On September 1, 2022, the Eleventh Circuit Court of Appeals decided Jackson v. Cowan[i], in which University of Georgia (UGA) police officers arrested a man preaching an unpopular message in an area designated by the school for free expression when he made physical contact with a student, who was a protesting the preacher’s message.  The preacher subsequently sued the UGA police officers for violating his rights under the First, Fourth and Fourteenth Amendments.

While the incident that formed the basis of the lawsuit occurred on October 11, 2016, it bears noting what occurred the day before.  On October 10, 2016, Mr. Jackson, a black male, and three while male preachers were speaking at Tate Lawn, a university-designated free expression area on campus.  There was a large crowd of counter protestors that crowded around the Mr. Jackson and the other white preachers.  There were two UGA police officers present.

The officers, who stood at the rear of the crowd watched for acts of violence but otherwise did not intervene.  Several times, when the tone of the crowd changed, the officers would move forward to the area of the possible disturbance, separate the protestors from the preachers and explain to both parties that they are free to voice their opinions but cannot touch or behave violently toward each other.  The officers would then move back to the rear of the crowd.  The crowd was large, and it was difficult for the officers to see what transpired before they would move to the area of the disturbance.

No arrests were made the first day and the officers did not report seeing any acts of violence.  Their body cameras were recording during the protests.

On October 11, 2016, Mr. Jackson returned to Tate Lawn to continue his message.  The three other preachers did not return.  The crowd of counter protesters was much smaller, which gave the officers the ability to better observe confrontations.

The relevant facts that occurred on October 11, 2016, as stated by the court of appeals, are as follows:

Mr. Jackson returned to Tate Lawn the next day. When Sergeant Cowan arrived at the scene on the second day, the crowd gathered around Mr. Jackson was significantly sparser than it was the day before.

UGA students Keaton Law and Lechandt Opperman were aggressively engaging with Mr. Jackson. Sergeant Cowan stood back and monitored the situation for about twelve minutes. At that point, Officer Dorsey arrived and started to separate Mr. Jackson and Mr. Law, but Sergeant Cowan called Officer Dorsey back. Mr. Law told the officers, “I promise not to touch him at all,” to which Sergeant Cowan responded, “I know.” Officer Dorsey said to Sergeant Cowan that “it just kind of looked like [Mr. Law] was all up in [Mr. Jackson’s] face.” Sergeant Cowan responded that “they’re countering what he’s saying” and that Officer Dorsey should not say anything and should refer all questions to him.

Sergeant Cowan said that Mr. Law and Mr. Opperman were “doing a really good job” countering Mr. Jackson’s speech. Officer Dorsey apologized and said that he “didn’t know [Sergeant Cowan] had already talked to” Mr. Law and Mr. Opperman. Sergeant Cowan later testified that he remembered explaining to a group of students, including Mr. Law, the day before that they could engage in counter-speech and that they had the same rights as the preachers.

Mr. Jackson, Mr. Law, and Mr. Opperman continued their heated exchange for about seven minutes. During this period, Sergeant Cowan stood behind the sparser crowd and responded to student questions. For example, he told a student that Mr. Jackson’s preaching was to get somebody to react to him, e.g., by striking him, and was “not real religion.”

At one point during his exchange with Mr. Law, Mr. Jackson “felt [Mr. Law’s] spit touch” him when Mr. Law shouted in his ear. Mr. Jackson then approached the officers, who were responding to student questions, and asked if it was okay for the students to “put his mouth right up on his ear and yell.” Cowan brushed off the question, and the students and Mr. Jackson returned to the center of the circle. Mr. Jackson and Mr. Law continued to yell at each other, sometimes in each other’s faces and sometimes farther apart. On several occasions, Mr. Jackson raised his arms while holding a Bible and yelled at Mr. Law to “back up.” According to Mr. Jackson, Mr. Law “chest-bumped” him as the exchange escalated. From the video footage, Mr. Jackson and Mr. Law were positioned very close to one another during this point of the exchange; the video depicts Mr. Law moving his chest closely to Mr. Jackson’s chest but does not clearly depict whether the two bumped chests.

The exchange continued, and when they were close together, Mr. Jackson backed up from Mr. Law and told him, “You need a breath mint.” Mr. Law responded, “I do, and I hope it smells,” while walking toward Mr. Jackson. Mr. Jackson raised his arms while holding his Bible like he had done in the minutes before.

