Derrick Bailey v. Major Tommy Wheeler , 843 F.3d 473 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11627
________________________
D.C. Docket No. 1:13-cv-00941-RWS-ECS
DERRICK BAILEY,
Plaintiff - Appellee,
versus
MAJOR TOMMY WHEELER,
in his individual and official capacity,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 28, 2016)
Before ROSENBAUM and JILL PRYOR, Circuit Judges, and URSULA
UNGARO, * District Judge.
*
The Honorable Ursula Ungaro, United States District Court for the Southern District of
Florida, sitting by designation.
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ROSENBAUM, Circuit Judge:
The be-on-the-lookout advisory (“BOLO”) to all law enforcement in
Douglas County, Georgia, described its subject as a “loose cannon.” “Consider
this man a danger to any [law-enforcement officer] in Douglas County and act
accordingly,” the BOLO alarmingly warned and ominously instructed.
What had the subject of the BOLO done to trigger such a grave alert? Had
he threatened law enforcement or the public? Had he broken any laws? Was he
mentally unstable? Had he been acting at all suspiciously? No, no, no, and no.
Instead, Plaintiff-Appellee Derrick Bailey, the subject of the BOLO, had
wielded the mightiest weapon of them all: the pen. 1 An officer of the Douglasville
Police Department, Bailey had filed a written complaint with his chief, reporting
that other Douglasville officers and Douglas County Sheriff’s Office deputies had
been racially profiling minority citizens and committing other constitutional
violations. 2
Bailey’s revelations did not go over well in Douglas County’s law-
enforcement community. Indeed, several months later, Bailey found himself
without a job.
1
“The pen is mightier than the sword.” EDWARD BULWER-LYTTON, R ICHELIEU; OR,
THE CONSPIRACY, act 2, sc. 2 (1839).
2
Bailey uses the term “minority citizens” to describe the individuals against whom law
enforcement was committing constitutional violations. We adopt his terminology for purposes
of this opinion.
2
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But that did not silence Bailey. Instead, Bailey filed an appeal with the City
of Douglasville, again reporting constitutional violations by his fellow officers.
The City held a hearing on Bailey’s appeal. And the very next day, Defendant-
Appellant Major Tommy Wheeler of the Douglas County Sheriff’s Office issued a
county-wide alert to all law-enforcement officers, picturing Bailey, warning that he
was a “loose cannon” who presented a “danger to any [law-enforcement officer] in
Douglas County,” and directing officers to “act accordingly.”
Bailey did not sit idly by. He sued Wheeler and others, asserting, among
other causes of action, a claim under 42 U.S.C. § 1983 for violation of his First
Amendment rights and a claim under Georgia law for defamation. When Wheeler
sought to dismiss these claims, the district court denied his motion. We now
affirm.
I.
A.
Bailey had more than seventeen years of law-enforcement experience when
he joined the City of Douglasville Police Department (“Police Department”) as a
police officer in March 2010.3 So it is not surprising that between May 2010 and
3
On a motion to dismiss, the court must accept as true all factual allegations in the
complaint and draw all reasonable inferences in the plaintiff’s favor. Randall v. Scott, 610 F.3d
701, 704 (11th Cir. 2010). For this reason, we take our factual recitation from Bailey’s operative
complaint.
3
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June 2012, Bailey received above-average employee performance appraisals from
his supervisors.
But Bailey’s time employed with the Police Department was far from
perfect. On April 26, 2011, Bailey filed a written complaint with his chief,
reporting that Police Department officers and Douglas County Sheriff’s Office
(“Sheriff’s Office”) deputies were racially profiling minority citizens and
committing other constitutional violations. Bailey also complained that law-
enforcement officers made racially offensive comments and jokes about minorities,
describing black males as “black as shoe polish wearing all black” and remarking
that the City of Douglasville’s (“City”) logo was a “lynching tree.”4 Finally,
Bailey expressed concern that he would lose his job for “making the complaints
and speaking out about racial profiling and other violations.”
Although repercussions of Bailey’s complaint did not follow immediately, in
the fall of 2012, Bailey’s supervisors ordered Bailey to rewrite incident reports that
he had previously filed, and they conducted an investigation of Bailey. When
Bailey reminded his supervisors that rewriting incident reports violated Police
4
The seal of the City of Douglasville appears below:
http://www.ci.douglasville.ga.us/ (last visited Nov. 21, 2016).
