               Case: 15-11627        Date Filed: 11/28/2016      Page: 1 of 22


                                                                                  [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-11627
                               ________________________

                       D.C. Docket No. 1:13-cv-00941-RWS-ECS



DERRICK BAILEY,

                                                                          Plaintiff - Appellee,

versus

MAJOR TOMMY WHEELER,
in his individual and official capacity,

                                                                      Defendant - Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                    (November 28, 2016)

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and URSULA
UNGARO, * District Judge.


         *
          The Honorable Ursula Ungaro, United States District Court for the Southern District of
Florida, sitting by designation.
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ROSENBAUM, Circuit Judge:

       The be-on-the-lookout advisory (“BOLO”) to all law enforcement in

Douglas County, Georgia, described its subject as a “loose cannon.” “Consider

this man a danger to any [law-enforcement officer] in Douglas County and act

accordingly,” the BOLO alarmingly warned and ominously instructed.

       What had the subject of the BOLO done to trigger such a grave alert? 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. 1 An officer of the Douglasville

Police Department, Bailey had filed a written complaint with his chief, reporting

that other Douglasville officers and Douglas County Sheriff’s Office deputies had

been racially profiling minority citizens and committing other constitutional

violations. 2

       Bailey’s revelations did not go over well in Douglas County’s law-

enforcement community.          Indeed, several months later, Bailey found himself

without a job.


       1
       “The pen is mightier than the sword.” EDWARD BULWER-LYTTON, R ICHELIEU; OR,
THE CONSPIRACY, act 2, sc. 2 (1839).
       2
          Bailey uses the term “minority citizens” to describe the individuals against whom law
enforcement was committing constitutional violations. We adopt his terminology for purposes
of this opinion.
                                              2
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       But that did not silence Bailey. Instead, Bailey filed an appeal with the City

of Douglasville, again reporting constitutional violations by his fellow officers.

The City held a hearing on Bailey’s appeal. And the very next day, Defendant-

Appellant Major Tommy Wheeler of the Douglas County Sheriff’s Office issued a

county-wide alert to all law-enforcement officers, picturing Bailey, warning that he

was a “loose cannon” who presented a “danger to any [law-enforcement officer] in

Douglas County,” and directing officers to “act accordingly.”

       Bailey did not sit idly by. He sued Wheeler and others, asserting, among

other causes of action, a claim under 42 U.S.C. § 1983 for violation of his First

Amendment rights and a claim under Georgia law for defamation. When Wheeler

sought to dismiss these claims, the district court denied his motion. We now

affirm.

                                                I.

                                               A.

       Bailey had more than seventeen years of law-enforcement experience when

he joined the City of Douglasville Police Department (“Police Department”) as a

police officer in March 2010.3 So it is not surprising that between May 2010 and



       3
         On a motion to dismiss, the court must accept as true all factual allegations in the
complaint and draw all reasonable inferences in the plaintiff’s favor. Randall v. Scott, 610 F.3d
701, 704 (11th Cir. 2010). For this reason, we take our factual recitation from Bailey’s operative
complaint.
                                                3
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June 2012, Bailey received above-average employee performance appraisals from

his supervisors.

       But Bailey’s time employed with the Police Department was far from

perfect.     On April 26, 2011, Bailey filed a written complaint with his chief,

reporting that Police Department officers and Douglas County Sheriff’s Office

(“Sheriff’s Office”) deputies were racially profiling minority citizens and

committing other constitutional violations.              Bailey also complained that law-

enforcement officers made racially offensive comments and jokes about minorities,

describing black males as “black as shoe polish wearing all black” and remarking

that the City of Douglasville’s (“City”) logo was a “lynching tree.”4 Finally,

Bailey expressed concern that he would lose his job for “making the complaints

and speaking out about racial profiling and other violations.”

       Although repercussions of Bailey’s complaint did not follow immediately, in

the fall of 2012, Bailey’s supervisors ordered Bailey to rewrite incident reports that

he had previously filed, and they conducted an investigation of Bailey. When

Bailey reminded his supervisors that rewriting incident reports violated Police



       4
           The seal of the City of Douglasville appears below:




http://www.ci.douglasville.ga.us/ (last visited Nov. 21, 2016).
                                                 4
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Department policy, he was initially placed on administrative leave with pay, then

suspended for three days without pay, and then charged on November 8, 2012,

with conduct unbecoming an officer. 5 Eight days later, though Bailey had no prior

write-ups or reprimands on his record, Bailey was terminated from his position

with the Police Department.

