Full Transcript - First Amendment Beats Police Defendants
Full Transcript - First Amendment Beats Police Defendants
Today on Legalese w will be discussing two recent decisions from the fifth and tenth circuit that ended with police receiving their deserved comeuppance for two egregious violations of individual rights protected explicitly under the first amendment.
Today we will be talking about two cases in which a federal court denied a motion to dismiss from officers seeking qualified immunity after victimizing citizens who had done nothing wrong.
The first deals with a citizen who was arrested by the police for daring to hold those cops responsible by criticizing them for things they damn well deserved to be criticized for. Though it does not matter whether such expression is or is not deserved. Criticisms of one’s government and the public servants who work for it is protected speech and police who punish anyone for any criticism exceeds their authority (to say the least).
The second case revolves around a person who posted a joking message on their wall on Facebook and was subsequently arrested and charged for violating a state anti-terrorism law.
Jordan v Adam’s County Sheriff’s Office
On July 18th, 2023 the Tenth Circuit Court Of Appeals would file their opinion in the case of Jordan v Adams County Sheriff’s Office (ACSO). Fortunately, in this instance the tenth circuit chose to protect the right of an individual citizen to engage in their constitutionally protected individual, natural right of free expression , rather than relying on qualified immunity to protect the cops who violated those rights.
As Joshua A. Katz put it, in a recent article on the Cato Institute’s blog page:
A civil society might require police, but a free society requires they be accountable for wrongdoing while on the job. Too often, though, the doctrine of qualified immunity protects officers who exceed their authority, such as by arresting citizens who criticize them despite that speech being protected by the First Amendment.[1]
Fortunately, the Tenth Circuit Court of Appeals recently denied summary judgment based on qualified immunity in just that circumstance. A unanimous panel, speaking through Judge David M. Ebel, took the step of finding an officer’s conduct to not only violate the Constitution, but also to be unprotected by qualified immunity.
The Facts of the case
John Jordan’s nephew, J.J., had a car accident while driving Jordan’s company truck. Jordan went to the scene to help. While officers questioned J.J., Jordan kept his distance and watched, but eventually grew annoyed with the way the officers were questioning J.J. He asked the officers if they were “taking a statement or…giving a statement.” The officers did not like their authority being questioned, and, after a brief verbal exchange, one of the officers forcibly arrested Jordan, whose face was pressed into the ground during the arrest.
Jordan was charged with obstruction of justice and resisting arrest, but the charges were dropped.
Jordan sued for unlawful arrest, malicious prosecution, excessive force, and violation of religious freedom, under 42 U.S.C. § 1983. A magistrate judge held the officers were protected by qualified immunity for the first three claims but not the fourth. The Tenth Circuit reversed on all three, holding the officers not entitled to qualified immunity.
The Court first held that there was no probable cause because Jordan had a First Amendment right to criticize. In Houston v Hill (1987) the Supreme Court held:
“[T]he First Amendment does not protect only quiet and respectful behavior towards police; it protects loud criticism that may annoy or distract the officer.” [2]
Since Jordan’s behavior was constitutionally protected, there was no probable cause for the arrest.
It also held, citing a Tenth Circuit case, that speech protected by the First Amendment cannot be the basis for probable cause. Then it found that Jordan’s speech was within the bounds of clearly established First Amendment law.
Therefore, “no reasonable officer could have believed they had arguable probable cause for arrest.”[3] So there was no qualified immunity for the unlawful arrest charge.
The magistrate’s only basis for finding qualified immunity for the malicious prosecution charge was the conclusion that the officers had probable cause, so the Court reversed this holding as well.
Finally, the Court held that the force applied was unconstitutionally excessive because the alleged crime was minor, there was no threat to the safety of the officers or others, and Jordan was not actively resisting arrest or attempting to flee (indeed, he was attempting to remain). It then held that:
[T]he excessive force violation was one of clearly established law, citing Morris v Noe[4], a prior tenth circuit case establishing that physical force similar to that used here was unlawful when “the arrestee poses no threat, puts up no resistance, and does not attempt to flee.”
The Court was correct to hold the officers accountable for their abuse of power. Such pushback against the all‐too‐common grant of qualified immunity is welcome. Even more welcome would be a rethinking of this atextualist doctrine the Supreme Court has read into § 1983, or the passing of new legislation by Congress to do away with it.
Bailey v Iles
It’s not a crime to make a joke on the internet. And it can’t be, because the First Amendment protects speech in cyberspace just as much as in town squares, newspapers, private homes or comedy clubs. But overzealous local officials don’t always honor that constitutional guarantee.
Such as when the Rapides County Sheriff office arrested Waylon Bailey by sending a SWAT team to his home and charged Bailey with violating Louisiana’s anti-terrorism statute. Fortunately the humorless nature of this absurd arrest was not lost on the prosecutor, who immediately dropped the charges as soon as he became aware of them. Bailey then sought to vindicate his First and Fourth Amendment rights by filing suit against the sheriff and arresting officer.
The district court granted the officers qualified immunity, however, and found that Bailey’s obvious joke on Facebook was not protected speech. In reaching its conclusion, the district court relied on outmoded World War I era Supreme Court precedents that permitted the government to jail speakers based on the remote possibility that their speech might lead to unlawful action. The court actually said that Waylon didn’t have any free speech rights to make a joke in the first place.
