Flipping off Police: Contempt of Cop or Free Speech?
Is flipping off a cop protected speech under the First Amendment? The Sixth Circuit Court of Appeals entered an interesting First Amendment ruling this week denying a police officer's motion to dismiss a civil case against him after he was sued by citing a motorist who flipped him off. The facts as detailed by the Court are:
Minard, a police officer in the city of Taylor, Michigan, stopped Cruise-Gulyas in June 2017 for speeding. But he decided to show her leniency and wrote her a ticket for a non-moving violation. As she drove away, Cruise-Gulyas repaid Minard's kindness by raising her middle finger at him. Minard pulled Cruise-Gulyas over a second time, less than 100 yards from where the initial stop occurred, and amended the ticket to a speeding violation.Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *1 (6th Cir. Mar. 13, 2019)
The motorist sued under § 1983 alleging the officer violated her constitutional rights by pulling her over a second time and increasing the charge. She asserted her rights under the Fourth Amendment (unlawful seizure) and First Amendment (free speech right violated when the officer retaliated against her for flipping him off). For purposes of this post and the Court ruling, emphasis will be on the First Amendment issue.
The officer asserted qualified immunity to dismiss the case, but the lower district court denied it. The officer and city appealed to the Sixth Circuit. If qualified immunity applies, the case is over and the motorists loses without the benefit of a jury trial. "Qualified immunity protects police from personal liability unless they violate a person's clearly established constitutional or statutory rights." Kisela v. Hughes, ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018).Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *1 (6th Cir. Mar. 13, 2019) Judge Sutton held that "The rights asserted by Cruise-Gulyas meet that standard." Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *1 (6th Cir. Mar. 13, 2019) But how did he arrive at this conclusion?
There was no evidence before the Court that the motorist committed any new traffic offense justifying the second stop, only that she had flipped the officer off after the first stop but before the second stop. This was a fact the Court could not overlook.
"No matter how he slices it, Cruise-Gulyas's crude gesture could not provide that new justification [to stop the motorist a second time].Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *2 (6th Cir. Mar. 13, 2019).
In addressing the motorist's First Amendment claim, the Court noted that the Plaintiff must prove three elements:
(1) she engaged in protected conduct, (2) Officer Minard took an adverse action against her that would deter an ordinary person from continuing to engage in that conduct, and (3) her protected conduct motivated Minard at least in part. As to the first two elements the court found in favor of the Plaintiff:
Precedent clearly establishes the first and second elements. Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment. Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (gesturing with the middle finger is protected speech); see Cohen v. California, 403 U.S. 15, 19, 26, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *2 (6th Cir. Mar. 13, 2019)
As to the adverse action element, the Court noted:
An officer who seizes a person for Fourth Amendment purposes without proper justification and issues her a more severe ticket clearly commits an adverse action that would deter her from repeating that conduct in the future. The Constitution suggests as much by prohibiting unreasonable searches and seizures. U.S. Const. amend. IV. Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *2 (6th Cir. Mar. 13, 2019)
Finally as to the third element the Court held:
Cruise-Gulyas also meets the third element, a fact-intensive question in this instance. She alleged in the complaint that Minard stopped her because she made a crude gesture. That counts as a cognizable, and clear, violation of her speech rights. Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *3 (6th Cir. Mar. 13, 2019)
In concluding, the Court held that flipping off a police officer is protected speech, and the second stop of the motorist predicated only upon the motorist's free speech (flipping off the officer) is a violation of the motorist's clearly-established First Amendment right.
Minard, in short, clearly had no proper basis for seizing Cruise-Gulyas a second time. Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *3 (6th Cir. Mar. 13, 2019)
Police must have thicker skins than the average person.
Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn't make them illegal or for that matter punishable or for that matter grounds for a seizure. Cruise-Gulyas v. Minard, No. 18-2196, 2019 WL 1143852, at *1 (6th Cir. Mar. 13, 2019)
WHERE DOES CASE GO FROM HERE?
This ruling does not mean that the motorist wins the case. It means that she may well have the right to present her First Amendment civil rights case to a jury, and that the officer is not civilly immune for his conduct.
MPD Officer Briston Hines & City of Mobile
This case bears a similarity with a Mobile case where a Mobile police officer cited a motorist with disorderly conduct after the motorist flipped him off in the days after Hurricane Katrina. The motorist, Addison Deboi (below) however was not successful in his civil case against the Mobile officer.
Many of you may remember the local case of Addison Deboi, who in the wake of Hurricane Katrina flipped off City of Mobile police officer Bristol Hines. Officer Hines was working traffic at the intersection of Florida and Dauphin as the traffic light was out. As power was out in much of the city, tensions were high. Debois drove by the officer and flipped him off. Officer Hines arrested Deboi and charged Deboi with disorderly conduct. Deboi, without the benefit of counsel, was acquitted of the criminal charge in Mobile Municipal Court, and later filed a civil suit in Mobile County district court seeking money damages against Officer Hines and the City of Mobile.
Mobile County District Court Judge Mike McMaken presided over the civil trial, and issued a well-reasoned opinion finding for Deboi and awarding him $3,000.00 plus costs. The City appealed the ruling to Mobile County Circuit Court. The ruling made national news. Bill O'Reilly criticized it and even called Judge McMaken a "pinhead judge." Even the city attorney Ashton Hill took offense to O'Reilly's comment, "Judge McMaken is not a pinhead."
The city eventually appealed the ruling to Mobile County Circuit Court. The circuit judge, allowed the City to present several defenses that the lower court ruled were not timely filed. When the City appealed the case, the circuit court allowed the City to present these defenses, and ultimately issued judgment for the officer and the City. In his order, Mobile County Circuit Judge Joseph "Rusty" Johnston noted "For the record this Court takes judicial notice that the District Court trial judge is a learned and thoughtful jurist and is not a 'pen head.'"
My Pearl of Wisdom: Just because the Constitution grants you the right to act like a jerk, doesn't mean you have to. Additionally, Flipping a Cop off is NOT ALWAYS protected by the First Amendment. And please take note: if there is a crowd present and your flipping the officer off may be visible to others present and may cause or incite others, you are not protected by the First Amendment, because then you have become disorderly. If the finger is accompanied by improper conduct, the issue becomes more than just speech.
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Matt Green represents persons in a wide variety of criminal and constitutional matters. He represents personal injury victims as well. Matt served as a municipal court traffic court judge in the City of Mobile and the City of Saraland for nearly a decade. Before that Matt prosecuted major felonies, traffic homicides, and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel. Matt also advocates for free speech, economic liberty, and due process. He may be reached at 251.434.8500 or by e-mail at firstname.lastname@example.org or by Twitter @greenlawoffice
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