# Bailey v. Iles

> District Court, W.D. Louisiana · July 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10195047

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** July 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10195047

## How later opinions describe it (automated extraction)

- noting that, “[p]robable cause exists when the totality of the facts and circumstances within a police officer’s knowledge at the moment of the arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.”
- finding that probable cause exists where a prudent officer would believe that a crime had been committed based on the “facts and circumstances within their knowledge and of which they had reasonably trustworthy information”
- noting that “in many places and in ordinary times the defendants in saying all that was said...would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.”

## Opinion text

WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

WAYLON BAILEY CIVIL DOCKET NO. 1:20-CV-01211

VERSUS JUDGE DAVID C. JOSEPH

RANDELL ILES, ET AL MAGISTRATE JUDGE JOSEPH H.L.
PEREZ-MONTES

MEMORANDUM RULING
Pending before the Court are the following motions: a MOTION FOR PARTIAL
SUMMARY JUDGMENT [Doc. 16] filed by Plaintiff, Waylon Bailey, and a MOTION FOR
SUMMARY JUDGMENT [Doc. 20] filed by Defendants, Randell Iles and Sheriff Mark
Wood, in his official capacity, as Sheriff of Rapides Parish (collectively, the “Motions”).
For the following reasons, the Court DENIES Plaintiff’s motion and GRANTS
summary judgment in favor of the Defendants.
BACKGROUND
This matter arises out of an incident that began with a “posting” on Facebook
during the early stages of the novel coronavirus (COVID-19) pandemic. On March
20, 2020, Waylon Bailey – allegedly “bored” due to the lockdown associated with
COVID-19 – posted the following message on his personal Facebook feed:
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
#weneedyoubradpitt1

1 This second “hashtag” allegedly refers to the science fiction movie “World War Z”
[Doc. 16-1, p. 8]. Bailey claims he made the post because he thought it was “a funny
and timely joke in light of the COVID-19 lockdowns.” [Doc. 16-2, p. 2].
Detective Randell Iles (“Detective Iles” or “Iles”), then an investigator with the
Rapides Parish Sheriff’s Office, was asked by his supervisors to investigate the post
to determine if it was a threat to public safety. [Doc. 20-3, p. 4]. Detective Iles
testified that after investigating the post, he believed “it was an attempt to get
someone hurt.” [Id.]. Eventually, Iles located Bailey and several officers went to

Bailey’s home. [Doc. 16-1 p. 11]; [Doc. 20-1, p.7]. According to Bailey, a “SWAT team
descended on [him]” with their guns drawn and pointed at him, ordering him to get
on his knees. [Doc. 16-1, p. 11]. Bailey was then handcuffed and told he was under
arrest at which point, he claims an officer told him that the next thing he posts on
Facebook, “should be not to fuck with the Police”. [Doc. 16-1, pp. 6, 11]. Detective
Iles disputes this narrative and testified that he did not have his weapon drawn when

he approached Bailey, but rather introduced himself and shook Bailey’s hand − at
which point Bailey indicated that he knew Iles was there because of his Facebook
post. [Doc. 20-1, pp. 6-7]. Iles attests that he then advised Bailey of his rights,
interviewed him, informed him that he was being arrested for terrorizing, and took
him into police custody. [Doc. 20-1, p. 7].
Bailey was subsequently booked into the Rapides Parish Detention Center and
posted bond the same day. [Doc. 1, ¶¶ 32-33, 44]. The Rapides Parish District

Attorney’s Office thereafter declined to prosecute the case – effectively ending
Bailey’s brief encounter with the criminal justice system. [Doc. 1, ¶ 2]; [Doc. 20-1, p.
5]. Bailey now sues Randell Iles and Rapides Parish Sheriff Mark Wood claiming
that he was arrested in violation of his constitutional rights and is suffering from
anxiety and emotional distress as a result. [Doc. 1, ¶ 57].
PROCEDURAL HISTORY
Bailey filed a Complaint in this Court on September 21, 2020, against Sheriff
Wood and Detective Iles under 42 U.S.C. § 1983, alleging violations of his First and
Fourth Amendment rights, as well as Louisiana state law claims of malicious
prosecution and false arrest. [Doc. 1].

