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Waylon Bailey lives in central Louisiana. On March 20, 2020—during the first month of the COVID-19 pandemic—he posted this on Facebook:
Bailey intended the post as a joke and did not intend to scare anyone. The “hashtag” “#weneedyoubradpitt” referenced the zombie movie World War Z, starring Brad Pitt. Bailey included the hashtag to bring light to the fact that it was a joke. He was bored during the COVID-19 lockdown and used Facebook to keep in touch with friends and make light of the situation.
Bailey’s post was in response to another friend—Matthew Mertens— posting a joke about COVID, and Mertens understood Bailey’s post to be a joke. The two continued to post comments underneath Bailey’s post. Merterns posted “lol and he [referring to Bailey] talking about my post gonna get flagged 🤣 he wins.” Bailey posted “this is your fault” and “YOU MADE ME DO THIS.” Another person, who Mertens later identified as Bailey’s wife, also jokingly commented “I’m reporting you.”
Shortly after Bailey posted, Detective Randell Iles was assigned by the Rapides Parish Sheriff’s Office (RPSO) to investigate. Iles’ supervisors were concerned that the post was a legitimate threat; Iles testified at his deposition that he thought that the post was meant to get police officers hurt. Iles looked at the post and the comments and concluded that Bailey had committed “terrorizing” in violation of Louisiana Revised Statute § 14:40.1. Iles had no information regarding anyone contacting RPSO to complain about the post or to express fear, or if any disruption had occurred because of the post.
Without seeking an arrest warrant, Iles and numerous RPSO deputies went to Bailey’s house and arrested him. According to Bailey, he was working in his garage when as many as a dozen deputies with bullet proof vests and weapons drawn approached him and ordered him to put his hands on his head, after which Iles told him to get on his knees and handcuffed him. While Bailey was handcuffed, one of the deputies (not Iles) told him that the “next thing [you] put on Facebook should be not to f*** with the police” and the deputies laughed.
Iles advised Bailey of his rights, took a brief statement, and told him he was being charged with terrorizing. Bailey told Iles that the Facebook post was a joke and apologized. In a supplemental investigative report completed after the arrest, Iles recounted that Bailey told him he had “no ill will towards the Sheriff’s Office; he only meant it as a joke.” Bailey deleted his Facebook post after Iles told him that he could either delete it himself or the RPSO would contact Facebook to remove it.
Iles later filled out an affidavit of probable cause for arrest without a warrant, noting that Bailey had been arrested for “Terrorizing” in violation of statute number “14.40.1.” Under the heading “probable cause and facts of arrest,” he wrote that “the suspect put up a Facebook post that Rapides Parish Sheriff’s Office has order to ‘Shoot on Sight’ due to the Corona Virus outbreak. Arrested without incident.” Iles testified at his deposition that he determined that the Facebook post was criminal based solely on the words of the post itself, and not based on anything Bailey told him.
RPSO announced Bailey’s arrest on its own Facebook page, and he was identified in news reports as having been arrested for terrorism. Bailey’s wife paid a bond to bail him out of jail. The district attorney subsequently dropped the charges and did not prosecute Bailey. Bailey filed suit under 42 U.S.C. § 1983 alleging that Iles violated his First and Fourth Amendment rights. The district court granted Defendants’ motion for summary judgement and dismissed Bailey’s claims with prejudice. The 5th reversed.
A. Bailey’s Facebook post was protected speech
In Brandenburg v. Ohio, 395 U.S. 444 (1969), SCOTUS held that advocacy that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action is not protected by the First Amendment. Bailey argues that his Facebook post did not meet Brandenburg’s requirements. We agree.
The crucial element to lowering the First Amendment shield is the imminence of the threatened evil. The Brandenburg requirements are not met here. At most, Bailey “advocated” that people share his post by writing “SHARE SHARE SHARE.” 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. Incitement cases usually concern a state effort to punish the arousal of a crowd to commit a criminal action. The “tendency to lead to violence” is not enough. See SCOTUS Hess v Indiana, 414 U.S. 105 (1973). Mere negligence, therefore, cannot form the basis of liability under the incitement doctrine any more than it can under libel doctrine. In short, where the speech in Brandenburg, Hess, and numerous other Supreme Court decisions does not rise to the level of incitement, in no way can Bailey’s Facebook post constitute incitement.
A2. True Threats
True threats encompass those 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. See SCOTUS Virginia v. Black, 538 U.S. 343 (2003). In deciding whether speech is an unprotected “true threat,” context is critical. See SCOTUS Watts v. U.S., 394 U.S. 705 (1969).
