Fifth Circuit sides with man arrested over Covid joke posted on Facebook

(CN) — A Louisiana man’s Facebook post saying a sheriff’s department had ordered its deputies to shoot Covid-infected people on sight was a harmless joke and he should not have been arrested for it, a Fifth Circuit panel ruled Friday.

Waylon Bailey was working in his garage at home on March 20, 2020, when a dozen SWAT team deputies in bulletproof vests showed up with their guns out, without a warrant, ordered him to get on his knees and handcuffed him.

But Bailey was no dangerous criminal.

Bored and antsy earlier that day amid the onset of the coronavirus pandemic, he had decided to try his hand at comedy.

He posted a message on Facebook: “SHARE SHARE SHARE ! ! ! !” he wrote. “JUST IN: RAPIDES PARISH SHERIFF’S OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH ‘THE INFECTED’ SHOOT ON SIGHT …. Lord have mercy on us all.”

Bailey added the hashtags #Covid9teen and #weneedyoubradpitt, the latter a reference to the 2013 zombie film “World War Z” starring Brad Pitt.

Supervising officers at the sheriff’s department saw the post and assigned Detective Randell Iles to investigate. Iles determined Bailey had broken a state statute against “terrorizing” and brought the SWAT team to arrest him.

Bailey apologized to Iles during his arrest and told the detective he had “no ill will towards the sheriff’s office” and “only meant it as a joke.”

A deputy heckled Bailey, telling him his next post “should be to not fuck with the police.”

They took him to jail and he was charged with a felony. His fiancée bailed him out.

Though the district attorney decided to drop his charges, Bailey paid attorney’s fees fighting the case and, still on edge after his arrest, was diagnosed with anxiety.

He sued Iles and Rapides Sheriff Mark Wood in federal court in September 2020, alleging First and Fourth Amendment violations and state law claims of false arrest and malicious prosecution.

U.S. District Judge David Joseph, a Donald Trump appointee, granted the lawmen summary judgment in July 2022, finding they were entitled to qualified immunity, and dismissed Bailey’s claims with prejudice.

Joseph decided the First Amendment did not protect Bailey’s post because it “may very well have been intended to incite lawless action, and in any event, certainly had a substantial likelihood of inciting fear, lawlessness, and violence” and compared it to the classic unprotected speech example of “falsely shouting fire in a crowded theatre.”

Bailey appealed to the Fifth Circuit Court of Appeals. A three-judge panel of the New Orleans-based appellate court heard arguments last month.

The judges focused in the hearing on whether Iles had probable cause to arrest Bailey.

Representing the defendants, Bradford Calvit of the Alexandria, Louisiana firm Provosty Sadler and deLaunay, argued that the case was like another in which the Fifth Circuit upheld a qualified immunity dismissal for an officer who had arrested a high school student for violating Louisiana’s terrorizing statute.

The student had drawn a picture of himself on a school whiteboard with the caption “Future School Shooter.” A photo of him posing by the picture was posted to social media.

Writing for the unanimous Fifth Circuit panel on Friday, U.S. Circuit Judge Dana Douglas noted a key distinction between the student’s arrest and Bailey’s: The officer who arrested the student knew that parents had contacted the school about the post, voiced concerns, and asked about removing their kids from campus.

“Here, however, there were no facts that would lead a reasonable person to believe that Bailey’s post caused sustained fear," wrote Douglas, a Joe Biden appointee, in a 19-page order. "No members of the public expressed any type of concern.”

The panelists reversed Joseph’s grant of summary judgment to the defendants on Bailey’s federal civil rights and state false arrest claims — he decided not to pursue his malicious prosecution claim on appeal — and remanded the case to Joseph for further proceedings.

Douglas opined that Iles should have known Bailey’s post, with its “calls for rescue by Brad Pitt,” was not a serious threat to the public that deputies would shoot them if they were infected with Covid.

Nor was it a threat to deputies, she said, though Iles testified in a deposition he thought the post was “meant to get police officers hurt.”

Qualified immunity is not available to Iles, Douglas wrote, because he should have known that arresting Bailey trampled his First Amendment rights.

“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,” Douglas added.

She noted, referring to the false arrest claim against Sheriff Wood, that under Louisiana law Wood can be held vicariously liable for the conduct of his employee.

Calvit, the officers’ counsel, did not respond to a request for comment on the order.

Bailey’s appellate attorney, Ben Field of the nonprofit Institute for Justice, praised the ruling.

“This is a terrific victory for Waylon and the Constitution," he said. "The court’s ruling makes clear that the First Amendment applies with full force to online speech and that government officials cannot stretch the law to target people who make jokes about them. This is a victory for free speech and common sense and against the pernicious doctrine of qualified immunity."

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