Eighth Circuit Strips Qualified Immunity From Cop Who Pulled Over A Driver For Flipping Her Off

from the so-powerful...-and-yet,-so-sensitive dept

It should be pretty clearly established by now that giving the finger to public officials (in every case listed here, police officers) is protected expression. Even if the expression isn't protected, it sure as shit doesn't justify detainment, arrest, or the seizure of someone's property.

Decisions have been handed down by both state and federal courts saying giving a cop the bird is protected expression. And if it isn't necessarily protected (due to courts not seeing anything that justifies deciding this point in certain), it's pretty clearly not evidence of any criminal act, no matter how much offended cops wish it to be.

If you're a cop on the receiving end of this hand gesture, it's best to just move on. Choosing this hill to die on just means the officer now has multiple ways to lose their qualified immunity. First, there's the Fourth Amendment violations, which include detaining people when no actual criminal activity is suspected. Then there are the First Amendment issues, which included illegally retaliating against people for exercising their rights.

The Eighth Circuit Court of Appeals is the latest to add to this body of case work that says engaging in any law enforcement response to a flipped bird is unwise, at best. In this case, the officer who decided it was impossible to ignore an erect middle finger has lost her qualified immunity. This decision [PDF] not so gently reminds cops that being an asshole isn't a crime. (If it was, can you even imagine the number of cops under indictment?)

Ruben Garcia sued officers from the New Hope, Minnesota police department after being hassled excessively by Officer Kaitlyn Baker, whom he first encountered near a local school.

The first encounter was innocuous, but somehow laid the groundwork for officious retaliation later in the day.

On February 1, 2016, Officer Baker was on school patrol at Sonnesyn Elementary in New Hope, Minnesota. That morning, Garcia drove by the school and saw Officer Baker motion for him to stop his vehicle. He stopped. Officer Baker shouted for him to slow down, but Garcia responded that he was going the speed limit. Garcia then drove away. Officer Baker did not issue Garcia a citation.

Had this been the end of it, there would be no federal case. But both parties persisted. Unfortunately, the party with the thinnest skin had the power, the gun, and the badge. Ruben Garcia rolled by the school later that day, again encountering Officer Baker. He sent his love.

Later, in the afternoon, Garcia again saw Officer Baker at the school. This time, he extended his hand out of his car window and raised his middle finger at Officer Baker as he drove past her.

This was apparently too much for Officer Baker. She activated her dash cam and followed Garcia. Her only reason for this initial pursuit was captured by her camera: that Garcia had "flipped [her] off" and supposedly had "argued about speed when children" were present.

Engage bullshit. Baker pulled Ruben over and began to make stuff up.

Officer Baker approached Garcia on his passenger side window. Using his phone, Garcia began to video the traffic stop and then asked Officer Baker why she pulled him over. She replied, “You drove by and you flicked me off and I’m curious as to why you did that.” Id. at 01:07–01:11. Garcia asked if his actions were illegal, and Officer Baker replied that there was a woman with her children at the school patrol and that his actions constituted disorderly conduct.

"There was a woman with her children at the school patrol." That was the alleged reason for the stop. The real reason was in the first part of Officer Baker's statement: "you flicked me off and I'm curious as to why you did that."

Baker demanded ID and insurance info. Twice. Garcia refused. Twice. He stated the officer was violating his First Amendment rights. Baker did what cops often do when faced with accusations of rights violations: she called for backup. Garcia escalated.

Officer Baker asked Garcia for his license several more times. He replied that he would give her the license but repeatedly asked her if she was going to shoot him.

Garcia then asked for Baker's badge number. She stated he could find it on the citation she was going to write him.

Two more officers showed up. Baker demanded Garcia hand her his "goddamn D.L." He refused. Officer Anthony Gust approached the vehicle. Garcia still refused to hand over his license. Having run out of lawful options, Officer Baker decided to try some unlawful approaches.

Officer Baker walked around the vehicle to Garcia, yelling for Garcia to get out of his vehicle. She opened the driver’s side door and demanded that Garcia get out of the vehicle. Officer Baker then grabbed Garcia as he stepped out of the vehicle, placed him against his vehicle, and handcuffed him. Officer Baker threw Garcia’s wallet on the ground. Officer Gust helped Officer Baker hold Garcia against the vehicle.

