Sixth Circuit Affirms First Amendment Protections For Flipping Off Cops

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


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  • icon
    Anonymous Anonymous Coward (profile), 26 Mar 2019 @ 10:51am

    Disrespect and the lack of law

    I am not going to hold my breath or anything, but one day one of our advanced courts will come out and say 'contempt of cop isn't a crime, just stop trying to find ways of justifying it'.

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

    • icon
      Gary (profile), 26 Mar 2019 @ 11:03am

      Re: Disrespect and the lack of law

      Naw, the alt-right snowflakes would riot in the streets.

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

    • identicon
      Anonymous Coward, 26 Mar 2019 @ 12:45pm

      You can beat the Rap but not the Ride

      ... dissing cops usually gets you cuffed and hauled to jail

      ... charges are quietly dropped and you're let go

      smirking cop easily gets his revenge

      (suing cops for false-arrest is a long, expensive, stressful process with very uncertain outcome)

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

      • identicon
        Anonymous Coward, 27 Mar 2019 @ 8:48am

        Re: You can beat the Rap but not the Ride

        and hence the saying:
        You can beat the rap, but you can not beat the ride.

        Let's not forget that "the ride" can be fatal.

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

  • identicon
    Jason, 26 Mar 2019 @ 11:06am

    Next will come the argument that the precedent shouldn't apply because in the earlier case the gesture was with the right hand, and here it was the left. Without a ruling, how could the officer know that was protected speech, too?

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

    • icon
      Bamboo Harvester (profile), 26 Mar 2019 @ 11:29am

      Re:

      I'll admit I'm surprised by this one. Mainly in that it got so far.

      Surely "abusive" hand gestures fall under the same strictures as "verbal assault", otherwise the law would be discriminatory against mutes. Sorry, the "vocally challenged".

      Or not using a turn signal when pulling away from the curb after the first stop, and that favorite traffic cop catch-all from the sixties, "Unsafe Driving Practices" - driving barefoot, only one hand on the wheel (obviously...), etc.

      While the courts (and likely the law, without need for "interpretation") agree with the defendant, I have a hard time feeling any sympathy for a person so bloody stupid they give a cop a hard time on a traffic stop.

      I've avoided quite a few tickets over the years simply by being... polite to the officer(s) who pulled me over. It doesn't take a rocket surgeon to figure out that if you piss them off they're going to hit you with every ticket they can.

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

      • identicon
        Anonymous Coward, 26 Mar 2019 @ 12:12pm

        Re: Re:

        I have a hard time feeling any sympathy for a person so bloody stupid they give a cop a hard time on a traffic stop.

        Frankly that person doesn't need your sympathy.

        The dumb fuck cop who's going to get his stupid ass sued is the one who needs you to feel sorry for him. After all, he's the moron who decided to break the law and violate someone's rights because his ego got bruised.

        There's no requirement to be polite to police. And in this case, not being polite will probably bring her far more money in from a settlement than the ticket the cop wrote her up for.

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

        • icon
          Coyne Tibbets (profile), 26 Mar 2019 @ 1:51pm

          Re: Re: Re:

          There's no requirement to not hit your thumb with the hammer, either. But it hurts less if you refrain.

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

          • icon
            Bamboo Harvester (profile), 26 Mar 2019 @ 3:23pm

            Re: Re: Re: Re:

            Exactly.

            But if you DO hit it, do you sue the company that made the hammer or the one that made the nail?

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

          • icon
            That One Guy (profile), 26 Mar 2019 @ 3:28pm

            Pick up that can

            Just a wee bit of a difference between 'doing this will cause physical harm because of what you did to yourself' and 'Doing this will cause you problems because someone else will abuse their authority/position to punish you for it'.

            If a person's not breaking the law it shouldn't matter in the slightest how 'rude' they are, they shouldn't have to worry about a cop abusing their power to get back at them. If a cop can't handle people in a foul mood without lashing out then maybe a job that requires regular interactions with the public is not for them.

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

  • identicon
    Glenn, 26 Mar 2019 @ 11:07am

    It's not rude when it's deserved. Now, was it or wasn't it? (Well, if you survive a "traffic stop" without being shot, then I guess you're beating the odds.)

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

  • identicon
    Anonymous Coward, 26 Mar 2019 @ 11:28am

    It never amazes me the number of police officers who show up to court in these types of cases arguing in public and on the record how piss-poorly they know their jobs.

    I mean, it's the functional equivalent of saying "yeah, I know the words "law enforcement" are in my job title, but how in the fuck should I know what the law says?"

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

    • identicon
      Anonymous Coward, 26 Mar 2019 @ 5:09pm

      Re:

      They don't need to know the laws. In fact it's better if they don't know the laws as it'll protect them.