On its face, Bailey’s post is not a threat. 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.”
B. Fourth Amendment claim – §1983
B1. Constitutional violation
It is well established that under the Fourth Amendment a warrantless arrest must be based on probable cause. See Castro. Probable cause exists when the facts and circumstances within the arresting officer’s personal knowledge, or of which he has reasonably trustworthy information, are sufficient to occasion a person of reasonable prudence to believe an offense has been committed.
The district court determined that there was probable cause to arrest Bailey. We disagree. Iles arrested Bailey for “terrorizing,” in violation of La. R.S. § 14:40.1(A)(1). The relevant portion of the statute reads as follows: Terrorizing is 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.
The relevant facts and circumstances known to Iles at the time of the arrest were: (1) his supervisors asked him to investigate the post; (2) the content of the post itself; (3) Bailey was the author; (4) the comments below the post; (5) Bailey’s statement to Iles that he meant the post as a joke and had no ill will toward RPSO; (6)nobody reported the post to law enforcement; and (7) the general social conditions during the early onset of the COVID-19 pandemic.
These facts and circumstances are not sufficient for a reasonable person to believe that Bailey had violated the Louisiana terrorizing statute. The statute’s requirement that the communication have an immediacy element concerning the false information is lacking. Moreover, causation of sustained fear is clearly an essential element of this part of the statute. Here, however, there were no facts that would lead a reasonable person to believe that Bailey’s post caused sustained fear. No members of the public expressed any type of concern. Even if the post were taken seriously, it is too general and contingent to be a specific threat that harm is “imminent or in progress.” Nor would a reasonable person believe, based on these facts, that Bailey acted with the requisite “specific intent” to cause sustained fear or serious public disruption.
B2. Clearly established
Iles is not entitled to qualified immunity 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.
Iles appears to argue that the law was not clearly established, and that he is therefore entitled to qualified immunity, because there is no Fifth Circuit precedent addressing warrantless arrests pursuant to the Louisiana terrorizing statute. But Bailey does not have to identify such a case to defeat qualified immunity. First, it is beyond debate that a warrantless arrest without probable cause violates clearly established law defining an individual’s rights under the Fourth Amendment.
Second, whether it was objectively reasonable for Iles to believe there was probable cause is assessed in light of legal rules clearly established at the time of the incident, which includes the statute’s text and state case law interpreting it. As explained above, at the time of the incident the text of the terrorizing statute and state case law interpreting it made it clear that there was no probable cause here. Tellingly, while Bailey cites to multiple Louisiana cases supporting his interpretation of the statute, Iles cites to no Louisiana case law interpreting the statute otherwise.
C. First Amendment claim – §1983
To establish a claim for First Amendment retaliation, plaintiffs must show that (1)they were engaged in constitutionally protected activity, (2) the defendants’ actions caused them to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the defendants’ adverse actions were substantially motivated against the plaintiffs’ exercise of constitutionally protected conduct. See Keenan.
The district court determined that Bailey could not satisfy the first element because his speech was not constitutionally protected. As we explained, this was error. Bailey’s Facebook post was protected by the First Amendment. The district court then held that even if Bailey’s speech was constitutionally protected, Iles’ was still entitled to qualified immunity because there was probable cause to arrest Bailey pursuant to a presumptively constitutional and enforceable statute. As we explained above, that too was error because there was no probable cause and Iles was objectively unreasonable in believing otherwise.
The district court also determined that Bailey could not satisfy the third element because one deputy telling him the “next thing [you] put on Facebook should be not to f*** with the police” did not create a genuine dispute as to whether the arrest was substantially motivated by a retaliatory motive, rather than probable cause. We disagree, but for a more fundamental reason. Regardless of the unnamed deputy’s comment, Iles admitted that he arrested Bailey at least in part because of the content of his Facebook post, rather than for some other conduct, i.e. Iles admitted that the arrest was at least “substantially motivated” by Bailey’s speech. Last, there is no dispute as to the second element, as Bailey’s speech was chilled when he deleted his Facebook post in response to the arrest.
Further, Bailey has shown that Iles is not entitled to qualified immunity as to the First Amendment claim. Based on decades of Supreme Court precedent, 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. Thus, when Iles arrested Bailey, he violated Bailey’s clearly established First Amendment right to engage in speech even when some listeners consider the speech offensive, upsetting, immature, in poor taste, or even dangerous. The district court erred in concluding otherwise.