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.


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  • identicon
    Jeff, 23 Dec 2016 @ 4:12am

    The Dorner case...

    ...is still fresh in my mind because the gunfire (two separate shootings) woke me up. There was so much shooting that I knew right away it must be the police. It was a miracle nobody was killed. The police knew that Dorner was a suspect in the killing of Quan's daughter and her boyfriend, as well as the cops in Riverside, but there was no media announcement of the alleged danger to the public. According to his manifesto, Dorner was fired in retaliation for reporting wrongdoing by other officers.
    Dorner's case doesn't sound all that different from the instant case, but at least nobody was killed this time.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2016 @ 4:41am

    Thank you for confirming what I've always said: Show me a cop who applies the law to fellow officers as they do to civilians, and I'll show you an ex-cop. There are no good cops that remain on the force for long - period.

    reply to this | link to this | view in chronology ]

  • identicon
    Another Anonymous Coward, 23 Dec 2016 @ 5:04am

    What's with those guys? If they weren't doing anything wrong, what did they have to be afraid of?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2016 @ 5:14am

    1st amendment?

    If this wasn't a case about cops it would be an attempted murder case not a first amendment case.

    reply to this | link to this | view in chronology ]

  • identicon
    John Cressman, 23 Dec 2016 @ 5:49am

    I respect law enforcement

    I respect most law enforcement. My grandfather was a sheriff and my uncle is a deputy sheriff.

    I understand that they have a tough and dangerous job and that many more times that people realize, they put their lives on the line to save others.

    BUT... law enforcement is also infested with this "brotherhood of police" corruption that causes otherwise good men to turn a blind eye to corruption and abuse by not reporting officers who committing unethical or illegal behavior. And that goes all the way to the top. Whether the top brass doesn't want to show that their officers are "human" and that yes, there ARE some bad apples - like there are in any job - or whether they are part of the "brotherhood", they don't police their own police either.

    And don't even get me started about unions, who are mostly there to protect bad cops.

    That, more than anything else, is what has fostered this current environment where cops are mistrusted at best and hated at worse.

    And it's all their fault for not policing their own.

    reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 23 Dec 2016 @ 6:07am

      Re: I respect law enforcement

      Correct as far as it goes. Let's add in the fact that cops - as a rule - get much greater deference from prosecutors and courts than do private citizens.

      Based on reports like this, I would say we're beginning to see some - SOME - pushback from the courts and prosecutors. But it's nothing like enough.

      Now if only we could get the management/supervisory levels of the police - and their civilian bosses as well - to take steps.....

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2016 @ 6:56am

      Re: I respect law enforcement

      "I understand that they have a tough and dangerous job and that many more times that people realize, they put their lives on the line to save others."

      Except law enforcement isn't even the top 10 of most dangerous jobs. Serving the public as a brave convenience store clerk, for example, is more dangerous.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Dec 2016 @ 10:42am

      I don't

      But I'd like to be able to.

      I'd like to be able to respect the police.

      I'd like to be able to trust the police.

      I'd like to be able to feel safe around police.

      But as stories like this make clear that is simply not a reasonable position to take, as what few 'good' cops are there are almost without fail driven off by the vast majority belonging to, as you put it, 'the brotherhood of police' which see their highest priority as protecting their own, rather than protecting and serving the public, even if that means protecting the absolute worst of the worst so long as they have a badge and uniform.

      It would be nice to be able to see police as dedicated people putting their safety on the line to protect and serve the public, but as it is story after story makes it clear that in the US at least they've become little more than a well funded criminal organization with a legal system willing to look the other way and cover even their most heinous actions.

      As such I cannot respect the police.

      I cannot trust the police.

      And I cannot feel safe around them.

      reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 25 Dec 2016 @ 4:27am

        Re: I don't

        > stories like this make clear that is simply not a
        > reasonable position to take, as what few 'good' cops are
        > there are almost without fail driven off by the vast
        > majority belonging to, as you put it, 'the brotherhood of
        > police' which see their highest priority as protecting
        > their own, rather than protecting and serving the public,
        > even if that means protecting the absolute worst of the
        > worst so long as they have a badge and uniform.

        I'm not sure I'd go that far.

        I know only a relatively few police officers, but the large majority of that few seem to be quite decent people, and thus far none of them have struck me as the type to engage in any of these quote-unquote "bad apple" behaviors.

        I share your conclusions, however - not because "good cops are driven out or corrupted by the institutional culture established by the bad ones", but because _there is no practical way to tell the difference_.

        In any given encounter, there is no practical way to be sure whether you are dealing with a "good cop" or a bad one. If you assume you're dealing with a bad cop, and get it wrong, you're no less safe than you were (and the only negative consequences are to the cop's opinion of the public, making it more likely that he will become a bad cop later); if you assume you're dealing with a good one, and get it wrong, the consequences are potentially severe.

        (Tangential rant: when are they going to give us a means of doing quotes via markdown which does _not_ automatically italicize what's quoted? What I want is blockquote behavior, including nesting if appropriate, and that's what seems to be depicted at the provided markdown link. What the > prefix actually seems to give here on Techdirt is italics _plus_ blockquote, which is problematic if the quoted text already includes italics; doing two unrelated things with one tag is poor form in any case.)

        reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 4 Jan 2017 @ 5:47am

      Re: I respect law enforcement

      Damn straight, Mr. Cressman. I couldn't agree more.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2016 @ 6:07am

    Lie after Lie

    "Law-enforcement officers are sworn to protect and defend the lives of others."

