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.

Filed Under: 1st amendment, andrew obriecht, flashing headlights, free speech, speed traps, wisconsin


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  • icon
    That One Guy (profile), 6 May 2019 @ 3:36am

    To serve and protect... the stream of money

    You know the police(and prosecutors) in a particular area have gone full corruption when someone telling people not to break the law(or at least stop doing so) is considered serious enough to drag them to court over, because it would impact the money the police make issuing tickets.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 6 May 2019 @ 3:48am

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

      Should lookouts for drug dealers and pimps also go free?

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

      • icon
        That One Guy (profile), 6 May 2019 @ 3:56am

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

        Telling people not to speed, versus lookouts for drug or sex trafficking... you know, there's some sort of difference here but I just can't put my finger on it, almost as though it's a really bad comparison...

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

      • icon
        Stephen T. Stone (profile), 6 May 2019 @ 7:32am

        Only if you want to falsely equivocate your proposition with the idea of flashing headlights as a warning to slow the hell down.

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

        • identicon
          Anonymous Coward, 6 May 2019 @ 1:28pm

          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.

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

      • identicon
        Anonymous Coward, 6 May 2019 @ 7:58am

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

        Civil vs Criminal. No problem warning people on civil issues. Will call cops on criminal issues.

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

      • identicon
        Anonymous Coward, 6 May 2019 @ 8:11am

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

        You're saying that police are equivalent to drug dealers and pimps?

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

        • identicon
          Anonymous Coward, 14 May 2019 @ 11:08am

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

          Given the state of forfeiture abuse, they’ve already proven that they’re highwaymen.

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

      • identicon
        Anonymous Coward, 6 May 2019 @ 8:17am

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

        idk - Were they engaging in illegal activity or were they just alerting others to the presence of leo operations in the area?

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

    • identicon
      Anonymous Coward, 6 May 2019 @ 5:34am

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

      Have you not noticed that interpreting all speech and actions as proof of crime is a characteristic of the US justice system

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

      • identicon
        Anonymous Coward, 6 May 2019 @ 6:01am

        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.

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

        • identicon
          Anonymous Coward, 6 May 2019 @ 8:18am

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

          That is a really bad idea

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

          • identicon
            Anonymous Coward, 6 May 2019 @ 8:33am

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

            A well thought out and elucidated position.

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

            • identicon
              Anonymous Coward, 6 May 2019 @ 9:43am

              Re: Re: Re: Re: Re: 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.

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

              • identicon
                Anonymous Coward, 14 May 2019 @ 11:10am

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

                You don’t even understand that you’re making his point for him.

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

        • icon
          Anonymous Anonymous Coward (profile), 6 May 2019 @ 8:39am

          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.

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

          • identicon
            Anonymous Coward, 6 May 2019 @ 9:31am

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

            That constant churn in the laws would provide infinite opportunity to sneak changes and tweaks into the laws to benefit political donors.

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

            • icon
              Anonymous Anonymous Coward (profile), 6 May 2019 @ 9:55am

              Re: Re: Re: Re: Re: 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.

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

        • icon
          Oblate (profile), 6 May 2019 @ 12:57pm

          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...

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

    • identicon
      john a, 14 May 2019 @ 3:54pm

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

      Could one just claim they thought they "knew" the other driver and flashed lights as a way of saying HEY?

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

  • identicon
    Anonymous Coward, 6 May 2019 @ 3:41am

    Talking (communicating in any way) might warn others to not violate the law AND it's probably copyright infringment (who owns all those words any how).

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

    • identicon
      MathFox, 6 May 2019 @ 4:22am

      Publishing the law allows people to read what they should and shouldn't do. So either laws should be kept secret or literacy should be outlawed. Otherwise citizens may adhere to the law and police revenue would approach zero.

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

    • identicon
      Anonymous Coward, 6 May 2019 @ 4:44am

      Re:

      You laugh... but given that Georgia is already trying to enforce copyright of its laws...

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

      • identicon
        Anonymous Coward, 6 May 2019 @ 8:21am

        Re: Re:

        You are in violation of secret law number B37291, how do you plea?

        I have no idea what I am being charged with so how am I suppose to decide how to plea?

        You should just accept the plea bargain.

        But what am I bargaining?

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

  • identicon
    David, 6 May 2019 @ 3:50am

    Clear aiding and abetting of a non-crime

    Law enforcement officers have a right to a certain crime rate. If they don't get it, they have to substitute crimes of their own. Detaining and citing the offender seems like a rights violation well-catered to the incident.

