Federal Judge Says Flashing Headlights To Warn Drivers Of Hidden Cops MIGHT Be Protected Speech

from the DISRUPT-SPEED-TRAPS dept

Law enforcement officers tend to frown on citizens interfering with their revenue generation. This has led to a number of First Amendment lawsuits from people arrested for warning others about [check notes] the existence of police officers in the vicinity.

One citizen was told as much when he was arrested for holding up a sign reading “Cops Ahead.” One cop kept on script, referring to the man’s actions as “interfering with an investigation.” It wasn’t an investigation. It was a distracted driving sting. The cop actually hauling him to the station was more to the point, telling the man he was arresting him for “interfering with our livelihood.” First Amendment violation or felony interference with a business model? Why not both?

A lawsuit was filed in 2018 seeking a declaration that honking a car’s horn is protected expression. And, all the way back in 2011, a class action lawsuit was filed over citations and arrests for flashing headlights to warn drivers of unseen officers.

A federal judge has decided — albeit not very firmly — that at least one of these actions is protected by the First Amendment. Wisconsin Magistrate Judge Stephen Crocker says flashing your headlights to warn drivers of speed traps is expressive speech — something cops would be better off not trying to punish. (via Volokh Conspiracy)

Andrew Obriecht passed a speed trap outside Caledonia, Wisconsin. After passing it, he flashed his headlights to warn oncoming drivers to slow down. He was then pulled over by a state trooper, who issued him a citation for violating a state statute that doesn’t really appear to fit the alleged crime:

347.07  Special restrictions on lamps and the use thereof.

(1) Whenever a motor vehicle equipped with headlamps also is equipped with any adverse weather lamps, spotlamps or auxiliary lamps, or with any other lamp on the front thereof projecting a beam of intensity greater than 300 candlepower, not more than a total of 4 of any such lamps or combinations thereof on the front of the vehicle shall be lighted at any one time when such vehicle is upon a highway.

(2) Except as otherwise expressly authorized or required by this chapter, no person shall operate any vehicle or equipment on a highway which has displayed thereon:

(a) Any color of light other than white or amber visible from directly in front; or

(b) Any color of light other than red on the rear; or

(c) Any flashing light.

Yeah… that’s a stretch. Obriecht sued, claiming this citation was retaliation against protected speech — namely, the brief flashing of his headlights to warn other drivers of a speed trap.

The government argued that it wasn’t. In fact, it argued that Obriecht’s light flashing was not protected because it “facilitated speeding by others.” This is a super hot take. This argument basically says that anyone who encourages others not to break the law is “facilitating” the very crime they’re warning them not to engage in. I guess it’s time to open up our conspiracy laws.

The defendants tried to equate warning drivers to slow down to warning criminals of an impending law enforcement raid. The court says it isn’t even close.

The crux of defendants’ argument is that much like warning others about intelligence operations or an impending police raid, the message that Obriecht conveyed helped others commit an illegal act without getting caught. However, at most, Obriecht’s actions may have prevented the State Patrol from apprehending a few would-be speeders.

[…]

As the Supreme Court has made clear, “the prospect of crime . . . by itself does not justify laws suppressing protected speech.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002) (citing Kingsley Int’l Pictures Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) (“Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech” (internal quotation marks and citation omitted)). See also NAACP v. Claiborne Hardware, 458 U.S. 886, 909-10 (1982) (knowingly publishing names of people who were not complying with boycott was constitutionally protected, even though some non-participants had been violently attacked and publication clearly could facilitate such attacks).

The judge also points out two state courts have held that headlight flashing is protected speech.

In addition, at least two state circuit courts also have found that drivers have a constitutional right to flash their headlights. See State of Oregon v. Hill, Citation No. 034117 (Jackson Cty. (Ore.) Justice Ct. Apr. 9, 2014) (flashing vehicle headlights to warn others about presence of law enforcement is protected free speech under state constitution); State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003) (accepting First Amendment defense to charge of knowingly interfering with officer where defendant flashed headlights to warn oncoming motorists about speed trap).