       Two days after that, on November 18, 2012, Bailey appealed his termination

to the City. In his appeal, Bailey wrote that he believed that he was fired for

speaking out against profiling, other unconstitutional conduct, and racially

offensive remarks made by that Police Department officers and Sheriff’s Office

deputies.

       The City held a hearing on Bailey’s appeal on February 8, 2013. That very

night, two deputies in a Sheriff’s Office vehicle followed Bailey as he drove his

personal car from Douglasville into the City of Atlanta. When Bailey entered his

intended destination, the two deputies followed him in and stared him down.

       Things did not improve for Bailey.                The next day, February 9, 2013,

Wheeler issued the BOLO on Bailey, displaying Bailey’s photograph, calling him



       5
           The U.S. Department of Justice Office of Community Oriented Policing Services, in
conjunction with the International Association of Chiefs of Police, has defined “conduct
unbecoming” as “[a] term of administration regarding misconduct by law enforcement officers
that usually applies to distasteful and undesirable conduct that is not clearly criminal or corrupt.”
U.S. Dep’t of Justice & Int’l Ass’n of Chiefs of Police, An Internal Affairs Promising Practices
Guide for Local Law Enforcement, at 42, http://www.theiacp.org/portals/0/pdfs/buildingtrust.pdf
(last visited Nov. 21, 2016).
                                                 5
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a “loose cannon,” and warning law-enforcement officers to “[c]onsider this man a

danger to any [law-enforcement officer] in Douglas County and act accordingly.”

And for the second day in a row, law enforcement—this time vehicles from both

the Sheriff’s Office and the Police Department—followed Bailey as he drove his

personal car.

       About three weeks went by, and Bailey was permitted to return to work at

the Police Department. At that time, the Police Department’s chief advised Bailey

that Bailey could cancel the BOLO against him by calling the Sheriff’s Office.

                                              B.

       On March 25, 2013, Bailey filed this lawsuit. In the course of pretrial

litigation, Bailey filed a second amended complaint. As it pertained to Wheeler,6

the second amended complaint alleged four causes of action, including, as relevant

here, a claim that, in violation of 42 U.S.C. § 1983, Wheeler had retaliated against

Bailey for exercising his First Amendment rights, and a claim that Wheeler had

defamed Bailey under Georgia law.

       Wheeler moved to dismiss the counts against him, contending that Bailey

had failed to state a claim and that, in any event, Wheeler was entitled to qualified

immunity on the § 1983 claim and official immunity on the defamation claim. The


       6
         Bailey also sued the City and other officers and deputies. Ultimately, however, Bailey
voluntarily dismissed the claims against them with prejudice, pursuant to an agreement among
those parties.
                                              6
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district court denied Wheeler’s motion as it pertained to the First Amendment and

defamation claims. 7 Wheeler now appeals.

                                            II.

       We have jurisdiction to review Wheeler’s interlocutory appeal of the district

court’s denial of qualified immunity and official immunity. Cummings v. DeKalb

Cty., 24 F.3d 1349, 1352 (11th Cir. 1994).

       We review de novo a district court’s denial of qualified immunity on a

motion to dismiss. Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013). We

likewise review de novo the denial of official immunity under Georgia law. Hoyt

v. Cooks, 672 F.3d 972, 981 (11th Cir. 2012). In doing so, we accept as true the

facts alleged in the complaint, drawing all reasonable inferences in a plaintiff’s

favor. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).

                                            III.