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

  • identicon
    Anonymous Coward, 6 May 2019 @ 5:04am

    the fix is in

    Self driving cars will fix this...all of the car payments and insurance premiums, none of the control...we'll all be passengers. Yay!
    "[We'll] make great pets"

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

    • identicon
      Anonymous Coward, 6 May 2019 @ 8:25am

      Re: the fix is in

      What do I need liability insurance for when I am not the driver?

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

      • identicon
        Anonymous Coward, 6 May 2019 @ 9:07am

        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!

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

  • identicon
    Anon, 6 May 2019 @ 5:51am

    Helping

    Texas has ruled that by flashing your headlights helps other drivers to slow down and pay attention. Therefore, you are helping the police do their job and maintain public safety.

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

    • icon
      That One Guy (profile), 6 May 2019 @ 6:13am

      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.

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

    • identicon
      Joe, 17 May 2019 @ 9:53pm

      Re: Helping

      Coming from Texas our Department of Motor Vehicles is actually called "Texas Department of Public Safety" people still don't know how drive there.

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

  • icon
    Gary (profile), 6 May 2019 @ 6:15am

    347.07  Special restrictions on lamps and the use thereof.

    (c) Any flashing light.

    Congratulations Wisconsin! Your police have just argued the use of turn signals to be in violation of state law.

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

    • identicon
      FosterCity, 6 May 2019 @ 6:36am

      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.

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

      • icon
        nasch (profile), 6 May 2019 @ 7:41am

        Re: Re: 347.07

        The candlepower specification is in section (clause? paragraph?) 1. The flashing light stricture is in section 2, which appears to be entirely separate and have nothing to do with candlepower. Unless I'm misreading it; I'm not a lawyer. If my interpretation is correct, the state has also prohibited amber rear turn signals.

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

      • icon
        nasch (profile), 6 May 2019 @ 7:43am

        Re: Re: 347.07

        Although we'd have to read the rest of the chapter to see if there are any exceptions: "Except as otherwise expressly authorized or required by this chapter..."

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

      • icon
        K`Tetch (profile), 6 May 2019 @ 9:02am

        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.

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

    • identicon
      bob, 6 May 2019 @ 10:24am

      Re: 347.07  Special restrictions on lamps and the use thereof.

      How about the lights on the top of police cars. Those tend to distract a lot of drivers and can blind you if your eyes are at the same level.

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

      • icon
        K`Tetch (profile), 6 May 2019 @ 10:54am

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

        yeah, we had some conversations on that in the 'war on police' piece a week or so ago. I'm looking to do a test on that sort of thing.

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

      • icon
        Bergman (profile), 19 May 2019 @ 2:40am

        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.

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

  • icon
    Bamboo Harvester (profile), 6 May 2019 @ 6:27am

    I wouldn't...

    ...put too much weight on the decision of a Magistrate Judge.

    They're elected or appointed, and very limited in what kind of cases they can sit in judgement of. They're mainly Administrative Law (tickets and citations) and minor misdemeanors. They also handle Arraignments.

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

  • identicon
    Anonymous Coward, 6 May 2019 @ 6:32am

    Wisconsin's next door neighbor Michigan might have an even worse record when it comes to flashing headlights, particularly when the oncoming car turns out to be a cop.

    https://www.dailykos.com/stories/2015/10/16/1433889/-Unarmed-teen-who-flashed-lights-at-cop-tasered -and-shot-seven-times-dead

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

  • identicon
    Vel the Enigmatic, 6 May 2019 @ 7:24am

    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.

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

  • identicon
    Anonymous Coward, 6 May 2019 @ 7:57am

    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....

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

  • icon
    Toom1275 (profile), 6 May 2019 @ 9:08am

    Now, would the cops stick to their fallacies to attack someone flashing their lights at speeders when there isn't a speedtrap?

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

  • identicon
    Tin-Foil-Hat, 6 May 2019 @ 9:38am

    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.

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

  • identicon
    Anonymous Coward, 6 May 2019 @ 9:38am

    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.

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

    • identicon
      Tin-Foil-Hat, 6 May 2019 @ 9:52am

      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.

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

  • identicon
    One True Dabe, 6 May 2019 @ 10:16am

    Potentially Hazardous Condition

    FWIW, my father successfully argued he was warning other drivers of a potentially hazardous condition...
    Not the speed trap itself, but that the cars IN FRONT OF THEM might brake suddenly.

    [Yada yada, "IANAL", "YMMV", etc.]

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

  • icon
    Shafiqul Islam (profile), 6 May 2019 @ 10:19am

    Nice Post

    These are very useful post and I like it.

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

  • icon
    alioglucatering.com (profile), 1 Jul 2019 @ 7:38am

    catering

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


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