U.S. Court Affirms Our Right to Flip Off Cops, but Here's Why It's Not Always Legal
A Michigan woman had her right to flip the bird at a cop upheld in an appeals-court decision this week.
Circuit Judge Sutton opined that "Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal."
That doesn't mean it's always okay to make an angry hand gesture—you'd be less likely to get away with it, for instance, if there are onlookers present.
Here's some advice when driving away from a traffic stop. Don't piss off the police, but if you can't resist that urge, revel in your constitutional right to behave rudely.
The story in the news right now is that a Michigan woman, Debra Lee Cruise-Gulyas, was pulled over almost two years ago in a town not far from C/D's Ann Arbor office. Cruise-Gulyas stuck her middle finger out her car window while driving away from the police officer, Matthew Minard, who had just handed her a citation for a non-moving violation. She was speeding, and Minard had elected to go easy on her, but after seeing that digital appendage aimed in his direction, he pulled her over a second time before she could even make it 100 yards away, according to her original complaint filed in Detroit's U.S. District Court in April 2018. Minard upgraded the ticket to a moving violation and Cruise-Gulyas drove away again, this time without flipping off Minard. She later sued Minard, alleging violations of her First Amendment right to free speech and her Fourth Amendment right against unreasonable search and seizure.
Minard didn't dispute any of the facts and made a motion for the court to dismiss the case shortly after Cruise-Gulyas filed her complaint. The court denied it, he appealed, and the appellate court upheld the denial as of this past Wednesday in the best outline yet of when it's okay to make obscene gestures at a police officer. She is still suing for an unspecified amount of damages.
In essence, it was illegal for Minard to pull her over the second time because "fits of rudeness" aren't illegal or "grounds for a seizure," according to the opinion by circuit judge Jeffrey Sutton. A middle finger, no matter how obscene, qualifies as free speech. There wasn't any other reason Minard pulled her over, as court documents confirm, which implies it was illegal to make the second traffic stop and detain her on the roadside. Hooray, fingers and freedom!
But here is what Sutton's opinion doesn't explain and what a good lawyer can (and our source, attorney William C. Sherman of the Hershman Legal Group of New Haven, Connecticut, did): You cannot get away with what Cruise-Gulyas did if anyone else is nearby and can see or hear your vulgar behavior. At that point, the police officer may have probable cause to pull you over for breach of peace or disorderly conduct. Should you make a threat, no matter how thinly veiled, to an officer at any point, you can be pulled over. In these cases—and remember, a traffic stop is a temporary form of arrest—you risk being arrested for real.
Police also are protected by what is known as qualified immunity, which says that even if an officer violates your rights, that officer may do so if those rights are not clearly established or if the officer thought there was probable cause to arrest or stop you. In those civil cases—and in many cases, this applies—the officer will automatically be off the hook. Finally, even if you are fully within your rights, why would you risk your own safety by taunting a stranger who has a gun? The court says that Cruise-Gulyas was still in the right and Minard was in the wrong. But the fact that she is quoted as calling the traffic stop "a bunch of B.S." to the Washington Post suggests that maybe, just maybe, she could have saved herself the aggravation and costs of a lawsuit by taking the ticket and shoving off with all 10 fingers inside the car.
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