On February 16, 2022, Bailey filed a Motion for Partial Summary Judgment
asking the Court to enter judgment establishing Defendants’ liability as to his § 1983
claim for violation of the Fourth Amendment, his malicious prosecution claim, and
his false arrest claim. [Doc. 16]. Defendants filed an Opposition to Bailey’s Motion
for Partial Summary Judgment on March 9, 2022, [Doc. 21], and simultaneously filed
their own Motion for Summary Judgment seeking dismissal of all claims. [Doc. 20].

On March 28, 2022, Bailey filed an Opposition to the Motion [Doc. 26], and Replies
supporting both Motions were subsequently filed. [Docs. 25, 29]. The Motions have
now been fully briefed and are ripe for ruling.
SUMMARY JUDGMENT STANDARD
A court should grant a motion for summary judgment when the pleadings,
including the opposing party’s affidavits, “show that there is no dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. Pro. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A
genuine dispute of material fact exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Hefren v. McDermott, Inc., 820 F.3d
(1986)). A fact is “material” if proof of its existence or nonexistence would affect the
outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The movant bears the burden of demonstrating the absence of a genuine
dispute of material fact but need not negate every element of the nonmovant’s claim.
Hongo v. Goodwin, 781 F. App'x 357, 359 (5th Cir. 2019) (citing Duffie v. United
States, 600 F. 3d 362, 371 (5th Cir. 2010)). If the movant meets this burden, the

burden then shifts to the nonmovant who is required to “identify specific evidence in
the record and articulate the manner in which that evidence supports that party’s
claim.” Johnson v. Deep E. Texas Reg'l Narcotics Trafficking Task Force, 379 F.3d
293, 301 (5th Cir. 2004). However, summary judgment cannot be defeated through
“[c]onclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation.” Acker v. Gen. Motors,

L.L.C., 853 F.3d 784, 788 (5th Cir. 2017) (quoting Oliver v. Scott, 276 F.3d 736, 744
(5th Cir. 2002)).
In applying this standard, the Court should construe “all facts and inferences
in favor of the nonmoving party.” Deshotel v. Wal-Mart Louisiana, L.L.C., 850 F.3d
742, 745 (5th Cir. 2017); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(“The evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.”). The motion for summary judgment should be granted if

the non-moving party cannot produce sufficient competent evidence to support an
essential element of its claim. Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197
(5th Cir. 2005).
DISCUSSION
I. Parties’ Arguments
A. Bailey’s Arguments
Bailey asserts that his March 20, 2020, arrest for terrorizing, in violation of
La. R.S. § 14:40.1, infringed upon his constitutional rights under the First and Fourth
Amendments. [Doc. 1]. Bailey’s claims largely rest on his assertion that Detective
Iles lacked probable cause to arrest him, and, further, that no reasonable officer in

the same situation would have thought that probable cause existed to make an arrest
because there is no evidence that his actions meet either element of the terrorizing
statute. [Doc. 16-1]. In this regard, Bailey contends that the facts do not show that
he communicated the false information for the purpose of causing members of the
public to be in fear for their safety, nor that he actually caused: (i) sustained fear in
any member of the public, (ii) evacuation of a building, or (iii) public disruption. [Id.,

pp. 21-23]. Bailey claims instead that his post was intended as a joke and that
Detective Iles was, in fact, actually aware of his true intention. [Id.].
Bailey also seeks summary judgment under Louisiana state law for malicious
prosecution and false arrest, arguing that although no criminal case followed his
arrest, a probable cause affidavit was completed, which he contends constituted an
affirmative step in furtherance of a criminal prosecution. [Doc. 25, p. 7].
Additionally, Bailey urges the Court to accept the notion that because the District

Attorney “dismissed” the charge against him, there is a presumption that the arrest
lacked probable cause.2 [Doc. 16-1, p. 26]. Bailey posits that this shifts the burden
to the Defendants to show that the arrest was based on probable cause and was
without malice. [Id]. Bailey also asserts that his false arrest and malicious
prosecution claims should prevail even if this Court finds that Detective Iles is
entitled to qualified immunity because there is no such immunity for the Louisiana
law claims. [Doc. 26, p. 21]. Finally, Bailey contends that Woods is liable for the
state law claims under the theory of respondeat superior. [Doc. 16-1, pp. 26-27].
B. Defendants’ Arguments

