Virginia Court Reaffirms The Right To Give Cops The Finger

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


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  • icon
    Anonymous Anonymous Coward (profile), 1 Apr 2020 @ 1:41pm

    Incomplete work

    "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."

    For this I blame Clark's lawyer for not adding in time spent in jail, possibly lost wages, and psychological impact injury for being tormented by an out of control cop, etc.. We don't know who the lawyer was, possibly an inexperienced public defender, or worse someone he paid that just didn't do a complete job.

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

    • icon
      Bill Silverstein (profile), 1 Apr 2020 @ 2:58pm

      time in jail?

      "Although Coleman had taken Clark’s driver’s license, another deputy returned it to him, and Clark was permitted to leave after approximately 10 – 20 minutes. Neither Clark nor his sister were cited for any crime or traffic infraction."

      I don't believe that Clark spent any time in jail, or at least according to the appeals court.

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

      • icon
        Bclark2020 (profile), 2 Apr 2020 @ 4:41am

        Re: time in jail?

        Because my attorney had filed this USC 42, including a Writ of Prohibition at a Judge with the VSC, while these cases where still ongoing, I was charged with Contempt by this same Circuit Court. It was later then tried and convicted and I was held in Jail for 6 hours.
        Still fighting that on an appeal, which has been denied at the VSC level of course, so now we are awaiting to be granted a Stay to appeal this to the US Supreme Court. Otherwise they intend to try and still place me into the Patrick County VA Jail. This ordeal is still ongoing, so stay tuned. This Contempt Charge, was by clear retaliation for exposing all these matters.

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

    • identicon
      Wendy, 21 Apr 2020 @ 1:20am

      Re: Incomplete work

      The lawyer is Henry McLaughlin . Unfortunately Henry is "part of the establishment " as he says. Henry started out as seemly wanting to stand up for justice. But over time that changed. He now does things that hurt Brian Clark. As I type this the same Patrick County Virginia has Brian Clark in their jail on a contempt of court charge. Issued by Judge Williams and Stephanie Vipperman the Commonwealth Attorney. I was at the trial. It was a Salem Witch Trial. Judge Williams denied Brian a jury trial, refuse to allow any defense, denied any motions Henry McLaughlin presented, and denied Brian any character witnesses. Henry supposedly appealed the conviction to Virginia Supreme Court . The appeal was denied. Brian got charge with contemp because Henry file a Rit of Prohibition at Judge Clark for illegally banding Brian from the clerk of courts office. Judge Clark wrote a letter to chief judge Williams and told him to charge Brian with Contempt . Brian won the USC 42 1983 case. Judge Williams now has him in jail. Retaliation for Brian Clark standing up for his rights and because Brian dare appeal cases to a higher court. Now Patrick County Virginia Jail has him and I know they want to hurt him. I just had to drop him off at the Patrick County Jail and I am terrified of what could be happening to him.

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

  • icon
    Stephen T. Stone (profile), 1 Apr 2020 @ 1:42pm

    As someone who is completely sober, I take great honor and pride in doing the following:

    πŸ–•

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

    • identicon
      Anonymous Coward, 1 Apr 2020 @ 2:45pm

      Re:

      Agreed. You hear that LEOs? That slight shuffling noise? It's the sound of a nation letting you know what they think of you.

      πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ–•πŸ– •πŸ–•πŸ–•πŸ–•, ad infinitum.

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

    • icon
      Bclark2020 (profile), 2 Apr 2020 @ 4:54am

      Re:

      Just FYI: This is not just a Brian H. Clark thing. Masked up under a Flip off Story line. Theres a lot more behind this story than that.

      Unfortunately this is an Anyone who stands up against the establishment thing.

      The only thing that separates us from a total police state, is our constitutional rights. The real disappointment is that 7 Jury members in this case, and they know who they are, ruled against the Constitution and the instructions of this Federal Court Judge in this case.

      I'm pleased with the Win, for our Constitutional Rights.

