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Lawsuit against Douglas County Sheriff not barred by qualified immunity

 

In Bailey v. Wheeler, the court reviewed the district court’s decision denying the defendant, Wheeler, qualified immunity protection in a section 1983 action by Bailey. Here is how the facts unfold. Bailey, an officer for the City of Douglasville, Georgia, filed written complaint with his chief reporting that police officers from his department and from the Douglas County Sheriff’s Office were racially profiling minority citizens and committing other constitutional violations.   Bailey complained that law-enforcement officers made racially offensive comments and jokes about minorities. Eventually repercussions of Baileys’ complaints followed and soon after he was terminated from his position with the police department. He appealed his termination to the City of Douglasville complaining that he was fired for speaking out against profiling and other unconstitutional conduct by the police department and the Sheriff’ Office deputies. The night the city held a hearing he was followed by two deputies that stared him down. The next day Major Tommy Wheeler of the Douglas County Sheriff’s Office issued a county-wide alert to all law-enforcement officers warning that Baily was a “loose cannon” who presented a danger to any law enforcement officer in Douglas County and directing officer to act accordingly. He issued a BOLO with his picture. For the second day in a row law enforcement vehicles from both the Sheriff’s Office and the Police Department followed Bailey as he drove his personal car. About three weeks later Bailey was permitted to return to work at the Douglasville Police Department.

Bailey filed a lawsuit claiming a violation of 42 U.S.C. §1983 for retaliation for exercising his First Amendment rights and a claim that Wheeler had defamed Bailey under Georgia law. The district court denied Wheeler’s claim he was entitled to qualified immunity and filed this appeal.

Wheeler’s challenge that his conduct did not adversely affect protected speech because in his view the BOLO he issues was unlikely to deter a person of ordinary firmness from exercising his First Amendment rights. He also claimed that there was not causal connection between the speech and Wheeler’s retaliatory actions because:

1) Bailey did not allege that he express his concerns about racial profiling and unconstitutional behavior by law enforcement officers to anyone at the Sheriff’ Office, and

2) Bailey offered no facts that would allow the inference that Wheeler acted with the motive of retaliating against Bailey for exercising his First Amendment rights.

The appellate court concluded that Wheelers BOLO would likely deter a person of ordinary firmness from exercising his First Amendment rights because describing Bailey as a loose cannon who was danger to any law-enforcement officer created the impression that Baily was mentally unstable and roaming Douglas County with a grudge against law enforcement officers and empowering these now anxious officer to act accordingly upon coming into contact with Bailey.

Viewed in a light most favorable to Bailey, his allegations allow for a reasonable inference that the Police Department communicated with the Sheriff’s Department about Bailey’s complaints prior to Wheelers issuance of the BOLO. Sheriff Office and Wheeler knew about the termination appeal hearing and that Wheeler issued the Bolo in part in retaliation for Bailey’s complaints.

Finally the court paved the way for this federal civil rights trial to proceed by finding that Bailey’s right to be free from retaliation in the form of a BOLO was a clearly established right.