The court doesn’t go so far as to declare this activity protected, but it has expressed its doubts about the state’s arguments this speech isn’t protected. The judge has called out the bullshit expressed by the defendants seeking to turn headlight flashing into a criminal conspiracy by pointing out the defendants, at best, lost a little revenue when Obriecht send uncoded messages to oncoming drivers. This case may ultimately result in a definitive declaration that warning drivers of speed traps is protected speech, but it’s not quite there yet.

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Comments on “Federal Judge Says Flashing Headlights To Warn Drivers Of Hidden Cops MIGHT Be Protected Speech”

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61 Comments
Anonymous Coward says:

Re: Re: Re: Re:

Interesting thing is that I often flash my headlights as a warning for people to turn their headlights on. Often they misconstrue this as a speed trap warning and slow down while failing to turn on their headlights (sigh).

Then again, at least a car with no lights going the speed limit is safer than a speeding car with no lights… unless the rest of the highway is going significantly above the posted speed.

Anonymous Coward says:

Re: Re: To serve and protect... the stream of money

When you consider the fact that we have so many laws on the books that no one could possibly know or follow them all, yes it does.

My opinion is that we should start each yearly legislative session with the reading of the existing laws. Out loud. If you can’t get through the existing laws by the time the year ends, you clearly have too many laws and need to start removing some before you can add new ones.

Anonymous Coward says:

Re: Re: Re:3 To serve and protect... the stream of money

Please educate us all with your vast knowledge in the subject, perhaps a brief discussion of how long such this silly endeavor might take.

Just reading the entire tax code would take several months of forty hour weeks, how long do you think these people actually work everyday? Hint … not much.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: To serve and protect... the stream of money

I think a better idea would be to sunset all laws, every 7 years. The legislative branches would be so consumed with re-enacting laws (at least until they pared them down to a usable few) that they would not be able to do so much ‘something must be done’ legislation. For that we will all benefit, and we would have a set of laws that would be more easily grasped, even by law enforcement.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:3 To serve and protect... the stream of money

Maybe so, but there are a few critical issues that the lawmakers will have to pay attention to. If they don’t re-enable a law on time, it disappears. The first few iterations they will lose many laws, and will have to prepare to re-enact them the next time around. Language will become much simpler as they go through iterations so they have more time to enact new law. The lawmakers won’t have much time to interact with lobbyists, as they will need as much time as they can get to keep their favorite laws from sunsetting. If a lobbyist does slip something in, it would have to be re-enacted just 7 years later, or more sensible heads will prevail.

Don’t forget that there will be a churn in lawmakers as well.

Oblate (profile) says:

Re: Re: Re: To serve and protect... the stream of money

Great way to have laws regarding misconduct of public officials moved to the back of the book, somehow now appearing after the new set of laws similar to "The official, grand, and official act on allowed and permitted verbiage and words allowed and permitted to be used by the public, a complete and thorough listing of these words, and the definitions of these allowed and permitted words, Part 1."
Just imagine that being read slowly, over and over throughout November and December… Actually might be about the same as what usually happens then…

Anonymous Coward says:

Re: Clear aiding and abetting of a non-crime

Some of the private prison contracts with states included a minimum number of inmates or the state has to pay the difference. Nice job if you can get it … guaranteed income, no risk! But I thought the justification for outrageous profit was the risk they were taking, boy is that a bunch of bullshit huh.

Anonymous Coward says:

Re: Re: the fix is in

Let’s be real for a sec.
Do you expect the Insurance Companies to simply roll over and take in less money in premiums and deductibles because you’re not driving? Yeah right. They’ll just lobby congress to introduce a "new" insurance to cover "sudden autonomous car failures", or "remote autonomous vehicular hacking/hijacking", or any number of new scenarios.
Just like how the Oil Companies are simply going to be satisfied with less profits because of more people driving electric cars. It doesn’t work that way. Oil companies diversify so that they can continue to profit off of the production of electricity. Where do you think the hydrogen in H2 powered cars comes from? You can get it by separating the H2 from the O thru electrification, or you can get it from Hydrocarbons brought to you by your friendly neighborhood oil companies.
Yay!