This "suspicion" was helpfully corroborated by another backup officer, but one who had (wisely) chosen not to respond to an extended middle finger with a search and seizure.

Officer Baker also told the arriving officers that Garcia would not give her his license and “that’s why he’s taking a timeout for right now.” Id. at 05:02–05:05. Officer Johnson related that once he saw Garcia’s license plate, he realized that Garcia had raised his middle finger at him before.

Having found nothing criminal about Garcia's admittedly abrasive actions, Baker and the other officers gave him back his wallet and sent him on his way. Garcia got the last word.

Officer Baker held Garcia in the car for around seven minutes, and during that time, he continued to talk to her about how the officers were dangerous and unprofessional. Officer Baker issued Garcia a citation. Officer Gust then took Garcia out of the squad car and removed his handcuffs. As Garcia left, he yelled “f**k you” at the officers. Id. at 12:56–12:58. He then drove away in his vehicle.

A hero drives among us.

Garcia was cited for disorderly conduct and [checks police recording] a license plate violation. Let's hear more about this "violation."

As to the license plate violation, Officer Baker noted in her incident report: “During the traffic stop, I observed the license plate having a plastic cover over the entire plate and a red plate frame obstructing the view of the month and year stickers.” Ex. 1 at 38, Garcia v. City of New Hope, No. 0:17-cv-03574-NEB-ECW (D. Minn. Nov. 19, 2018), ECF No. 51-1. She later clarified that she noticed the license plate during the crosswalk encounter and mentioned the violation in the wrong portion of her incident report. Officer Baker also stated that she did not inform Garcia of the license plate violation because she could not have a conversation with him. Garcia denies that he had a cover or frame over his license plate.

Ohhhhhhhhh. It wasn't about Officer Baker's "curiosity" about Garcia's hand gestures. And it wasn't really about the people in the crosswalk. It was about a license plate violation the court says it can't clearly see on the recording and the protected speech the court says is protected.

The court says the record isn't clear either way when it comes to the license plate violation. It's possible there was a legitimate reason to stop Garcia.

[T]he district court determined that even if Officer Baker made a mistake, it was a reasonable mistake. The court noted that the other officers saw the frame, the license plate was not clearly discernible on the squad car video, and Garcia entered into the Agreement instead of disputing the violation.

But there's also no exoneration. The facts are still disputed. No other officer offered testimony that backed up Officer Baker's claims about a license plate violation. As long as this question remains unsettled, even an honest mistake of the law isn't enough to grant qualified immunity… especially given the other facts at hand.

It is true that we have found that an officer made a reasonable mistake about a license plate violation where the license plate was not centered on the front bumper and “it was dark outside, making it difficult for [the officer] to fully scan the vehicle for a front license plate.” United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008). But the blurry video does not show that Officer Baker’s view of the license plate was hindered. In fact, the video depicts a clear day and shows that Officer Baker—who was right behind Garcia’s car—had a clear view of the license plate. Officer Jacobs’s testimony and the blurry video are not enough to show that Officer Baker had an objectively reasonable belief—based on the totality of the circumstances—that the license plate was unlawfully covered.

The court then says Garcia's decision to enter into an agreement on the license plate charge has no bearing here. It's not an admission of guilt. The agreement he signed does not contain any admission or stipulation that Garcia's license plate violated state law. No qualified immunity on the BS "license plate violation" excuse for this stop.

Therefore, at this stage of the litigation, Officer Baker is not entitled qualified immunity based on the absence of a Fourth Amendment violation because there is a genuine dispute of material fact as to whether she had probable cause to conduct a traffic stop of Garcia’s vehicle.

That cues a reversal of the lower court's decision. It was clearly established -- and Officer Baker does not contend otherwise -- that probable cause is required for a traffic stop. An extended middle finger is not probable cause.

And there's no qualified immunity for targeting a single finger. The court reiterates that indicating the police should fuck themselves is protected speech.

Garcia’s raising his middle finger at Officer Baker is a rude and offensive gesture but nonetheless, under current precedent, is a constitutionally protected speech activity.

Any detainment originating from this would logically deter people from engaging in protected speech. No qualified immunity here either.

Officer Baker does not dispute that Garcia’s right to be free from First Amendment retaliation was clearly established at the time of his arrest. “Criticism of law enforcement officers, even with profanity, is protected speech.”


