Virginia Court Reaffirms The Right To Give Cops The Finger

Free Speech

from the not-all-protected-speech-is-prudent-speech dept

It’s pretty well established that giving the finger to cops is protected expression. Stopping or detaining someone for flipping you off violates their rights and the usual law enforcement excuses for unconstitutional behavior tend to perform poorly when examined by a federal judge.

In 2018, a Virginia federal court denied qualified immunity to Officer Rob Coleman for his stop of Brian Clark, who made a gesture that “was crude, but not criminal.” Officer Coleman claimed he was “concerned” by Clark’s hand gesture and was just doing some community caretaking by pulling over the car Clark was riding in. Literally unbelievably, the officer claimed he viewed the hand gesture as a sign of distress, as only a person “under the influence” of alcohol or drugs (or “suffering from some sort of mental illness”) would dare do such a thing.

Of course, Coleman never made any inquiries about distress, mental illness, or intoxication during the 20-minute stop. The court denied Coleman’s request for qualified immunity, stating it should have been clear stopping someone for throwing the bird would violate both the First and Fourth Amendments.

The case went to trial. Somehow the jury managed to find in favor of the cop who had violated two rights with his traffic stop. The jury said Coleman did not lack reasonable suspicion to stop and detain Clark for allegedly giving the officer the one-finger salute.

Clark challenged this verdict, asking the court to overturn the inexplicable decision by the jury to go against its own interests by saying it’s ok for cops like Coleman to engage in retaliatory stops of people who’ve offended them.

The court agrees with Clark: this is indeed some bullshit. (via The Newspaper)

From the decision [PDF]:

After a review of the applicable law and relevant evidence, the court GRANTS Plaintiff Brian Clark’s motion to set aside the jury verdict and enter judgment for the plaintiff. ECF No. 141. The law plainly prohibits that which occurred here, and the jury’s verdict cannot stand.

There’s no gray area for the court to explore. This was a violation of Clark’s rights.

The law is this area is well-settled. The Fourth Amendment “prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.”

The jury may have returned a verdict. But a jury isn’t allowed to condone the violation of Constitutional rights, even if every juror reached the same conclusion.

At trial, the jury was instructed that a traffic stop was a seizure under the Fourth Amendment, and that a stop is “reasonable if the officer had reasonable suspicion to believe the plaintiff had committed or was committing a crime.” Jury Instruction No. 15, ECF No. 137. Even taking the facts in the light most favorable to Coleman, displaying one’s middle finger is not illegal, nor does the gesture “on its own create probable cause or reasonable suspicion that [Clark] violated any law.” […] Here, Coleman based the stop solely on Clark’s display of an offensive gesture. On that basis, the stop was not grounded in reasonable suspicion of criminal activity.

Nor does the “community caretaking” warrant exception apply here. The officer’s own testimony undermined his own reliance on this exception.

[C]oleman’s traffic stop is not “totally divorced” from investigative functions, based on his own representations. […] Similarly, Coleman argued that there existed reasonable suspicion to believe Clark was violating Virginia’s public intoxication statute, which forecloses reliance on the community caretaker doctrine to justify his actions. […[ Because Coleman contends he was investigating a potential violation of Va. Code Ann. § 18.2-388, the community caretaking exception cannot justify his actions.

The verdict is set aside. It’s still a violation of rights to instigate a traffic stop and detain someone for engaging in protected speech.

The evidence establishes Coleman effectuated a seizure of Clark without reasonable suspicion of wrongdoing, and that his actions, under color of law, amount to a constitutional violation. Because the evidence does not reveal any reasonable basis for the seizure of Clark following his constitutionally protected speech, however crude, inappropriate, and unwarranted it may have been, the jury’s verdict is contrary to law and must be set aside, and the court will direct judgment be entered for Clark.

Unfortunately for Clark, the judgment won’t amount to any real money. Clark also asked to be allowed to pursue monetary damages if the verdict was reversed. The court says he’s entitled to damages. But it doesn’t believe Clark is owed much of anything for this 20-minute violation of his rights.

The court sees no reason to empanel a new jury on the issue of damages, because Clark did not demonstrate at trial the existence of any compensable injury.

[…]

Upon balancing the factors, the court finds plaintiff is eligible for attorney’s fees. The first factor instructs the court to compare the amount of compensable damages sought to the amount awarded. Id. at 206. While an award of nominal damages may appear limited relief, Clark never specified the damages he sought, primarily seeking a liability finding, condemnation of the officer’s behavior, and punitive damages.

Clark’s lawyer will get paid. So will Clark, but the award is strictly symbolic.

The court DENIES Clark’s motion for a new trial on the issue of damages, instead awarding Clark nominal damages of $1 and attorney’s fees.

There’s no money to be had but Clark still got the win — a ruling that says cops can’t violate people’s rights just because their feelings have been hurt.

Filed Under: brian clark, middle finger, police, rob coleman, virginia