Bailey appealed to the Fifth Circuit, urging them to reverse the District Court on the ground that the first amendment protects online humor, including jokes posted to social media. Furthermore, the district court erred by relying on Schenck and Abrams, two long-discredited precedents set during WWI. If you would like to learn more about the precedent in Shanks and Abrams and why they are now discredited this is a topic I covered in my past episode Sedition an American Virtue.
The court should have instead applied the contemporary Brandenburg test for incitement from Brandenburg v. Ohio (1969). Finally, the brief explains why Bailey’s innocuous joke cannot serve as the basis for probable cause to arrest. Late last week, the Court handed down their opinion.
Fifth Circuit Decision
From the Fifth Circuit decision in Bailey v. Iles, begins be recounting the facts on the case:
On March 20, 2020— during the uncertainty of the early days of the COVID-19 pandemic— Waylon Bailey posted this on Facebook:
His post consisted of a faux‐urgent warning to his Facebook friends that the Rapides County Sherriff’s Office had been instructed to shoot “the infected” on sight. His over‐the‐top post was complete with all‐caps text, emojis, and a hashtag reference to Brad Pitt’s role in the zombie movie World War Z. Exchanges between Bailey and his friends in the comments on the post made it clear that Bailey was joking 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….
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….
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.
[T]he district court concluded sua sponte that Bailey's Facebook post was not constitutionally protected speech under the First Amendment because it created a "clear and present danger," equating "Bailey's post publishing misinformation during the very early stages of the COVID-19 pandemic and time of national crisis" as "remarkably similar in nature to falsely shouting fire in a crowded theatre" and citing to Schenck v. United States (1919). Relatedly, the district court held that "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," citing Abrams v. United States (1919). This was error….
[I]n concluding that Bailey's post was unprotected speech, the district court applied the wrong legal standard. While Schenck and Abrams have never been formally overruled by the Supreme Court, the "clear and present danger" test applied in those cases was subsequently limited by the "incitement" test announced in Brandenburg. As the Fourth Circuit has explained, the "clear and present danger" test from Schenck and Abrams, "[d]evoid of any such limiting criteria as directedness, likelihood, or imminence … applied to a wide range of advocacy that now finds refuge under Brandenburg," such that "Brandenburg has thus been widely understood … as having significantly (if tacitly) narrowed the category of incitement."
In Brandenburg, the Court 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…. A comparison with Supreme Court precedent makes clear that Bailey's post was not "advocacy … directed to inciting or producing imminent lawless action" nor "likely to incite 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….
Despite Bailey's arrest for "terrorizing," his Facebook post was also not a "true threat" unprotected by the First Amendment…. 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….
The Court also held that the law was so clear that defendants should be denied qualified immunity for the arrest. That was so as to the First Amendment, largely for the reasons above. And it was so for the Fourth Amendment:
According to Louisiana courts, the crime of terrorizing requires:
"[F]alse information intentionally communicated" and
"[A]n immediacy element concerning the false information or threat that causes sustained fear or serious public disruption."
The statute also requires "…[S]pecific intent … i.e., the intent to cause members of the general public to be in sustained fear for their safety, or to cause evacuation of a public building, a public structure, or a facility of transportation, or to cause other serious disruption to the general public."
The relevant facts and circumstances known to Iles at the time of the arrest were:
His supervisors asked him to investigate the post;
The content of the post itself;
Bailey was the author;
The comments below the post;
Bailey's statement to Iles that he meant the post as a joke and had no ill will toward RPSO;
Nobody reported the post to law enforcement; and
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….
[T]he district court stated that the timing of the post during the first month of the COVID-19 pandemic—a time of dramatic change, fear, uncertainty, and misinformation—was "central" and "critical" to its probable cause analysis. While the social context of COVID-19 is certainly a relevant consideration, the general fear and uncertainty around COVID-19 does not turn Bailey's otherwise-inane Facebook post into a terroristic threat under Louisiana law….
Having determined that there was no actual probable cause for the arrest, we hold that Iles is not entitled to qualified immunity because he was "objectively unreasonable" in believing otherwise….
As noted by the dissent in Stokes, "[o]fficers may not disregard facts tending to dissipate probable cause," and "[n]o decision by any court contradicts [this principle]."
Carthago Delenda Est
[1] Joshua A. Katz, Tenth Circuit Denies Qualified Immunity for First Amendment Violation, July 21, 2023, https://www.cato.org/blog/tenth-circuit-denies-qualified-immunity-first-amendment-violation
[2] City of Houston v. Hill, 482 U.S. 451 (1987), https://supreme.justia.com/cases/federal/us/482/451/
[3] Mink v. Knox, 613 F.3d 995 (10th Cir. 2010), https://law.justia.com/cases/federal/appellate-courts/ca10/08-1250/08-1250-2011-03-14.html
[4] Morris v. Noe, 672 F.3d 1185, 1190 (10th Cir. 2012), https://cases.justia.com/federal/appellate-courts/ca10/11-5066/11-5066-2012-02-27.pdf?ts=1411092684