Defendants seek summary judgment on Bailey’s claims on the basis that Iles
is entitled to qualified immunity against the alleged constitutional violations because
there was probable cause for Bailey’s arrest. [Doc. 20-1, pp. 15, 22]. In this regard,
Defendants claim that Bailey has failed to adduce any evidence that the arrest was
not supported by probable cause, or that Detective Iles was motivated by ill-will or
acted in a reckless or callously indifferent manner. [Id., p. 23]; [Doc. 21, p. 10].

Lastly, Defendants contend that Bailey has no viable claims under Louisiana
law for malicious prosecution or false arrest. [Doc. 20-1, pp. 23, 26-27]. Specifically
– again resting on their contention that Iles had probable cause to arrest Bailey and
that a probable cause affidavit does not constitute the commencement of a criminal
prosecution – Defendants argue that: (i) Bailey lacks sufficient evidence to meet the
elements of a false arrest or malicious prosecution claim [Doc. 20-1, p. 23], [Doc. 21,
p. 8], [Doc. 29, p. 5]; and (ii) that since there are no valid claims against Iles, Wood

therefore cannot be found liable under the theory of respondeat superior. [Doc. 20-1,
p. 27].
II. Qualified Immunity
The defense of qualified immunity shields government officials performing
discretionary functions from liability for civil damages if their conduct “does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The basic
thrust of the qualified-immunity doctrine is to free officials from the concerns of
litigation.” Ashcroft v. Iqbal, 556 U.S. 662, 685, 129 S. Ct. 1937, 1953 (2009) (internal

quotations and citations omitted). A qualified immunity defense is thus “an
immunity from suit rather than a mere defense to liability.” Pearson v. Callahan,
555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009).
When reviewing a motion for summary judgment, the court must view all of
the facts in the light most favorable to the non-moving parties and draw all
reasonable inferences in their favor. But an assertion of qualified immunity alters

the standard. Once qualified immunity is asserted, “the burden then shifts to the
plaintiff, who must rebut the defense by establishing a genuine fact issue as to
whether the official’s allegedly wrongful conduct violated clearly established law.”
Trammell v. Fruge, 868 F.3d 332, 338 (5th Cir. 2017). Nonetheless, all inferences are
still viewed in the light most favorable to the plaintiff. Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010).
In Saucier v. Katz, the Supreme Court set forth a two-part framework to

determine if a plaintiff has overcome a qualified immunity defense. 533 U.S. 194
(2001). First, a court should determine whether, “[t]aken in the light most favorable
to the party asserting the injury, do the facts alleged show the officer’s conduct
the alleged conduct violated a “clearly established” right in that “it would be clear to
a reasonable officer that his conduct was unlawful in the situation he confronted.”
Id. at 202. A right is “clearly established” when it is “sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012). Therefore, qualified immunity
applies in all cases but those where the official is “plainly incompetent” or “knowingly
violate[s] the law.” Mullenix 577 U.S. at 12 (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986)).
A. Fourth Amendment Violation
To overcome Iles’ assertion of qualified immunity, Bailey must show that his
Fourth Amendment rights were violated and that such rights were clearly
established at the time of his arrest, such that a reasonable officer would have known
that the arrest was unlawful. See, Voss v. Goode, 954 F. 3d 234, 238 (5th Cir. 2020).

It is well established that an arrest without a warrant is lawful if authorized
under state law and supported by probable cause. See, Virginia v. Moore, 553 U.S.
164, 173 (2008). Probable cause for an arrest exists when there are “facts and
circumstances within the officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the circumstances shown, that
the suspect has committed, is committing, or is about to commit an offense.” Piazza
v. Mayne, 217 F.3d 239, 245-46 (5th Cir. 2000) (quoting Michigan v. DeFillippo, 443

