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

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.


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  • icon
    Killercool (profile), 31 Aug 2018 @ 4:20am

    This is ridiculous.

    This bullshit has been knocking around the court system for twelve years now!

    While I'm glad to see a glimmer of justice being served, the time span involved for the open-and-shut nature of the case is insane. I hope Swartz can win some restitution for his costs and time.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Aug 2018 @ 7:30am

      Re: This is ridiculous.

      Of course that restitution would come from us. The POS cop has no liability whatsoever

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 31 Aug 2018 @ 7:39am

        Re: Re: This is ridiculous.

        Is that true when the cop has lost their immunity?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Aug 2018 @ 8:00am

        Re: Re: This is ridiculous.

        You vote in those cops bosses, you should pay.

        It is amazing how many people claim that we are a democracy and then as citizens immediately try to exculpate themselves from having responsibility for the actions of their governments.

        Citizens are NOT victims of their governments, they are victims of themselves!

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 Aug 2018 @ 8:02am

          Re: Re: Re: This is ridiculous.

          I do not remember voting for the beat cops in any election, so I suggest you take your bullshit down the hall

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 31 Aug 2018 @ 8:15am

            Re: Re: Re: Re: This is ridiculous.

            Yeah, no idea where they live that they get to vote on individual officers, and/or where those being voted in honestly answer such questions as 'Would you abuse your authority by pulling over someone for flipping you the bird, or hire someone that would?' such that people are able to make informed decisions as to who they do and do not want wearing a badge.

            On the plus side I'm sure it will be of great comfort to them should they be on the receiving end of a cop abusing their power, as they can simply remind themself that they voted for it and therefore deserve whatever the cop does to them.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 31 Aug 2018 @ 8:53am

              Re: Re: Re: Re: Re: This is ridiculous.

              As long as you have that attitude you will keep getting these cops.

              This is not a game, people are being abused by law enforcement and you only objective is to make snide unhelpful comments that solve nothing of the problem. Is there any wonder why cops feel like they CAN abuse folks with impunity? It's not like they live in fear of people like you.

              They like very other person in government serves under someone that gets elected. Just like following the money, you follow the chain of command until you get to the elected official. Until you start collectively doing that, just get what you get, how else are you going to change the system? Wave a cardboard box with words on a street corner? Those have been working really well have them not?

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 31 Aug 2018 @ 9:06am

                Re: Re: Re: Re: Re: Re: This is ridiculous.

                I suggest the voters begin their journey by having a good look at their state Attorney General and their county District Attorneys because what the law has to say makes no difference when these folk refuse to perform their job functions.

                Starting at the bottom (cops) will do no good when the offending cops are not prosecuted.

                For someone so cynical it is interesting how you are so optimistic, like all you need to do is simply vote for the right person and then everything will be coming up roses - lol - I don't think so Tim.

                reply to this | link to this | view in chronology ]

              • icon
                Anonymous Anonymous Coward (profile), 31 Aug 2018 @ 9:09am

                Re: Re: Re: Re: Re: Re: This is ridiculous.

                You keep blaming individuals. Fact is, elections are not won or lost with the input of single individuals. They are won or lost by input from many individuals.

                Some of those individuals have been co-opted by political parties. Some of those elections have been co-opted by copious amounts of soft money. I think it would be more effective to complain about the system, than go about accusing individuals for their incompetence at selecting elected officials.

                No one of us can be blamed, but collectively all of us need to work on the system. There are those, however, who think the system as it is, is just fine. Those are the people who benefit from the system as it is, and those who use the system as it is to achieve their goals, and those who have been co-opted by the political parties. Likely a minority, rather than a majority.

                Remember, that when you point your finger at something, there are three other fingers pointing back at you. Your adamant rhetoric at blaming others fails to point out your own complicity.

                reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 31 Aug 2018 @ 9:39am

                Re: Re: Re: Re: Re: Re: This is ridiculous.

                And all of that has what to do with my comment?

                Are you saying you do live in a place where you get to elect individual cops, and/or those that hire them honestly answer questions about whether they'd pull people over for flipping them the bird, or not?

                Really, I'd like to know, because whatever world you live in seems to be notably different than the one I seem to be in, where people don't get to elect individual cops and aren't given the opportunity to refuse to vote for those that hire those cops on honest terms because they wouldn't give honest answers to questions like that.

                But hey, if I'm getting it wrong, then by all means tell me what you have been doing(other than blaming all and sundry on a site like TD) to address the problem. Lead by example and tell others what you have been doing and what they should do it turn, keeping in mind that any such actions are taking place in the real world where 'Would you abuse your authority for petty reasons, or hire someone who would?' is probably not going to get an honest answer from any candidate that people are actually voting on.

                reply to this | link to this | view in chronology ]

                • icon
                  The Wanderer (profile), 1 Sep 2018 @ 5:24am

                  Re: Re: Re: Re: Re: Re: Re: This is ridiculous.

                  I'm not sure where you got the idea that he was expecting people to be able to "elect individual cops" from in the first place.

                  I suspect that his response to the objection of "and what about when the replacement candidate turns out to have lied about not hiring petty-abuse officers?" would be "then vote that person out too, and repeat as necessary, until you get someone who wasn't lying".

                  What he seems to be saying in this repeated admonition is basically "if this is that important to you, then make it the single issue on which you vote for the appropriate office in the next election, and the next, and the next, until whoever gets in actually does this right; if you don't do that, then clearly this isn't really as important to you as you're pretending it is".

                  Which is probably not a fair position either, particularly not when he takes it on so many different issues - but it's also not the position you seem to be arguing against.

