Sixth Circuit Affirms First Amendment Protections For Flipping Off Cops

Free Speech

from the they'll-only-get-one-finger-while-I'm-shifting-gears dept

Just because you can doesn’t mean you should. Debra Cruise-Gulyas received an “impeding traffic” ticket from Officer Matthew Minard. To show her appreciation for his fine policework, Cruise-Gulyas shot him the bird as she rolled away. Not the best idea but, as the district court declared, a perfectly legal hand gesture.

The adage opening this post also goes for cops. Officer Matthew Minard decided the hand gesture warranted another traffic stop. Sure, he had the power to initiate a traffic stop. The problem was he didn’t have any legal reason to do so. As the court noted, the infraction (speeding) Minard had only issued a warning for nevertheless completed the traffic stop. Pulling Cruise-Gulyas over again for the infraction he had chosen not to enforce to its fullest extent could not be used a probable cause for a second stop when Cruise-Gulyas was flipping the bird at a legal rate of speed.

Minard appealed. The Sixth Circuit Court of Appeals [PDF] says the lower court had it right the first time. Officer Minard had no legal reason to effect a second stop.

That leaves Cruise-Gulyas’s gesture as a potential ground for the second stop. But the gesture did not violate any identified law. The officer indeed has not argued to the contrary. Nor does her gesture on its own create probable cause or reasonable suspicion that she violated any law. Wilson v. Martin explained that, where a girl extended her middle fingers at officers and walked away, her “gesture was crude, not criminal,” and gave the officers “no legal basis to order [her] to stop.” 549 F. App’x 309, 311 (6th Cir. 2013); see Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (“This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”). All in all, Officer Minard clearly lacked authority to stop Cruise-Gulyas a second time.

That’s as nice as it gets for Minard. The next paragraph rejects the argument Minard tried to build on the Wilson v. Martin framework. There’s more than a hint of condescension in the court’s statement.

Minard counters that Wilson concerns whether officers had probable cause to arrest a girl who extended her middle fingers at them, not about whether they could stop her. But Wilson says that the girl’s salute provided the officers “no legal basis to order [her] to stop.” 549 F. App’x at 311. Minard should have known better here.

The officer claimed no case on point could have possibly made it clear to him that receiving an impolite hand gesture did not justify a second traffic stop. The court sighs with slight exasperation.

Minard adds that no case put him on notice about this fact pattern—that a second stop after a first stop supported by probable cause violated Cruise-Gulyas’s Fourth Amendment rights. Defined at that specific level of generality, he says, the case law did not clearly prohibit the stop. But Minard misses a point. In making his argument, he fails to acknowledge that the second stop was distinct from the first stop, not a continuation of it.

[…]

No matter how he slices it, Cruise-Gulyas’s crude gesture could not provide that new justification.

There’s your Fourth Amendment violation. Minard’s decision to hassle a person for disrespecting him also establishes a First Amendment cause of action.

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 (1971).

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. […] In view of the reality that something “as trivial as failing to hold a birthday party for a public employee” amounts to retaliation if done because the employee exercised his speech rights, Rutan v. Republican Party of Ill., 497 U.S. 62, 76 n.8 (1990) (quotation omitted), an unwarranted police stop, a far greater intrusion on liberty, must satisfy the test too.

Back the case goes to the district court where Minard is all out of options. He must face the lawsuit Cruise-Gulyas has brought against him without the shield of qualified immunity. This is a lot of trouble to be in for being unable to absorb a rude hand gesture from a displeased motorist.

Filed Under: 1st amendment, 6th circuit, free speech, middle finger, police, probable cause