Based upon the record before us, we hold that the district court erred in granting qualified immunity to Officer Baker on Garcia’s First Amendment retaliation claim.

There's a dissenting opinion. And it's ridiculous. Judge Shepherd prefers to believe First Amendment speech should be subjected to the same standard as Fourth Amendment violations. If anyone did everything Garcia did during these interactions with local officers, Officer Baker should have been free to believe making some shit up to justify detaining someone for offending her was cool and Constitutional.

In my view, Garcia’s conduct was prolonged and goes beyond that of constitutionally protected speech. Garcia made the obscene gesture while driving through a school zone in broad daylight while a crossing guard was present. He extended his head and entire arm out of the car while raising his middle finger. Further, Garcia’s aberrant and aggressive behavior, which included the obscene gesture, occurred after a previous contentious encounter that morning with Officer Baker at the same school crossing. Although an officer is expected to exercise more restraint than the average citizen in responding to offensive or critical speech, I believe the facts here demonstrate an escalation of offensive and aggressive behavior that both disrupted and interfered with Officer Baker’s ability to monitor the school crossing.


Further, even if Garcia has shown the violation of a constitutional right, it was not clearly established on February 1, 2016, that driving through a school zone during school hours and in the presence of a crossing guard, leaning his entire head and arm out the window of his vehicle to raise his middle finger, all following a confrontation about Garcia’s rate of speed in the same location earlier that day, was protected by the First Amendment.

Sorry, Judge. But that's not how the First Amendment works. Even under the extremely permissive qualified immunity guidelines, the limits of the First Amendment are pretty clearly defined. And it's pretty clear Officer Baker's -- despite her belated obfuscation -- real reason for pulling over Garcia was to punish him for being rude to her. This addition to the opinion only shows one judge would forgive officers for punishing citizens for hurting their feelings. Ridiculous.

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Filed Under: 1st amendment, 4th amendment, 8th circuit, anthony gust, free speech, giving the finger, kaitlyn baker, minnesota, new hope, police, qualified immunity, ruben garcia

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  • identicon
    Anonymous Coward, 8 Jan 2021 @ 10:57am

    This decision [PDF] not so gently reminds cops that being an asshole isn't a crime. (If it was, can you even imagine the number of cops under indictment?)

    None. They'd have qualified immunity.

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

  • icon
    That One Guy (profile), 8 Jan 2021 @ 11:07am

    Mostly good

    Nice to see that most of the judges aren't willing to offer qualified immunity for a first amendment violation, not-so-nice that more than zero judges in that court are willing to play the 'if it hasn't been exactly spelled out that a specific action is a violation it doesn't count' game.

    Robbery is illegal, someone finding a novel way to rob a bank that has never been done before wouldn't be enough to legalize their actions just because it hadn't been spelled out that that specific form of robbery is bad, and it sure would be nice if those tasked with upholding the laws were at a minimum held to the same standard that the hypothetical bank robbers would be rather than continually treated as the dumbest people on the planet.

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

    • identicon
      Anonymous Coward, 8 Jan 2021 @ 1:12pm

      Re: Mostly good

      Qualified immunity does not pertain to criminal acts,

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

      • icon
        sumgai (profile), 8 Jan 2021 @ 1:44pm

        Re: Re: Mostly good

        QA doesn't pertain to criminal acts.

        Holy Jeebus, man, today just isn't gonna be your day, is it.

        First, TOG is asking why isn't it required that those who are expected to present to the public an example of civil behavior aren't held to an even higher standard than Average Joe Sixpack. QA is essentially a thumb-your-nose buck slip, and it's available only to a subset of the populace. The simple question is, why's that?

        Second, define criminal acts. Does killing George Floyd count, in your book? Does beating Rodney King count? How about stopping a speeding car, with a married couple on their way to an abortion, whereupon the officer takes them to a "Come To Jesus" meeting, complete with a dunking in the lake... does that count as a criminal act in your book?

        Tell us, bunky, where do you draw the line?

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

      • identicon
        Anonymous Coward, 8 Jan 2021 @ 1:52pm

        On the other hand...

        Qualified immunity does not pertain to criminal acts

        True but misleading.

        While executing a search warrant, some cops stole some $225,000 in assets. They were granted immunity from civil suit for having stolen the items. (Jessop v. Fresno)

        The cops in question would not be able to assert qualified immunity to charges of theft. ... but they were not so charged.