       Section 1983 of Title 42, United States Code, creates a private right of action

to remedy violations of “rights, privileges, or immunities secured by the

Constitution and laws” of the United States. Rehberg v. Paulk, 132 S. Ct. 1497,

1501 (2012). The cause of action is available against “[e]very person who acts

under color of state law to deprive another of a constitutional right.” Id. (citation

and internal quotation marks omitted). To establish a claim under § 1983, a

       7
         As it related to other claims against Wheeler, the district court granted Wheeler’s
motion to dismiss. Bailey did not cross-appeal, so we do not discuss those claims here.
                                             7
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plaintiff must demonstrate that a person acting under color of state law deprived

him of a federal right. Myers v. Bowman, 713 F.3d 1319, 1329 (11th Cir. 2013).

      But even if a plaintiff makes this showing, a defendant may seek to invoke

the protections of qualified immunity. Qualified immunity shields public officials

from liability for civil damages when their conduct does not violate a constitutional

right that was clearly established at the time of the challenged action. City & Cty.

of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775 (2015).

      To be eligible for qualified immunity, a government official must first

establish that he was acting within the scope of his discretionary authority when

the alleged wrongful act occurred. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002). Here, Bailey does not dispute that Wheeler was acting within the scope of

his discretionary authority when he issued the BOLO against Bailey.

      So the burden shifts to Bailey, as the plaintiff, to establish that qualified

immunity does not apply. Id. To do this, Bailey must make two showings: first,

he must demonstrate that Wheeler’s issuance of the BOLO violated Bailey’s

constitutionally protected right. Second, he must show that the right was clearly

established at the time that Wheeler issued the BOLO. Pearson v. Callahan, 555

U.S. 223, 232 (2009); Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir.

2010). Bailey must satisfy both prongs of the analysis to overcome a defense of

qualified immunity. See Grider, 618 F.3d at 1254.

                                         8
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       A. Wheeler violated Bailey’s First Amendment rights

       Bailey alleges that Wheeler issued the BOLO against him to punish Bailey

for reporting law enforcement’s unconstitutional treatment of minority citizens. To

state a claim for retaliation under the First Amendment, a plaintiff must

demonstrate that (1) he engaged in protected speech; (2) the defendant’s conduct

adversely affected the protected speech; and (3) a causal connection exists between

the speech and the defendant’s retaliatory actions. See Smith v. Mosley, 532 F.3d

1270, 1276 (11th Cir. 2008); Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.

2005).

       Wheeler does not contend that Bailey failed to establish the first element 8—

that he engaged in protected speech. Instead, Wheeler argues that Bailey’s First



       8
          We agree with Wheeler’s implicit concession that Bailey alleged sufficient facts to
show that he engaged in protected speech when he complained to his chief, and again in his
termination appeal, that Douglas County law-enforcement officers were involved in racial
profiling and other inappropriate and unconstitutional conduct. The Supreme Court has
emphasized that public employees do not forfeit all their First Amendment rights by simple
virtue of their public employment. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “So long as
employees are speaking as citizens about matters of public concern, they must face only those
speech restrictions that are necessary for their employers to operate efficiently and effectively.”
Id. at 419. Clearly, if officers are systematically violating minority citizens’ constitutional rights,
that is a matter of public concern. Nor does it matter that Bailey expressed concerns related to
law enforcement when he was an officer or that he did so to his chief, instead of publicly. See id.
at 420-21. Indeed, law-enforcement officers are “members of a community most likely to have
informed and definite opinions” on appropriate law-enforcement conduct. See id. (citation and
internal quotation marks omitted). For this reason, “it is essential that they be able to speak out
freely on such questions without fear of retaliatory dismissal.” Id. (citation and internal
quotation marks omitted). Rather, the “controlling factor” is whether the public employee made
his expressions pursuant to his specific job duties. Id. If he did not, he engaged in protected
speech. Here, nothing in the record demonstrates that one of Bailey’s duties as a police officer
                                                  9
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Amendment claim fails under the second prong because, in Wheeler’s view, the

BOLO he issued was unlikely to deter a person of ordinary firmness from

exercising his First Amendment rights. Wheeler also asserts that it fails under the

third prong for two reasons: (1) Bailey did not allege that he expressed his

concerns about racial profiling and other inappropriate and unconstitutional

behavior by law-enforcement officers to anyone at the Sheriff’s Office, and (2)

Bailey failed to aver any facts that would allow the inference that Wheeler acted

with the motive of retaliating against Bailey for exercising his First Amendment

rights.