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

  • identicon
    Anonymous Coward, 1 Apr 2020 @ 1:42pm

    Huh?

    Can someone explain how something "well settled in law" gets as far as a jury. What happened to the Attorney/prosecutor saying "er, hang on"? What happened to the Judge saying "er, hang on?". What happened to the defence pounding on the table an pointing out to the jury, or raising motions to the Judge pointing out there was no law broken.

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

    • icon
      Bill Silverstein (profile), 1 Apr 2020 @ 2:55pm

      Not well settled

      The jury bought the bullshit that only someone who is drunk or mentally ill would flip-off an officer. Didn't they charge him for PUI? Passenger under the influence.

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

      • identicon
        Canuck, 1 Apr 2020 @ 5:59pm

        Wut?

        You got passenger under the influence from "Coleman never made any inquiries about distress, mental illness, or intoxication during the 20-minute stop."??

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

  • icon
    Norahc (profile), 1 Apr 2020 @ 2:34pm

    Well done Officer Coleman...you have to try really hard to get the trial court to deny QI and set aside a conviction as a matter of law. Those fuck ups usually seem to be corrected at the appellate level, but you managed to screw up so bad even the trial court couldn't wave your Constitutional violations away.

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

  • identicon
    David, 1 Apr 2020 @ 3:12pm

    This is the U.S.

    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.

    This is not "strictly symbolic". In the U.S., being awarded attorney fees usually dwarves any actual damages.

    Getting awarded $5000 but no attorney fees, in contrast, tends to amount to a big monetary loss. And attorney fees are awarded only in very rare cases.

    In "loser pays all" jurisdictions, in contrast, this would only be a symbolic win. In the U.S., it is pretty good.

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

    • icon
      That One Guy (profile), 1 Apr 2020 @ 7:44pm

      Re: This is the U.S.

      In "loser pays all" jurisdictions, in contrast, this would only be a symbolic win. In the U.S., it is pretty good.

      Which just highlights how screwed up the legal system is in the US, where 'you aren't going to be further penalized by being required to pay the costs to defend yourself in court' is a noteworthy point.

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

    • identicon
      Wendy, 21 Apr 2020 @ 2:30am

      Re: This is the U.S.

      Henry McLaughlin told Brian that Brian is only entitled to 75% of his lawyer fees. So Henry is trying to short Brian out of his lawyer fees. The courts and Henry are trying to exhaust all Brian's funds.

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

  • icon
    That One Guy (profile), 1 Apr 2020 @ 7:41pm

    'Constitutional rights, only $1 so buy fast!'

    While it's certainly better than the alternative, as far as defending constitutional rights of the public this ruling is a freakin' joke.

    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.

    They flat out admitted that the defendant's constitutional rights were violated, and then gave the victim a whopping $1 for their trouble along with preventing them from being further penalized for having to defend themself in court. Nice to see rights given just as much value as any other rubbish you'd find in the dollar bin at a store.

    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.

    The idea that they can't hand out a real fine because he didn't ask for it looks to be pretty directly contradicted by the fact that he apparently asked for punitive damages, so unless I'm missing something the court most certainly did have leeway to hand out a meaningful fine, they just decided not to.

    The ruling may have been better than the alternative but 'better than terrible' does not necessarily equal 'good', which is most certainly the case here.

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

  • identicon
    Anonymous Coward, 2 Apr 2020 @ 3:09am

    Hamilton's not going to like this, is he?

    Do it again.

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

  • icon
    Bclark2020 (profile), 2 Apr 2020 @ 3:24am

    Awarded 1$ in damages

    Dear Posters

    First off i would like to thank you all for your support of our rights under the US Constitution. As all of you can see our constitutional rights have been devalued in this Country. While my Attorney wants to appeal the denial of a new trail to determine damages. I'm not in favor of doing so and have conveyed that to him. Let it stand as is because doing anything to seek damages will be viewed as I was instigating it for money,. I want even get ALL my Attorney fees / expenses this ordeal took to defend. In fact, this was just one of many days of harrassment that followed even after this Stop. One of the female witnesses to the stop was given a ticket for video taping it. The other lady was later targeted followed and assaulted, nothing was done about that either. If you read this entire case history you might have also noticed that this Officer who conducted this illegal stop was actually promoted from LT to Captian. This was about standing up to police conveyed threats and pure out harrasment. I'm glad that our 4th amendment was defended and that we ultimately prevailed with the Win.

