A Louisiana man arrested for making a Facebook prank was awarded $205,000 in damages

On a Friday in March 2020, about a dozen sheriff’s deputies wearing body armor descended on Waylon Bailey’s garage at his home in Forest Hill, Louisiana, with guns drawn, ordering 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 prompted by a Facebook post in which Bailey made a zombie-themed joke about COVID-19. Recognizing the damage inflicted by that blatantly unconstitutional arrest, a federal jury last week awarded Bailey $205,000 in 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 said in a press release from the Institute for Justice, which helped represent him in his lawsuit against the Rapides. The parish sheriff’s office and Detective Randell Iles, who led the investigation that classified Bailey as a terrorist based on constitutionally protected speech. “This verdict is a clear signal that the government cannot arrest someone simply because the officers didn’t like what they said.”

On March 20, 2020, four days after several California counties issued the nation’s first “stay at home” orders in response to an emerging pandemic, Bailey vented with a Facebook post that alluded to the Brad Pitt film. World War Z “THE RAPIDES PARISH SHERIFF’S OFFICE HAS ISSUED THE ORDER,” he wrote, that “IF DEPUTIES COME IN CONTACT WITH ‘THE INFECTED’,” they should “shoot on sight.” She added: “Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”

The Rapides Parish Sheriff’s Office sprang into action, assigning Iles to investigate what it 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 ongoing COVID-19 pandemic.” In response, “detectives immediately launched an investigation” and, as a result, Bailey, then 27, was “arrested for terrorism.”

Another news story reported that Bailey “was booked into the Rapides Parish Detention Center on terrorism charges.” William Earl Hilton, the sheriff at the time, explained why, saying he wanted to “impress upon everyone that we are all in this together, and remind everyone that communicating false information to alarm or cause other serious inconvenience to the general public will do nothing but not be tolerated.”

Bailey’s prank was deemed to pose such a grave and imminent threat that Iles didn’t bother to get an arrest warrant before apprehending him, just hours after Bailey’s prank appeal to Brad Pitt. But in a probable cause affidavit that Iles filled out after the arrest, the detective said that Bailey had violated a state law against “terrorism,” defined as “the intentional communication of information that the commission of a crime of violence is imminent or ongoing or that a life-threatening circumstance exists or is about to occur, with the intent to cause prolonged fear for safety among the general public; or cause the evacuation of a building, public facility or conveyance; or cause other serious inconvenience to the general public.”

Bailey apologized when sheriff’s deputies confronted him, saying he had “no ill will toward the sheriff’s office” and “only meant it as a joke.” He agreed to delete the offending post after Iles said that otherwise he would have asked Facebook to remove it. But this wasn’t enough for Iles, who took Bailey to prison 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 dismissed his claims with prejudice, concluding that his joke was not covered by the First Amendment, which l The arrest was based on probable cause, and that Iles was protected by qualified immunity.

That doctrine allows civil rights claims against government officials only when their alleged misconduct violates “clearly established” law. Joseph thought arresting someone for a Facebook gag didn’t meet that test. “Publishing misinformation during the very early stages of the COVID-19 pandemic and [a] A moment of national crisis,” he stated, “was remarkably similar in nature to the false fire cry in a crowded theater.”

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

Holmes’ much-abused analogy, which had nothing to do with the facts of the case, was not legally binding. And in the case of 1969 Brandenburg vs. Ohiothe Supreme Court changed the “clear and present danger” test it had applied Schenck– a point that Joseph somehow overlooked. Under Brandenburgeven the defense of criminal conduct is constitutionally protected unless it is “directed” to incite “imminent lawless action” and “probably” to do so — an exception to the First Amendment that clearly did not cover Bailey’s quip.

With the help of the Institute for Justice, Bailey asked the U.S. Court of Appeals for the 5th Circuit to overturn the Joseph ruling, which it did last August. Writing for a unanimous panel of the 5th Circuit, Judge Dana M. Douglas said Joseph “applied the wrong legal standard,” ignoring the Brandenburg tests in favor of the Supreme Court’s earlier, less speech-friendly approach.

“At most, Bailey ‘advocated’ for people to share his post by writing ‘SHARE SHARE’
SHARE,” Douglas wrote. “But his post did not advocate ‘illegal’ and ‘imminent’ action, nor was it ‘likely’ to produce such action. The post did not instruct any person or group to take any illegal action immediately or in the foreseeable future, no one took any such action because of the post, and no such action would likely have taken place because the post was clearly intended as one joke. Nor did Bailey have the necessary intent to incite; at worst, her post was a tasteless joke, but it cannot be read as intentionally aimed at incitement.”

Another perhaps relevant exception to the First Amendment was “true threats,” defined as “statements in which the speaker intends to convey a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals”. In a deposition, Iles said he considered Bailey’s post threatening because it was “intended to hurt police officers.” The joke was particularly dangerous, she said, because there were “a lot of protests in reference to law enforcement” at the time.

As Douglas noted, that claim was patently implausible “because Bailey was arrested in March 2020, while widespread protests against law enforcement did not begin until after the murder of George Floyd in May 2020.” In any case, Bailey’s joke clearly posed no real threat.

“On the face of it, Bailey’s post is not a threat,” Douglas writes. “But to the extent that he could
perhaps being considered a direct “threat” to the public – that RPSO officers would shoot them if they were “infected” – or to RPSO officers – that the “infected” would return fire – was not a “real threat ” based on context because it lacked credibility and was not serious, as clearly evidenced by calls for Brad Pitt’s rescue. By the same token, Bailey lacked the intent necessary to constitute a ‘real threat’.”

Furthermore, 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 fall into one of the narrow categories of unprotected speech, such as incitement or true threats.” Iles therefore could not take refuge in qualified immunity.

The appeals court rejected Iles’s claim that he had probable cause to arrest Bailey, whose conduct clearly did not fit the elements of the crime with which he had been charged. “Iles is not entitled to qualified immunity,” Douglas wrote, “because no reasonable officer could have found plausible cause to arrest Bailey for violating Louisiana’s terrorism statute in light of the facts, the text of the statute, and the jurisprudence of the state that interprets It.”

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

That decision did not assure Bailey victory. He simply gave him the opportunity to persuade a jury that Iles had violated his First Amendment rights and the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” The 5th Circuit said he could also pursue a state lawsuit based on false arrest.

Last week’s verdict against Iles and the sheriff’s office validated all of these claims. “It is significant that it took less than two hours for a jury of Mr. Bailey’s colleagues in western Louisiana to rule in his favor on all issues,” said Andrew Bizer, Bailey’s trial attorney. “The jury clearly understood that the Facebook post was constitutionally protected speech. The jury’s award of significant damages demonstrates that they understood how Mr. Bailey’s world was turned upside down when police wrongly labeled him a terrorist.”

Institute for Justice attorney Ben Field noted that “our First Amendment rights are worth nothing if the courts do not hold the government accountable for violating them.” Bailey’s case, he said, “now represents a warning to government officials and a precedent that others can use to defend their rights.”

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