Fifth Circuit Denies Immunity To Detective Who Arrested A Man For A Satirical Facebook Post

Free Speech

from the just-because-you're-not-laughing-doesn't-mean-it's-not-a-joke dept

Law enforcement officers just don’t seem to have a sense of humor. Sure, they may laugh when they beat, humiliate, or otherwise violates citizens’ rights, but they can’t seem to take a joke when it’s pointed in their direction.

Not being able to recognize an obvious joke has ensured two members of the Rapides Parish (Louisiana) Sheriff’s Department will have to face the lawsuit brought by Waylon Bailey, who was arrested for an obvious joke he posted to Facebook.

Here’s the post that got Bailey arrested, and now has forced Detective Randell Iles and Sheriff Mark Wood to return to court following the stripping of their qualified immunity. From the Fifth Circuit Appeals Court decision [PDF]:

Bailey lives in Rapides Parish in central Louisiana. On March 20,2020—during the first month of the COVID-19 pandemic—he posted thison Facebook:

Bailey 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. 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.”

In case you can’t see or read the embed, Bailey’s post says this:

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 usall. #Covid9teen #weneedyoubradpitt

Any reasonable person would have recognized this as a joke. But far too many law enforcement officers are far from reasonable, even if they continually argue they are when they’re slapped with civil lawsuits. An actually reasonable officer would ignore this.

The officers involved in this lawsuit weren’t reasonable:

Shortly after Bailey posted, Detective Randell Iles was assigned by the Rapides Parish Sheriff’s Office (RPSO) to investigate. Iles’ supervisors were concerned that the post was a legitimate threat; Iles testified at his deposition that he thought that the post was “meant to get police officers hurt.” Iles looked at the post and the comments and concluded that Bailey had committed “terrorizing” in violation of Louisiana Revised Statute § 14:40.1. Iles had no information regarding anyone contacting RPSO to complain about the post or to express fear, or if any disruption had occurred because of the post.

If there was a “threat,” it was the one attributed to the Sheriff’s Office by Bailey. There certainly wasn’t any threat expressed by Bailey himself. And, as the detective testified, no one in the parish appeared to feel “threatened” by the joke post. Armed with all of this nothing, the Sheriff’s Office sprung into action.

Without seeking an arrest warrant, Iles and numerous RPSO deputies went to Bailey’s house and arrested him. According to 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 Iles told him to get on his knees and handcuffed him. While Bailey was handcuffed, one of the deputies (not Iles) told him that the “next thing [you] put on Facebook should be not to fuck with the police” and the deputies laughed.

Oh. My mistake. The officers did have a sense of humor.

Anyway. Moving on:

Iles advised Bailey of his rights, took a brief statement, and told him he was being charged with terrorizing. Bailey told Iles that the Facebook post was a joke and apologized. In a supplemental investigative report completed after the arrest, Iles recounted that Bailey told him he had “no ill will towards the Sheriff’s Office; he only meant it as a joke.” Bailey deleted his Facebook post after Iles told him that he could either delete it himself or the RPSO would contact Facebook to remove it.

After all of this was done, Detective Iles decided it might be time to make this a bit more lawful. He filled out an affidavit listing probable cause for the arrest he had already performed. And he did this — as he told the court — by using Bailey’s post as evidence and ignoring Bailey’s own statements about it being a joke (and his subsequent deletion of the post) during the warrantless arrest.

This was followed by the RPSO celebrating this unlawful arrest with a post on its own Facebook page. It did not, however, deliver a follow-up post about the “terrorism” charges being dropped by the DA because (duh) they were completely unsupported by anything even approaching probable cause.

Bailey sued. The officers asked for immunity. The lower court somehow found in favor of the officers, dismissing Bailey’s lawsuit with prejudice.

That’s completely wrong, says the Fifth Circuit Appeals Court. And this is coming from a court that sides more frequently with law enforcement officers than any other appeals court in the land.

The Brandenburg requirements are not met here. At most, Bailey “advocated” that people share his post by writing “SHARE SHARE SHARE.” But 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 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.