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

    • icon
      That One Guy (profile), 2 Apr 2020 @ 6:42pm

      Re: Awarded 1$ in damages

      One of the female witnesses to the stop was given a ticket for video taping it. The other lady was later targeted followed and assaulted, nothing was done about that either. If you read this entire case history you might have also noticed that this Officer who conducted this illegal stop was actually promoted from LT to Captian.

      Court: That was a constitutional violation.

      Police department: That sounds like someone we want to reward and give more power to.

      Short of flying a giant banner atop the department building with 'Screw your rights' I'm struggling to think of a better way to get across the gross contempt that the department apparently has for the public and the constitution than what they did.

      Congrats on the win, I'm just sorry that you had to go through the whole process rather than it being blindingly obvious that the police screwed up and deserved to be slapped down for it from the very start.

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

      • icon
        Bclark2020 (profile), 3 Apr 2020 @ 9:00pm

        Re: Re: Awarded 1$ in damages

        Thanks for the support of our 4th amendment rights. Timeline of events are important to under stand that this wasnt about flipping anyone a middke finger. It was really about a multitude of discovery and that their local Commonwealth Attorney was set to face a abuse of process charge and malicious prosecution on August 23rd 2016. If you care too your welcome to read www.patrickcountyva.blog

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

    • identicon
      Anonymous Coward, 3 Apr 2020 @ 10:26am

      Re: Awarded 1$ in damages

      Mr. Clark, I'm interested in the psychology of this.

      I don't think anyone here disagrees with your right to flip off a cop. But I can't be the only one curious to know why you did it.

      I'm not even wondering if you now or then thought it was a 'good idea' … I'm asking if you'll enlighten us as to why you did it?

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

      • icon
        Bclark2020 (profile), 3 Apr 2020 @ 8:46pm

        Re: Re: Awarded 1$ in damages

        I didnt flip him off. This was a planned harrasment stop carried out at their local Furneral home after I just had left Court. It was meant as a threat and he was very angry because others pulled over, that was just in court with me in a Civil Matter, and was video tapping this stop. It wasnt just Officer Coleman. There was 7 cars there including a State Trooper Vehicle. The papers just want to spin it as such. One of the Witnesses, the lady who was later Assaulted on.August 23rd 2016 had overheard these officers threatening to take me out and down and couldnt wait to see the look on my face when they did so. All this is in the full Court trail records. Of course most other media will omit that.
        Read www.patrickcountyva.blog there's the full truth and details posted there. Thanks for your support. For our 4th amendment rights.

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

    • identicon
      ROGS, 4 Apr 2020 @ 7:22am

      Re: Awarded 1$ in damages

      Stay strong. These types of cops frequently enlist other city workers, and their relatives to harass you after a win.

      The good news is that Virginia is a one party consent state, so you can film and record those cowards:

      http://www.dmlp.org/legal-guide/virginia-recording-law

      re: "just one of many days of harassment that followed even after this Stop. One of the female witnesses to the stop was given a ticket for video taping it. The other lady was later targeted followed and assaulted"

      This is called organized gang stalking and these types take it to bizarre extremes, enlisting their friends and family in harassing their targets; and its illegal. Get dash camera's, and check your local laws. Be fearless in documenting it.

      And, if it gets too real, I have a civil rights lawyer friend in Manassas Virginia who might be able to help you.

