[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 lawenforcement community. Indeed, several months later, Bailey found himself 

without a job. 

 

1 “The pen is mightier than the sword.” EDWARD BULWER-LYTTON, RICHELIEU; 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.

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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, DefendantAppellant 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. 

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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 lawenforcement 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).

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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).

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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. 

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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.

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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. 

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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 element8

—

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 

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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. 

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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 lawenforcement officer may have understood that instruction. Under Georgia law, 

when a subject is armed and dangerous, an officer may shoot the subject in selfdefense—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.merriamwebster.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 lawenforcement 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.merriamwebster.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 lawenforcement 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 lawenforcement 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 lawenforcement 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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