On August 25, 2023, the Fifth Circuit Court of Appeals decided Bailey v. Iles[i], which serves as excellent review of the law related search warrants, curtilage, and the automobile exception to the search warrant requirement. The relevant facts of Bailey are as follows:
Bailey lives in Rapides Parish in central Louisiana. On March 20, 2020-during the first month of the COVID-19 pandemic-he posted this on Facebook: (in summary) – that RPSO deputies would shoot them if they were “infected”-or to RPSO deputies- that the “infected” would shoot back-. . .[ii]
Bailey intended the post as a joke and did not intend to scare anyone. The “hashtag” “#weneedyoubradpitt” referenced the zombie movie World WarZ, 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 fuck 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.[iii]
Bailey filed suit in federal court and alleged that Detective Iles violated his rights under the First and Fourth Amendments, as well as state law claims. Iles filed a motion for summary judgment and the district court granted the motion, dismissing all claims against the officers and detectives. Bailey appealed to the Fifth Circuit Court of Appeals.
The issues on appeal were as follows:
- Whether Bailey’s Facebook post was protected speech under the First Amendment?
- Whether Detective Iles violated the Fourth Amendment when he arrested Bailey without a warrant for “terrorizing” under Louisiana law?
- Whether Detective Iles violated the First Amendment when he arrested Bailey based on the content of his Facebook post?
The court of appeals then discussed qualified immunity and stated
The qualified immunity inquiry includes two parts”: (1) “whether the officer’s alleged conduct has violated a federal right”; and (2) “whether the right in question was ‘clearly established’ at the time of the alleged violation, such that the officer was on notice of the unlawfulness of his or her conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019). An officer is entitled to qualified immunity “if there is no violation, or if the conduct did not violate law clearly established at the time.” Id.
For a right to be “clearly established,” “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “The defendant’s acts are held to be objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s conduct violated the United States Constitution or the federal statute as alleged by the plaintiff.” Thompson v.Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001) (emphasis in original). “The central concept is that of ‘fair warning’: The law can be clearly established ‘despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.'” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).[iv]
On appeal, the court examined (1) whether the detective violated Bailey’s constitutional rights, and (2) whether the right was clearly established such that every reasonable officer in the same situation would have known he was violating the constitution, for both the First and Fourth Amendment claims. If the answer to the first prong of the qualified immunity test is “no” (no constitution right was violated), the officer will be granted qualified immunity. If the answer is “yes” (the constitution was violated), then the officer will receive qualified immunity unless every reasonable officer in the same situation would have known he was violating the constitution.
Issue One: Whether Bailey’s Facebook post was protected speech under the First Amendment?
The court first examined the legal principles relevant to this issue and stated
[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Alvarez, 567 U.S. 709, 716 (2012) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002) (internal quotation marks omitted)). The First Amendment’s protections apply to jokes, parodies, satire, and the like, whether clever or in poor taste. See, e.g. Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 54 (1988). That said, the First Amendment does not protect all speech, nor has it ever.
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-72 (1942). “Content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar.” Alvarez, 567 U.S. at 717 (cleaned up). Two categories are relevant here: (1) “advocacy intended, and likely, to incite imminent lawless action”; and (2) “true threats.” Id. (citing Brandenburg v. Ohio, 395 U.S. 444 (1969); Watts v.United States, 394 U.S. 705 (1969))[v]
The court then examined the two exceptions to the First Amendment’s protections, particularly (1) inciting imminent lawless action and (2) true threats.
Inciting Imminent Lawless Action
The court of appeals examined precedent from the Supreme Court and explained the standard that must be met for speech to qualify as “inciting imminent lawless action” and therefore not be afforded the protection of the First Amendment. The court stated
Applying the Supreme Court’s incitement precedents, our court has emphasized that “encouragement of conduct that might harm the public such as the violation of law or the use of force” is protected by the First Amendment unless it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” Herceg v. HustlerMag., Inc., 814 F.2d 1017, 1021-22 (5th Cir. 1987). “The crucial element to lowering the [F]irst [A]mendment shield is the imminence of the threatened evil.” Id. at 1022.[vi]
The court further explained that
[E]ven language that had a “tendency to lead to violence” was protected by the First Amendment because such language did not meet the stringent bar for words “intended to produce, and likely to produce, imminent disorder.” Id. at 109; see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) (“The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.”).[vii]
Thus, if the speech has a “tendency to lead to violence” or “encourage unlawful acts” it is still considered protected speech under the First Amendment. The court also noted that speech that “amounted to nothing more than advocacy of illegal action at some indefinite future time” was also considered protected speech under the First Amendment. In order to lose the protection of the First Amendment, the speech must be “intended to produce, and likely to produce, imminent disorder.”
The court of appeals then considered Bailey’s Facebook post in light of the above legal principles and held that the post was a “joke in poor taste” but did not rise to the level of incitement so as to lose First Amendment protection.
