                                                      [DO NOT PUBLISH]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



                                            5
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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