From today's Fifth Circuit decision in Bailey v. Iles, written by Judge Dana Douglas and joined by Judges Patrick Higginbotham and James Graves:
Bailey lives in Rapides Parish in central Louisiana. On March 20, 2020—during the first month of the COVID-19 pandemic—he posted this on Facebook:
Bailey intended the post as a joke and did not intend to scare anyone. The "hashtag" "#weneedyoubradpitt" referenced the zombie movie World War Z, starring Brad Pitt. Bailey included the hashtag to "bring light to the fact that it was a joke." He was bored during the COVID-19 lockdown and used Facebook to keep in touch with friends and "make light of the situation."
Bailey's post was in response to another friend—Matthew Mertens— posting a joke about COVID, and Mertens understood Bailey's post to be a joke. The two continued to post comments underneath Bailey's post. Merterns posted "lol and he [referring to Bailey] talking about my post gonna get flagged � he wins." Bailey posted "this is your fault" and "YOU MADE ME DO THIS." Another person, who Mertens later identified as Bailey's wife, also jokingly commented "I'm reporting you."
Shortly after Bailey posted, Detective Randell Iles was assigned by the Rapides Parish Sheriff's Office (RPSO) to investigate. Iles' supervisors were concerned that the post was a legitimate threat; Iles testified at his deposition that he thought that the post was "meant to get police officers hurt." Iles looked at the post and the comments and concluded that Bailey had committed "terrorizing" in violation of Louisiana Revised Statute § 14:40.1. Iles had no information regarding anyone contacting RPSO to complain about the post or to express fear, or if any disruption had occurred because of the post….
According to Bailey, he was working in his garage when as many as a dozen deputies with bullet proof vests and weapons drawn approached him and ordered him to put his hands on his head, after which Iles told him to get on his knees and handcuffed him. While Bailey was handcuffed, one of the deputies (not Iles) told him that the "next thing [you] put on Facebook should be not to fuck with the police" and the deputies laughed….