At the same time, Mr. Law moved even closer and stepped to Mr. Jackson’s left side. Mr. Jackson lifted his left arm across his own body and made contact with Mr. Law’s face. After touching Mr. Law, Mr. Jackson continued moving him to the side, saying, “Out of my face.” Officer Dorsey said, “He just pushed him,” and the officers moved in and arrested Mr. Jackson for simple battery. Sergeant Cowan told Mr. Jackson that he was under arrest for simple battery and asked Mr. Jackson if he understood. Mr. Jackson responded that he did not “make any intentional physical conduct,” but Sergeant Cowan stated that was what he and the other officers observed and recorded.

Later, when Sergeant Cowan was briefing an investigating officer on the incident, he stated that Mr. Jackson was “berating” Mr. Law, that Mr. Law at one point came around to Mr. Jackson’s side, that Mr. Jackson hit the side of Mr. Law’s shoulder and head, and that “at that point [they] took him down.” Sergeant Cowan concluded the briefing by stating, “Crowd went crazy. I think we hit a home run.”

The state declined to prosecute Mr. Jackson. Prosecutors concluded that while “there was sufficient probable cause to arrest [him], the evidence is not sufficient to prove guilt beyond a reasonable doubt.[ii]

Jackson subsequently sued the officers for violating his rights under the First, Fourth, and Fourteenth Amendments.  The district court granted summary judgment for the officers and dismissed the suit.  Jackson appealed to the Eleventh Circuit Court of Appeals.

I. The Fourth Amendment Claim

The court of appeals first addressed the Fourth Amendment claim.  Jackson argued that the officer lacked probable cause to arrest him because his contact with Mr. Law, the victim, was accidental, not intentional as required by the Georgia statute for which he was arrested.

The court first noted the relevant legal principles related to this issue.  The court stated

[I]t is well established that ‘[a] warrantless arrest without probable cause violates the Fourth Amendment and forms the basis for a [§ ] 1983 claim.'” Carter, 821 F.3d at 1319 (second alteration in original) (quoting Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996)). “[B]ut the existence of probable cause at the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest.Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). Moreover, “[t]o receive qualified immunity, an officer need not have actual probable cause, but only arguable probable cause,” meaning “reasonable officers in the same circumstances and possessing the same knowledge as the [d]efendants could have believed that probable cause existed to arrest [the] [p]laintiff.” Id. (quotation marks omitted).[iii]

Thus, the standard for an officer to receive qualified immunity on an unlawful warrantless arrest claim is “arguable probable cause,” which is less than “actual” probable cause.  Arguable probable cause exists when another reasonable officer, in the same situation, could believe that probable cause existed to arrest the plaintiff.

The court of appeal then noted that the statute for which Jackson was arrested, OCGA 16-5-23(a), prohibits a person from “intentionally mak[ing] physical contact of an insulting or provoking nature with the person of another.”[iv]  While Mr. Jackson asserted that the contact was not intentional, the court noted that the officer’s body camera video shows Jackson repeatedly raising his Bible in the air without making contact with Mr. Law, who was in close proximity to him.  However, at the moment at issue, Mr. Jackson did make physical contact with the person of Mr. Law.  The court stated that given the animosity between the two men, an objectively reasonable officer “could have believed that Mr. Jackson acted intentionally or in an insulting or provoking manner.”[v]  Therefore, arguable probable cause was present.

As such, the officers were entitled to qualified immunity on this claim.

II. The First Amendment Claims

A. Retaliatory Arrest claim under the First Amendment

The court then examined the First Amendment claims.  The first claim was for retaliatory arrest.  Mr. Jackson argued that the officers arrested him based on the content of his speech.

The court of appeals noted that, at the time of the incident on October 11, 2016, the law in the Eleventh Circuit was that

[T]he existence of probable cause . . . defeats [a] First Amendment [retaliation] claim.”)[vi]

Thus, this was the law that the court of appeals must follow in deciding Jackson’s claim regarding this incident.  Since the court already determined that arguable probable cause existed to arrest Mr. Jackson, the officers are entitled to qualified immunity on this claim.

However, going forward, the court of appeals noted that the rule above had been modified by the Supreme Court, in Nieves v. Bartlett, in which the Court held

[T]hough generally a “plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest,” there is an exception to “the no-probable-cause requirement . . . when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been [arrested].  Nieves v. Bartlett, 139 S. Ct. 1715, 1727, 204 L. Ed. 2d 1 (2019)[vii]

In other words, if other people, that were not exercising their rights under the First Amendment, engaged in the same conduct for which the plaintiff was arrested, but those other people were not arrested, the plaintiff may have a valid First Amendment retaliation claim, even though there was probable cause for the arrest.   For example, if “A” jaywalks while engaged in a protest protected by the First Amendment and “A” is arrested for jaywalking, but “B” also jaywalks, but is not engaged in the protest, and “B” is not arrested for jaywalking, “A” may be able to claim that he was retaliated against in violation of the First Amendment for exercising his rights.  Officers should be mindful of this rule which as been applicable since 2019, but the rule was not in effect at the time of Jackson’s arrest.