True Threats
The court next examined what constituted “true threats” such that speech would lose the protection of the First Amendment. The court stated
“‘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.” Virginia v. Black, 538 U.S. 343, 359 (2003). In deciding whether speech is an unprotected “true threat,” context is critical. See Watts, 394 U.S. at 706, 708 (considering the context, the expressly conditional nature of the statement, and the reaction of the listeners when evaluating whether a statement is a true threat).[viii]
Thus, the court will consider the context of the speech, the conditional nature of the speech, and the reaction of people that heard or read the speech in order to determine if the speech is a “true threat” and not afforded the protections of the First Amendment.
The court of appeals then examined Bailey’s Facebook post in light of the above rule and held the post did not constitute a “true threat.” Specifically, the court stated
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.”[ix]
Thus, since Bailey’s speech did not reach the standard for “inciting” and did not reach the standard of a “true threat,” the Facebook post was considered protected speech under the First Amendment. Therefore, the decision of the district court was reversed regarding this issue.
Issue Two: Whether Detective Iles violated the Fourth Amendment when he arrested Bailey without a warrant for “terrorizing” under Louisiana law?
The court of appeals first examined the legal principles relevant to this issue and stated
It is well established that under the Fourth Amendment a warrantless arrest must be based on probable cause.” United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc). “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.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988) (quotation marks and citation omitted). “As a corollary, moreover, of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause.”[x]
The court also examined the Louisiana “terrorizing” statute for which Bailey was arrested. It requires an “intentional communication” that the “commission of a crime of violence is imminent” with the “intent of causing members of the general public fear for their safety…”[xi]
The court further discussed the specific facts known to Detective Iles at the time of Bailey’s arrest. The facts 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.[xii]
The court of appeals held that there was not probable cause to believe that Bailey violated the “terrorizing” statute, based on (1) the context of the post (it was meant to be a joke), (2) the fact that nobody reported the post to law enforcement and stated that it caused fear, and (3) the fact that Bailey was arrested in March 2020, prior to widespread, violent protests against police that began in May 2020.
Therefore, Bailey satisfied the first prong of the test to defeat qualified immunity, particularly, he established a Fourth Amendment violation.
The court then set out to examine the second prong of the test to defeat qualified immunity, particularly, if the law was clearly established such that any reasonable officer would have known he was violating the Fourth Amendment.
The court noted that the plain meaning of the text of the statute and the state case law that interpreted the statute were sufficient to put a reasonable officer on notice, under the facts of Bailey’s case, that there was not probable cause and therefore the law was clearly established.
As such, Detective Iles was not entitled to qualified immunity on the Fourth Amendment claim, and the decision of the district court was reversed regarding this claim.
Issue Three: Whether Detective Iles violated the First Amendment when he arrested Bailey based on the content of his Facebook post?
The court first examined the legal principle relevant to this issue. The court stated
The First Amendment prohibits not only direct limits on individual speech but also adverse governmental action against an individual in retaliation for the exercise of protected speech activities.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).[xiii]
Thus, there are two types of First Amendment claims. First, there is a claim related to a direct infringement of a person’s protected speech. Second, there is a claim for adverse governmental action (such as an arrest) for exercising protected speech. This is known as a First Amendment retaliation claim. The court of appeals noted that, under the facts of Bailey’s case, either claim could be asserted.
The court of appeals also discussed the specific elements of a First Amendment retaliation claim that must be proven by a plaintiff. Specifically, a plaintiff must show
(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.[xiv]
The district court granted summary judgment to the defendant officers on this claim because the court held that the Facebook post was not protected speech under the First Amendment. However, since the court of appeals held that the Facebook post was protected speech, the first element was satisfied. The second element was satisfied based upon the arrest and the fact that Bailey deleted the post. The court of appeals also stated the third element was satisfied because Detective Iles admitted that he arrested Bailey because of the content of the Facebook post, therefore the arrest was “substantially motivated” by Bailey’s exercise of protected speech.
Thus, for the reasons discussed above, the court of appeals held that Bailey established a First Amendment violation and satisfied the first prong of the test to defeat qualified immunity.
The court also held that the law was clearly established based on Supreme Court precedent, that Bailey’s speech did not amount to “incitement” or “true threats”, the only categories of speech not afforded First Amendment protection.
Therefore, the court held that Detective Iles was not entitled to qualified immunity on the First Amendment claim and the decision of the district court was reversed.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 22-30509 (5th Cir. Decided August 25, 2023)
[ii] Id. at 13-14
[iii] Id. at 1-4
[iv] Id. at 6-7 (emphasis added)
[v] Id. at 8-9 (emphasis added)
[vi] Id. at 11-12 (emphasis added)
[vii] Id. at 11
[viii] Id. at 13 (emphasis added)
[ix] Id. at 13-14
[x] Id. at 15 (emphasis added)
[xi] La. R.S. § 14:40.1(A)(1)
[xii] Id. at 17
[xiii] Id. at 23 (emphasis added)
[xiv] Id. at 24-25 (emphasis added)
