On a Friday in March 2020, a dozen or so sheriff’s deputies carrying bulletproof vests descended upon Waylon Bailey’s storage at his residence in Forest Hill, Louisiana, with their weapons drawn, ordered him onto his knees along with his palms “on your fucking head,” and arrested him for a felony punishable by as much as 15 years in jail. The SWAT-style raid was provoked by a Fb put up during which Bailey had made a zombie-themed joke about COVID-19. Recognizing the hurt inflicted by that flagrantly unconstitutional arrest, a federal jury final week awarded Bailey $205,000 in compensatory and punitive damages.
“I feel vindicated that the jury agreed that my post was satire and that no reasonable police officer should have arrested me for my speech,” Bailey stated in a press launch from the Institute for Justice, which helped symbolize him in his lawsuit towards the Rapides Parish Sheriff’s Workplace and Detective Randell Iles, who led the investigation that tarred Bailey as a terrorist primarily based on constitutionally protected speech. “This verdict is a clear signal that the government can’t just arrest someone because the officers didn’t like what they said.”
On March 20, 2020, 4 days after a number of California counties issued the nation’s first “stay-at-home” orders in response to an rising pandemic, Bailey let off some steam with a Fb put up that alluded to the Brad Pitt film World Conflict Z. “RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER,” he wrote, that “IF DEPUTIES COME INTO CONTACT WITH ‘THE INFECTED,'” they need to “SHOOT ON SIGHT.” He added: “Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”
The Rapides Parish Sheriff’s Workplace snapped into motion, assigning Iles to research what he perceived as “an attempt to get someone hurt.” Based on a neighborhood press report, the authorities have been alarmed by “a social media post that promoted false information related to the ongoing COVID-19 pandemic.” In response, “detectives immediately initiated an investigation,” and because of this, Bailey, then 27, was “arrested for terrorism.”
One other information story reported that Bailey “was booked into the Rapides Parish Detention Center on one count of terrorizing.” William Earl Hilton, the sheriff on the time, defined why, saying he wished to “impress upon everyone that we are all in this together, as well as remind everyone that communicating false information to alarm or cause other serious disruptions to the general public will not be tolerated.”
Bailey’s joke was deemed to pose such a grave and imminent risk that Iles didn’t hassle to acquire an arrest warrant earlier than nabbing him, only a few hours after Bailey’s facetious attraction to Brad Pitt. However in a possible trigger affidavit that Iles accomplished after the arrest, the detective claimed that Bailey had violated a state legislation towards “terrorizing,” outlined as “the intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public.”
Bailey was apologetic when the sheriff’s deputies confronted him, saying he had “no ill will towards the Sheriff’s Office” and “only meant it as a joke.” He agreed to delete the offending put up after Iles stated he in any other case would ask Fb to take it down. However that was not ok for Iles, who hauled Bailey off to jail anyway.
For excellent authorized causes, the Rapides Parish District Lawyer’s Workplace declined to prosecute Bailey. However when Bailey sued Iles for violating his constitutional rights and making a false arrest, U.S. District Choose David C. Joseph dismissed his claims with prejudice, concluding that his joke was not coated by the First Modification, that the arrest was primarily based on possible trigger, and that Iles was protected by certified immunity.
That doctrine permits civil rights claims towards authorities officers solely when their alleged misconduct violated “clearly established” legislation. Joseph thought arresting somebody for a Fb gag didn’t meet that check. “Publishing misinformation during the very early stages of the COVID-19 pandemic and [a] time of national crisis,” he averred, “was remarkably similar in nature to falsely shouting fire in a crowded theatre.”
That was a reference to Schenck v. United States, a 1919 case during which the U.S. Supreme Courtroom unanimously upheld the Espionage Act convictions of two socialists who had distributed anti-draft leaflets throughout World Conflict I. Writing for the Courtroom, Justice Oliver Wendell Holmes Jr. stated, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Holmes’ much-abused analogy, which had nothing to do with the information of the case, was not legally binding. And within the 1969 case Brandenburg v. Ohio, the Supreme Courtroom modified the “clear and present danger” check it had utilized in Schenck—some extent that Joseph by some means neglected. Underneath Brandenburg, even advocacy of prison conduct is constitutionally protected except it’s “directed” at inciting “imminent lawless action” and “likely” to take action—an exception to the First Modification that plainly didn’t cowl Bailey’s joke.
With assist from the Institute for Justice, Bailey requested the U.S. Courtroom of Appeals for the fifth Circuit to overrule Joseph, which it did final August. Writing for a unanimous fifth Circuit panel, Choose Dana M. Douglas stated Joseph “applied the wrong legal standard,” ignoring the Brandenburg check in favor of the Supreme Courtroom’s earlier, much less speech-friendly strategy.
“At most, Bailey ‘advocated’ that people share his post by writing ‘SHARE SHARE
SHARE,'” Douglas wrote. “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.”
One other presumably related exception to the First Modification was the one for “true threats,” outlined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” In a deposition, Iles claimed to view Bailey’s put up as threatening as a result of it was “meant to get police officers hurt.” The joke was particularly harmful, he stated, as a result of there have been “a lot of protests at the time in reference to law enforcement.”
As Douglas famous, that declare was patently implausible “because Bailey was arrested in March 2020, while widespread protests concerning law enforcement did not begin until after George Floyd’s murder in May 2020.” In any case, Bailey’s joke clearly didn’t quantity to a real risk.
“On its face, Bailey’s post is not a threat,” Douglas writes. “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.'”
Moreover, the fifth Circuit held, Iles ought to have recognized that Bailey’s put up was protected speech. “Based on decades of Supreme Court precedent,” Douglas stated, “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.” Iles due to this fact couldn’t discover refuge in certified immunity.
The appeals court docket rejected Iles’ declare that he had possible trigger to arrest Bailey, whose conduct clearly didn’t match the weather of the crime with which he was charged. “Iles is not entitled to qualified immunity,” Douglas wrote, “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.”
The fifth Circuit additionally thought Bailey plausibly claimed that Iles had retaliated towards him for exercising his First Modification rights. As Douglas famous, “Iles admitted that he arrested Bailey at least in part because of the content of his Facebook post, rather than for some other conduct.” And it was clear that Bailey’s speech was chilled, since he agreed to delete the put up after Iles informed him the sheriff’s workplace in any other case “would contact Facebook to remove it.”
That call didn’t guarantee Bailey of victory. It merely gave him the chance to influence a jury that Iles had violated his First Modification rights and the Fourth Modification’s prohibition of “unreasonable searches and seizures.” The fifth Circuit stated he additionally might pursue a state declare primarily based on false arrest.
Final week’s verdict towards Iles and the sheriff’s workplace validated all of these claims. “It is telling that it took less than two hours for a jury of Mr. Bailey’s peers in Western Louisiana to rule in his favor on all issues,” stated Andrew Bizer, Bailey’s trial lawyer. “The jury clearly understood that the Facebook post was constitutionally protected speech. The jury’s award of significant damages shows that they understood how Mr. Bailey’s world was turned upside down when the police wrongly branded him a terrorist.”
Institute for Justice lawyer Ben Subject famous that “our First Amendment rights aren’t worth anything if courts won’t hold the government responsible for violating them.” Bailey’s case, he stated, “now stands as a warning for government officials and as a precedent that others can use to defend their rights.”