Waylon Bailey appeals in free speech lawsuit against Louisiana deputies

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Waylon Bailey thought it was some kind of cruel prank when a dozen SWAT team members pulled up to his home in Alexandria, Louisiana with their guns drawn. He hadn’t called the sheriff’s deputies, and he couldn’t think of anything they wanted with him.

But after he was arrested and taken into custody, Bailey learned he was facing a felony terrorism charge – over a joke he made on Facebook comparing the coronavirus pandemic to the apocalypse. zombie featured in the 2013 film “World War Z” starring Brad Pitt.

“SHARE SHARE SHARE! ! ! ! JUST IN: RAPIDS PARISH SHERIFF’S OFFICE HAS ISSUED THE ORDER, IF THE DEPUTIES COME IN CONTACT WITH “THE INFECTED”, SHOOT ON SIGHT….Lord, have mercy on us all. #Covid9teen #weneedyoubradpitt,” Bailey’s emoji-filled post read.

It was March 20, 2020, when the news cycle was consumed by a new virus spreading across the globe. But the Rapides Parish Sheriff’s Office said Bailey’s post posed a threat to public safety and placed him under arrest, without a warrant. Although the district attorney decided not to prosecute, Bailey filed a civil rights lawsuit alleging that the deputies violated her First and Fourth Amendment rights.

While the lawsuit was dismissed by the court, Bailey is now appealing the decision in a bid to hold the sheriff’s office accountable for what he considers a wrongful arrest and a violation of his free speech.

“I have to defend myself because this [deputies] did was morally wrong,” Bailey told The Washington Post. “They came to my house three hours after I posted. What kind of survey is it? And why? A joke they didn’t like? It’s messed up.

But David C. Joseph, a U.S. District Judge for the Western District of Louisiana, didn’t see it that way when he issued a decision on Bailey’s lawsuit this summer. In his July 20 order, he denied Bailey’s claims against Rapides Parish Sheriff’s Office investigator Randell Iles, saying the investigator was protected by qualified immunity, a doctrine that makes it nearly impossible for citizens to sue law enforcement. Joseph also ruled that Iles “had probable cause to arrest Bailey for violating Louisiana terrorism law.”

What is “qualified immunity” and how does it work?

“Bailey’s post publishing misinformation at the very start of the COVID-19 pandemic and at the time of the national crisis was remarkably similar in nature to falsely yelling fire in a crowded theater,” Joseph wrote in his ruling. “Seen in light of the surrounding circumstances, Bailey’s Facebook post could very well have been intended to incite anarchic action and, in any event, certainly had a high probability of inciting fear, anarchy and violence.”

Under state law, it is legal to execute an arrest without a warrant as long as there is reasonable cause to believe an offense has been committed. Louisiana Status considers any “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” as an act of terror. But such messages must be intended to make people fear for their safety or trigger an evacuation.

According to Ben Field — an attorney representing Bailey at the Institute for Justice, a nonprofit public interest law firm — to consider Bailey’s joke an act of terrorism is overblown.

“It was something that hadn’t gone viral, and there was no indication that his Facebook friends took it seriously,” he told The Post.

When contacted by The Post to discuss Bailey’s allegations, Tommy Carnline, chief of staff for the Rapides Parish Sheriff’s Office, said the office does not comment on ongoing litigation.

Bailey’s post – which he said was meant to be a joke between friends – came 11 days after Louisiana announced its first case of coronavirus. Amid a hazy period of uncertainty and fear, Bailey said he wanted to poke fun at how “people will believe anything they see on Facebook”. His then-girlfriend, now his wife, casually wrote that she would ‘turn him in’ – a comment investigators would make eventually led them to believe he was a genuine threat, according to the court records. After Bailey filed her lawsuit, the district court sided with the sheriff’s office, ruling that the prank constituted incitement.

Field, Bailey’s attorney, dismissed the judge’s analysis, saying Bailey’s joke was a form of protected speech, no different from a bit shared by a comedian at a stand-up show or among friends sitting in a bar.

In the age of social media, Field said, the sheer volume of posts and their increased visibility have made it easier for law enforcement officials to take action against those they might deem inappropriate. The courts, he added, must “catch up”.

“These cases are more common than you might think these days,” he said. “I hope people realize that freedom of expression is something we need to uphold in every generation because it’s not automatic. This is a situation where the police arrest people for playing a prank on their friends online. And if they can do it and get away with it, then I don’t think anyone’s word is safe.

For Bailey, the episode marked a sort of before and after in her life. The arrest shook him – with “a bit of PTSD”, even – and he said he had to take medication for depression and anxiety. When the deputies arrived at his home, word spread quickly in a town where his family has deep roots. Her grandmother, who lives in the house opposite hers, saw the arrest unfold from her window.

“I’m a fourth-generation resident of this town, and I was very proud of my name,” Bailey said. “Now I just want to clear my name.”

A formal apology from the sheriff’s office would be nice too, he added.

Christy J. Olson