4
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Department policy, he was initially placed on administrative leave with pay, then
suspended for three days without pay, and then charged on November 8, 2012,
with conduct unbecoming an officer. 5 Eight days later, though Bailey had no prior
write-ups or reprimands on his record, Bailey was terminated from his position
with the Police Department.
Two days after that, on November 18, 2012, Bailey appealed his termination
to the City. In his appeal, Bailey wrote that he believed that he was fired for
speaking out against profiling, other unconstitutional conduct, and racially
offensive remarks made by that Police Department officers and Sheriff’s Office
deputies.
The City held a hearing on Bailey’s appeal on February 8, 2013. That very
night, two deputies in a Sheriff’s Office vehicle followed Bailey as he drove his
personal car from Douglasville into the City of Atlanta. When Bailey entered his
intended destination, the two deputies followed him in and stared him down.
Things did not improve for Bailey. The next day, February 9, 2013,
Wheeler issued the BOLO on Bailey, displaying Bailey’s photograph, calling him
5
The U.S. Department of Justice Office of Community Oriented Policing Services, in
conjunction with the International Association of Chiefs of Police, has defined “conduct
unbecoming” as “[a] term of administration regarding misconduct by law enforcement officers
that usually applies to distasteful and undesirable conduct that is not clearly criminal or corrupt.”
U.S. Dep’t of Justice & Int’l Ass’n of Chiefs of Police, An Internal Affairs Promising Practices
Guide for Local Law Enforcement, at 42, http://www.theiacp.org/portals/0/pdfs/buildingtrust.pdf
(last visited Nov. 21, 2016).
5
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a “loose cannon,” and warning law-enforcement officers to “[c]onsider this man a
danger to any [law-enforcement officer] in Douglas County and act accordingly.”
And for the second day in a row, law enforcement—this time vehicles from both
the Sheriff’s Office and the Police Department—followed Bailey as he drove his
personal car.
About three weeks went by, and Bailey was permitted to return to work at
the Police Department. At that time, the Police Department’s chief advised Bailey
that Bailey could cancel the BOLO against him by calling the Sheriff’s Office.
B.
On March 25, 2013, Bailey filed this lawsuit. In the course of pretrial
litigation, Bailey filed a second amended complaint. As it pertained to Wheeler,6
the second amended complaint alleged four causes of action, including, as relevant
here, a claim that, in violation of 42 U.S.C. § 1983, Wheeler had retaliated against
Bailey for exercising his First Amendment rights, and a claim that Wheeler had
defamed Bailey under Georgia law.
Wheeler moved to dismiss the counts against him, contending that Bailey
had failed to state a claim and that, in any event, Wheeler was entitled to qualified
immunity on the § 1983 claim and official immunity on the defamation claim. The
6
Bailey also sued the City and other officers and deputies. Ultimately, however, Bailey
voluntarily dismissed the claims against them with prejudice, pursuant to an agreement among
those parties.
6
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district court denied Wheeler’s motion as it pertained to the First Amendment and
defamation claims. 7 Wheeler now appeals.
II.
We have jurisdiction to review Wheeler’s interlocutory appeal of the district
court’s denial of qualified immunity and official immunity. Cummings v. DeKalb
Cty., 24 F.3d 1349, 1352 (11th Cir. 1994).
We review de novo a district court’s denial of qualified immunity on a
motion to dismiss. Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013). We
likewise review de novo the denial of official immunity under Georgia law. Hoyt
v. Cooks, 672 F.3d 972, 981 (11th Cir. 2012). In doing so, we accept as true the
facts alleged in the complaint, drawing all reasonable inferences in a plaintiff’s
favor. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).
III.
Section 1983 of Title 42, United States Code, creates a private right of action
to remedy violations of “rights, privileges, or immunities secured by the
Constitution and laws” of the United States. Rehberg v. Paulk, 132 S. Ct. 1497,
1501 (2012). The cause of action is available against “[e]very person who acts
under color of state law to deprive another of a constitutional right.” Id. (citation
and internal quotation marks omitted). To establish a claim under § 1983, a
7
As it related to other claims against Wheeler, the district court granted Wheeler’s
motion to dismiss. Bailey did not cross-appeal, so we do not discuss those claims here.