          We begin with the second element—whether Wheeler’s conduct adversely

affected Bailey’s protected speech. In this Circuit, we have explained that a

defendant adversely affects protected speech if his alleged retaliatory conduct

“would likely deter a person of ordinary firmness from the exercise of First

Amendment rights.” Bennett, 423 F.3d at 1254. We use this objective standard

because it gives government officials notice of when their retaliatory actions

violate a plaintiff’s First Amendment rights. Id. at 1251.

          In this case, we readily conclude that Wheeler’s BOLO “would likely deter a

person of ordinary firmness from the exercise of First Amendment rights.” First,

the BOLO described Bailey as a “loose cannon” who was a “danger to any [law-

was to report unconstitutional conduct by not only Police Department officers but also Sheriff’s
Office deputies.
                                              10
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enforcement officer] in Douglas County.” Viewed in a light most favorable to

Bailey, this description, accompanied by Bailey’s photograph, created the

impression that Bailey was mentally unstable9 and roaming Douglas County with a

grudge against law-enforcement officers. Then, after inciting law-enforcement

officers to fear for their lives, the BOLO empowered these now-anxious officers to

“act accordingly” upon coming into contact with Bailey.

      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. See Smith v. LePage, 834 F.3d 1285, 1298 (11th Cir. 2016); see also Kidd

v. Coates, 518 S.E.2d 124, 125 (Ga. 1999). 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




      9
          See Loose cannon, Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/loose%20cannon, at “Full Definition of LOOSE CANNON” (last visited
Nov. 21, 2016); “a dangerously uncontrollable person or thing.”
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law-enforcement officers—as imperiling themselves or anyone else.10 We think

that this situation, which potentially seriously endangered Bailey’s life, easily

would deter a person of ordinary firmness from exercising his First Amendment

rights.

          And we find that is especially the case here, considering the environment in

which Wheeler issued the BOLO. First, Bailey was an African-American law-

enforcement officer who had protested civil-rights abuses by his fellow officers—

the very people to whom the BOLO was distributed.

          Second, Wheeler issued the BOLO on February 9, 2013. Less than a week

earlier, national news outlets had reported that Christopher Dorner, a former Los

Angeles police officer, had raged against law enforcement and killed, among

others, the daughter of a police chief he felt had wronged him. See, e.g., “Alleged

Cop-killer Details Threats to LAPD and Why He Was Driven to Violence,”

http://www.cnn.com/2013/02/07/us/dorner-manifesto/ (last visited Nov. 21, 2016).

So when Wheeler issued the BOLO against Bailey, the story of Dorner—a former

police officer like Bailey—and Dorner’s violent turn against his former fellow

officers, was fresh in the public’s (and law enforcement’s) awareness. Wheeler’s

issuance of the BOLO in this environment raised the specter that Douglas County


          10
            Indeed, if tragedy had ensued and an officer had shot Bailey after reasonably
misconstruing something Bailey had done, that officer could have invoked the very BOLO at
issue to justify his entitlement to qualified immunity.
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might have its own Dorner in the form of Bailey and served to only amplify the

urgency of the BOLO’s warning. We need not engage in conjecture to conclude

that any person of ordinary firmness would be deterred from exercising his First

Amendment rights under these circumstances.

      That brings us to the third element of Bailey’s First Amendment claim—

causation. Wheeler asserts that Bailey’s operative complaint fails to establish

causation both because it includes no allegations that Bailey made his complaints

to anyone at the Sheriff’s Office and, in Wheeler’s view, because it contains no

factual allegations that allow for the reasonable inference that Wheeler issued the

BOLO in retaliation for Bailey’s comments. We disagree.

      As we have explained, a court reviewing a motion to dismiss must draw all

reasonable inferences from the factual allegations in a plaintiff’s complaint in the

plaintiff’s favor. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). When we

do that in this case, we find that the operative complaint sufficiently establishes the

causal connection between Bailey’s complaints and Wheeler’s issuance of the

BOLO.

      Bailey alleges that he complained about racial profiling and other

unconstitutional behavior by Douglas County law-enforcement officers to his chief

and again in his termination appeal. He further asserts that on the very day of the

hearing on his termination appeal, of all days, Sheriff’s Office deputies followed

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him as he drove to and then entered an establishment, and they stared him down.

