Thursday, March 14, 2024 | 2 a.m.
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Professional boxer Waylon Bailey had an open-and-shut retaliation lawsuit after sheriff’s deputies arrested him for making a zombie joke in Rapides Parish, La.
During the early weeks of the COVID-19 lockdowns, Bailey logged on to Facebook and compared the pandemic to a zombie apocalypse. He even gave a shoutout to Brad Pitt, star of the zombie blockbuster “World War Z.”
The full post was just 32 words, mostly in all caps: SHARE SHARE SHARE!!!! JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH “THE INFECTED” SHOOT ON SIGHT. … Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.
The sheriff’s office missed the satire. Within hours, as many as a dozen deputies confronted Bailey while he worked in his garage. They drew their weapons, ordered him on the ground, handcuffed him, jailed him, and booked him on suspicion of terrorism.
The district attorney refused to prosecute the case, but the harm was done. Bailey responded with a First Amendment complaint, and a jury needed just two days to hear the facts and award him $205,000.
That is lightning fast in the legal system. Yet, justice was not speedy.
Getting to trial took nearly four years for Bailey, who had to make a detour to the 5th U.S. Circuit Court of Appeals to secure his right to sue. The delay was due to a judge-made doctrine called qualified immunity, which shields public officials from the consequences of corruption or gross incompetence.
Qualified immunity works like a get-out-of-jail-free card. Once public officials claim this special privilege, lawsuits against them freeze. Victims cannot proceed unless they can prove the abuse they endured was “clearly established” as unconstitutional. Clearing the hurdle usually requires a prior decision with nearly identical facts.
Even if a match exists — something victims of government abuse have no control over — beating qualified immunity takes time.
“Unaccountable,” a new report from the Institute for Justice, finds that, from 2010 through 2020, the median qualified immunity lawsuit on appeal had been open 23% longer than the typical federal lawsuit on appeal.
The report also finds long odds for plaintiffs like Bailey. Courts resolved qualified immunity appeals solely in favor of government defendants 59% of the time during the study period. Their accusers fully prevailed only 24% of the time.
Besides draining resources, these appeals clog the legal system. The report identifies 5,526 appeals involving qualified immunity in 11 years — more than 1.3 appeals daily.
These underlying lawsuits tend to have merit. They are not unserious claims filed by opportunists waiting to pounce when public officials make honest mistakes in the line of duty. Public officials do not need qualified immunity in such cases. The concept of “reasonableness,” which pervades constitutional doctrine, already protects people in positions of public trust.
Qualified immunity does something different. It blocks compelling arguments — the kind that wayward or incompetent public officials do not want juries to hear. The quick resolution of Bailey’s lawsuit — once he got past qualified immunity — shows why government defendants do everything they can to stop people before they reach the witness stand.
Bailey scored his 5th Circuit victory on Aug. 25, 2023. Three months later, the court finalized its opinion, clearing the way for Bailey’s trial in January 2024. Louisiana law firm Bizer & DeReus represented him, and the Institute for Justice took the lead during the qualified immunity appeal.
Many government employees do not wait for trial once they lose qualified immunity. Police officers in Gretna, La., settled with the survivors of Kendole Joseph, a mentally ill man they tased and beat while he lay on the ground in a fetal position, causing fatal injuries. A teacher in Spring, Texas, settled with Mari Oliver, a high school student punished for refusing to recite the Pledge of Allegiance. Officials in Des Moines, Iowa, settled with Trenisha Webster, a mother wrongfully arrested for refusing to let the police enter her home without a warrant.
The judgments and settlements confirm what Bailey knows from firsthand experience: Qualified immunity is not a safety net for “good cops” doing their best in difficult situations. It is a crutch for corrupt or incompetent public officials.
Qualified immunity must die like a zombie. #weneedyoubradpitt.
Ben Field is an attorney and Daryl James a writer at the Institute for Justice in Arlington, Va. They wrote this for InsideSources.com.
