The Volokh Conspiracy
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Arrest for World-War-Z-Inspired March 2020 Joke About Police Shooting "Infected" on Sight Was Constitutional
From Bailey v. Iles, decided Wednesday by Judge David Joseph (W.D. La.):
This matter arises out of an incident that began with a "posting" on Facebook during the early stages of the novel coronavirus (COVID-19) pandemic. On March 20, 2020, Waylon Bailey—allegedly "bored" due to the lockdown associated with COVID-19—posted the following message on his personal Facebook feed:
SHARE SHARE SHARE ! ! ! !
JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH "THE INFECTED" SHOOT ON SIGHT….Lord have mercy on us all. #Covid9teen #weneedyoubradpitt
Bailey claims he made the post because he thought it was "a funny and timely joke in light of the COVID-19 lockdowns." {This second "hashtag" allegedly refers to the science fiction movie "World War Z" which features the actor Brad Pitt "shooting zombies."}
Detective Randell Iles ("Detective Iles" or "Iles"), then an investigator with the Rapides Parish Sheriff's Office, was asked by his supervisors to investigate the post to determine if it was a threat to public safety. Detective Iles testified that after investigating the post, he believed "it was an attempt to get someone hurt." Eventually, Iles located Bailey and several officers went to Bailey's home.
According to Bailey, a "SWAT team descended on [him]" with their guns drawn and pointed at him, ordering him to get on his knees. Bailey was then handcuffed and told he was under arrest at which point, he claims an officer told him that the next thing he posts on Facebook, "should be not to fuck with the Police." Detective Iles disputes this narrative and testified that he did not have his weapon drawn when he approached Bailey, but rather introduced himself and shook Bailey's hand—at which point Bailey indicated that he knew Iles was there because of his Facebook post. Iles attests that he then advised Bailey of his rights, interviewed him, informed him that he was being arrested for terrorizing, and took him into police custody.
Bailey was subsequently booked into the Rapides Parish Detention Center and posted bond the same day. The Rapides Parish District Attorney's Office thereafter declined to prosecute the case—effectively ending Bailey's brief encounter with the criminal justice system. Bailey now sues Randell Iles and Rapides Parish Sheriff Mark Wood claiming that he was arrested in violation of his constitutional rights and is suffering from anxiety and emotional distress as a result….
Bailey sued under the Fourth Amendment, but the court disagreed (the court couched this as a qualified immunity analysis, but the analysis concluded that Iles' actions weren't unconstitutional, rather than just that Iles was entitled to qualified immunity):
It is well established that an arrest without a warrant is lawful if authorized under state law and supported by probable cause…. Here, the facts presented to the Court, even when accepted in the light most favorable to Bailey, show that probable cause existed for his arrest. Bailey was arrested for violating Louisiana's terrorizing statute which in relevant part provides that:
"Terrorizing is the intentional communication of information that the commission of a crime of violence is imminent or in progress or that circumstances dangerous to human life exists or is about to exist, with the intent of causing members of the 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 serious disruption to the general public."
Considering the totality of the circumstances surrounding Bailey's arrest, the Court finds that Detective Iles was reasonable in believing probable cause existed to arrest Bailey. Although some facts surrounding the incident are in dispute, including Bailey's true intentions in making the Facebook post and the officers' actions in effecting his arrest, these issues are not determinative.
Rather, as discussed below, Bailey has failed to adduce any evidence that Detective Iles did not then perceive his Facebook post as an intentional communication of misinformation likely to cause fear and potential violence in the community. To the contrary, the available evidence clearly demonstrates that Detective Iles was justified in his stated belief.
Context is critical to the analysis that follows. The subject Facebook post was made at the beginning of the COVID-19 pandemic, when Iles testified that "there was a lot of protests at the time in reference to law enforcement," and because of that he viewed Bailey's post as, "an attempt to get someone hurt." Indeed, there was much fear and uncertainty throughout the country in late March of 2020 resulting from the onset of the COVID-19 pandemic and the resulting closing of schools and workplaces and cancelling of public events. Detective Iles testified that he relied on the information related to him by his supervisors to the effect that they believed Bailey's post constituted a legitimate threat to public safety.
