Mimesis Law
27 June 2017

How a Good Police Officer Gets Fired (and Maybe Killed)

November 30, 2016 (Fault Lines) — The 11th Circuit has ruled that a police department is not immune from suit when he retaliates against a complaining officer by firing him, having him followed and issuing a BOLO warning that he is “dangerous” and a “loose cannon.”

By all accounts, Officer Derrick Bailey was an excellent cop. He had seventeen years of experience. He routinely received good performance reviews. Most importantly? He had a sense of right and wrong.

douglasville

That’s why Bailey (who was black) decided to report to his commanding officer that officers in Douglas County, Georgia were racially profiling citizens and committing constitutional violations. In one example, he pointed out that officers were routinely pulling over cars with minorities without reasonable articulable suspicion, then demanding that everyone hand over their ID.[1] Hell, they called the logo of the city they worked in, Douglasville, “the lynching tree.”

Bailey dutifully documented these instances in police reports and otherwise remained a model of professional good conduct. Which meant he had to go. His supervisors began asking him to rewrite police reports. When he noted that this violated the Department’s 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.

It wasn’t long before Bailey was fired. The Department claimed it was because he got into a “verbal altercation” with a Wal-Mart loss prevention officer.

His fellow officers didn’t seem to much like him.. And he sure wasn’t going to get a show of support from the then District Attorney. Or his local elected officials.  So he sued to get his job back, alleging that he was being retaliated against for reporting officer misconduct and racism, which included the 911 dispatcher describing black men as “black as shoe polish wearing all black,” or “black as asphalt.” So the City of Douglasville held a hearing. The hearing went well. The aftermath? Not so much.

The night of his hearing, two deputies from the Sheriff’s Office followed Bailey all the way from Douglasville to Atlanta. Then they followed him inside and stared him down. As if this wasn’t intimidating enough, Sheriff decided to put a BOLO out on him:

The next day, February 9, 2013, Wheeler issued the BOLO on Bailey, displaying Bailey’s photograph, calling him 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.”

Both the Sheriff’s Office and the Police Department began dispatching cars to follow Bailey around wherever he drove. It was a calculated mission to intimidate. As far as the BOLO goes, the 11th Circuit was far less blithe about its consequences than you’d expect:

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

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 law-enforcement officers—as imperiling themselves or anyone else.

Bailey could have easily died as a result of that BOLO. Officers willing to tell him to rewrite his reports and follow him around might have little reason to exercise restraint if it looked like he was reaching for his waist to retrieve what would later turn out to be his wallet, a candy bar, or nothing at all. As the court points out, the BOLO was particularly likely to result in Bailey’s death because Christopher Dorner, an LA cop, was in the midst of a high profile officer shooting spree at that very moment. Officers in LA were freaked out enough to try to kill two unarmed women in a newspaper truck at the time, so there was no telling what an ornery Georgia officer might do.

Even when Bailey got his job back three weeks later, the Department refused to cancel the BOLO. Instead, he was told that if he wanted it gone, he could call the Sheriff’s Office and ask them to do it.

Bailey sued, arguing that the BOLO and other actions by the Department unfairly burdened his First Amendment rights. The Department argued in return that being fired, followed and BOLO’d would not be enough to prevent a person of ordinary firmness from speaking out. The Court responded that the threat of death was generally enough for even people of ordinary firmness to pipe down a little.

If Bailey’s complaints are accurate, there can be little doubt that the Douglas County Sheriff’s Department engaged in a calculated campaign of intimidation and harassment to prevent him from exercising his right to free speech. The 11th Circuit says it well:

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.

[1] You might hope that this sort of evidence would get suppressed when it came up, but Douglas County was notoriously stingy about the 4th Amendment at the time.

2 Comments on this post.

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  • Anon
    30 November 2016 at 3:07 pm - Reply

    What an oddly informally-styled opinion (yet, combined with either unnecessary or clunky parentheticals).

  • Fault Lines Friday Fail
    9 December 2016 at 4:46 pm - Reply

    […] system, as brought to you by the Fault Lines contributors. Last week’s “winner” was the Douglasville Police Department for terminating Officer Derrick Bailey and issuing a BOLO order after he tried to report misconduct […]