    Why is this filthy lie continually perpetuated?
    Police are not only NOT sworn to protect shit as in... this is not part of their fucking oaths, they also ignore the law (which incidentally IS part of their sworn duty) regularly throughout the course of the day with little challenge but a plethora of encouragement.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2016 @ 6:42am

    Hold on here people, The story is just a little too cut and dry for me to believe everything is the truth. The jist of what I feel, is that the bailey, wrote a report, which may or may not have contained, inaccurate information, or inappropriate slurs. He was told to re write that report, And when he did, he changed the story so much, that the police dept fired him. Bailey, who was told to rewrite the report was fired, most likely by the man who told him to re write the report.(Or he may have re written the report himself without direction from his boss), Regardless, he was FIRED, and probably threw a conniption fit, and threatened other officers, or the police dept, and was probably spouting, some highly intense words, possibly threatening to come back at some time in the future and make things even. So the dept wrote a report notifying all other officers of the conduct, and to be "on the look out" for him. Assuming the things that were said was close to what I mentioned above it would make sense to have other officers "follow" him to ensure that he was not going to "act out" on his "verbal tirade" at the time of his firing. This is just an assumption on my part, I have no knowledge or previous information, of this police dept, or any of the happenings. The only information I have to assume on is the information written in the article.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2016 @ 7:17am

      Re:

      So... based on this one article (rather than, perhaps, the court documents linked from it), you have decided to shift the blame 180 degrees from what the article itself presented? Despite the appeals court - which you admit has more information than you - disagreeing with your conclusions?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2016 @ 9:27am

      Re:

      What more likely happened, is that Baily HONESTLY factually reported exactly what happened in the incidents, including all the slurs, racial comments, etc.

      When the bosses read it, they decided we can't have this 'dark skinned' officer tarnish the reputation of our sterling officers, obviously his reports are complete lies and we are going to make him violate our own policies to clean up what we see as a problem (that people might actually hear the truth).

      Now since he refused, and said it would be against the department policy, he is suddenly 'not one of us' and needs to be eliminated (the assassination order, aka BOLO, was issued, but it got too much publicity before it could be carried out, so now the officers are upset that they didn't get to collect their BOLO bounty...). is it truth or is is Memorex? (wait someone is taping this, pull out the stingray and run their life...)

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Dec 2016 @ 11:21am

      Re:

      That is some truly impressive mental gymnastics there, it's a pity unlike normal gymnastics there isn't an olympic event for it, I really think you'd have a shot with the skill you've displayed here in trying to lay the blame on anyone but the ones who deserve it.

      Exactly what is so hard to believe that the department was filled with 'Good ol' boys' with racist tendencies, the 'new guy' reported it, and because they can't have the department exposed as the bigot fest that it was they decided to send a message to show him what happens to those that break with The Brotherhood of Blue via stalking and 'this man is a threat to any and all boys in blue' warning?

      If, as your musing suggests, they thought him an actual threat and had evidence of such they wouldn't have just followed him around twice, they would have reported him and possibly brought him in.

      Sometimes it is 'cut and dried', and the simple explanation is the right one, there's no need to spin up conspiracy ideas when the simple explanation(and one that the court agreed with) is right there in front of you.

      reply to this | link to this | view in chronology ]

      • icon
        orbitalinsertion (profile), 23 Dec 2016 @ 4:51pm

        Re: Re:

        Being the end of 2016 and this occurring in 2013, and courts nearly miraculously finding against the officer and department, I can only imagine it is pretty damn dried.

        But hey, hold on there three more years or so while the department and friends get a chance, post-ruling, to tell their side of the story.

        reply to this | link to this | view in chronology ]

      • icon
        Eldakka (profile), 23 Dec 2016 @ 8:35pm

        Re: Re:

        That is some truly impressive mental gymnastics there, it's a pity unlike normal gymnastics there isn't an olympic event for it, I really think you'd have a shot with the skill you've displayed here in trying to lay the blame on anyone but the ones who deserve it.

        I suspect the Olympic committee knows they couldn't compete with the US Presidential elections in that particular event.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2016 @ 4:09pm

      Re:

      I gave you a "LOL" vote because... well, what the fuck else could I do after reading it?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2016 @ 8:32am

    Ironically, the fire departments work the same way. It's about "the family," if one person is a bad apple(stealing, breaking & entering) , you don't mention it or report it. The person that makes waves gets cut.

    The difference between the two is one is allowed to harm other people.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 23 Dec 2016 @ 5:03pm

    It is completely antithetical to those sworn duties for a law-enforcement officer to be given every possible benefit of the doubt & a shield against punishment for their bad acts... but thats the system we have.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2016 @ 7:04pm

    if only it were that simple

    If only we had someone we could depend on to serve and protect the people, a person who stands for justice and civility. A Robocop.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Dec 2016 @ 2:09pm

    Major Tommy Wheeler is a scumbag POS - I can only hope for actual justice prevails and this POS is thrown out.

    reply to this | link to this | view in chronology ]


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