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Whistleblowing Cop Can Sue Over Potentially Life-Endangering Alert

By Casey C. Sullivan, Esq. on December 04, 2016 | Last updated on March 21, 2019

A police officer in Georgia, who claims he was punished for reporting racial profiling, can pursue his section 1983 and defamation suit against the local sheriff's department, the Eleventh Circuit ruled last week.

Derrick Bailey, a law-enforcement officer with more than 17 years of experience, alleges that he was terminated and harassed for reporting racial profiling and constitutional violations in the Douglasville police department and Douglas County sheriffs office. That retaliation included a "BOLO," or "be-on-the-lookout" advisory to all law enforcement in the county, describing Bailey as a "loose cannon" and danger to any cop -- a warning the Eleventh Circuit notes could have left him dead at the hands of his fellow officers.

Bailey's BOLO

"What had the subject of the BOLO done to trigger such a grave alert?" Judge Robin S. Rosenbaum wrote for the Eleventh Circuit, in what is a truly engaging opinion:

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.

In 2011, Bailey filed a written complaint with his chief, reporting that the police department and sheriff's office were racially profiling minorities and committing constitutional violations. To top it off, officers made racial jokes, Bailey said, and referred to the tree on the Douglasville city logo as a "lynching tree." Yes, a lynching tree.

No repercussions came immediately, but a few months later Bailey was investigated and asked to rewrite previously filed incident reports. When he pointed out that rewriting reports was against policy, he was put on leave and then fired. Bailey had no prior write-ups or reprimands on his record, the Eleventh notes.

Bailey appealed his termination, alleging that he was fired for his whistleblowing. The day after the city held a hearing on his termination, Major Tommy Wheeler, with the Douglas County Sheriff's Office, issued the BOLO on Bailey.

Bailey eventually sued, accusing Wheeler of defamation and illegal retaliation under 42 U.S.C. § 1983. Wheeler moved to dismiss, claiming qualified immunity as to the retaliation claim and official immunity to the defamation claim.

Possible Death for Free Speech? Sounds Like Enough to Me...

Section 1983 creates a cause of action against anyone who acts "under color of state law" to deprive one of a constitutional right, here Bailey's First Amendment rights. The statute also provides qualified immunity to public officials, so long as their conduct does not violate clearly established constitutional rights.

Neither the district court nor the Eleventh Circuit had much difficulty finding such a violation of a clear constitutional right. Retaliatory conduct for exercising one's free speech rights, the court explained, is found when the retaliatory action "would likely deter a person of ordinary firmness from the exercise of First Amendment rights."

Here, "we readily conclude" that the BOLO did just that, Judge Rosenbaum wrote for the unanimous three-judge panel. The BOLO's description "created the impression that Bailey was mentally unstable," the court writes, and a threat to police officers.

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. 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.

That situation, "which potentially seriously endangered Bailey's life," would certainly deter someone from exercising their First Amendment rights, the court determined. Further, such a right "to be free from retaliation that imperiled his life" was clearly established at the time, allowing Bailey's complaint to survive Wheeler's motion to dismiss.

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