Police in the Rapides Parish of Louisiana recently suffered a setback in the federal Fifth Circuit Court of Appeals when that court reversed a summary judgment in their favor granted by the trial court. The question for the appellate court was whether the police were entitled to qualified immunity for their arrest of Waylon Baily. Mr. Bailey was arrested for a Facebook post. The appellate court found that the First Amendment protected the post, such that the police were not entitled to immunity.
In March of 2020, in response to a Facebook post from a friend, Mr. Bailey posted the following message:
Share Share Share !!!!
JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH "THE INFECTED" SHOOT ON SIGHT . . . Lord have mercy on us all. #Covid9teen #weneedyoubradpitt
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According to Mr. Bailey, he intended the post as a joke and did not intend to scare anyone. The "hashtag" "#weneedyoubradpitt" referenced the zombie movie World War Z, starring Brad Pitt. Mr. Bailey included the hashtag to "bring light to the fact that it was a joke." He was bored during the COVID-19 lockdown and used Facebook to keep in touch with friends and "make light of the situation."
Shortly after Bailey posted, Detective Randell Iles was assigned by the Rapides Parish Sheriff's Office (RPSO) to investigate. Detective Iles' supervisors were concerned that the post was a legitimate threat; Detective Iles testified at his deposition that he thought that the post was "meant to get police officers hurt." Detective Iles looked at the post and the comments and concluded that Mr. Bailey had committed "terrorizing" in violation of Louisiana Revised Statute § 14:40.1. Detective Iles had no information regarding anyone contacting the Sheriff's office to complain about the post or to express fear, or that any disruption had occurred because of the post.
Despite the lack of any public concern over the post, and without seeking an arrest warrant, Detective Iles and numerous deputies went to Mr. Bailey's house and arrested him. According to Mr. Bailey, he was working in his garage when as many as a dozen deputies with bullet proof vests and weapons drawn approached him and ordered him to put his hands on his head, after which Detective Iles told him to get on his knees and handcuffed him. While Mr. Bailey was handcuffed, one of the deputies (not Iles) told him that the "next thing [you] put on Facebook should be not to f*** with the police" and the deputies laughed.
Mr. Bailey told Detective Iles that the Facebook post was a joke and apologized. In a supplemental investigative report completed after the arrest, Detective Iles recounted that Mr. Bailey told him he had "no ill will towards the Sheriff's Office; he only meant it as a joke." Mr. Bailey deleted his Facebook post after Detective Iles told him that he could either delete it himself or the Sheriff's office would contact Facebook to remove it.
The Sheriff's Office announced Mr. Bailey's arrest on its own Facebook page, and he was identified in news reports as having been arrested for terrorism. Mr. Bailey's wife paid a bond to bail him out of jail. The district attorney subsequently dropped the charges and did not prosecute.
Mr. Bailey filed suit under 42 U.S.C. § 1983 alleging that Detective Iles violated his First and Fourth Amendment rights. Detective Illes moved for summary judgment on Bailey's claims, asserting, qualified immunity. The district court granted the motion and dismissed Mr. Bailey's claims with prejudice. Mr. Bailey appealed.
The appellate court noted that "[t]he qualified immunity inquiry includes two parts": (1) "whether the officer's alleged conduct has violated a federal right"; and (2) "whether the right in question was 'clearly established' at the time of the alleged violation, such that the officer was on notice of the unlawfulness of his or her conduct." An officer is entitled to qualified immunity "if there is no violation, or if the conduct did not violate law clearly established at the time."
The appellate court first ruled that Mr. Bailey's speech was protected under the First Amendment. His post did not rise to the level of "incitement" or "true threats." In reaching that conclusion the appellate court noted that "his post did not advocate 'lawless' and 'imminent' action, nor was it 'likely' to produce such action. The post did not direct any person or group to take any unlawful action immediately or in the near future, nobody took any such actions because of the post, and no such actions were likely to result because the post was clearly intended to be a joke. Nor did Mr. Bailey have the requisite intent to incite; at worst, his post was a joke in poor taste, but it cannot be read as intentionally directed to incitement."
Having ruled the post was protected speech, the court next considered whether the law was "clearly established." In finding that the law was clearly established, the court held that Detective Iles was not entitled to qualified immunity "because he was 'objectively unreasonable' in believing otherwise. In other words, Iles is not entitled to qualified immunity because no reasonable officer could have found probable cause to arrest Bailey for violating the Louisiana terrorizing statute in light of the facts, the text of the statute, and the state case law interpreting it.
Police officers have qualified immunity in many cases. But in one featuring a spectacular overreaction, there is none.
