the Bethels must show that the defendants’ conduct resulted in
something more than a “de minimis inconvenience” to the exercise of their First
Amendment rights. See id. at 1252; Cate v. Oldham, 707 F.2d 1176, 1189 (11th
Cir. 1983). The Bethels must have suffered an adverse effect on the exercise of
their First Amendment rights. Bennett, 423 F.2d at 1252. “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.” Id. at
1250.
“[T]he effect on freedom of speech may be small, but since there is no
justification for harassing people for exercising their constitutional rights, it need
not be great in order to be actionable.” Id. at 1254 (quoting Bart v. Telford, 677
F.2d 622, 625 (7th Cir. 1982)) (internal quotation marks and citation omitted).
However, in a case heavily relied upon in Bennett, the Fourth Circuit stated that
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“[w]hile it is not dispositive, the plaintiff’s actual response to the defendant’s
conduct “provides some evidence of the tendency of that conduct to chill First
Amendment activity.” Constantine v. Rectors and Visitors of George Mason
University, 411 F.3d 474, 500 (4th Cir. 2005) (persuasive authority).
The district court properly concluded that no genuine issue of material fact
exists regarding the alleged infringement of the Bethels’ First Amendment rights
for any of the four incidents alleged in their amended complaint.
Fourth Amendment Claim
The Bethels argue that Magistrate Hicks’s affidavit does not support
probable cause for their arrest. Probable cause exists for an arrest if the arrest is
“objectively reasonable based on the totality of the circumstances.” Durruthy v.
Pastor, 351 F.3d 1080, 1088 (11th Cir.2003) (internal citations and quotation
marks omitted). An arrest is objectively reasonable when “the facts and
circumstances within the officer's knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is committing, or is about to
commit an offense.” Id. (internal citation omitted).
The district court properly found that no genuine issue of material fact exists
regarding the Bethels’ Fourth Amendment claim because the police had probable
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cause to arrest the Bethels for domestic violence, menacing, and attempted assault.
Because the Bethels’ First or Fourth Amendment rights were not infringed,
we need not address whether (1) the individual defendants are entitled to qualified
immunity, (2) Magistrate Hicks is entitled to judicial immunity, or (3) the Town of
Loxley engaged in a policy or custom that deprived the Bethels of a constitutional
right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d
272 (2001) (qualified immunity); Burns v. Reed, 500 U.S. 478, 492, 111 S. Ct.
1934, 1941, 114 L. Ed. 2d 547 (1991) (judicial immunity); Monell v. Department of
Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978)
(municipal liability); Davis v. Williams, 451 F.3d 759, 762 (11th Cir. 2006)
(qualified immunity); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir.1997)
(municipal liability).
AFFIRMED.
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