U.S. 31, 37 (1979)). The experience and expertise of police officers should be
considered when determining if a reasonably cautious person would find that a crime
has been or will be committed. Id. at 246. Additionally, in determining whether a
officer need not show that his or her belief that an offense has been committed is
correct or more likely so than not. Id. (quoting Texas v. Brown, 460 U.S. 730, 742
(1983)). Rather, a law officer need only show that he or she believed there was a “fair
probability” that the violation occurred. Id.
Here, the facts presented to the Court, even when accepted in the light most
favorable to Bailey, show that probable cause existed for his arrest. Bailey was
arrested for violating Louisiana’s terrorizing statute which in relevant part provides

that:
“Terrorizing is the intentional communication of information that the
commission of a crime of violence is imminent or in progress or that
circumstances dangerous to human life exists or is about to exist, with
the intent of causing members of the public to be in sustained fear for
their safety, or causing evacuation of a building, a public structure, or a
facility of transportation; or causing serious disruption to the general
public.”

La. R.S. § 14:40.1(A).
Considering the totality of the circumstances surrounding Bailey’s arrest, the
Court finds that Detective Iles was reasonable in believing probable cause existed to
arrest Bailey. See, United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996) (noting
that, “[p]robable cause exists when the totality of the facts and circumstances within
a police officer’s knowledge at the moment of the arrest are sufficient for a reasonable
person to conclude that the suspect had committed or was committing an offense.”).
Although some facts surrounding the incident are in dispute, including Bailey’s true
intentions in making the Facebook post and the officers’ actions in effecting his arrest,
these issues are not determinative. [Doc. 16-2, pp. 2-3]; [Doc. 20-1, pp. 6-7]; [Doc. 20-
3, p. 4]; Traver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). Rather, as discussed
perceive his Facebook post as an intentional communication of misinformation likely
to cause fear and potential violence in the community. [Doc. 20-3, pp. 4-5]. To the
contrary, the available evidence clearly demonstrates that Detective Iles was justified
in his stated belief.
Context is critical to the analysis that follows. The subject Facebook post was
made at the beginning of the COVID-19 pandemic, when Iles testified that “there was
a lot of protests at the time in reference to law enforcement,” and because of that he

viewed Bailey’s post as, “an attempt to get someone hurt.” [Id.]. Indeed, there was
much fear and uncertainty throughout the country in late March of 2020 resulting
from the onset of the COVID-19 pandemic and the resulting closing of schools and
workplaces and cancelling of public events. Detective Iles testified that he relied on
the information related to him by his supervisors to the effect that they believed
Bailey’s post constituted a legitimate threat to public safety. [Doc. 20-3, p. 4]; See,

Hunter v. Bryant, 502 U.S. 224, 228 (1991) (finding that probable cause exists where
a prudent officer would believe that a crime had been committed based on the “facts
and circumstances within their knowledge and of which they had reasonably
trustworthy information”). Additionally, Iles perceived this post as nefarious, rather
than as a joke, because of Bailey’s exhortations to “Share, share, share,” and the
“comments” under the post stating, “I’m reporting you. I’m reporting you” and “This
is your fault...You made me do this.” [Doc. 20-3, pp. 4-5]. Detective Iles further

testified that he did not view Bailey’s post as being made just “for a laugh or for
[Bailey’s] friends to just laugh about it,” because Bailey “wanted it to go viral,” and
Detective Iles anticipated that “with everything going at the time this...was used as
The Court finds that Detective Iles’ belief in this regard was a reasonable one.
Aside from the specific circumstances of Bailey’s online activities, the context and
circumstances of national and global affairs at the time of the post − March 20, 2020
– are critical to the Court’s analysis, as they very well should have been to Bailey.
On March 9, 2020, a Louisiana resident was first reported to have tested positive for
COVID-19, with more residents testing positive in the following days. La. Exec.
Dep’t, Proclamation No. 25 JBE 2020, (March 11, 2020). On March 11, 2020, the

