He was arrested for making a joke on Facebook. A jury has just awarded him $205,000 in damages.


On a Friday in March 2020, a dozen sheriff’s deputies wearing bulletproof vests descended on Waylon Bailey’s garage at his Forest Hill, Louisiana, home with their guns drawn, and ordered him to get on his knees with his hands “on your fucking head.” and arrested him for a crime punishable by up to 15 years in prison. The SWAT-style raid was provoked by a Facebook post in which Bailey made a zombie-themed joke about COVID-19. Recognizing the harm caused by this patently unconstitutional arrest, a federal jury reward Bailey $205,000 in compensatory and punitive damages.

“I feel vindicated by the fact that the jury recognized that my message was satire and that no reasonable police officer should have arrested me for my speech,” Bailey said. said in a news release from the Institute for Justice, which helped represent him in his lawsuit against the Rapides Parish Sheriff’s Office and Detective Randell Iles, who led the investigation that labeled Bailey a terrorist on the basis of constitutionally protected speech. “This verdict is a clear signal that the government cannot arrest someone just because the police didn’t like what he said.”

March 20, 2020, four days after several California counties issued nation’s first ‘stay at home’ order in response to an emerging pandemic, Bailey let off steam with a Facebook post alluding to the Brad Pitt movie World War Z. “THE RAPIDES PARISH SHERIFF’S OFFICE HAS ISSUED THE ORDER,” he wrote, that “IF DEPUTIES COME INTO CONTACT WITH THE ‘INFECTED,’” they should “SHOOT ON SIGHT.” He added: “Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”

The Rapides Parish Sheriff’s Office immediately sprang into action, tasking Iles with investigating what they perceived as “an attempt to harm someone.” According to a local press report, authorities were alarmed by “a social media post promoting false information related to the current COVID-19 pandemic.” In response, “detectives immediately began an investigation,” and as a result, Bailey, then 27, was “arrested on terrorism charges.”

Another news reported that Bailey “was incarcerated at the Rapides Parish Detention Center on terrorism charges.” William Earl Hilton, the sheriff at the time, explained why, saying he wanted to “make it clear to everyone that we are all in this together, as well as remind everyone that communicating false information to alarm or causing further serious disruption to the general public” will not be tolerated. »

Bailey’s joke was seen as posing such a serious and imminent threat that Iles did not bother to obtain an arrest warrant before arresting him, just hours after Bailey’s facetious call to Brad Pitt. But in a probable cause affidavit that Iles filled out after the arrest, the detective claimed Bailey violated a State Law against “terrorism”, defined 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 intention of provoking members of the general order. the public has a sustained fear for their safety; or causes the evacuation of a building, public structure or transportation facility; or causes other serious disruption to the general public. »

Bailey apologized when sheriff’s deputies confronted him, saying he had “no ill will toward the sheriff’s office” and “he only meant it as a joke.” He agreed to remove the offending post after Iles said he would otherwise ask Facebook to remove it. But that wasn’t enough for Iles, who took Bailey to jail anyway.

For very good legal reasons, the Rapides Parish District Attorney’s Office declined to prosecute Bailey. But when Bailey sued Iles for violating his constitutional rights and making a false arrest, U.S. District Judge David C. Joseph rejected his biased assertions, concluding that his joke was not covered by the First Amendment, that the arrest was based on probable cause, and that Iles was protected by qualified immunity.

That doctrine allows civil rights suits against government officials only when their alleged misconduct violated “clearly established” law. Joseph thought arresting someone for a joke on Facebook didn’t meet that standard. “Publishing disinformation in the early days of the COVID-19 pandemic and (during) a time of national crisis,” he asserted, “was remarkably similar in nature to falsely shouting fire in a crowded theater.”

It was a reference to Schenck v. United Statesa 1919 case in which the United States Supreme Court unanimously upheld the Espionage Act convictions of two socialists who distributed anti-conscription leaflets during World War I. Writing for the Court, Justice Oliver Wendell Holmes Jr. said: “The strictest protection of free speech would not protect a man who falsely shouts fire in a theater and causes panic. »

“Holmes” very overused analogy, which has nothing to do with the facts of the case, was not legally binding. And in the case of 1969 Brandenburg v. Ohiothe Supreme Court modified the “clear and present danger” test that it had applied in Schenck– a point that Joseph somehow overlooked. Below Brandenburgeven incitement to criminal conduct is protected by the Constitution unless it is intended to incite “imminent unlawful action” and is “likely” to do so – an exception to the First Amendment that clearly did not cover not Bailey’s joke.

