On 24 Feb 2022, Peter Jason <pj@jostle.com> posted some
news:sv98qm$1otql$4@news.freedyn.de:

> Randell Iles got knocked in the haid a couple times too many on the
> football field.

This is hillbilly moron Detective Randell Iles.

https://www.thetowntalk.com/gcdn/-mm-/cc4e61417b9717770cbdbc330220d76ea50
41e10/c=0-256-3072-4352/local/-/media/2016/09/21/LAGroup/Alexandria/63610
0731578757816-DSC-0111.JPG?width=300&height=400&fit=crop&format=pjpg&auto
=webp

Law enforcement officers just don�t seem to have a sense of humor. Sure,
they may laugh when they beat, humiliate, or otherwise violates
citizens� rights, but they can�t seem to take a joke when it�s pointed
in their direction.

Not being able to recognize an obvious joke has ensured two members of
the Rapides Parish (Louisiana) Sheriff�s Department will have to face
the lawsuit brought by Waylon Bailey, who was arrested for an obvious
joke he posted to Facebook.

Here�s the post that got Bailey arrested, and now has forced Detective
Randell Iles and Sheriff Mark Wood to return to court following the
stripping of their qualified immunity. From the Fifth Circuit Appeals
Court decision [PDF]:

Bailey lives in Rapides Parish in central Louisiana. On March
20,2020�during the first month of the COVID-19 pandemic�he posted thison
Facebook:

https://i0.wp.com/www.techdirt.com/wp-content/uploads/2023/08/Screenshot-
2023-08-26-3.45.41-PM.png?w=383&ssl=1

Bailey intended the post as a joke and did not intend to scare anyone.
The �hashtag� �#weneedyoubradpitt� referenced the zombie movie World War
Z, 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.�

In case you can�t see or read the embed, Bailey�s post says this:

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 usall. #Covid9teen #weneedyoubradpitt

Any reasonable person would have recognized this as a joke. But far too
many law enforcement officers are far from reasonable, even if they
continually argue they are when they�re slapped with civil lawsuits. An
actually reasonable officer would ignore this.

The officers involved in this lawsuit weren�t reasonable:

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.

If there was a �threat,� it was the one attributed to the Sheriff�s
Office by Bailey. There certainly wasn�t any threat expressed by Bailey
himself. And, as the detective testified, no one in the parish appeared
to feel �threatened� by the joke post. Armed with all of this nothing,
the Sheriff�s Office sprung into action.

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.

Oh. My mistake. The officers did have a sense of humor.

Anyway. Moving on:

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.

After all of this was done, Detective Iles decided it might be time to
make this a bit more lawful. He filled out an affidavit listing probable
cause for the arrest he had already performed. And he did this � as he
told the court � by using Bailey�s post as evidence and ignoring
Bailey�s own statements about it being a joke (and his subsequent
deletion of the post) during the warrantless arrest.

This was followed by the RPSO celebrating this unlawful arrest with a
post on its own Facebook page. It did not, however, deliver a follow-up
post about the �terrorism� charges being dropped by the DA because (duh)
they were completely unsupported by anything even approaching probable
cause.

Bailey sued. The officers asked for immunity. The lower court somehow
found in favor of the officers, dismissing Bailey�s lawsuit with
prejudice.

That�s completely wrong, says the Fifth Circuit Appeals Court. And this
is coming from a court that sides more frequently with law enforcement
officers than any other appeals court in the land.

The Brandenburg requirements are not met here. At most, Bailey
�advocated� that people share his post by writing �SHARE SHARE SHARE.�
But his post did not advocate �lawless� and �imminent� action, nor was
it �likely� to produce 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.

[�]

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.�

If it wasn�t incitement or a true threat, it was what, class? That�s
right: protected speech. And if it�s protected speech, well� law
enforcement has no constitutional business arresting someone for
engaging in protected speech.

But before we even get to that, there�s the Fourth Amendment, which
requires probable cause to arrest someone. No probable cause here, says
the Fifth.

The relevant facts and circumstances known to Iles at the time of the
arrest 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.

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.

If no �reasonable person� would believe this post to be incitement or a
true threat, then it naturally follows no reasonable officer would
believe the same thing.

No immunity on the Fourth Amendment claim for the detective:

Iles appears to argue that the law was not clearly established, and that
he is therefore entitled to qualified immunity, because there is no
Fifth Circuit precedent addressing warrantless arrests pursuant to the
Louisiana terrorizing statute. But Bailey does not have to identify such
a case to defeat qualified immunity.

First, it is beyond debate that �[a] warrantless arrest without probable
cause violates clearly established law defining an individual�s rights
under the Fourth Amendment.� Second, whether it was �objectively
reasonable� for Iles to believe there was probable cause is �assessed in
light of legal rules clearly established at the time of the incident,�
which includes the statute�s text and state case law interpreting it.