                  (And it's entirely possible that it is what he's been doing, and that's why he feels OK about telling other people to do it in turn.)

                  reply to this | link to this | view in chronology ]

                  • icon
                    That One Guy (profile), 1 Sep 2018 @ 8:28am

                    Re: Re: Re: Re: Re: Re: Re: Re: This is ridiculous.

                    (And it's entirely possible that it is what he's been doing, and that's why he feels OK about telling other people to do it in turn.)

                    Well that's the thing, assuming TD doesn't have multiple people who leave comments like that I've found that 'What have you been doing to solve the problem besides commenting here?' is basically a sure-fire way to get them to bugger right off, leaving behind but a deafening silence, almost as though the only thing they've been doing is leaving comments here even as they blame everyone else for being too lazy to do anything about the problem.

                    If they actually are doing something about it beyond leaving comments blaming everyone around them for screwing up then they are quite welcome to tell everyone what they have been doing, yet so far they've declined to do so every time I've asked/seen the question asked.

                    reply to this | link to this | view in chronology ]

              • icon
                nasch (profile), 31 Aug 2018 @ 8:41pm

                Re: Re: Re: Re: Re: Re: This is ridiculous.

                So how do I fix it, vote for a different mayor?

                reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2018 @ 4:40am

    #BlueBirdsMatter

    reply to this | link to this | view in chronology ]

  • identicon
    Avideogameplayer, 31 Aug 2018 @ 5:53am

    'I thought it was a gun!' will be the next step in the retaliation cycle.

    Can't lose immunity if there's no one to get sued by.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 31 Aug 2018 @ 6:18am

    Felony disrespecting of a police officer

    Obstructing a police officer in the performance of their donut eating.

    Interfering with a police officer upholding their unconstitutional duty.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 31 Aug 2018 @ 6:34am

    Even though it is not a crime or any reason to stop the guy you have to admit it's safer not to show the finger to someone armed and from a group (cops) known to have a fair share of thin-skinned, trigger-happy individuals. Just sayin'.

    Still, nice to see justice actually being served.

    reply to this | link to this | view in chronology ]

    • icon
      afn29129 David (profile), 31 Aug 2018 @ 7:50am

      Re:

      It might be safer but that is a weakling talking.

      reply to this | link to this | view in chronology ]

      • icon
        DannyB (profile), 31 Aug 2018 @ 9:09am

        Re: Re:

        It is not a sign of weakness to act in a reserved manner not to trigger a violent reaction from someone who is armed, is presumed to be more trustworthy than video evidence that you see with your own eyes.

        It is not a sign of strength to make rude gestures and try to assert yourself or your rights, when no such display or assertion is necessary.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Aug 2018 @ 9:10am

        Re: Re:

        Is it a sign of weakness to choose intelligence over vain self indulgence?

        reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 31 Aug 2018 @ 9:46am

        Re: Re:

        No thanks, I'd rather do it when there are numbers and publicity to protect my life. Points can be made and delivered without being reckless.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Aug 2018 @ 11:38am

        Re: Re:

        Look up Niven's laws... In particular, the first one.

        1a. Never throw shit at an armed man.

        1b. Never stand next to someone who is throwing shit at an armed man.

        And given how privileged and sensitive we've seen the police to act, I'd say that those 2 rules are quite important.

        reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 31 Aug 2018 @ 4:53pm

      Re:

      Even though it is not a crime or any reason to stop the guy you have to admit it's safer not to show the finger to someone armed and from a group (cops) known to have a fair share of thin-skinned, trigger-happy individuals. Just sayin'.

      While this may be true, why it's true does not exactly reflect well on the police in the slightest.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Aug 2018 @ 5:16pm

      Re:

      The fact that it isn't safe to spend all day flipping off cops is a sign that the system isn't working as intended. Being able to go around flipping off cops and being perfectly safe is a sign that rule of law is fully in force, that even when being deliberately provocative rights are respected and liberties aren't taken with power.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2018 @ 8:04am

    respect mah authoritah

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2018 @ 9:12am

    out_of_the_blue's not going to like this much. He cocksucks policemen!

    reply to this | link to this | view in chronology ]

  • icon
    scooby (profile), 31 Aug 2018 @ 9:13am

    Being lawful doesn't make you less of an ass

    Yes, the cop shouldn't have "reacted" to this insult. He should have let it go. His unjustified reaction aside, the guy who flipped him is still an ASSHOLE for doing it. Bigotry at its best.

    reply to this | link to this | view in chronology ]

    • icon
      Killercool (profile), 31 Aug 2018 @ 9:40am

      Re: Being lawful doesn't make you less of an ass

      ...or he was just having a bad day? Seriously, don't be so quick to assume that because a person has an attitude with one cop, they hate all cops.

      There are so many other reasons for it, like the fact that he had set up a speed trap. Which have a tendency to scare the overcautious into driving well below the speed limit, for fear of getting a ticket for going 1-5 over the limit.

      reply to this | link to this | view in chronology ]

      • icon
        scooby (profile), 31 Aug 2018 @ 1:31pm

        Re: Re: Being lawful doesn't make you less of an ass

        I don't care what his (probably inane) reason was. It was an a-hole move.

        reply to this | link to this | view in chronology ]

        • icon
          Killercool (profile), 1 Sep 2018 @ 4:43pm

          Re: Re: Re: Being lawful doesn't make you less of an ass

          Well, yes. Anyone flipping anyone off, EVER, is an A-hole move.

          I just feel it's overkill to make the jump straight to "he's a bigot."

          It's just a finger. He didn't say, "Die, Pig!" or anything. He just flipped off the guy running a speed trap.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Inzemam, 1 Sep 2018 @ 12:46am

    he was just having a bad day? Seriously, don't be so quick to assume that because a person has an attitude with one cop, they hate all cops.

    reply to this | link to this | view in chronology ]


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