Rude Gesture to Police: Inadvisable, But Not Illegal, Federal Judge Rules

Our Fort Lauderdale criminal defense attorneys generally advise clients that when interacting with law enforcement, one should be firmly quiet – but generally polite. That last part is more for your benefit than theirs; police officers have a fair amount of discretion, and you risk greater scrutiny and harsher treatment when you’re rude. criminal defense attorney

However, as revealed in a recent ruling by the U.S. Court of Appeals for the Sixth Circuit, you technically do have a right to be rude.

In Cruise-Guylas v. Minard, a federal appeals court held it is within your Constitutional rights to make uncouth gestures at police officers. That doesn’t make it a good idea, and as the appellate court ruled, it may violate The Golden Rule. Nonetheless, that doesn’t make it sufficient grounds in itself for a traffic stop. 

According to court records, the police officer in question stopped a woman for speeding. This is known as a moving violation. Although he could have written her a ticket for speeding (anywhere from $200 to $400 in Florida, depending on how much over the limit a driver is), instead he wrote her a ticket for a lesser non-moving violation.

Nonetheless, the woman was apparently not thrilled to be receiving a ticket at all. To drive home the point as she left the scene, the woman “made an all-too-familiar gesture” at the officer, using her hand, without four of five fingers showing. The court noted dryly, “That did not make (the officer) happy.” He proceeded to initiate a second traffic stop of the woman, at which point he altered the ticket from a non-moving violation to a moving violation for speeding. This is a more serious offense under state law and carries more significant fines and penalties.

The district court affirmed the trial court’s order denying the officers motion for judgment, finding that as he’d already decided to show her leniency and written a ticket for the non-moving violation, he had no legal grounds to initiate a second traffic stop, less than 100 yards from where the first occurred and amend the fist violation. This amounted to an unreasonable seizure in violation of the Fourth Amendment to the U.S. Constitution.

The driver alleged the officer also violated her First Amendment right to free speech (as the gesture didn’t violate any law) and her Fourteenth Amendment right to due process.

The appellate court agreed with her on all points.

The officer sought qualified immunity, arguing that even if he violated the driver’s constitutional rights, those rights weren’t clearly established. (Qualified immunity protects law enforcement officers from personal liability unless they violate someone’s clearly-established statutory or constitutional rights.) However, the court held that the rights asserted by the driver in this case do meet that standard.

In order for the second stop to have been justified, the officer needed probable cause the driver had committed a civil traffic violation OR reasonable suspicion that she had committed a crime. Citing the 2015 U.S. Supreme Court case of Rodriguez v. U.S., the officer couldn’t rely on the previous driving infraction to satisfy that requirement because “any authority to seize her in connection with that infraction ended when the first stop concluded.” Thus, the only possible grounds the officer had for initiating the first stop was the driver’s rude gesture. Even the officer didn’t try to argue this violated any identified law. He also couldn’t say that it reasonable suspicion or probable cause to believe she’d violated the law.

Courts facing similar cases across the country have concluded that this “ancient gesture of insult” is “crude, not criminal,” and that they provided officers no legal basis on which to initiate or order a stop.

Fort Lauderdale criminal defense attorneys know this officer had no clear authority to stop the driver in this case a second time. Indeed, the court held the officer “should have known better here.” The second stop was separate and distinct from the first, not a continuation of it, meaning he needed a separate and distinct justification for the second stop – which he did not have.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Cruise-Guylas v. Minard, March 13, 2019, U.S. Court of Appeals for the Sixth Circuit

More Blog Entries:

Penalizing Pot in Florida: When Is it Pot, and When Is It Not? Feb. 25, 2019, Fort Lauderdale Criminal Defense Attorney Blog

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