Giving Cops The Finger Is Protected Speech, Says Another Federal Court

from the learn-faster,-idiots dept

Fri, Sep 28th 2018 3:28am — Tim Cushing

Another federal court has given its official approval of flipping the bird to cops. This isn't to say it's a wise idea, just a Constitutional one. Extending the middle finger is protected speech. Detentions or arrests that follow bird-flipping are usually unsupported by any of things officers need to have on hand (probable cause, reasonable suspicion, etc.) to deprive someone of their liberty.

Other cops have argued the hand gesture that pissed them off so much they broke the Constitution is some sort of universal distress signal. The ensuing interaction wasn't about being offended, but rather their outsized concern someone in the vehicle might be in need of assistance. Courts have found this argument literally unbelievable.

In this case, the cop being sued made no such argument. Instead, Officer Wayne Minard maintained he had probable cause to pull Debra Cruise-Guylas over again because he had only issued a warning about her speeding. The court doesn't agree with this assessment. It points out Guylas had already been pulled over for speeding. The citation ultimately issued by Officer Minard may have been for impeding traffic, but the purpose of the original stop was fulfilled when the citation was issued. No further violation had occurred when Minard pulled Guylas over a second time. From the decision [PDF]: (h/t Adam Steinbaugh)

The evidence before the Court included a state court record that established the Plaintiff had received and paid a ticket for impeding traffic. [...] While Defendant could have, at that time, issued a ticket for speeding, he did not. It was only after the initial stop had been completed, and Plaintiff drove off and "flipped the bird" that Defendant stopped her a second time without any legal justification.

Also, the cop's lawyer wasn't much help:

[A]t the September 21, 2018 hearing, Defendant's counsel conceded: "No doubt the gesture helped -- it probably was the foundation for the change of his [Defendant's] mind" [to implement a second stop] … "I can't argue around that, your Honor."

The court notes there's plenty of precedent on point that says officers can't detain people for offending them. The lawsuit proceeds and Officer Minard will have to deal with the unpleasant outcome of his idiotic actions.

The Constitution may cover giving officers the finger, but that doesn't mean officers won't make you miserable for exercising your First Amendment rights. Sure, you may gain some satisfaction from the courts, but you'll be out a lot of time and money. This isn't to say self-censorship is the way to go, but there are real costs attached to exercising your freedoms if you happen to anger the wrong [sigh] "public servant."

Government employees can violate rights in mere seconds and defend against allegations using someone else's money. Citizens don't have that luxury, which is why stupid shit like this continues to happen. A better cop would have let it go, costing no one anything. Officer Minard isn't one of those cops, and his willingness to abuse the power entrusted to him should be a major concern to his employers.

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Filed Under: debra cruise-guylas, first amendment, free speech, police, probable cause, the finger, wayne minard

41 Comments

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Anonymous Coward, 28 Sep 2018 @ 3:39am

The bird is the word!
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- I.T. Guy, 28 Sep 2018 @ 4:21am
  
  Re: The bird is the word!
  The b-b-b-bird is the word, silly.
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  - Bamboo Harvester (profile), 28 Sep 2018 @ 4:50am
    
    Re: Re: The bird is the word!
    But she didn't flip him the bird, she gave him the finger. They're different "hand signals".
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    - Gary (profile), 28 Sep 2018 @ 6:17am
      
      Re: Re: Re: The bird is the word!
      But she didn't flip him the bird, she gave him the finger. They're different "hand signals".
      
      Same hand signal mate.
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      - Bamboo Harvester (profile), 28 Sep 2018 @ 6:22am
        
        Re: Re: Re: Re: The bird is the word!
        "The bird" is the first two fingers raised in a Vee, knuckles towards the person being "flipped off".
        
        "The finger" is simply a raised middle finger.
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        I.T. Guy, 28 Sep 2018 @ 6:27am
        
        Re: Re: Re: Re: Re: The bird is the word!
        As long as I have heard the term:
        https://www.urbandictionary.com/define.php?term=flipping%20the%20bird
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        Baron von Robber, 28 Sep 2018 @ 6:32am
        
        Re: Re: Re: Re: Re: The bird is the word!
        The V is the British version of ..|..
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        nasch (profile), 29 Sep 2018 @ 9:04pm
        
        Re: Re: Re: Re: Re: The bird is the word!
        