World Health Organization (the W.H.O.) designated COVID-19 as a global pandemic.
Also on March 11, 2020, Louisiana Governor John Bel Edwards declared a statewide
public health emergency. La. Exec. Dep’t, Proclamation No. 25 JBE 2020 (March 11,
2020). On March 12, 2020, Louisiana State University announced that all classes
would be cancelled for two-weeks and would then resume online. On March 13, 2020,
then-President Donald Trump declared a national emergency and issued a travel ban

on non-United States citizens traveling from Europe. That same day Governor
Edwards announced that all public schools in Louisiana grades K-12 would be closed.
By March 19, 2020, prisoners were being released from jails in Louisiana and around
the country because of the COVID-19 pandemic. Just two days after Bailey’s post, on
March 22, 2020, Governor Edwards issued a “Stay-at-Home” Order, directing all
Louisiana residents to stay in their homes and to only leave for essential needs. La.
Exec. Dep’t, Proclamation No. 33 JBE 2020, (March 22, 2020). And only ten days

after Bailey’s post, on March 30, 2020, so many Americans were hospitalized with
COVID-19 in New York City that tents were set up in Central Park to serve as a
makeshift hospital. 3
Misinformation was also rampant in the early days of the COVID-19 pandemic.
The spread of misinformation related to COVID-19 was so prevalent on social media
and other internet sites that the W.H.O. termed it an “infodemic.” For example, the
W.H.O. had to post an infographic to their Instagram page explaining that although
a healthy food, garlic had not been found to prevent COVID-19. The W.H.O. also had

to dispel misinformation claiming that drinking bleach could cure the virus. False
information circulated on social media purporting that a self-diagnosis of COVID-19
could be made by holding your breath for 10 seconds, that drinking water at least
every 15 minutes would “wash the virus down” and prevent infection, and that
drinking salt water would “kill” the virus. Drinking silver was also widely shared on
Facebook as a treatment for COVID-19.

During the same timeframe as Bailey’s post, a viral Facebook post falsely
claimed that police officers in China had publicly killed a woman who was infected

3 This brief timeline was gathered from the following news articles: AJMC Staff, A
Timeline of COVID-19 Developments in 2020, AJMC (Jan. 1, 2021),
https://www.ajmc.com/view/a-timeline-of-covid19-developments-in-2020; WWL Staff, LSU
cancels classes before March 20, moves to online platform rest of semester, 4WWL (March
12, 2020, 4:18 PM), https://www.wwltv.com/article/news/health/coronavirus/lsu-cancels-
classes-before-march-20-moves-to-online-platform-for-rest-of-semester/289-3195e07c-5cfa-
46ea-93df-b82b10a5fb90#:~:text=NEW%20ORLEANS%20%E2%80%94%20LSU%20face-to-
face%20classes%20have%20been,30%2C%20the%20university%27s%20official%20Twitter
%20account%20tweeted%20Thursday.; WWL Staff, Louisiana Coronavirus Updates: 36
diagnosed cases, All public schools closing on Monday, 4WWL, (March 13, 2020, 5:47 AM),
https://www.wwltv.com/article/news/health/coronavirus/louisiana-coronavirus-updates-
march-13/289-4de0d6c9-d9da-4ddf-adc3-2bf74acc294e; US jails begin releasing prisoners to
stem COVID-19 infections, BBC News, (March 19, 2020), https://www.bbc.com/news/world-
us-canada-51947802; Debbie White and Danielle Cinone, Triage tents set up in makeshift
Central Park field hospital as NYC coronavirus death toll nears 700, The Sun, (March 30,
2020, 4:45 PM), https://www.thesun.co.uk/news/11283476/triage-tents-set-up-in-makeshift-
with COVID-19. Another post, viral on Twitter, falsely stated that police in China
shot and killed a woman who was trying to escape a quarantine. Social media
companies acknowledged the use of their sites to spread misinformation leading
Facebook, YouTube, Google, Microsoft, Reddit, and Twitter to issue a joint statement
on March 16, 2020, stating that they were working together to limit the amount of
false COVID-19 information shared on their sites. The W.H.O. subsequently reported
that an estimated 6,000 people globally had been hospitalized because of COVID-19

misinformation in the early days of the pandemic.4
It has been just over two years since this transpired. We all remember the
dramatic social and cultural changes that were thrust upon us in March of 2020.
There was great uncertainty, fear, and in many cases, panic, in our community. Most
of us subsequently lost friends and family members to this disease. It was in this
context – with his community at perhaps its most vulnerable – that Bailey decided to