7
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plaintiff must demonstrate that a person acting under color of state law deprived
him of a federal right. Myers v. Bowman, 713 F.3d 1319, 1329 (11th Cir. 2013).
But even if a plaintiff makes this showing, a defendant may seek to invoke
the protections of qualified immunity. Qualified immunity shields public officials
from liability for civil damages when their conduct does not violate a constitutional
right that was clearly established at the time of the challenged action. City & Cty.
of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775 (2015).
To be eligible for qualified immunity, a government official must first
establish that he was acting within the scope of his discretionary authority when
the alleged wrongful act occurred. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002). Here, Bailey does not dispute that Wheeler was acting within the scope of
his discretionary authority when he issued the BOLO against Bailey.
So the burden shifts to Bailey, as the plaintiff, to establish that qualified
immunity does not apply. Id. To do this, Bailey must make two showings: first,
he must demonstrate that Wheeler’s issuance of the BOLO violated Bailey’s
constitutionally protected right. Second, he must show that the right was clearly
established at the time that Wheeler issued the BOLO. Pearson v. Callahan, 555
U.S. 223, 232 (2009); Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir.
2010). Bailey must satisfy both prongs of the analysis to overcome a defense of
qualified immunity. See Grider, 618 F.3d at 1254.
8
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A. Wheeler violated Bailey’s First Amendment rights
Bailey alleges that Wheeler issued the BOLO against him to punish Bailey
for reporting law enforcement’s unconstitutional treatment of minority citizens. To
state a claim for retaliation under the First Amendment, a plaintiff must
demonstrate that (1) he engaged in protected speech; (2) the defendant’s conduct
adversely affected the protected speech; and (3) a causal connection exists between
the speech and the defendant’s retaliatory actions. See Smith v. Mosley, 532 F.3d
1270, 1276 (11th Cir. 2008); Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.
2005).
Wheeler does not contend that Bailey failed to establish the first element 8—
that he engaged in protected speech. Instead, Wheeler argues that Bailey’s First
8
We agree with Wheeler’s implicit concession that Bailey alleged sufficient facts to
show that he engaged in protected speech when he complained to his chief, and again in his
termination appeal, that Douglas County law-enforcement officers were involved in racial
profiling and other inappropriate and unconstitutional conduct. The Supreme Court has
emphasized that public employees do not forfeit all their First Amendment rights by simple
virtue of their public employment. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “So long as
employees are speaking as citizens about matters of public concern, they must face only those
speech restrictions that are necessary for their employers to operate efficiently and effectively.”
Id. at 419. Clearly, if officers are systematically violating minority citizens’ constitutional rights,
that is a matter of public concern. Nor does it matter that Bailey expressed concerns related to
law enforcement when he was an officer or that he did so to his chief, instead of publicly. See id.
at 420-21. Indeed, law-enforcement officers are “members of a community most likely to have
informed and definite opinions” on appropriate law-enforcement conduct. See id. (citation and
internal quotation marks omitted). For this reason, “it is essential that they be able to speak out
freely on such questions without fear of retaliatory dismissal.” Id. (citation and internal
quotation marks omitted). Rather, the “controlling factor” is whether the public employee made
his expressions pursuant to his specific job duties. Id. If he did not, he engaged in protected
speech. Here, nothing in the record demonstrates that one of Bailey’s duties as a police officer
9
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Amendment claim fails under the second prong because, in Wheeler’s view, the
BOLO he issued was unlikely to deter a person of ordinary firmness from
exercising his First Amendment rights. Wheeler also asserts that it fails under the
third prong for two reasons: (1) Bailey did not allege that he expressed his
concerns about racial profiling and other inappropriate and unconstitutional
behavior by law-enforcement officers to anyone at the Sheriff’s Office, and (2)
Bailey failed to aver any facts that would allow the inference that Wheeler acted
with the motive of retaliating against Bailey for exercising his First Amendment
rights.