        "The bird" is the first two fingers raised in a Vee, knuckles towards the person being "flipped off".
        
        Not in the US.
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- Stephen T. Stone (profile), 28 Sep 2018 @ 9:11am
  
  The hawk is the talk~
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dadtaxi, 28 Sep 2018 @ 5:33am

it'' cost you anyway, and thats a problem
"but you'll be out a lot of time and money.[ . . .] but there are real costs attached to exercising your freedoms"

I've said it many times. You should be able to reclaim costs when being found not guilty. May not stop a butt-hurt cop, but it would give the prosecutor real pause and rethink on even charging (let alone taking all the way to trial) if losing a case means paying ALL the costs.
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- Anonymous Anonymous Coward (profile), 28 Sep 2018 @ 7:39am
  
  Re: it'' cost you anyway, and thats a problem
  Kinda lends to the argument for having the government pay for both sides of prosecutions. Create a budget for any given trial and split it in half, with one half going to the prosecutors and the other half to the defendant. It would solve the problem of the have not's, but probably create others.
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  - Anonymous Coward, 28 Sep 2018 @ 11:09am
    
    Re: Re: it'' cost you anyway, and thats a problem
    If the courts are not free access then justice is only for those whom can afford it.
    
    I would rather deal with the other problems.
    
    When the charges are criminal the government should pay for both sides.
    
    If the charges involve a business or fellow citizen then both sides should be limited to the side with the least spend on the case. Right down to the penny!
    [ link to this | view in chronology ]
    - Anonymous Coward, 29 Sep 2018 @ 12:16am
      
      Re: Re: Re: it'' cost you anyway, and thats a problem
      Everybody "STOP BREAKING THE LAW" and Put them Out of business!
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      - nasch (profile), 29 Sep 2018 @ 9:05pm
        
        Re: Re: Re: Re: it'' cost you anyway, and thats a problem
        
        Everybody "STOP BREAKING THE LAW" and Put them Out of business!
        
        You did read the article right? No law was broken.
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        Anonymous Coward, 30 Sep 2018 @ 8:23am
        
        Re: Re: Re: Re: Re: it'' cost you anyway, and thats a problem
        Let me re-iterate.
        
        My head needs work!
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DannyB (profile), 28 Sep 2018 @ 6:09am

Safe Spaces
Some cops need to have their patrol duty restricted to patrolling only safe spaces where they won't be offended.
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- Stephen T. Stone (profile), 28 Sep 2018 @ 9:12am
  
  Re: Safe Spaces
  The local Dunkin’ Donuts, then.
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  - Anonymous Coward, 28 Sep 2018 @ 9:18am
    
    Re: Re: Safe Spaces
    No, no,no.. it has to be a people free space, as when their are other people present there is the possibility that they will offend the cop, sometimes just by their mere presence.
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    - Stephen T. Stone (profile), 28 Sep 2018 @ 9:26am
      
      Re: Re: Re: Safe Spaces
      Then we send them to Capitol Hill! Rare is the day when you see an actual person there; it’s mostly just pond scum in suits.
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      - Anonymous Coward, 29 Sep 2018 @ 12:10am
        
        Re: Re: Re: Re: Safe Spaces
        The real capital hill is under Denver International Airport.
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Anonymous Coward, 28 Sep 2018 @ 6:54am

Impeding traffic and speeding at the same time? That's a neat trick to pull off.
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- JoeCool (profile), 28 Sep 2018 @ 7:40am
  
  Re:
  She was pulled over for speeding, but only given a warning. She then flipped him the bird, so he pulled her over again and wrote a ticket for impeding traffic.
  