Additionally, Iles perceived this post as nefarious, rather than as a joke, because of Bailey's exhortations to "Share, share, share," and the "comments" under the post stating, "I'm reporting you. I'm reporting you" and "This is your fault…You made me do this." Detective Iles further testified that he did not view Bailey's post as being made just "for a laugh or for [Bailey's] friends to just laugh about it," because Bailey "wanted it to go viral," and Detective Iles anticipated that "with everything going at the time this…was used as an attempt to get someone hurt."
The Court finds that Detective Iles' belief in this regard was a reasonable one. Aside from the specific circumstances of Bailey's online activities, the context and circumstances of national and global affairs at the time of the post—March 20, 2020—are critical to the Court's analysis, as they very well should have been to Bailey. On March 9, 2020, a Louisiana resident was first reported to have tested positive for COVID-19, with more residents testing positive in the following days. On March 11, 2020, the World Health Organization (the W.H.O.) designated COVID-19 as a global pandemic. Also on March 11, 2020, Louisiana Governor John Bel Edwards declared a statewide public health emergency. On March 12, 2020, Louisiana State University announced that all classes would be cancelled for two-weeks and would then resume online. On March 13, 2020, then-President Donald Trump declared a national emergency and issued a travel ban on non-United States citizens traveling from Europe. That same day Governor Edwards announced that all public schools in Louisiana grades K-12 would be closed. By March 19, 2020, prisoners were being released from jails in Louisiana and around the country because of the COVID-19 pandemic. Just two days after Bailey's post, on March 22, 2020, Governor Edwards issued a "Stay-at-Home" Order, directing all Louisiana residents to stay in their homes and to only leave for essential needs. And only ten days after Bailey's post, on March 30, 2020, so many Americans were hospitalized with COVID-19 in New York City that tents were set up in Central Park to serve as a makeshift hospital.
Misinformation was also rampant in the early days of the COVID-19 pandemic. The spread of misinformation related to COVID-19 was so prevalent on social media and other internet sites that the W.H.O. termed it an "infodemic." For example, the W.H.O. had to post an infographic to their Instagram page explaining that although a healthy food, garlic had not been found to prevent COVID-19.
The W.H.O. also had to dispel misinformation claiming that drinking bleach could cure the virus. False information circulated on social media purporting that a self-diagnosis of COVID-19 could be made by holding your breath for 10 seconds, that drinking water at least every 15 minutes would "wash the virus down" and prevent infection, and that drinking salt water would "kill" the virus. Drinking silver was also widely shared on Facebook as a treatment for COVID-19.
During the same timeframe as Bailey's post, a viral Facebook post falsely claimed that police officers in China had publicly killed a woman who was infected with COVID-19. Another post, viral on Twitter, falsely stated that police in China shot and killed a woman who was trying to escape a quarantine. Social media companies acknowledged the use of their sites to spread misinformation leading Facebook, YouTube, Google, Microsoft, Reddit, and Twitter to issue a joint statement on March 16, 2020, stating that they were working together to limit the amount of false COVID-19 information shared on their sites. The W.H.O. subsequently reported that an estimated 6,000 people globally had been hospitalized because of COVID-19 misinformation in the early days of the pandemic.
It has been just over two years since this transpired. We all remember the dramatic social and cultural changes that were thrust upon us in March of 2020. There was great uncertainty, fear, and in many cases, panic, in our community. Most of us subsequently lost friends and family members to this disease. It was in this context—with his community at perhaps its most vulnerable—that Bailey decided to make a "joke" to the effect that a local law enforcement agency had been directed to kill those who had been infected with COVID-19. This was not only irresponsible, but it might very well have been criminal. Indeed, the Court finds it well within the realm of possibility that his Facebook post, if it had indeed gone "viral," was likely to have caused sustained fear, anxiety, and perhaps injury and death among the people of central Louisiana.