4 This information was gathered from the following news articles: Matt Richtel, W.H.O.
Fights a Pandemic Besides Coronavirus: An “Infodemic”, New York Times, (February 6,
2020), https://www.nytimes.com/2020/02/06/health/coronavirus-misinformation-social-
media.html; Gabby Landsverk, Holding your breath can’t help you self-diagnose the
coronavirus. Here’s what you should do instead., Business Insider, (April 19, 2020, 10:51
AM); https://www.businessinsider.com/holding-breath-10-seconds-drinking-water-wont-
cure-diagnose-coronavirus-2020-3; Reality Check team, Coronavirus: The fake health advice
you should ignore, BBC News, (March 8, 2020), https://www.bbc.com/news/world-51735367;
Jhooth Bole Kauva Kaate. Fact Check: Did police publicly kill coronavirus-infected woman
in China?, India Today, https://www.indiatoday.in/fact-check/story/fact-check-did-police-
publicly-kill-coronavirus-infected-woman-in-china-1645123-2020-02-10; Liselotte Mas, Did
police kill a woman escaping a COVID-19 quarantine in China?, Yahoo! News, (February 19,
2020), https://uk.news.yahoo.com/did-police-kill-woman-escaping-172920113.html; Tyler
Sonnemaker, Facebook, Google, Microsoft, Reddit, and Twitter just said they’re working
together to fight coronavirus misinformation, Business Insider, (March 16, 2020, 8:37 PM),
https://www.businessinsider.com/facebook-google-youtube-microsoft-reddit-twitter-fight-
coronavirus-covid19-misinformation-2020-3); Fighting misinformation in the time of COVID-
19, one click at a time, World Health Organization, (April 27, 2021),
https://www.who.int/news-room/feature-stories/detail/fighting-misinformation-in-the-time-
of-covid-19-one-click-at-a-time.
make a “joke” to the effect that a local law enforcement agency had been directed to
kill those who had been infected with COVID-19. This was not only irresponsible,
but it might very well have been criminal. Indeed, the Court finds it well within the
realm of possibility that his Facebook post, if it had indeed gone “viral,” was likely to
have caused sustained fear, anxiety, and perhaps injury and death among the people
of central Louisiana.
The context of when Bailey made his Facebook post is not only relevant, but it

is central to the Court’s decision in this case. If Bailey made this post today, over two
years after COVID-19 was declared a pandemic, with multiple different variations of
vaccines available and with many people returning to work and normal life, he may
be correct that most of the public (and indeed law enforcement) would be clear that
this post was meant as a harmless joke.
But Bailey’s Facebook post must be viewed in the context into which he

intentionally placed it – a time when misinformation and fear were prevalent
throughout the United States, including in Rapides Parish, Louisiana. When
evaluating this context and viewing Bailey’s post in light of the “totality of the
circumstances,” it is clear that Detective Iles was justified in believing probable cause
existed to arrest Bailey for violating Louisiana’s terrorizing statute.
The Court finds that Detective Iles was reasonable in concluding that Bailey
had committed or was committing an offense. Because Bailey was arrested pursuant

to probable cause, Detective Iles is entitled to qualified immunity and summary
judgment on Bailey’s § 1983 claim asserting violations of the Fourth Amendment.
B. First Amendment Violation
Detective Iles is likewise entitled to qualified immunity from Bailey’s claim
that his First Amendment rights were violated by his arrest and detention. In
asserting First Amendment claims against the Defendants, Bailey argues that he was
arrested in retaliation for a “joke” that was “at the expense of the Rapides Parish
Sheriff’s Office” and was therefore arrested in retaliation for “protected political
speech” in violation of his First Amendment right. [Doc. 1, ¶¶ 84-87].

The First Amendment protects an individual engaged in protected speech from
retaliatory actions by government officials. Nieves v. Bartlett, 139 S.Ct. 1715, 1722
(2019). In order to establish a claim of First Amendment retaliation, a plaintiff must
show that: (1) he or she was engaged in constitutionally protected activity; (2) the
actions of the defendant(s) caused him or her to suffer an injury that would chill a
person of ordinary firmness from continuing to engage in that activity; and (3) the

defendant(s) adverse actions were substantially motivated by the exercise of the
constitutionally protected conduct. Kennan v. Tejeda, 290 F. 3d 252, 258 (5th Cir.
2002). Additionally, when alleging a claim of false arrest in retaliation for exercising
First Amendment rights, a plaintiff must show that the arrest was in fact retaliatory
and lacked probable cause. See, Roy v. City of Monroe, 950 F.3d 245, 255 (2020);
Kennan, 290 F.3d at 262. In this regard, the officer’s retaliation must be a
“substantial” or a “motivating factor” for the arrest. Kokesh v. Curlee, 14 F.4th 382,