        The only consolation is that the detective who led the (alleged) heist was later convicted of bribery.

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

        • identicon
          Anonymous Coward, 8 Jan 2021 @ 5:03pm

          Re: On the other hand...

          Sounds like the rationale is filtering case for separating what is part of executing their lawful job vs unprotected private activities.

          Of course it is a bullshit distinction to protect authorities in the first place. Since if a ballif were to shoot a gunman storming the courtroom and then follow it up turning and shooting a federal judge in cold blood (leaving no ambiguity as richochet or grim decisions with risking friendly fire vs enemy fire) they would have no issue separating the legitimate exercise of authority from illegitimate use of force. If a removed valuable not duely entered into evidence shows no remote signs of intent of being entered into evidence even so remotely as "shoved jewelery into pockets of pants he was wearing on duty and supposedly forgot about it" or forgot a gold ring in his work desk can be separated from "Stashed in the trunk of his personal vehicle not even brought to the scene of the crime or even used for work commute" undeniable.

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

    • identicon
      Anonymous Coward, 11 Jan 2021 @ 9:24am

      Re: Mostly good

      "Robbery is illegal, someone finding a novel way to rob a bank that has never been done before wouldn't be enough to legalize their actions..."

      ...but, if the bank finds a novel way to rob YOU, it's called a 'service charge".

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

  • This comment has been flagged by the community. Click here to show it
    Keith (profile), 8 Jan 2021 @ 8:50pm

    But wait, what if.......?

    According to the knights in shining armor of the whack job leftist elite, hurting someone's feelings IS A CRIME. Usually a HATE crime. Requiring that the hurter lose his, (crap, please, EXCUSE ME, meant to say, and in some jurisdictions am legally required to say, lose "his/hers/it's/shims/shers/zes/Yee's/completely and heroically not associated with any previously known concepts of something so crass and hateful as a biological gender's) job, freedom, assets, honors, titles, and possibilities of living a peaceful life ever again. To be CANCLED by a culture that doesn't exist.
    Just watch 3 minutes of any so called "news program" or daily type propaganda show, and you will hear at least one such example stuffed into your ears with the pious attitude of the commentator dripping with mockery of any one who could possibly think otherwise.

    Then I have to ask this..... Let's just say that there exists a black female, sheeeiit, I did it again, I'm sorry....ahem... A completely undeterminablely gendered POunderterminableColor-other-than-white, police officer.. damnit, SPAWN OF SATAN THAT NEEDS EXTERMINATED, who is working somewhere near children, and that vilest of creatures every to ooze out of the pits of hell, a WHITE GUY, driver by, makes a scene, says a few protected words , and expresses the suggestion that the (please forgive me, but in interest of brevity, I'm just going to call person a female POC LEO) take a break for a bout of autoerotica. AND the scum bag had the gall to have a TRUMP bumper sticker, AND an NRA licence plate frame!!

    Surely then, beyond any doubt, and not subject to review, flipping the bird would be not only a crime, but a hate crime. And not just a hate crime, but a hate crime from a privileged, systemically racist, proud boy loving NRA hugging TRUMP SUPPORTER!!

    Now, tell me, I DARE you, tell me that piece of shit did not commit a crime punishable by immediate execution!

    So it's flipping someone off a crime or not? Looking forward to your thoughts

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

    • icon
      Mike Masnick (profile), 9 Jan 2021 @ 12:58am

      Re: But wait, what if.......?

      You appear to have strayed from your usual echo chamber internet destination and walked into our little space without bothering to understand, well, anything. Please go back to whatever hole your crawled out of and stay there.

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

  • identicon
    Ivonne B, 6 Aug 2021 @ 11:09am

    They are all corrupt. Attorners are all owned by the BAR and cops learn from them. But it gives them no excuse to fraud the American people. Read and research. It's all true we are a live living soul and our Birth Certificates they trade on wallstreet. The Judges, Attorners, have no Juristriction over a naturalized Person. They are part of the BAR who's address is in London and that would make it a foreign Corporation, practicing here illegally in the United States of America. They can not make you get a DL, Insurance, they cant arrest you, They cant charge you. The more Americans that stand up against this, the more they will all be charged.

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

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