Appeals Court Affirms State Trooper Who Responded To An F-Bomb With An Arrest Owes $15k In Legal Fees

from the I-told-you-once-and-I-told-you-twice/But-you-never-listen-to-my-advice dept

By now, there's enough case law in place that law enforcement officers should definitely know it's a violation of rights to arrest someone for momentarily offending them. Even without the case law, these officers know it's not okay to bust people for flipping them off or yelling expletives in their general direction. That's why those that do, buttress their rights violations with absurd claims that doing these things "disturbs the peace" or violates any other "contempt of cop" law that can be deliberately misread to criminalize hurting a cop's feelings.

But cops persist in engaging in retaliatory acts that target protected speech. And the most protected speech of all is criticism of the government, even if it's nothing more than a fleeting expletive or the bird being delivered by the passenger of a passing car.

This refusal to let bygones be bygones when the moving vehicle has moved on is going to cost taxpayers some money. A case already decided by the Eighth Circuit Appeals Court in favor of the citizen setting up Arkansas State Trooper Lagarian Cross with the F-bomb now has a much more expensive price tag.

The original 2019 decision refused to grant Trooper Cross qualified immunity. It also awarded the swear Eric Thurairajah nominal damages: one US dollar. Here's a brief rundown of the facts behind the first visit to the Appeals Court, as well as setting the stage for the Eighth Circuit's second pass.

In 2015, Trooper Cross was performing a routine traffic stop on a van pulled to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard Thurairajah, who was driving by, yell "f**k you!" out of his car window. The van's occupants were a mother and her two young children. Thurairajah was driving at about 35 miles-per-hour on the far lane of the road moving in the opposite direction. Trooper Cross observed the two children in the van react to the yell. Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas's disorderly conduct law. Trooper Cross believed the shout constituted "unreasonable or excessive noise" under the law. Ark. Code Ann. § 5-71-207(a)(2).

Thurairajah spent several hours in jail but then was released and all charges against him were dropped. He filed a § 1983 lawsuit against Trooper Cross alleging the trooper violated his First Amendment right to be free from retaliation and his Fourth Amendment right to be free from unreasonable seizure. Trooper Cross moved for summary judgment on the basis of qualified immunity. The district court denied qualified immunity on both claims after concluding Trooper Cross's arrest violated Thurairajah's clearly established constitutional rights.

"Clearly established." No qualified immunity. The trooper's appeal netted him nothing but an affirmation of both the lower court's decision and the clear establishment of the right he had violated.

The second pass by the appeals court doesn't bother affirming anything that hasn't already been said twice. But it does help Trooper Cross dig himself an even more expensive hole with his inability to accept his loss gracefully. From the decision [PDF]:

The court sua sponte entered an order in limine precluding Thurairajah from presenting a punitive-damages argument to the jury. At trial, the jury returned a verdict finding that Trooper Cross’s actions were not the proximate cause of Thurairajah’s damages and awarded him nothing. The district court subsequently awarded nominal damages of $1.00 to Thurairajah. Thurairajah moved for a new trial, alleging that defense counsel acted inappropriately and that the district court should not have admitted evidence of a collateral source at trial. The district court denied the motion. Thurairajah moved for attorney’s fees, and the district court awarded attorney’s fees of $15,100.00.

Trooper Cross appealed this decision. He needn't have bothered. The fees award is affirmed, meaning whoever's indemnifying the state trooper will be paying $15,000 in legal fees to the plaintiff.

And the concurrence says the Eighth Circuit may have misread state law to give the trooper a pass on the plaintiff's state law claims. According to Arkansas law, no immunity may be awarded if the officer's violation of someone's rights is "malicious." The Eighth Circuit says nothing on the record supports the claim Trooper Cross's arrest was a "conscious violation of the law." The concurrence says that take is wrong. There's plenty on the record suggesting otherwise.

Thurairajah described the arrest as “hostile,” “violent,” and “personal.” He testified that Trooper Cross yelled at him to get out of the car, walked towards him “fast,” and asked him if he “thought that s**t was cute.” Thurairajah also testified that Trooper Cross was “aggressively moving [him] around” during the arrest, was “very aggressive through all the searches [of him],” and “was obviously very angry.” At one point, Trooper Cross told Thurairajah, “You can’t talk to cops like that; you can’t yell F-you to a cop.” And at the jail later, Thurairajah heard Trooper Cross tell someone, “This kid said ‘F**k you’ to a cop; so I thought I would bring him in.” Viewing these facts in Thurairajah’s favor, a jury could reasonably conclude that Trooper Cross arrested Thurairajah not because he believed Thurairajah engaged in disorderly conduct, but because he was angered by the profanity Thurairajah directed at him. And given that it was clearly established at the time that “[c]riticism of law enforcement officers, even with profanity, is protected speech,” Thurairajah v. City of Fort Smith, 925 F.3d 979, 985 (8th Cir. 2019) (first citing City of Houston v. Hill, 482 U.S. 451, 461 (1987); and then citing Hoyland v. McMenomy, 869 F.3d 644 (8th Cir. 2017)), a jury could conclude that Trooper Cross consciously violated the law or arrested Thurairajah “without just cause or excuse, [and] with an intent to inflict injury,” Fuqua, 20 S.W.3d at 391 (quoting Malice, Black’s Law Dictionary (6th ed. 1990)).