We begin with the second element—whether Wheeler’s conduct adversely
affected Bailey’s protected speech. In this Circuit, we have explained that a
defendant adversely affects protected speech if his alleged retaliatory conduct
“would likely deter a person of ordinary firmness from the exercise of First
Amendment rights.” Bennett, 423 F.3d at 1254. We use this objective standard
because it gives government officials notice of when their retaliatory actions
violate a plaintiff’s First Amendment rights. Id. at 1251.
In this case, we readily conclude that Wheeler’s BOLO “would likely deter a
person of ordinary firmness from the exercise of First Amendment rights.” First,
the BOLO described Bailey as a “loose cannon” who was a “danger to any [law-
was to report unconstitutional conduct by not only Police Department officers but also Sheriff’s
Office deputies.
10
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enforcement officer] in Douglas County.” Viewed in a light most favorable to
Bailey, this description, accompanied by Bailey’s photograph, created the
impression that Bailey was mentally unstable9 and roaming Douglas County with a
grudge against law-enforcement officers. Then, after inciting law-enforcement
officers to fear for their lives, the BOLO empowered these now-anxious officers to
“act accordingly” upon coming into contact with Bailey.
Let’s pause for a moment to appreciate just how a reasonable law-
enforcement officer may have understood that instruction. Under Georgia law,
when a subject is armed and dangerous, an officer may shoot the subject in self-
defense—a term Georgia construes as having justifiable intent to use such force as
the officer reasonably believes to be necessary to prevent death or great bodily
injury. See Smith v. LePage, 834 F.3d 1285, 1298 (11th Cir. 2016); see also Kidd
v. Coates, 518 S.E.2d 124, 125 (Ga. 1999). So, in other words, Wheeler’s BOLO
gave all Douglas County law-enforcement officers a reasonable basis for using
force—including deadly force—against Bailey if they reasonably misconstrued a
single move Bailey made—such as reaching into his pocket when confronted by
9
See Loose cannon, Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/loose%20cannon, at “Full Definition of LOOSE CANNON” (last visited
Nov. 21, 2016); “a dangerously uncontrollable person or thing.”
11
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law-enforcement officers—as imperiling themselves or anyone else.10 We think
that this situation, which potentially seriously endangered Bailey’s life, easily
would deter a person of ordinary firmness from exercising his First Amendment
rights.
And we find that is especially the case here, considering the environment in
which Wheeler issued the BOLO. First, Bailey was an African-American law-
enforcement officer who had protested civil-rights abuses by his fellow officers—
the very people to whom the BOLO was distributed.
Second, Wheeler issued the BOLO on February 9, 2013. Less than a week
earlier, national news outlets had reported that Christopher Dorner, a former Los
Angeles police officer, had raged against law enforcement and killed, among
others, the daughter of a police chief he felt had wronged him. See, e.g., “Alleged
Cop-killer Details Threats to LAPD and Why He Was Driven to Violence,”
http://www.cnn.com/2013/02/07/us/dorner-manifesto/ (last visited Nov. 21, 2016).
So when Wheeler issued the BOLO against Bailey, the story of Dorner—a former
police officer like Bailey—and Dorner’s violent turn against his former fellow
officers, was fresh in the public’s (and law enforcement’s) awareness. Wheeler’s
issuance of the BOLO in this environment raised the specter that Douglas County
10
Indeed, if tragedy had ensued and an officer had shot Bailey after reasonably
misconstruing something Bailey had done, that officer could have invoked the very BOLO at
issue to justify his entitlement to qualified immunity.
12
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might have its own Dorner in the form of Bailey and served to only amplify the
urgency of the BOLO’s warning. We need not engage in conjecture to conclude
that any person of ordinary firmness would be deterred from exercising his First
Amendment rights under these circumstances.
That brings us to the third element of Bailey’s First Amendment claim—
causation. Wheeler asserts that Bailey’s operative complaint fails to establish
causation both because it includes no allegations that Bailey made his complaints
to anyone at the Sheriff’s Office and, in Wheeler’s view, because it contains no
factual allegations that allow for the reasonable inference that Wheeler issued the
BOLO in retaliation for Bailey’s comments. We disagree.
As we have explained, a court reviewing a motion to dismiss must draw all
reasonable inferences from the factual allegations in a plaintiff’s complaint in the
plaintiff’s favor. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). When we
do that in this case, we find that the operative complaint sufficiently establishes the
causal connection between Bailey’s complaints and Wheeler’s issuance of the
BOLO.