That One Guy (profile) says:

Re: Yet another set of perverse incentives

You’d think so, but if they’re more interested in money than driver safety, as seems to be the case, then it’s no surprise that they object so strongly to people telling other drivers to not speed, as the goal is not to prevent speeding it’s to profit from it. Can’t get that easy money if no-one’s speeding after all.

FosterCity says:

Re: 347.07

ahhh, but do ‘turn signal lamps’ meet the quite specific "300 candlepower" threshold ??

All Wisconsin drivers are required to know the exact candlepower specification for all lamps on their vehicle.
(ignorance of the law is no excuse!)

The bigger picture here is that American peasants are not permitted to disrespect cops in any manner.
Note the extreme lengths that those local Wisconsin cops and government lawyers pursued to prosecute this trivial issue — government time, money, tax dollars, and effort are of no concern when defending the sacred honor of all cops.

K`Tetch (profile) says:

Re: Re: 347.07

300 candlepower is a LOT.

the trusty H7 halogen headlight bulb is rated at 1450 lumens.
the D2S HID xenon bulb is rated at 3200 lumens.

So the H7 headlight is 115.3 candlepower while the xenon one is 254.5 candlepower.

So no worries on any of those fronts. 3770 lumems+ is a BRIGHT bulb, now there’s some that will exceed it (you can find 12,000lum kits) but they’re rare.

Bergman (profile) says:

Re: Re: 347.07  Special restrictions on lamps and the use ther

Ah, but police are exempt. They’re always exempt from any law that does not specifically say it applies to police. Even the laws that say they apply to EVERYONE without exception don’t apply to police unless they specifically say they do. Even if the statute actually does say it applies to police, it doesn’t REALLY apply to police until a court agrees that it does.

That’s the basis of the Qualified Immunity doctrine as it is currently interpreted.

Vel the Enigmatic says:

See this?

"The government argued that it wasn’t. In fact, it argued that Obriecht’s light flashing was not protected because it "facilitated speeding by others." This is a super hot take. This argument basically says that anyone who encourages others not to break the law is "facilitating" the very crime they’re warning them not to engage in. I guess it’s time to open up our conspiracy laws. "

What these guys did here is the very definition of Orwellian: an abuse of language. Double-speak.

Anonymous Coward says:

Ah, but back in MY day...

I know you youngsters won’t remember this, but before cell phones, we used to have these things called CB radios. And boy, the cops were sure mad when we called out "breaker 19, we got us some grizzlies in the campground just past mile 40 eastbound, come on!"

These days, though, you have to remember: the bears are more afraid of you than you are of them. And they have guns….

Tin-Foil-Hat says:

In a country where everything is against the law ...

It doesn’t surprise me at all that any law can be liberally applied to any situation or activity. If you give someone a gun, qualified immunity and a good faith exception to cover all manner of wrong-doing of course they’ll abuse their position for their own personal gain.

Anonymous Coward says:

Are Radar Detectors legal in Americas dairy land? (Yes, they are)
What about Waze?
Anybody remember Citizen Band(CB) Radios?
AAA once paid for big billboards outside a Florida town warning drivers the they were approaching a notorious speed trap.
I wish someone could explain to me why a quick flash of the lights is illegal and not the others.

Anything that make you more aware of your surroundings is a good thing, right?

Waze will definitely mess up LEO revenue streams.

Tin-Foil-Hat says:

Re: Re:

The police hate Waze and have been arguing that it puts them in a life threatening situation by informing any cop-hating, homicidal maniac of their exact location.

Whenever I hear that shit it makes me think, it pales in comparison to the concerns of any woman for whom harassment and potential danger is a possibility everytime she has to go from point A to point B by herself. 99% of the time it’s uneventful. She usually isn’t going to be carrying a gun or a club because in many states that would be illegal.

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