Qualified Immunity is Wrong

It's encourages cops to violate our rights

Waylon Bailey was bored. Like most Americans on March 20, 2020, he was “locked down” because of Covid, so he posted what he thought was a funny internet joke.

“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.”

Maybe not the best-considered idea, but I can see where an inclusion of a reference to World War Z (Brad Pitt saving the world from a zombie pandemic) would assure everybody it was a joke and I would have probably recommended him to the Babylon Bee.

Unfortunately, the officials at the Rapides Parish Sheriff’s Office were humor-impaired and Detective Randell Iles interpreted it as a “terrorizing” event. No, not a terrorist event, but a “terrorizing” one. Who was Bailey “terrorizing”? I would guess the police department.

Hours after he posted the joke, a SWAT team descended on Bailey’s Louisiana home. According to court documents, officers with guns at high ready ordered Bailey to kneel, handcuffed him, read him his rights and generally terrorized him.

One good turn deserves another, I suppose.

The Rapides Parish Sheriff’s Office didn’t have a warrant to arrest Bailey, but argued the post was a threat to public safety and a criminal act. The district attorney disagreed and declined to prosecute, but Bailey recognized his 1st Amendment rights had been violated over a joke. He sued the humorless Detective Iles for false arrest and infringement of the 1st Amendment.

Of course, the system protects its own. U.S. District Judge David Joseph dismissed the suit with prejudice, reasoning Iles had probable cause and was protected by “qualified immunity,” a legal doctrine that shields government officials from civil liability when performing their public duties — even when the conduct is criminal.

Bailey appealed to the US 5th Circuit and, surprise, the Court reviewed it. A three-judge panel concluded the police officers weren’t entitled to qualified immunity “because no reasonable officer could have found probable cause to arrest Bailey for violating the Louisiana terrorizing statute.” Amazingly, a jury agreed, deliberating for less than two hours before awarding Bailey $205,000 in compensatory and punitive damages, which the Rapides Parish Sheriff’s Office was required to pay for violating Bailey’s free speech rights. Clearly the jury recognized the Facebook post was constitutionally-protected speech.

He’s Still a Minority

Not every American whose rights have been violated are as fortunate as Bailey. USA Today chronicled some of the more egregious examples of qualified immunity protecting police from civil liability for bad behavior, including officers who stole $225,000, a police officer who shot a child (while trying to shoot his nonthreatening dog), a SWAT team that launched gas grenades into a woman’s house even though she had done nothing illegal, and prison officials who locked an inmate in a sewage-flooded cell for days.

The broad umbrella of qualified immunity protected all of this outrageous conduct.

In 2016 Ohio resident Anthony Novak was arrested over a parody page of the Parma Police Department. The 6th Circuit is very different from the 5th and the Court of Appeals rejected Novak’s claims that police officers violated his 1st and 4th Amendment rights when they raided his home because he published a spoof page of their Police Department. Officers were protected by qualified immunity. Novak appealed to the Supreme Court but they declined to hear the case.

A Slate article points out how significant Bailey’s case outcome is.

“At least in the 5th Circuit, which covers Louisiana, Texas, and Mississippi, government employees will be on notice the next time they are tempted to use shock and awe to silence satire they do not like,” Ben Field and Daryl James of the Institute for Justice wrote. “Telling jokes is protected speech under the First Amendment.”

Qualified Immunity Is Unconstitutional

Government exists — according to the Founders — to protect individual rights. Qualified immunity is an undemocratic legal doctrine that didn’t come from Congress, but was created by the judicial activitism of the Supreme Court in the 1960s, when there was a belief that the Constitution was a living document that could be interpreted by whatever flavor-of-the-month opinion that was popular that month. The idea was that the Constitution doesn’t protect individual rights at all, not even when they’ve clearly been violated. It’s up to the officer’s discretion.

We’re still digging out of that mess which is why half the country (those who believe qualified immunity, abortion until labor, and unevenly applied rights protection are a good idea) think the SCOTUS is running with scissors when they rule according to the text of the Constitution and the established history of the country.

These days we’re tempted to call for more stringent policing in the face of riots, shoplifting, and protesters blocking roads. I get it. These people are screwing the world up. But it’s an important to understand that police can’t just be given carte blanche to do whatever they want in the conduct of their policing.

Just because someone is wearing a badge doesn’t mean he can’t violate our rights.

---

Lela Markham is an Alaska-based novelist and commentatory who doesn’t hate the police, but believes they should have to operate under the law just like everyone else.