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

      • icon
        Bclark2020 (profile), 8 Apr 2020 @ 9:17am

        Re: Re: Awarded 1$ in damages

        This ordeal has been well documented that's for sure. Those that have witnessed it have been stalked, targeted, and even physically attacked. I will always stand for our Constitutional Rights, because if we don't they will be trampled on. This is a Win for Constititional Rights. Let's be honest here there a lot more behind this than what meets the eye. Do not let the media put their spin on it. The views they have come from lack on investigative reporting to understand the full story behind this matter. People, no one hires lawyers and sues the police unless there's a good reason for doing so. Read www.patrickcountyva.blog

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

        • identicon
          ROGS, 17 Apr 2020 @ 11:24am

          Re: Re: Re: Awarded 1$ in damages

          Your story is spot on, and apologies I haven't gotten back to you. Technical trouble on my end.

          Try the law firm of Sheldon&Flood, in Manassas. They are primarily death penalty cases but can possibly refer you elsewhere, as they are very interested in your district.

          This: Those that have witnessed it have been stalked, targeted, and even physically attacked

          That's the definition of gang stalking by police and their cronies, who fill endless blogs and forums online with gibberish about electronic weapons (Fusion Center wiretaps, etc), etc.

          Your case is simply unreal. I will write to you soon.

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

          • identicon
            Wendy, 21 Apr 2020 @ 2:22am

            Re: Re: Re: Re: Awarded 1$ in damages

            Judge Williams and Stephanie Vipperman put Brian Clark in Patrick County Jail on 04/20/20. Please flood the jail with call injuring of Brian Clark's safety. I am begging you!!! This is Wendy Inzerillo the one Dan Smith assaulted in the courtroom of Patrick County Virginia. THEY WANT TO HURT BRIAN CLARK OR KILL HIM. I am terrified. I keep calling it the wolf guarding the lamb. The demons have him. Brian refused to run and turned himself is after Judge Williams ordered it. Henry McLaughlin the lawyer did nothing. He didn't object to anything during the hearing this morning . Hearing was held by teleconference. Judge Williams and Stephanie Vipperman thought they ended the call but they were heard high fiving each other and heard saying "we got him". The reason Brian still has Henry McLaughlin the lawyer is because we are out of money and we can not afford to pay 5 to 10 thousand dollars up front. We have called other lawyers. Most refused to take the cases or want Brian Clark to pay outrageous amounts of money up front.

            I just want Brian to make it out of that Patrick County Virginia jail alive. I am so afraid. I am even afraid that a deputy is going to hurt another deputy and say Brian Clark done it. These people are so courpt. The citizens of Patrick County live in fear.

            Please help me keep Brian Clark safe πŸ˜₯😰

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

            • identicon
              RAGSTOROGSES, 28 Apr 2020 @ 9:42am

              Re: Re: Re: Re: Re: Awarded 1$ in damages

              Here is the jail if anyone wants to have fun with it: ph# 276-694-3161

              And heres all of Techdirts stories about the jail phone system, Securus, one of the biggest predatory tech frauds perpetrated on prisoners:

              https://www.techdirt.com/blog/?company=securus+technologies

              He gets out today, right?

              I think you need to organiz some folks, and study all of Ms. Vippermans electronic connectctions and social relationships.

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

  • identicon
    ROGS, 4 Apr 2020 @ 1:01pm

    The death threats are very real. I had California Ste Patrol try to run me off the roads in 2016-17.

    These are organized members of police/fire/teachers unions and affiliated "community policing" scum who are with the various NGOs in your area. And, here is a link to some personal information about one of your stalkers, Stephanie Brinegar- Shitbag

    https://www.myfunnyprofile.com/Stephanie-Brinegar-Vipperman#first1:

    These are united in the subversion of rights and due process ( I see that they managed to lock you out of the courthouse, and tried to convict you of bogus charges).

    So document it all, and get in touch with other activists. Filming cops is NOT a crime.

    https://medium.com/reportedly/do-we-really-need-to-sketch-this-out-filming-cops-is-not-a-crim e-864c27c7cce3

    And, if you are interested, I have a few more tactics that might work in your case.

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


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