396 (5th Cir 2021).
The first requirement Bailey must meet to assert a valid First Amendment
retaliation claim is proving that his Facebook post was in fact constitutionally
of speech,” it has been precedent in the United States for over one hundred years that
speech is not protected when “words used are used in such circumstances and are of
such a nature as to create a clear and present danger,” such as “falsely shouting fire
in a theatre and causing panic.” Schenck v. United States, 249 U.S. 47, 52 (1919).
When evaluating whether speech creates a “clear and present danger,” the context of
the speech must be considered. Id. (noting that “in many places and in ordinary times
the defendants in saying all that was said...would have been within their

constitutional rights. But the character of every act depends upon the circumstances
in which it is done.”).
The Supreme Court further expounded on what is meant by “clear and present
danger” fifty years later in Bradenburg v. Ohio. 395 U.S. 444 (1969). There, the
Supreme Court affirmed that “advocacy [that] is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action” is not protected

speech. Id. at 447. Here, Bailey was not arrested after advocating for a particular
type of action, a particular political viewpoint, or for criticizing his government.
Instead, Bailey’s post publishing misinformation during the very early stages of the
COVID-19 pandemic and time of national crisis was remarkably similar in nature to
falsely shouting fire in a crowded theatre. Viewed in light of the surrounding
circumstances, Bailey’s Facebook post may very well have been intended to incite
lawless action, and in any event, certainly had a substantial likelihood of inciting

fear, lawlessness, and violence. See, Abrams v. U.S., 250 U.S. 616, 621 (1919) (“Men
must be held to have intended, and to be accountable for, the effects which their acts
were likely to produce.”). Considering the societal context and totality of the
his arrest was therefore not a violation of his freedom of speech under the First
Amendment.
Even assuming, arguendo, that Bailey’s speech was protected by the First
Amendment, he still does not have a valid claim of a constitutional violation. As
mentioned above, Detective Iles had probable cause to believe that Bailey’s Facebook
post violated Louisiana’s terrorizing statute. See, Section II.A, supra. Accordingly,
Detective Iles was acting pursuant to a Louisiana statute that, at the time of his

arrest and still today, is presumptively constitutional and enforceable. See,
DeFillippo, 443 U.S. at 37-38 (finding that probable cause to conduct an arrest existed
when a presumptively valid ordinance had been violated, even when the ordinance
was later deemed to be unconstitutional, and stating that “[p]olice are charged to
enforce laws until and unless they are declared unconstitutional,” noting an exception
only when “a law [is] so grossly and flagrantly unconstitutional that any person of

reasonable prudence would be bound to see its flaws”). Detective Iles therefore had
no reason to believe that he was violating Bailey’s First Amendment rights when
arresting him.
Lastly, accepting as true Bailey’s allegation that when he was arrested an
officer laughed and told him that the next thing he posts on Facebook, “should be not
to fuck with the Police,” this alone is insufficient to show that Bailey’s arrest was
animated by a retaliatory motive, rather than probable cause. [Doc. 16-1, p. 6]; See,

Nieves 139 S.Ct. 1715, 1725 (quoting Devenpeck v. Alford, 543 U.S. 146, 153-55
(2004)) (holding that a “particular officer’s state of mind is simply ‘irrelevant’ and it
provides ‘no basis for invalidating an arrest.’ ”). Rather, because Bailey has failed to
succeed on his First Amendment retaliation claim. Detective Iles is therefore entitled
to qualified immunity from Bailey’s First Amendment claim under § 1983.
III. State Law Claims
Having determined that the federal claims asserted by Plaintiff are properly
dismissed, the Court must next decide whether exercising supplemental jurisdiction
over the remaining state law claims is proper. The statutory factors set forth by 28
U.S.C. § 1367(c) and the common law principals of judicial economy, convenience,

fairness, and comity guide district courts when determining whether to exercise
jurisdiction over pendant state law claims. Enochs v. Lampasas Cty., 641 F.3d 155,
158-59 (5th Cir. 2011); Carnegie-Mellon Univ., 484 U.S. 343, 350 (1988). 28 U.S.C. §
1367(c) provides that when the state law claim has a common nucleus of operative
fact or arises out of the same transaction or occurrence as another federal claim, a
federal court has the power to exercise jurisdiction over the state law claim. See,