Bailey alleges that he complained about racial profiling and other
unconstitutional behavior by Douglas County law-enforcement officers to his chief
and again in his termination appeal. He further asserts that on the very day of the
hearing on his termination appeal, of all days, Sheriff’s Office deputies followed
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him as he drove to and then entered an establishment, and they stared him down.
And the next day, the complaint continues, both a Police Department vehicle and a
Sheriff’s Office vehicle followed Bailey as he drove his personal car. Also on that
same day, the complaint avers, Wheeler issued the BOLO, describing Bailey as a
“loose cannon,” a term that, in addition to being employed to refer to a mentally
unstable person, can be used to refer to “a person who cannot be controlled and
who . . . says things that cause problems, embarrassment, etc., for others.” Loose
cannon, Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/loose% 20cannon, at “Simple Definition of LOOSE
CANNON” (last visited Nov. 21, 2016) (emphasis added); see also Loose cannon,
The American Heritage Dictionary (5th ed. 2011) (“One that is uncontrolled and
therefore poses danger: ‘[His] bloopers in the White House seem to make him . . .
a political loose cannon’ (Tom Morgenthau).”). Finally, Bailey contends that
when he returned to work a few weeks later, his chief informed him that Bailey
could have the BOLO canceled by contacting the Sheriff’s Office.
Viewed in the light most favorable to Bailey, these allegations allow for the
reasonable inferences that the Police Department communicated with the Sheriff’s
Department about Bailey’s complaints prior to Wheeler’s issuance of the BOLO,
that the Sheriff’s Office and Wheeler knew about the termination-appeal hearing,
and that Wheeler issued the BOLO at least in part in retaliation for Bailey’s
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complaints. As it pertains to the communications among law enforcement about
Bailey’s complaints, the timing of the Sheriff’s Office’s employees’ following of
Bailey and the issuance of the BOLO, the use of the term “loose cannon” in the
BOLO, and the fact that Bailey’s chief instructed him that Bailey could have the
BOLO canceled by calling the Sheriff’s Office all support this reasonable
inference. Similarly, all of these allegations other than those relating to Bailey’s
having been followed can reasonably be read to support the inference that Wheeler
knew about the termination-appeal hearing and that he issued the BOLO in
retaliation for Bailey’s reports that local law-enforcement officers had engaged in
civil-rights abuses of minority citizens. For these reasons, we conclude that Bailey
sufficiently alleged that Wheeler violated Bailey’s First Amendment rights when
he issued the BOLO.
B. Bailey’s constitutional right to be free from retaliation that imperiled
his life was clearly established at the time that Wheeler issued the
BOLO
We next consider whether Bailey’s right to be free from retaliation in the
form of the particular BOLO Wheeler issued in this case was clearly established.
We find that it was.
A right is clearly established if a reasonable official would understand that
his conduct violates that right. See Coffin v. Brandau, 642 F.3d 999, 1013 (11th
Cir. 2011) (en banc). Whether the official had “fair warning” and notice that his
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conduct violated the constitutional right in question drives our inquiry. Id. at 1013,
1015; McClish v. Nugent, 483 F.3d 1231, 1248 (11th Cir. 2007). In determining
whether the law clearly establishes a right, we look to the binding precedent set
forth in the decisions of the Supreme Court, the Eleventh Circuit, or the highest
court of the state (Georgia, here), Amnesty Int’l, USA v. Battle, 559 F.3d 1170,
1184 (11th Cir. 2009), and we conduct our inquiry “in light of the specific context
of the case, not as a broad general proposition,” Lee,284 F.3d at 1194.
We have said that a plaintiff may show that “the contours of the right were
clearly established in [one of three] ways.” Loftus v. Clark-Moore, 690 F.3d 1200,
1204 (11th Cir. 2012) (citation and internal quotation marks omitted). First, a
plaintiff may identify a materially similar case from relevant precedent. Id. When
a plaintiff proceeds in this way, we consider “whether the factual scenario that the
official faced is fairly distinguishable from the circumstances facing a government
official in a previous case.” Id. (citation and internal quotation marks omitted).