      What I found strange in this case is that the Cop let the person go with a WARNING, and yet then goes and flips the cop off anyway. I mean really? You have the first amendment right to flip a cop off, but that is kind of dumb to do so when you didn't get a ticket, just a warning. That person is a bigger jerk than the cop.

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

      • identicon
        Tin-Foil-Hat, 26 Mar 2019 @ 7:39pm

        Re: Re:

        Working with the public sucks. Some people are assholes who give you a hard time for no reason whatsoever.

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

      • identicon
        Anonymous Coward, 27 Mar 2019 @ 11:25am

        Re: Re:

        They don't need to know the laws. In fact it's better if they don't know the laws as it'll protect them.

        Of course! Why set the bar so high for them? While we're at it, why should any job require any competence or knowledge in its related field?

        Wanna be an air traffic controller? Why should you need to know anything about air traffic, or controlling it? And if you happen to be on a plane that crashes as a result of him/her, well, what can you do?

        Wanna be a teacher? Why should you need to know anything about the subject you're teaching? If your kid ends up learning nothing from the class, well, what can you do?

        I take it you're good with air traffic controllers and teachers not knowing anything about the subjects they're involved with so they can alse be protected?

        You have the first amendment right to flip a cop off, but that is kind of dumb to do so when you didn't get a ticket, just a warning. That person is a bigger jerk than the cop.

        Is it? The cop lost QA and is open to being sued. Who's the bigger dumbass?

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

      • identicon
        Anonymous Coward, 27 Mar 2019 @ 11:43am

        Re: Re:

        She did get a ticket. It says right there in the second sentence that she got a ticket. It just wasn't as big a ticket as the one he could have (and later did) given her.

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

        • icon
          nasch (profile), 27 Mar 2019 @ 7:47pm

          Re: Re: Re:

          She did get a ticket. It says right there in the second sentence that she got a ticket.

          She got pulled over, got a warning, and flipped off the cop as she was leaving. Then the cop pulled her over again and issued the ticket.

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

  • identicon
    Anonmylous, 26 Mar 2019 @ 11:36am

    Gee that's funny...

    I thought police didn't have to know the law to enforce it, according to recent court findings. Circuit split?

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

    • identicon
      Anonymous Coward, 26 Mar 2019 @ 12:15pm

      Re: Gee that's funny...

      I long for the day when truck drivers argue that they don't need to know how to drive in order to be truck drivers, based on that logic.

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

    • identicon
      Anonymous Coward, 26 Mar 2019 @ 3:39pm

      Re: Gee that's funny...

      While that's true, they have to know the law very well to be able to violate it, "in a way that hasn't been found to be illegal in a prior court case"...

      That whole doctrine needs to be thrown out with the bathwater it came in on. It does not take a court finding something to be illegal for it to be 'illegal' for a non-cop, so why do cops get to break the law in 'novel' ways.

      Well yes judge, I know there is a court case that says it's illegal to have relations with animals, but there isn't a case about having relations with animals while dressed as an animal in a chestnut sundress, so "NAA..NAA.NAA. who's the winner now? If there is no chest-nut, you must acq-uit"

      /s /M

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

  • identicon
    bobob, 26 Mar 2019 @ 9:03pm

    It's nice to see that the court sided with free speech for a change. I don't have any issue with that chick filing suit for the second stop, but... What was her fucking problem? She was speeding and the cop let her off with a warning, so she basically says fuck you?

    If you are speeding, man up and accept the fact that you earned that ticket. If you get a warning, you've been given a pass and being an asshole about it is not the best way to encourage cops to keep giving warnings to promote traffic safety instead of tickets to collect revenue.

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

    • identicon
      Anonymous Coward, 27 Mar 2019 @ 11:31am

      Re:

      If you are speeding, man up and accept the fact that you earned that ticket.

      Bull shit. You're innocent until proven guilty. It's not on you to have to admit to anything.

      If you get a warning, you've been given a pass and being an asshole about it is not the best way to encourage cops to keep giving warnings to promote traffic safety instead of tickets to collect revenue.

      He reacted by violating her rights. I'm not up for giving up rights just to suck up to some road cop.

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

  • identicon
    Anonymous Coward, 27 Mar 2019 @ 9:31am

    really?

    privileged...
    Whether or not the cop was right or wrong, that's not the way to deal with being pulled over. Because the right to, at the least, make you life "complicated", and, at most, kill you by shooting you...don't piss off the on duty cop. Yes, cops make mistakes too--they're human, but deal with this in a different way.

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

    • icon
      That One Guy (profile), 27 Mar 2019 @ 1:52pm

      'Look, they're basically rabid dogs, gotta watch out.'

      Just... re-read what you just wrote. Re-read it, and think about what you're saying, what that says about you, and what it says about cops.

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

  • icon
    OA (profile), 27 Mar 2019 @ 10:02am

    Ancient gesture

    Wait, the middle finger is an "ancient gesture of insult"?

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


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