And the next day, the complaint continues, both a Police Department vehicle and a

Sheriff’s Office vehicle followed Bailey as he drove his personal car. Also on that

same day, the complaint avers, Wheeler issued the BOLO, describing Bailey as a

“loose cannon,” a term that, in addition to being employed to refer to a mentally

unstable person, can be used to refer to “a person who cannot be controlled and

who . . . says things that cause problems, embarrassment, etc., for others.” Loose

cannon,     Merriam-Webster       Online      Dictionary,     http://www.merriam-

webster.com/dictionary/loose% 20cannon, at “Simple Definition of LOOSE

CANNON” (last visited Nov. 21, 2016) (emphasis added); see also Loose cannon,

The American Heritage Dictionary (5th ed. 2011) (“One that is uncontrolled and

therefore poses danger: ‘[His] bloopers in the White House seem to make him . . .

a political loose cannon’ (Tom Morgenthau).”). Finally, Bailey contends that

when he returned to work a few weeks later, his chief informed him that Bailey

could have the BOLO canceled by contacting the Sheriff’s Office.

      Viewed in the light most favorable to Bailey, these allegations allow for the

reasonable inferences that the Police Department communicated with the Sheriff’s

Department about Bailey’s complaints prior to Wheeler’s issuance of the BOLO,

that the Sheriff’s Office and Wheeler knew about the termination-appeal hearing,

and that Wheeler issued the BOLO at least in part in retaliation for Bailey’s

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complaints. As it pertains to the communications among law enforcement about

Bailey’s complaints, the timing of the Sheriff’s Office’s employees’ following of

Bailey and the issuance of the BOLO, the use of the term “loose cannon” in the

BOLO, and the fact that Bailey’s chief instructed him that Bailey could have the

BOLO canceled by calling the Sheriff’s Office all support this reasonable

inference. Similarly, all of these allegations other than those relating to Bailey’s

having been followed can reasonably be read to support the inference that Wheeler

knew about the termination-appeal hearing and that he issued the BOLO in

retaliation for Bailey’s reports that local law-enforcement officers had engaged in

civil-rights abuses of minority citizens. For these reasons, we conclude that Bailey

sufficiently alleged that Wheeler violated Bailey’s First Amendment rights when

he issued the BOLO.

      B.     Bailey’s constitutional right to be free from retaliation that imperiled
             his life was clearly established at the time that Wheeler issued the
             BOLO

      We next consider whether Bailey’s right to be free from retaliation in the

form of the particular BOLO Wheeler issued in this case was clearly established.

We find that it was.

      A right is clearly established if a reasonable official would understand that

his conduct violates that right. See Coffin v. Brandau, 642 F.3d 999, 1013 (11th

Cir. 2011) (en banc). Whether the official had “fair warning” and notice that his

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conduct violated the constitutional right in question drives our inquiry. Id. at 1013,

1015; McClish v. Nugent, 483 F.3d 1231, 1248 (11th Cir. 2007). In determining

whether the law clearly establishes a right, we look to the binding precedent set

forth in the decisions of the Supreme Court, the Eleventh Circuit, or the highest

court of the state (Georgia, here), Amnesty Int’l, USA v. Battle, 559 F.3d 1170,

1184 (11th Cir. 2009), and we conduct our inquiry “in light of the specific context

of the case, not as a broad general proposition,” Lee,284 F.3d at 1194.

      We have said that a plaintiff may show that “the contours of the right were

clearly established in [one of three] ways.” Loftus v. Clark-Moore, 690 F.3d 1200,

1204 (11th Cir. 2012) (citation and internal quotation marks omitted). First, a

plaintiff may identify a materially similar case from relevant precedent. Id. When

a plaintiff proceeds in this way, we consider “whether the factual scenario that the

official faced is fairly distinguishable from the circumstances facing a government

official in a previous case.” Id. (citation and internal quotation marks omitted).

