Ross M. Jackson v. Glenn Cowan, et al.

It is the rare decision that presents multiple conflicts with other circuits. The Eleventh Circuit’s decision in this case presents four §1983 conflicts, plus blatant misuses of summary judgment to foreclose equal protection and 1985(3) conspiracy claims founded on prima facie evidence indicating racial and religious bias. The questions presented are as follows:

1. Whether the Supreme Court’s recent decisions in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), and Lozman v. Riviera Beach, 138 S. Ct. 1945 (2018), apply retroactively. The Panel said not, but this Court applied its rulings retroactively in those cases, and other circuits have applied them retroactively as well.

2. Whether it is clearly established by this Court’s precedent that police officers, when assessing whether there exists probable cause for arrest, must consider a legal defense established by what the officers observed at that time. The Panel affirmed the district court, which said not; other circuits disagree.

3. Whether it is clearly established that officers have a duty to protect a speaker in a public forum when his speech is being materially impeded by those who object to the message. The Panel said not, while acknowledging that other circuits have held this to be clearly established by this Court’s precedent.

4. Whether it is clearly established that the court must consider internal police policies when