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Eleventh Circuit Slams Douglas County, Georgia Sheriff's Office for Retaliation Against Whistle-Blower

by Christopher Zoukis

The United States Court of Appeals for the Eleventh Circuit has issued a stinging opinion in which it firmly rebukes the retaliatory actions of the Douglas County, Georgia Sheriff's Office.

Derrick Bailey, an African-American police officer with 17 years of law-enforcement experience, was hired by the City of Douglasville Police Department in March 2010. By all accounts, Bailey was a competent police officer, and he received above-average employee performance reviews between May 2010 and June 2012.

But something was wrong in Douglas County, and Bailey spoke up. In April 2011, he filed a written complaint with his chief reporting that city police officers and county deputies were "racially profiling minority citizens and committing other constitutional violations." Bailey also noted the racially insensitive environment created by local officers, citing jokes describing black males as "black as shoe polish wearing all black" and referring to the City of Douglasville's logo (which includes an illustration of a tree) as a "lynching tree."

In the fall of 2012, supervisors undertook efforts to rid themselves of Bailey. He was ordered to rewrite incident reports, and when he complained that doing so would violate Department policy, he was fired. Bailey appealed his termination to the City. He argued that he was fired for speaking out against the improper and unconstitutional actions he witnessed. The night of his appeal, he was followed home and stared down by two Douglas County Sheriff's Deputies. The next day, Major Tommy Wheeler of the Douglas County Sheriff's Office issued an ominous be-on-the-lookout advisory to local police: they were alerted to subject Derrick Bailey, a "loose cannon," who police should "consider . . . a danger to any [law-enforcement officer] in Douglas County and act accordingly."

Bailey immediately sued, alleging retaliation and defamation. The defendants, who included Major Wheeler, moved to dismiss the complaint, claiming immunity. The trial court denied the request, and in a strongly worded opinion, the Eleventh Circuit affirmed.

The first question considered by the court was whether the BOLO adversely affected Bailey's constitutionally protected rights. The court found that it did, ruling that "Wheeler's BOLO 'would likely deter a person of ordinary firmness from exercise of First Amendment rights.' "

Specifically, the court noted that "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 law-enforcement officers -- as imperiling themselves or anyone else."

The court further found that Bailey had a constitutional right to be free from this sort of retaliation, and that this right was clearly established at the time of the BOLO.

"[T]he conduct alleged in this case is so egregious that Wheeler did not need case law to know what he allegedly did was unlawful," wrote the court.

While the Eleventh Circuit's ruling was limited to affirming the lower court, the three judge panel weighed in on the inappropriate nature of Major Wheeler's conduct.

"[I]ssuing 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," wrote the court. "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 abuse." See:  Bailey v. Wheeler, Case No. 15-11627 (Ct. App. 11th Cir. 2016).

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Bailey v. Wheeler


 

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