Lawsuit Alleging Police Retaliation To Go Forward

The Eleventh Circuit Court of Appeals has allowed a civil rights lawsuit to go forward against an officer of the Douglasville, South Carolina Police Department.  According to a complaint filed by Officer Derrick Bailey, he was hired by the department in 2010.  Bailey had seventeen years of prior experience in law enforcement, He received positive performance reviews through his first couple of years with the department. Tensions arose however, after Bailey, who is African-American  complained that the Department was racially profiling minorities, and making  offensive remarks in his presence.

After making these complaints, Bailey was terminated.  When he appealed, officers began to follow him and “stare him down.”  Police Department Major Tommy Wheeler escalated the matter when issued a “be on the lookout,” often known as a BOLO, to all law enforcement personnel in the area.  The BOLO included Bailey’s photograph, said that he was a “loose cannon,” and advised officers that they should “consider this man to be a danger and act accordingly.”  After a few weeks Bailey was reinstated and the BOLO was canceled.

The Eleventh Circuit agreed that Bailey should be able to sue Wheeler for violating his First Amendment rights by issuing the BOLO.  According to the facts stated in Bailey’s complaint, Wheeler’s use of the BOLO was in retaliation for lawfully protected speech.  There was no doubt that Bailey’s complaints about the Department’s racial profiling and offensive remarks were  a matter of public interest.  The Court found that the BOLO effectively “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”  Such a situation “easily would deter a person of ordinary firmness from exercising his First Amendment rights.”

This case demonstrates the strong protection Courts will give to constitutionally protected speech.The facts as stated by Bailey are chilling in that they show a police department using what should be a proper law enforcement tool, the BOLO, to target a particular person solely out of vindictiveness. One of the primary purposes of the courts is as a check against abuse of power by law enforcement. Here, the Eleventh Circuit fulfilled that purpose.


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