  She really was a dumb-ass. When a cop pulls you over and only gives you a warning, you thank him kindly and go about your business. It may be protected speech, but she's still a dumb-ass.
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  - Anonymous Anonymous Coward (profile), 28 Sep 2018 @ 7:52am
    
    Re: Re:
    Isn't it likely that the cop's action of pulling her over was the proximate cause for the impeding of traffic? He should have given himself a ticket for that.
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    - Anonymous Coward, 28 Sep 2018 @ 8:16am
      
      Re: Re: Re:
      I usually blame the rubber necking idiots
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    - JoeCool (profile), 28 Sep 2018 @ 9:17am
      
      Re: Re: Re:
      I've seen some people who will simply stop in the middle of the road for the cops, forcing them to stand in traffic. Just an extra "love you" to the boys in blue. ;)
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  - Stephen T. Stone (profile), 28 Sep 2018 @ 9:24am
    
    Re: Re:
    He chose to let her provocative gesture anger and offend him. He chose to abuse his power so he could punish her in retaliation for the gesture. Even if she made an admittedly poor decision, placing implicit blame upon her for what he did (“she really was a dumb-ass”) excuses him for his blatant abuse of power.
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Anonymous Coward, 28 Sep 2018 @ 8:31am

out_of_the_blue is really not going to like this, is he?
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Reporter OnThe Beat, 28 Sep 2018 @ 10:24am

In future headlines
Cops pulls over a deaf person who starts signing and is given a ticket for obstructing traffic.
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Anonymous Coward, 28 Sep 2018 @ 11:21am

I think at this point there is enough precedent that if a cop tries this you SHOULD sue for punitive damages/legal fees, this is clearly established and all cops/departments should be aware of this by now as a violation of the first amendment AND repeatedly punished by the courts. It is unreasonable to allow people to continue to pay to defend themselves against harassment that has been established to be unconstitutional.
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That One Guy (profile), 28 Sep 2018 @ 3:58pm

Yes and no
Officer Minard isn't one of those cops, and his willingness to abuse the power entrusted to him should be a major concern to his employers.

It should be of major concern to his future employers, and his past employers, but it shouldn't be of concern to his current employers because he shouldn't have any.

Someone displaying such a willingness to abuse his power should in no way be in a position of power, and as such he should be given the boot as soon as possible.
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Anonymous Coward, 29 Sep 2018 @ 12:01am

Flipping off a cop? This will surely get a lot of people shot and in good faith the cops will claim they thought the victim perpetrator had pulled a gun.
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- That One Guy (profile), 29 Sep 2018 @ 2:07am
  
  Re:
  'Good faith'? That's a strange way to spell 'blatantly lying to cover up a murder.'
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  - Anonymous Coward, 30 Sep 2018 @ 8:37am
    
    Re: Re:
    We set precedent here at techdirt so judges can use it as a reference resource!
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John Smith, 29 Sep 2018 @ 1:59pm

I would sya the cops should be given equal discretion, say, if choosing to write one of two possible parking tickets, to ticke the car of the birf-flipper. Those who flip the bird at police should expect stricter enforcement of their own conduct.

There needs to be some balance to this.
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- Stephen T. Stone (profile), 29 Sep 2018 @ 11:19pm
  
  Re:
  No one deserves punishment for the (not really a) crime of “aiming an obscene gesture at a police officer”.
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- Anonymous Coward, 30 Sep 2018 @ 8:41am
  
  Re:
  ..there needs to be some balance here..
  
  Are you sure your name isn't John Doe?
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Anonymous Coward, 30 Sep 2018 @ 2:02am

Of course the courts want us all to know we can flip off cops whenever we deem neccessary. They want THEIR officers MAD AS HELL when they hit the streets. That's good for business.
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- Anonymous Coward, 30 Sep 2018 @ 2:12am
  
  Re:
  lelehttps://i.pinimg.com/originals/23/bc/db/23bcdb6f265933270bdf436e638a2b69.jpg
  
  Here's one.. I don't know if mouthing an expletive along with your finger is going to help or be even legal though.
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Anonymous Coward, 30 Sep 2018 @ 2:13am

https://i.pinimg.com/originals/23/bc/db/23bcdb6f265933270bdf436e638a2b69.jpg
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nasch (profile), 30 Sep 2018 @ 8:20am

Re: Yes

The bird" is the first two fingers raised in a Vee, knuckles towards the person being "flipped off".

In the US, the bird is a raised middle finger.
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Anonymous Coward, 3 Oct 2018 @ 10:51am

Mr. Bean is safe now.
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