Second, a plaintiff may rely on a “broader, clearly established principle
[that] should control the novel facts [of the] situation.” Id. at 1204-05 (citation and
internal quotation marks omitted). We have explained that when a plaintiff
proceeds in this way, he must show that case law established the principle with
“obvious clarity . . . so that every objectively reasonable government official facing
the circumstances would know that the official’s conduct did violate federal law
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when the official acted.” Id. at 1205 (citation and internal quotation marks
omitted). This category also applies when “[t]he reasoning, though not the holding
of prior cases . . . send[s] the same message to reasonable officers in novel factual
situations.” Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)
(citation and internal quotation marks omitted).
Finally, a plaintiff may satisfy the “clearly established” requirement when
the defendant’s conduct “lies so obviously at the very core of what the [First
Amendment] prohibits that the unlawfulness of the conduct was readily apparent to
the official, notwithstanding the lack of case law.” Loftus, 690 F.3d at 1205
(citation and internal quotation marks omitted). Similarly, we recognize the
obvious-clarity exception where conduct is “so bad that case law is not needed to
establish that the conduct cannot be lawful.” Vinyard v. Wilson, 311 F.3d 1340,
1350 (11th Cir. 2002).
Here, the reasoning of Bennett and the broad principle it establishes should
have put Wheeler on notice that he could not potentially endanger Bailey’s life in
retaliation for Bailey’s exercise of his First Amendment rights. But even if it did
not, we think the conduct alleged in this case is so egregious that Wheeler did not
need case law to know what he allegedly did was unlawful.
In Bennett, the defendant sheriff and his co-defendants allegedly used their
law-enforcement positions to harass and retaliate against the plaintiffs after the
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plaintiffs supported a county referendum that the sheriff opposed. 423 F.3d at
1248. More specifically, the defendants followed, pulled over, cited, intimidated,
and otherwise harassed the plaintiffs. Id. at 1254. In addition, they accessed
confidential government databases containing information on the plaintiffs,
attempted to obtain arrest warrants against the plaintiffs without probable cause,
and distributed flyers that called the plaintiffs the “real criminals,” members of a
“chain gang,” and “the same type of criminals that terrorize Forsyth County.” Id.
at 1249. We determined that this conduct “would likely deter a person of ordinary
firmness from the exercise of First Amendment rights.” Id. at 1254.
In reaching this conclusion, we emphasized Judge Posner’s statement that
“[t]he effect on freedom of speech may be small, but since there is no justification
for harassing people for exercising their constitutional rights it need not be great in
order to be actionable.” Id. at 1254 (citation and internal quotation marks omitted).
And we cited with approval cases from other circuits that concluded law-
enforcement officers had violated plaintiffs’ First Amendment rights by
committing “similar or less harassing [retaliatory] acts.” Id. at 1255.
For example, we cited Garcia v. City of Trenton, 348 F.3d 726 (8th Cir.
2003), which we described as holding that “the retaliatory issuance of parking
tickets totaling $35 created a jury issue because the defendant ‘engaged the
punitive machinery of government in order to punish Ms. Garcia for her speaking
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out.’” Bennett, 423 F.3d at 1255. We similarly relied on Bart v. Telford, 677 F.2d
622 (7th Cir. 1982), which we summarized as holding that a “‘campaign of petty
harassments’ against the plaintiff[,] including ‘[h]olding her up to ridicule for
bringing a birthday cake to the office’ stated a cause of action for retaliation.”
If a law-enforcement officer may not issue $35 in parking tickets or use his
position to harass and intimidate individuals in retaliation for exercising their First
Amendment rights, a law-enforcement officer certainly may not use his position to
potentially seriously endanger a person’s life in retaliation for exercising First
Amendment rights. We think that is obvious under the case law.
But even if it were not, it is certainly obvious, as a general proposition and
without reference to case law, that issuing the BOLO Wheeler issued in this case,
under the circumstances that existed at the time, allegedly in retaliation for
Bailey’s speaking up about alleged civil-rights abuses, clearly violated Bailey’s
First Amendment rights. Law-enforcement officers are sworn to protect and
defend the lives of others. It is completely antithetical to those sworn duties for a
law-enforcement officer to use his position to harness the power of an entire
county’s law-enforcement force to teach a lesson to—and potentially very
seriously endanger—someone who had the temerity to speak up about alleged
abuses.