United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966).
The state law claims raised by Bailey are essentially the Louisiana equivalent
of his federal law claims. These state law claims clearly involve the same common
nucleus of operative fact and arise out of the same transaction or occurrence. For
Bailey to prevail on his state law claims, there must be an absence of probable cause.
The absence of probable cause is likewise a determinative factor in Bailey’s claims of
constitutional violations. Because the state law claims require the same legal

determination as the federal claims, this Court will exercise jurisdiction over those
claims.5

5 The Court’s dismissal of Bailey’s § 1983 claims is based on qualified immunity – a
A. False Arrest
To prove a claim of false arrest under Louisiana law the plaintiff must show:
“(1) detention of the person; and (2) the unlawfulness of the detention.” Richard v.
Richard, 74 So.3d 1156. 1159 (La. 2011). The plaintiff bears the burden of showing
that the arrest was unlawful, or “made without color of legal authority.” Touchton v.
Kroger Co., 512 So. 2d 520, 524 (3d Cir. 1987). An arrest is lawful if it is made
pursuant to a valid arrest warrant or pursuant to probable cause. See, Deville v.

Marcantel, 567 F.3d 156, 172 (5th Cir. 2009). As stated above, Detective Iles had
probable cause to arrest Bailey for violating the Louisiana terrorizing statute. See,
Section II.A, supra. Even accepting all of Bailey’s factual assertions as true, he has
failed to meet his evidentiary burden. Accordingly, Bailey’s claim for false arrest fails
because the arrest was made pursuant to a presumptively valid state criminal
statute. Likewise, because Bailey has not asserted a valid claim against Iles for false

arrest, Wood is not liable for false arrest under the doctrine of respondeat superior.
B. Malicious Prosecution
To prove a claim of malicious prosecution the plaintiff must show: “(1) the
commencement or continuance of an original criminal or civil judicial proceeding; (2)
its legal causation by the present defendant in the original proceeding; (3) its bona
fide termination in favor of the present plaintiff; (4) the absence of probable cause for
such proceeding; (5) the presence of malice therein; and (6) damage conforming to

legal standards resulting to the plaintiff.”. Jones v. Soileau, 448 So.2d 1268, 1271

231, 239 (5th Cir. 2008). However, just as the existence of probable cause for Bailey’s arrest
defeats his claims under § 1983, the existence of probable caused for Bailey’s arrest likewise
(La. 1984). Bailey cannot establish a valid claim for malicious prosecution because
he has not provided sufficient evidence to show the elements of the claim are met. As
mentioned above, even when accepting all facts alleged by Bailey as true, it is clear
that Detective Iles had probable cause to arrest Bailey for violating Louisiana’s
terrorizing statute. See, Section IJ.A, supra. Further, since no criminal charges were
filed by the Rapides Parish District Attorney against Bailey, the Complaint fails to
state a cognizable claim against the Defendants. See, Systems Contractors Corp. v.
Orleans Parish School Bd., 1996 WL 547414, at * 2 (E.D. La. Sept. 24, 1996) (holding
that “There is no cause of action for malicious prosecution when no bill of information
or indictment has been filed.”).
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff's MOTION FOR PARTIAL SUMMARY
JUDGMENT [Doc. 16] is DENIED and Defendants’ MOTION FOR SUMMARY JUDGMENT
[Doc. 20] is GRANTED.
IT IS FURTHER ORDERED that all claims asserted by Plaintiff against
Defendants, Randell Iles and Sheriff Mark Wood, are DISMISSED WITH
PREJUDICE.
THUS, DONE AND SIGNED in Chambers on this 20“ day of July 2022.
baie C aoe
DAVID C. JOSEPH
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10195047. Public record. Not legal advice.