      Second, a plaintiff may rely on a “broader, clearly established principle

[that] should control the novel facts [of the] situation.” Id. at 1204-05 (citation and

internal quotation marks omitted).      We have explained that when a plaintiff

proceeds in this way, he must show that case law established the principle with

“obvious clarity . . . so that every objectively reasonable government official facing

the circumstances would know that the official’s conduct did violate federal law

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when the official acted.”     Id. at 1205 (citation and internal quotation marks

omitted). This category also applies when “[t]he reasoning, though not the holding

of prior cases . . . send[s] the same message to reasonable officers in novel factual

situations.” Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)

(citation and internal quotation marks omitted).

      Finally, a plaintiff may satisfy the “clearly established” requirement when

the defendant’s conduct “lies so obviously at the very core of what the [First

Amendment] prohibits that the unlawfulness of the conduct was readily apparent to

the official, notwithstanding the lack of case law.” Loftus, 690 F.3d at 1205

(citation and internal quotation marks omitted).        Similarly, we recognize the

obvious-clarity exception where conduct is “so bad that case law is not needed to

establish that the conduct cannot be lawful.” Vinyard v. Wilson, 311 F.3d 1340,

1350 (11th Cir. 2002).

      Here, the reasoning of Bennett and the broad principle it establishes should

have put Wheeler on notice that he could not potentially endanger Bailey’s life in

retaliation for Bailey’s exercise of his First Amendment rights. But even if it did

not, we think the conduct alleged in this case is so egregious that Wheeler did not

need case law to know what he allegedly did was unlawful.

      In Bennett, the defendant sheriff and his co-defendants allegedly used their

law-enforcement positions to harass and retaliate against the plaintiffs after the

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plaintiffs supported a county referendum that the sheriff opposed. 423 F.3d at

1248. More specifically, the defendants followed, pulled over, cited, intimidated,

and otherwise harassed the plaintiffs. Id. at 1254. In addition, they accessed

confidential government databases containing information on the plaintiffs,

attempted to obtain arrest warrants against the plaintiffs without probable cause,

and distributed flyers that called the plaintiffs the “real criminals,” members of a

“chain gang,” and “the same type of criminals that terrorize Forsyth County.” Id.

at 1249. We determined that this conduct “would likely deter a person of ordinary

firmness from the exercise of First Amendment rights.” Id. at 1254.

      In reaching this conclusion, we emphasized Judge Posner’s statement that

“[t]he effect on freedom of speech may be small, but since there is no justification

for harassing people for exercising their constitutional rights it need not be great in

order to be actionable.” Id. at 1254 (citation and internal quotation marks omitted).

And we cited with approval cases from other circuits that concluded law-

enforcement officers had violated plaintiffs’ First Amendment rights by

committing “similar or less harassing [retaliatory] acts.” Id. at 1255.

      For example, we cited Garcia v. City of Trenton, 348 F.3d 726 (8th Cir.

2003), which we described as holding that “the retaliatory issuance of parking

tickets totaling $35 created a jury issue because the defendant ‘engaged the

punitive machinery of government in order to punish Ms. Garcia for her speaking

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out.’” Bennett, 423 F.3d at 1255. We similarly relied on Bart v. Telford, 677 F.2d

622 (7th Cir. 1982), which we summarized as holding that a “‘campaign of petty

harassments’ against the plaintiff[,] including ‘[h]olding her up to ridicule for

bringing a birthday cake to the office’ stated a cause of action for retaliation.”

      If a law-enforcement officer may not issue $35 in parking tickets or use his

position to harass and intimidate individuals in retaliation for exercising their First

Amendment rights, a law-enforcement officer certainly may not use his position to

potentially seriously endanger a person’s life in retaliation for exercising First

Amendment rights. We think that is obvious under the case law.

      But even if it were not, it is certainly obvious, as a general proposition and

without reference to case law, that issuing the BOLO Wheeler issued in this case,

under the circumstances that existed at the time, allegedly in retaliation for

Bailey’s speaking up about alleged civil-rights abuses, clearly violated Bailey’s

First Amendment rights.       Law-enforcement officers are sworn to protect and

defend the lives of others. It is completely antithetical to those sworn duties for a

law-enforcement officer to use his position to harness the power of an entire

county’s law-enforcement force to teach a lesson to—and potentially very

seriously endanger—someone who had the temerity to speak up about alleged

abuses.




