Court Won't Grant Immunity To Officer Who Issued A 'Be On The Lookout' Order On Whistleblowing Cop
from the might-as-well-just-say-'shoot-on-sight' dept
While law enforcement barrels continue to spoil from the presence of "bad apples," one has to wonder: where are all the good cops? Chances are, they've been chased out of the force to make room for others with faultier moral compasses.
In its affirmation [PDF] of the lower court's decision to strip Major Tommy Wheeler of the Douglas County Sheriff's Department of immunity in relation to defamation claims (and deny his motion to dismiss on the rights violation claim), the Eleventh Circuit Court recaps the events that led to this lawsuit.
The be-on-the-lookout advisory (“BOLO”) to all law enforcement in Douglas County, Georgia, described its subject as a “loose cannon.” “Consider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly,” the BOLO alarmingly warned and ominously instructed.
What had the subject of the BOLO done to trigger such a grave alert? Had he threatened law enforcement or the public? Had he broken any laws? Was he mentally unstable? Had he been acting at all suspiciously? No, no, no, and no. Instead, Plaintiff-Appellee Derrick Bailey, the subject of the BOLO, had wielded the mightiest weapon of them all: the pen.
An officer of the Douglasville Police Department, Bailey had filed a written complaint with his chief, reporting that other Douglasville officers and Douglas County Sheriff’s Office deputies had been racially profiling minority citizens and committing other constitutional violations.
Bailey’s revelations did not go over well in Douglas County’s law enforcement community. Indeed, several months later, Bailey found himself without a job.
Prior to Bailey calling out the Sheriff's department for alleged constitutional violations, he had been considered a valued member of the team. He brought with him 17 years of law enforcement experience when he was hired with the Douglas Police. Unfortunately for him, he also brought his conscience. He filed a written complaint with the department after witnessing his fellow officers in action. He also wasn't thrilled with their racist euphemisms.
Bailey also complained that law enforcement officers made racially offensive comments and jokes about minorities, describing black males as “black as shoe polish wearing all black” and remarking that the City of Douglasville’s (“City”) logo was a “lynching tree.” Finally, Bailey expressed concern that he would lose his job for “making the complaints and speaking out about racial profiling and other violations.”
Things swiftly turned worse for Bailey. After filing the complaint, he was instructed to rewrite the incident reports he had previously filed. When he informed his supervisors (who were now engaged in an investigation of him) that rewriting incident reports violated department policy, he was suspended for "conduct unbecoming an officer." Eight days later, he was fired.
He appealed his termination, but that only led to more abusive behavior.
The City held a hearing on Bailey’s appeal on February 8, 2013. That very night, two deputies in a Sheriff’s Office vehicle followed Bailey as he drove his personal car from Douglasville into the City of Atlanta. When Bailey entered his intended destination, the two deputies followed him in and stared him down.
Things did not improve for Bailey. The next day, February 9, 2013, Wheeler issued the BOLO on Bailey, displaying Bailey’s photograph, calling him a “loose cannon,” and warning law-enforcement officers to “[c]onsider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly.” And for the second day in a row, law enforcement—this time vehicles from both the Sheriff’s Office and the Police Department—followed Bailey as he drove his personal car.
Three weeks later, Bailey was rehired by the police department. Only then did supervisors there agree to call the Sheriff's Department and have the BOLO cancelled.
Major Wheeler claimed his BOLO announcement had no adversarial effect on Bailey's First Amendment rights. The court cannot see how this can possibly be the case. Bailey not only had reason to believe he would be subject to intimidating behavior if he exercised his rights, but that he also might end up full of bullets.
In this case, we readily conclude that Wheeler’s BOLO “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” First, the BOLO described Bailey as a “loose cannon” who was a “danger to any [law-enforcement officer] in Douglas County.” Viewed in a light most favorable to Bailey, this description, accompanied by Bailey’s photograph, created the impression that Bailey was mentally unstable and roaming Douglas County with a grudge against law-enforcement officers. Then, after inciting law-enforcement officers to fear for their lives, the BOLO empowered these now-anxious officers to “act accordingly” upon coming into contact with Bailey.
"Act accordingly" is the ultimate chilling phrase in law enforcement's hands, as the court points out to a willfully-obtuse Major Wheeler (the appellant).
Let’s pause for a moment to appreciate just how a reasonable law enforcement officer may have understood that instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense—a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler’s BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force—including deadly force—against Bailey if they reasonably misconstrued a single move Bailey made—such as reaching into his pocket when confronted by law-enforcement officers—as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey’s life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.
Two other factors played into the chilling of Officer Bailey's speech. First, he was African-American, and department officers had already made a number of racist comments in his vicinity. Second, the BOLO was issued less than a week after Officer Chris Dorner of the LAPD had been the subject of a similar announcement -- one that resulted in officers all over the city placing itchier and itchier fingers on triggers. In the case of two unfortunate women out delivering newspapers, this resulted in eight officers firing over 100 bullets into their pickup truck. A BOLO can easily have deadly consequences, even without these two issues factored in.
The court finds it impossible to comprehend that such an order wouldn't have a chilling effect on the subject's speech. Or that the person issuing such an order would have the gall to consider himself a law enforcement officer.
Law-enforcement officers are sworn to protect and defend the lives of others. It is completely antithetical to those sworn duties for a law-enforcement officer to use his position to harness the power of an entire county’s law-enforcement force to teach a lesson to—and potentially very seriously endanger—someone who had the temerity to speak up about alleged abuses.
This is what happens to good cops. They speak up and lose their jobs. Or they stay in the force and are treated with suspicion and disdain. Either way, they are given no chance to change the culture from the inside. It's no wonder so many cops start out good and end up just like the worst of their numbers. Whistleblowing and breaking rank are considered something to be punished, rather than rewarded. Those wanting to make a career of law enforcement learn quickly the best way to get through with a minimum of hassle is to keep their heads down, eyes averted, and mouths shut.