Derrick Bailey v. Major Tommy Wheeler
843 F.3d 473
| 11th Cir. | 2016Background
- Derrick Bailey, a Douglasville police officer, filed internal complaints reporting racial profiling and constitutional violations by local police and sheriff’s deputies.
- After complaining, Bailey was investigated, suspended, and then terminated; he appealed his termination and reiterated his complaints at a City hearing.
- The day after the appeal hearing, Major Tommy Wheeler (Douglas County Sheriff’s Office) issued a county-wide BOLO with Bailey’s photo calling him a “loose cannon,” warning he was a “danger to any law-enforcement officer,” and directing officers to “act accordingly.”
- Following the BOLO, deputies and police vehicles followed Bailey on multiple occasions; Bailey later returned to work and was told the BOLO could be canceled by contacting the Sheriff’s Office.
- Bailey sued under 42 U.S.C. § 1983 for First Amendment retaliation and under Georgia law for defamation; the district court denied Wheeler’s motion to dismiss as to those claims and Wheeler appealed qualified and official immunity determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wheeler’s BOLO was actionable First Amendment retaliation | Bailey: BOLO was issued in retaliation for his protected complaints about racial profiling and would deter a person of ordinary firmness from speaking | Wheeler: BOLO would not deter a person of ordinary firmness; no causal link shown to Sheriff’s Office knowledge or retaliatory motive | Court: BOLO plausibly would deter and complaint sufficiently alleges causation; First Amendment claim survives dismissal |
| Whether Wheeler is entitled to qualified immunity on the § 1983 claim | Bailey: right not to suffer life-endangering retaliation for protected speech was clearly established | Wheeler: reasonably believed conduct lawful; qualified immunity shields him | Court: right was clearly established (Bennett reasoning and obvious-clarity); qualified immunity denied |
| Whether Wheeler is entitled to official immunity on the Georgia defamation claim | Bailey: BOLO was issued with actual malice (deliberate intent to do wrong), overcoming official immunity | Wheeler: complaint lacks facts to infer actual malice; official immunity applies | Court: Allegations permit reasonable inference of actual malice given the BOLO’s dangerous nature and retaliatory motive; official immunity denied |
| Relief at motion-to-dismiss stage | Bailey: pleadings suffice; discovery should proceed | Wheeler: dismissal and immunity appropriate now | Court: Affirmed district court’s denial of dismissal re: § 1983 and defamation claims; case may proceed |
Key Cases Cited
- Rehberg v. Paulk, 132 S. Ct. 1497 (2012) (§ 1983 creates private cause of action for state actors depriving constitutional rights)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity two-step: constitutional violation and clearly established law)
- City & County of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015) (qualified immunity shields officials unless conduct violated clearly established rights)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (public employees retain First Amendment rights when speaking as citizens on matters of public concern unless speech is pursuant to job duties)
- Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005) (retaliatory harassment by law enforcement can deter First Amendment activity; such conduct is actionable)
- Smith v. Mosley, 532 F.3d 1270 (11th Cir. 2008) (elements of a First Amendment retaliation claim)