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      For these reasons, we agree with the district court’s assessment that the

operative complaint sufficiently alleges that Wheeler violated Bailey’s clearly

established constitutional right.     So we affirm the district court’s denial of

Wheeler’s motion to dismiss the § 1983 claim.

                                          IV.

      Wheeler next argues that the district court erred in denying him official

immunity on Bailey’s state-law defamation claim. In        Georgia,     county   law-

enforcement officers like Wheeler generally enjoy official immunity from suits

alleging personal liability in tort for performance of official functions.       See

Eshleman v. Key, 774 S.E.2d 96, 98 (Ga. 2015); see also Ga. Const. art. I, § 2,

para. IX(d). Under this immunity, a state official may not be held liable for

injuries caused through his performance of discretionary functions unless he acts

“with actual malice or with actual intent to cause injury.” Ga. Const. art. I, § 2,

para. IX(d); Brown v. Penland Constr. Co, Inc.., 641 S.E.2d 522, 523 (Ga. 2007).

Here, Bailey contends that Wheeler acted with actual malice in issuing the BOLO,

and Wheeler responds that the complaint does not allege sufficient facts to

reasonably infer actual malice.

      In the context of Georgia’s official immunity doctrine, “‘actual malice’

requires a deliberate intention to do wrong.” Merrow v. Hawkins, 467 S.E.2d 336,

337 (Ga. 1996). It “does not include ‘implied malice,’ i.e., the reckless disregard

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for the rights or safety of others.” Murphy v. Bajjani, 647 S.E.2d 54, 60 (Ga.

2007). Instead, actual malice requires more than “harboring bad feelings” or “ill

will” about another; “rather, ill will must also be combined with the intent to do

something wrongful or illegal.” Adams v. Hazelwood, 520 S.E.2d 896, 898 (Ga.

1999). To overcome official immunity, a plaintiff’s allegations must demonstrate

that the defendant deliberately intended “to cause the harm suffered by the

plaintiff[]”; it is not enough that the defendant merely intended to do the act

purportedly resulting in the claimed injury. Murphy, 647 S.E.2d at 60; see West v.

Davis, 767 F.3d 1063, 1073 (11th Cir. 2014) (quoting Kidd v. Coates, 518 S.E.2d

124, 125 (Ga. 1999)); cf. Reed v. DeKalb Cty., 589 S.E.2d 584, 588 (Ga. Ct. App.

2003) (observing that a plaintiff bears the burden of overcoming official

immunity).

      We have already explained how, viewed in the light most favorable to

Bailey, Bailey’s allegations create the reasonable inference that Wheeler issued the

BOLO to retaliate against Bailey for reporting that Douglas County law-

enforcement officers were racially profiling minority citizens and otherwise

violating their constitutional rights. Since Bailey’s allegations suffice to create this

reasonable inference, they necessarily are enough in the context of this case to

establish the reasonable inference that Wheeler acted with actual malice in issuing

the BOLO. After all, the BOLO Wheeler allegedly issued was enough to cause the

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harm of deterring a person of ordinary firmness from exercising his First

Amendment rights, and it had the potential to result in serious harm or even death

to Bailey—facts that Wheeler must have known at the time that he issued the

BOLO for the purpose of allegedly retaliating against Bailey. These allegations

satisfy the showing of a deliberate intention to do wrong—that is, actual malice.

      So we affirm the district court’s denial of official immunity to Wheeler on

Bailey’s state-law defamation claim.

                                        V.

      “Once a government is committed to the principle of silencing the voice of

opposition, it has only one way to go, and that is down the path of increasingly

repressive measures, until it becomes a source of terror to all its citizens and

creates a country where everyone lives in fear.” President Harry S. Truman,

Special Message to the Congress on the Internal Security of the United States

(Aug. 8, 1950). Our First Amendment demands that a law-enforcement officer

may not use his powerful post to chill or punish speech he does not like. If he does

so, he may not hide behind the veil of qualified immunity. We affirm the district

court’s denial of Wheeler’s motion to dismiss Bailey’s § 1983 and state-law

defamation claims.

      AFFIRMED.




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