With help from the Institute for Justice, Bailey request the United States Court of Appeals for the 5th Circuit to overturn Joseph, which it made last August. Writing for a unanimous 5th Circuit panel, Judge Dana M. Douglas said Joseph “applied the wrong legal standard,” ignoring the Brandenburg test in favor of the Supreme Court’s earlier, less friendly approach.

“At most, Bailey ‘advocated’ that people share his message by writing ‘SHARE SHARE
SHARE,” Douglas wrote. “But his message did not advocate ‘anarchic’ and ‘imminent’ action, nor was it ‘likely’ to produce such action. The message did not direct any person or group to take any illegal action immediately or in the near future, no one had taken such actions because of this message, and no such action was likely to cause harm. result because the message was clearly intended as a joke. Bailey also lacked the requisite intent to incite; at worst, his message was a joke in poor taste, but it cannot be construed as intentionally intended to incite. »

Another possibly relevant exception to the First Amendment was that for “actual threats,” defined as “statements in which the speaker intends to communicate a serious expression of intent to commit an act of unlawful violence to an individual or group of people.” ‘particular individuals’. In a deposition, Iles said he viewed Bailey’s message as threatening because it was “intended to hurt the officers.” The joke was particularly dangerous, he explained, because there had been “many protests at the time in reference to the police.”

As Douglas noted, this claim was patently implausible “because Bailey was arrested in March 2020, while widespread protests over law enforcement did not begin until after the killing of George Floyd in May 2020 “. Either way, Bailey’s joke clearly didn’t pose a real threat.

“On its face, Bailey’s message does not pose a threat,” Douglas writes. “But to the extent that it could
perhaps seen as a “threat” directed either to the public – that RPSO deputies would shoot them if they were “infected” – or to RPSO deputies – that the “infected” would fight back – this does not was not a “real threat” based on context because it lacked credibility and was not serious, as Brad Pitt’s cries for help clearly demonstrate. For the same reason, Bailey lacked the intent required to make a “real threat.” »

Additionally, according to the 5th Circuit, Iles should have known that Bailey’s post was protected speech. “Based on decades of Supreme Court precedent,” Douglas said, “it has been clearly established that Bailey’s Facebook post did not fit into one of the narrow categories of unprotected speech, such as incitement or the real threats.” He could therefore not find refuge in qualified immunity.

The appeals court rejected Iles’ contention that he had probable cause to arrest Bailey, whose conduct clearly did not fit the elements 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 Terror Act in light of the facts, the text of the law and the case law of the State interpreting it.”

The 5th Circuit also believed that Bailey plausibly asserted that Iles retaliated against him for exercising his First Amendment rights. As Douglas noted, “Iles admitted to arresting Bailey at least in part because of the content of his Facebook post, rather than for any other behavior.” And it was clear that Bailey’s speech was cold, as he agreed to delete the post after Iles told him the sheriff’s office would “contact Facebook to remove it.”

This decision did not secure victory for Bailey. It simply gave him the opportunity to persuade a jury that Iles had violated his First Amendment rights and the Fourth Amendment’s ban on “unreasonable searches and seizures.” The 5th Circuit said it could also pursue a lawsuit based on a false arrest.

Last week’s verdict against Iles and the sheriff’s office validated all of those claims. “It is telling that it took less than two hours for a jury of Mr. Bailey’s peers in western Louisiana to decide in his favor on all issues,” said Andrew Bizer, Bailey’s lawyer. “The jury clearly understood that the Facebook post constituted constitutionally protected speech. The jury’s award of significant damages shows that it understood the extent to which Mr. Bailey’s world was turned upside down when the police wrongly labeled him a terrorist.”

Ben Field, Attorney at the Institute for Justice note that “our First Amendment rights are worthless if the courts do not hold the government accountable for violating them.” Bailey’s case, he said, “now stands as a warning to government officials and a precedent that others can use to defend their rights.”

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