But that's the concurrence and Trooper Cross is lucky to escape only $15k lighter in the (collective, taxpayer-funded) wallet.

Almost everywhere in this country it's clearly established that expletives and middle fingers are protected speech, even when they target police officers. Every officer that engages in a retaliatory arrest is only creating more precedent that separates them from their dearly beloved qualified immunity. Smart cops don't blow judicial goodwill on foul-mouthed randos. But there appears to be more than enough dumb cops willing to indulge their worst impulses, ensuring an unfortunately steady stream of increasingly redundant federal court decisions.

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Filed Under: arkansas, free speech, lagarian cross, police, retaliation


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  1. icon
    That Anonymous Coward (profile), 19 Jul 2021 @ 4:38pm

    One has to wonder how people with skin this thin end up in this job.

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

  2. icon
    That One Guy (profile), 19 Jul 2021 @ 4:46pm

    Corrupt and malicious, not stupid

    But there appears to be more than enough dumb cops willing to indulge their worst impulses, ensuring an unfortunately steady stream of increasingly redundant federal court decisions.

    I wouldn't call it dumb at all, after all when you're a thug and you know what even if a court finds against you someone else will be footing the bill why wouldn't you indulge your desires to crack the heads(figuratively or literally) of anyone who doesn't respect your authoritah?

    So long as cops never have to foot the bill for their own actions they have no reason to change how they act, that's not stupidity it's basic pattern recognition fueling malicious and/or corrupt behavior. You want police to start acting better and within the law force them to pay their own legal penalties and/or the legal fees of the other side as ordered here, as even at a fraction of the current amounts if it was personal I guarantee that they'd shape up real quick because suddenly they would have something to lose beyond just time sitting in court.

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

  3. identicon
    anonyOps, 19 Jul 2021 @ 5:05pm

    With the SCOTUS we have right now the bill of rights is as worthless as a Trump contract and IRS tax return. It's the wealthy that are responsible for this not to cops.

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

  4. icon
    sumgai (profile), 19 Jul 2021 @ 6:02pm

    Nice ".... dept" line, harkening all the way back to the 1965 Rolling Stones' hit "The Last Time". (Which itself was "borrowed" from the 1954 Staples Singers hit of the same name. And they say it was an old gospel tune from antiquity.)

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

  5. identicon
    Anonymous Coward, 19 Jul 2021 @ 7:08pm

    I saw a large Dodge truck yesterday in my liberal enclave that had the Gadsden flag right next to a blue line flag on the back. Who exactly do these people think is the government agency that treads on your rights in day to day life? In this part of the country the cops really like terrible red flag gun laws too. Yet they are so brainwashed they'll support an anti-gun cop who arrests people for their protected speech, but not a pro-gun Democrat who wants to strengthen free speech.

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

  6. identicon
    Anonymous Coward, 19 Jul 2021 @ 7:16pm

    Re:

    I can't really think of a job that is more accommodating to thin skinned babies who are incapable of controlling their emotions on duty than policing. If you didn't do drugs in high school since you had no friends what better way to get back at the world than trying to throw the happy successful people in jail for some BS.

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

  7. identicon
    Anonymous Coward, 19 Jul 2021 @ 8:04pm

    Re:

    That's absolutely hilarious, but also indicative of a frightening mentality. Mostly due to sheer numbers.

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

  8. icon
    mhajicek (profile), 19 Jul 2021 @ 9:32pm

    Re: Corrupt and malicious, not stupid

    Indeed. False arrest should be considered kidnapping, and punished with prison time.

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

  9. identicon
    Bobvious, 19 Jul 2021 @ 11:40pm

    The answer to free speech you don't like

    is more free speech, and I'm sure the Trooper has dropped a few f-bombs of his own now. In fact it's going to look like carpet bombing.

    Let the petty retaliation begin.

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

  10. icon
    Bloof (profile), 20 Jul 2021 @ 1:40am

    Re:

    'Don't tread on me, tread on them '

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

  11. identicon
    Anonymous Coward, 20 Jul 2021 @ 4:44am

    Smart cops don't blow judicial goodwill on foul-mouthed randos.

    That's good smart cops. Bad smart cops know that qualified immunity or not, the lawsuits aren't gonna be paid out of their own pocket and they'd need to do a whole lot worse than false arrest to chance being fired, so they can do whatever.

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

  12. identicon
    Anonymous Coward, 20 Jul 2021 @ 5:09am

    Until Officers pay for this themselves, they will continue to do this. No consequences, no change in behavior.

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

  13. identicon
    Rekrul, 20 Jul 2021 @ 12:58pm

    In cases where qualified immunity is denied, why isn't the cop being sued actually on the hook for the money, or at least the police department?

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

  14. identicon
    Anonymous Coward, 20 Jul 2021 @ 4:07pm

    Re: Re:

    So you're saying you can't have friends in school unless you do drugs, then?

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

  15. icon
    Lostinlodos (profile), 22 Jul 2021 @ 3:27pm

    One minor problem:

    Judge should have held the fees award until Thurairajah apologised to the children.

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


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