[…]

On its face, Bailey’s post is not a threat. But to the extent it could possibly be considered a “threat” directed to either the public—that RPSO deputies would shoot them if they were “infected”—or to RPSO deputies— that the “infected” would shoot back—it was not a “true threat” based on context because it lacked believability and was not serious, as evidenced clearly by calls for rescue by Brad Pitt. For the same reason, Bailey did not have the requisite intent to make a “true threat.”

If it wasn’t incitement or a true threat, it was what, class? That’s right: protected speech. And if it’s protected speech, well… law enforcement has no constitutional business arresting someone for engaging in protected speech.

But before we even get to that, there’s the Fourth Amendment, which requires probable cause to arrest someone. No probable cause here, says the Fifth.

The relevant facts and circumstances known to Iles at the time of the arrest were: (1) his supervisors asked him to investigate the post; (2) the content of the post itself; (3) Bailey was the author; (4) the comments below the post; (5) Bailey’s statement to Iles that he meant the post as a joke and had no ill will toward RPSO; (6) nobody reported the post to law enforcement; and (7) the general social conditions during the early onset of the COVID-19 pandemic.

These facts and circumstances are not sufficient for a reasonable person to believe that Bailey had violated the Louisiana terrorizing statute. The statute’s requirement that the communication have “an immediacy element concerning the false information” is lacking. Moreover, “causation of ‘sustained fear’ is clearly an essential element of this part of the statute.” Here, however, there were no facts that would lead a reasonable person to believe that Bailey’s post caused sustained fear. No members of the public expressed any type of concern. Even if the post were taken seriously, it is too general and contingent to be a specific threat that harm is “imminent or in progress.” Nor would a reasonable person believe, based on these facts, that Bailey acted with the requisite “specific intent” to cause sustained fear or serious public disruption.

If no “reasonable person” would believe this post to be incitement or a true threat, then it naturally follows no reasonable officer would believe the same thing.

No immunity on the Fourth Amendment claim for the detective:

Iles appears to argue that the law was not clearly established, and that he is therefore entitled to qualified immunity, because there is no Fifth Circuit precedent addressing warrantless arrests pursuant to the Louisiana terrorizing statute. But Bailey does not have to identify such a case to defeat qualified immunity.

First, it is beyond debate that “[a] warrantless arrest without probable cause violates clearly established law defining an individual’s rights under the Fourth Amendment.” Second, whether it was “objectively reasonable” for Iles to believe there was probable cause is “assessed in light of legal rules clearly established at the time of the incident,” which includes the statute’s text and state case law interpreting it.

As explained above, at the time of the incident the text of the terrorizing statute and state case law interpreting it made it clear that there was no probable cause here. Tellingly, while Bailey cites to multiple Louisiana cases supporting his interpretation of the statute, Iles cites to no Louisiana case law interpreting the statute otherwise.

No immunity on the First, either.

Based on decades of Supreme Court precedent, it was clearly established that Bailey’s Facebook post did not fit within one of the narrow categories of unprotected speech, like incitement or true threats. […] Thus, when Iles arrested Bailey, he violated Bailey’s clearly established First Amendment right to engage in speech even when some listeners consider the speech offensive, upsetting, immature, in poor taste, or even dangerous. See, e.g. Hustler Mag., Inc., 485 U.S. at 54; Herceg, 814 F.2d at 1021–24. The district court erred in concluding otherwise.

Detective Iles is now seeing this lawsuit returned to the lower court, giving him a chance to waste the parish’s money for a third time. The first misspent tax dollars funded Detective Iles’ desire to see Bailey arrested for a joke — an arrest that involved several members of the Sheriff’s Office. The second blowing of tax dollars were spent in defense of the indefensible. The final expenditure will be the settlement that should arrive in the near future, given that Iles is back on the hook for rights violations. Three times the money spent; zero actual crimes prosecuted. And that’s a whole lot to pay for someone who was apparently born without a functioning sense of humor.

Filed Under: 1st amendment, 5th circuit, free speech, louisiana, mark wood, qualified immunity, randell iles, rapides parish, rapides parish sheriff's office, satire, waylon bailey