Court Says Cop Gets No Immunity For Pulling A Man Over For Flipping Him Off

Legal Issues

from the raises-own-middle-finger-in-footnote dept

Expressing your displeasure with law enforcement via hand gestures is not an arrestable offense. It can’t even justify a traffic stop. Officers are learning this, one federal case at a time.

Tim Geigner covered a case five years ago involving a cop, a veteran, and the veteran’s upraised middle finger. It was expressive conduct the cop manning the speed trap found worthy of a traffic stop. A federal court disagreed, finding the officer’s stated reason for conducting a traffic stop laughable.

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.

Yes, the officer actually claimed the bird is a universal distress signal and initiated the stop only because he believed Swartz was trying to flag down help for his wife, who was driving the vehicle.

Let the deja vu commence. (via The Newspaper)

Plaintiff and his sister, Beth Richardson, left the courthouse in her car. (Brian Clark Aff. ¶ 6, May 30, 2018 [ECF No. 48-1].) As they were leaving, Plaintiff saw several deputies “rush” to their patrol cars. (Id.) While riding in the car with Richardson a short time later, Coleman effectuated a traffic stop on her car. According to Coleman, he saw Plaintiff make a “gesture” that “concerned” him, so he pulled the car over. (Robert Coleman Decl. ¶ 7, May 14, 2018 [ECF No. 40-3].) Plaintiff categorically denies that he made any obscene, inappropriate, or concerning gesture to Coleman or anyone else. (Clark Decl. ¶¶ 12–13.)

According to Plaintiff, after stopping the vehicle, Coleman approached the passenger side of the car; no officer approached the driver. (Id. ¶¶ 14, 17.) Coleman asked for Plaintiff’s identification, which Plaintiff provided, and Coleman asked Plaintiff why he “had ‘gigged’ him (or why [Clark] had given [Coleman] the finger).” (Id. ¶ 15.) Coleman returned to his car and, for twenty minutes, Clark and Richardson were detained. (Id. ¶ 19.)

The federal judge finds Coleman’s defense of his actions similarly comical. The decision [PDF] contains this incisive footnote:

Although I am more or less constrained to reject his version of events for the purposes of this Motion, Coleman asserts, in conclusory fashion, that the stop of Clark was “lawful,” and that, in his experience, “people do not wave inappropriate or obscene gestures to a law enforcement officer unless something is wrong.” (Coleman Decl. ¶ 7.) Tellingly, he does not allege that he ever asked Clark if he was safe or that he inquired anything of the driver, nor does he assert any other interaction throughout his entire career where an “obscene” gesture was displayed towards him in an effort to indicate duress or request police assistance.

So, it’s a case exactly on point, even if the court doesn’t have to reference the Swartz case to deny Coleman’s requested immunity.

If Plaintiff did not “gig” Coleman, then there is no question that the right to be free from a traffic stop without probable cause was clearly established at the time Coleman stopped Plaintiff and his sister. There is no dispute that the authority to detain citizens, conferred on deputy sheriffs, does not include the power to harass and intimidate those with whom one disagrees. See Trulock v. Freeh, 275 F.3d 391, 405 n.10 (4th Cir. 2001) (noting that “police officers . . . may not exercise their authority for personal motives, particularly in response to real or perceived slights to their dignity”). Under that factual scenario, Coleman is not entitled to qualified immunity. But even if Plaintiff did “gig” Coleman, I believe the law clearly establishes that a traffic stop under those circumstances would not comport with the First or Fourth Amendments.

On top of that, there’s another case directly on point that can be used to hold Coleman liable for his retaliatory traffic stop.

It is rare to have the exact factual scenario an officer faced to have been clearly ruled on before, but Duran has remarkably similar facts and a defendant who went further than simply “gigging” a police officer. Although not a case from this circuit, Duran was decided nearly twenty years ago and accurately states the law.

From Duran:

The Court concluded that, “[i]narticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-on. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech—such as stopping or hassling the speaker—is categorically prohibited by the Constitution.” [emphasis in the original]

The plaintiff, Brian Clark, maintained he didn’t flip off the officer, so that eliminates his First Amendment claim. If Clark did not engage in one-fingered expressive conduct (as he denies doing), there’s no First Amendment activity prompting retaliation. However, the Fourth Amendment remains alive, if currently covered by the clumsy, authoritarian footprints of Lt. Coleman, who is now completely stripped of his immunity shield.

Cops see a lot of animosity from citizens. But it’s just part of the job. It may be unpleasant but it’s not an arrestable offense, much less reasonable suspicion for a traffic stop. With rare exceptions, courts have sided with citizens and their expressive conduct. And they should continue to do so, because that’s what separates the US from the world’s authoritarian governments. This is also from the Duran decision, which is quoted directly in this case:

The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Thus, while police, no less than anyone else, may resent having obscene words or gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

If a citizen lets the bird fly, officers should either let it ride or immediately seek legal representation. The courts say expressions of displeasure towards our government are the reason the First Amendment exists. Any cop who thinks an obscene gesture justifies a traffic stop is in the wrong business. Or the wrong country.

Filed Under: immunity, middle finger, police, traffic stop