Since the officers had arguable probable cause to arrest Jackson, his First Amendment retaliation claim failed and the officers are entitled to qualified immunity.

B. Hecklers Veto claim under the First Amendment

Mr. Jackson argued that the officers had a duty to intervene and prevent Mr. Law and others from “drowning out” his speech.  He argued that the officers violated his rights under the First Amendment by encouraging the protesters, which subjected him to the “heckler’s veto.”

A “heckler’s veto” occurs when a person is protesting peacefully and an angry crowd of counter-protesters arrives and creates a disturbance, such that the police order the peaceful protesters to leave in order to appease the disorderly counter-protesters.  Then, when the peaceful protesters refuse to leave, they are arrested for failing to disperse.  This is an example of a heckler’s veto.

The court stated

The heckler’s veto principle prohibits police from arresting peaceful protestors, or ordering them to disperse, in acquiescence to unruly counter-protestors. Some circuits have held or suggested that police officers have a duty to take reasonable actions to protect, against violence, persons exercising their First Amendment rights. See, e.g., Bible Believers v. Wayne County, Mich., 805 F.3d 228, 252-53 (6th Cir. 2015) (en banc); Phelps-Roper v. Ricketts, 867 F.3d 883, 900-01 (8th Cir. 2017). Others, however, have concluded that officers can ask speakers to move to another location in order to prevent violence as long as their actions are not based on the content of the speech. See Startzell v. City of Philadelphia, 533 F.3d 183, 200-01 (3d Cir. 2008). As far as we can tell, however, no court has ruled that the heckler’s veto principle requires officers to protect a speaker from counter speech.[viii]

The court of appeals noted that Mr. Jackson was never ordered to disperse, and the basis for his arrest was his unlawful physical contact with Mr. Law.  As such, the court held that this was not a heckler’s veto case, and the officers were entitled to qualified immunity on this claim.

III. The Fourteenth Amendment Equal Protection Claim

Mr. Jackson argued that the officers violated his right to Equal Protection under the Fourteenth Amendment because, as he alleged, the police provided more protection to the white preachers on October 10 than they provided him on October 11.

The court of appeals first noted

[T]he Equal Protection Clause requires government entities to treat similarly situated people alike.” Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006). “To prevail on [a] traditional type of equal protection claim, basically a selective enforcement claim, . . . [a plaintiff] must show . . . that [he was] treated differently from other similarly situated individuals.” Id. at 1314. “[D]ifferent treatment of dissimilarly situated persons does not violate the equal protection clause.” Id. (quoting E&T Realty v. Strickland, 830 F.2d 1107, 1109 (11th Cir. 1987)).[ix]

Thus, to prevail on a “selective enforcement claim,” Jackson must show that he was treated differently than other people were treated in a similar situation.  A selective enforcement claim will fail if the people treated differently were not in similar situations.

Jackson argued that he was treated different, particularly given less protection, than the white preachers on the previous day.  However, the court of appeals noted that the situations were materially different on October 10 and October 11.  First, the court stated that, on the first day, the crowd of people protesting the preachers was much larger, which made it difficult for the officers to clearly see the conduct that was had occurred.  They could hear the crowd react, but could not see the conduct that caused the reaction.  Second, on the first day, the officers were separating the protesters that were crowding the preachers.  The officer would then explain that they could protest verbally but could not physically touch or be violent with the preachers.  After this was explained to various groups of protesters, they were allowed to continue their protest and the police moved to the rear of the crowd.  Third, on the second day of the protest, body camera footage shows the officers explaining the rules to Mr. Law, and then allowing him to protest when he promised he would not touch Mr. Jackson.

As such, the court of appeals held that the conditions of the first day of the protests differed from the conditions on the second day, “such that the first day is not a good comparator,” as the officers were unable to see any possible unlawful physical contact because of the size of the crowd. Therefore, the court held that the officers were entitled to qualified immunity on this claim because the situations were not similar.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 19-13181 (11th Cir. Decided September 1, 2022 (Unpublished)

[ii] Id. at 5-9

[iii] Id. at 14 (emphasis added)

[iv] Id. at 17

[v] Id. at 18

[vi] Id. at 20 (emphasis added)

[vii] Id. at 20-21 (emphasis added)

[viii] Id. at 23-24 (emphasis added)

[ix] Id. at 24 (emphasis added)

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