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For these reasons, we agree with the district court’s assessment that the
operative complaint sufficiently alleges that Wheeler violated Bailey’s clearly
established constitutional right. So we affirm the district court’s denial of
Wheeler’s motion to dismiss the § 1983 claim.
IV.
Wheeler next argues that the district court erred in denying him official
immunity on Bailey’s state-law defamation claim. In Georgia, county law-
enforcement officers like Wheeler generally enjoy official immunity from suits
alleging personal liability in tort for performance of official functions. See
Eshleman v. Key, 774 S.E.2d 96, 98 (Ga. 2015); see also Ga. Const. art. I, § 2,
para. IX(d). Under this immunity, a state official may not be held liable for
injuries caused through his performance of discretionary functions unless he acts
“with actual malice or with actual intent to cause injury.” Ga. Const. art. I, § 2,
para. IX(d); Brown v. Penland Constr. Co, Inc.., 641 S.E.2d 522, 523 (Ga. 2007).
Here, Bailey contends that Wheeler acted with actual malice in issuing the BOLO,
and Wheeler responds that the complaint does not allege sufficient facts to
reasonably infer actual malice.
In the context of Georgia’s official immunity doctrine, “‘actual malice’
requires a deliberate intention to do wrong.” Merrow v. Hawkins, 467 S.E.2d 336,
337 (Ga. 1996). It “does not include ‘implied malice,’ i.e., the reckless disregard
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for the rights or safety of others.” Murphy v. Bajjani, 647 S.E.2d 54, 60 (Ga.
2007). Instead, actual malice requires more than “harboring bad feelings” or “ill
will” about another; “rather, ill will must also be combined with the intent to do
something wrongful or illegal.” Adams v. Hazelwood, 520 S.E.2d 896, 898 (Ga.
1999). To overcome official immunity, a plaintiff’s allegations must demonstrate
that the defendant deliberately intended “to cause the harm suffered by the
plaintiff[]”; it is not enough that the defendant merely intended to do the act
purportedly resulting in the claimed injury. Murphy, 647 S.E.2d at 60; see West v.
Davis, 767 F.3d 1063, 1073 (11th Cir. 2014) (quoting Kidd v. Coates, 518 S.E.2d
124, 125 (Ga. 1999)); cf. Reed v. DeKalb Cty., 589 S.E.2d 584, 588 (Ga. Ct. App.
2003) (observing that a plaintiff bears the burden of overcoming official
immunity).
We have already explained how, viewed in the light most favorable to
Bailey, Bailey’s allegations create the reasonable inference that Wheeler issued the
BOLO to retaliate against Bailey for reporting that Douglas County law-
enforcement officers were racially profiling minority citizens and otherwise
violating their constitutional rights. Since Bailey’s allegations suffice to create this
reasonable inference, they necessarily are enough in the context of this case to
establish the reasonable inference that Wheeler acted with actual malice in issuing
the BOLO. After all, the BOLO Wheeler allegedly issued was enough to cause the
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Case: 15-11627 Date Filed: 11/28/2016 Page: 22 of 22
harm of deterring a person of ordinary firmness from exercising his First
Amendment rights, and it had the potential to result in serious harm or even death
to Bailey—facts that Wheeler must have known at the time that he issued the
BOLO for the purpose of allegedly retaliating against Bailey. These allegations
satisfy the showing of a deliberate intention to do wrong—that is, actual malice.
So we affirm the district court’s denial of official immunity to Wheeler on
Bailey’s state-law defamation claim.
V.
“Once a government is committed to the principle of silencing the voice of
opposition, it has only one way to go, and that is down the path of increasingly
repressive measures, until it becomes a source of terror to all its citizens and
creates a country where everyone lives in fear.” President Harry S. Truman,
Special Message to the Congress on the Internal Security of the United States
(Aug. 8, 1950). Our First Amendment demands that a law-enforcement officer
may not use his powerful post to chill or punish speech he does not like. If he does
so, he may not hide behind the veil of qualified immunity. We affirm the district
court’s denial of Wheeler’s motion to dismiss Bailey’s § 1983 and state-law
defamation claims.
AFFIRMED.
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