The context of when Bailey made his Facebook post is not only relevant, but it is central to the Court's decision in this case. If Bailey made this post today, over two years after COVID-19 was declared a pandemic, with multiple different variations of vaccines available and with many people returning to work and normal life, he may be correct that most of the public (and indeed law enforcement) would be clear that this post was meant as a harmless joke.
But Bailey's Facebook post must be viewed in the context into which he intentionally placed it—a time when misinformation and fear were prevalent throughout the United States, including in Rapides Parish, Louisiana. When evaluating this context and viewing Bailey's post in light of the "totality of the circumstances," it is clear that Detective Iles was justified in believing probable cause existed to arrest Bailey for violating Louisiana's terrorizing statute.
The Court finds that Detective Iles was reasonable in concluding that Bailey had committed or was committing an offense….
The court also rejected Bailey's First Amendment claims for similar reasons:
The first requirement Bailey must meet to assert a valid First Amendment retaliation claim is proving that his Facebook post was in fact constitutionally protected speech. Although the First Amendment prohibits "abridging the freedom of speech," it has been precedent in the United States for over one hundred years that speech is not protected when "words used are used in such circumstances and are of such a nature as to create a clear and present danger," such as "falsely shouting fire in a theatre and causing panic." Schenck v. U.S. (1919). When evaluating whether speech creates a "clear and present danger," the context of the speech must be considered. Id. (noting that "in many places and in ordinary times the defendants in saying all that was said…would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.").
The Supreme Court further expounded on what is meant by "clear and present danger" fifty years later in Brandenburg v. Ohio (1969). There, the Supreme Court affirmed that "advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" is not protected speech. Here, Bailey was not arrested after advocating for a particular type of action, a particular political viewpoint, or for criticizing his government.
Instead, Bailey's post publishing misinformation during the very early stages of the COVID-19 pandemic and time of national crisis was remarkably similar in nature to falsely shouting fire in a crowded theatre. Viewed in light of the surrounding circumstances, Bailey's Facebook post 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. See Abrams v. U.S. (1919) ("Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce."). Considering the societal context and totality of the circumstances, this Court finds that Bailey's post was not protected speech, and that his arrest was therefore not a violation of his freedom of speech under the First Amendment.
Even assuming, arguendo, that Bailey's speech was protected by the First Amendment, he still does not have a valid claim of a constitutional violation. As mentioned above, Detective Iles had probable cause to believe that Bailey's Facebook post violated Louisiana's terrorizing statute. Accordingly, Detective Iles was acting pursuant to a Louisiana statute that, at the time of his arrest and still today, is presumptively constitutional and enforceable. Detective Iles therefore had no reason to believe that he was violating Bailey's First Amendment rights when arresting him.
Lastly, accepting as true Bailey's allegation that when he was arrested an officer laughed and told him that the next thing he posts on Facebook, "should be not to fuck with the Police," this alone is insufficient to show that Bailey's arrest was animated by a retaliatory motive, rather than probable cause. Rather, because Bailey has failed to produce any evidence showing the absence of probable cause for his arrest, he cannot succeed on his First Amendment retaliation claim….
And the court rejected, for similar reasons, Bailey's state-law false arrest and malicious prosecution claims.
My quick thoughts: (1) I doubt the Court's citation to the now-discredited Abrams is sound, and Brandenburg seems to me to be beside the point. (2) I do think that hoaxes that are likely to cause harmful panic are constitutionally punishable under a harmful-knowing-lies theory (see the pre-Alvarez Haley v. State (Ga. 2011), which I think would survive Alvarez under the Alvarez concurrence's analysis). (3) I'm not sure that, even as of Mar. 20, 2020, this Tweet would be rightly characterized as a hoax as opposed to an obvious joke. (4) Perhaps it would have been better if the court had indeed relied solely on qualified immunity here, on the grounds that the police officer's actions weren't wholly unreasonable, rather than by actually concluding that the speech was constitutionally unprotected.
Thanks to David Keating (Institute for Free Speech) for the pointer.