Middle finger

A protester raises her middle fingers to supporters of Judge Brett Kavanaugh during a demonstration against his nomination to the Supreme Court at the Hart Senate Office Building in Washington on Thursday, Sept. 27, 2018. (T.J. Kirkpatrick/The New York Times)

A raised middle finger is a form of free speech, a court has ruled, allowing a lawsuit by a driver who made the vulgar gesture at a police officer.

The decision came from the 6th Circuit U.S. Court of Appeals last week, but it started with a spirited exchange in June 2017, when a woman gave the middle-finger salute to a police officer who had just written her a ticket.

The woman, Debra L. Cruise-Gulyas, had been driving over the speed limit in Taylor, Michigan. At first, there was a small mercy, according to the opinion written by Judge Jeffrey S. Sutton for a panel of three judges: The officer, Matthew W. Minard, wrote her a ticket for a nonmoving violation, which is less serious than a typical speeding ticket.

Cruise-Gulyas was driving away when, “apparently ungrateful for the reduction, she made an all-too-familiar gesture at Minard with her hand and without four of her fingers showing,” the opinion added. “That did not make Minard happy.”

So he pulled her over again, the opinion said, and changed the ticket to reflect the more serious violation of speeding.

Those were two separate traffic stops — a key point in this case. The judges found that the first stop was justified because Cruise-Gulyas had committed an infraction. But they added that “any authority to seize her in connection with that infraction ended when the first stop concluded,” meaning that the second stop, apparently in response to nothing more than a vulgar gesture, was not justified.

Cruise-Gulyas claimed in a lawsuit that Minard violated the First Amendment, by retaliating against her because of protected speech; the Fourth Amendment, because of the unreasonable seizure; and the 14th Amendment, for restricting her liberty.

In response, Minard argued for “qualified immunity,” a legal doctrine that can protect officials from lawsuits if they can show that the rights they violated were not clearly established; essentially, that they were acting in good faith.

But a district court denied that motion, and the appeals court did the same in its decision last week. So, it has been affirmed: Raising your middle finger to a police officer is your First Amendment right.

Or rather, it has been affirmed again. There are at least two earlier cases in which federal courts made similar decisions.

In 2013, the 6th Circuit U.S. Court of Appeals decided against qualified immunity for a police officer who had arrested a teenage girl after she raised two middle fingers in front of him. The girl’s mother had been killed by police a few years earlier. Also in 2013, the 2nd Circuit U.S. Court of Appeals decided that an officer should not have been granted qualified immunity after he arrested a man who had raised a middle finger while passing by in a car. The officer had followed the car, and a verbal confrontation had ended in the man’s arrest.

These courtroom decisions do not necessarily mean that people can be rude to police officers with impunity, or that people would feel safe doing so, especially since police officers have used deadly force against unarmed people and avoided facing charges.

Joanna C. Schwartz, a law professor at the University of California, Los Angeles, and an expert on police misconduct litigation, noted that Cruise-Gulyas and a few others had their rights recognized only after they went through the trouble of bringing their cases to court.

“The right is there, but the enforcement of that right is a more complicated matter,” she said, noting that many people who experience police misconduct do not report it. “There is a gap between what the Constitution allows and requires, and how police behave on the street. And getting from the street to the courthouse is a long and expensive process.”

But Schwartz added that the visibility of these individual cases might be a good thing.

“There is research showing that when courts clearly define what the Constitution allows or prohibits, then police departments are more likely to take those rules and incorporate them into their policies and trainings,” she said.

In the opinion last week, Sutton drew a line between vulgarity and crime. “Fits of rudeness or lack of gratitude may violate the golden rule,” he wrote. “But that doesn’t make them illegal or for that matter punishable.”

A lawyer for Cruise-Gulyas did not immediately respond to a request for comment Sunday, and a lawyer for Minard declined to comment on pending litigation. — (The New York Times)

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