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“Flipping the bird” case goes against officer on multiple grounds

It was just a finger.

But it was the wrong finger.

That was at least the view of a behind-the-wheel police trooper in one state a couple years ago, who noted the post-stop goodbye of a detained motorist marked by a raised middle finger. The trooper quickly flashed his lights again, making a second stop grounded in a belief that he didn’t have to put up with such disrespectful conduct.

Wrong assessment.

The material facts of the matter can be quickly recounted. The trooper had given a driver a ticket for a moving violation. She wasn’t pleased about that, which led to her raised-figure gesture after she was given the go-ahead to resume her journey.

That response irked the officer, who pulled her over anew and amended the first ticket to a weightier speeding infraction.

The motorist was not passive in the wake of that. In fact, she filed a federal lawsuit alleging infringement of her constitutional First Amendment right to engage in free speech. She coupled that claim with a charge that the officer had no probable cause to make the second stop, which made her forced interaction with him an unreasonable seizure under the Fourth Amendment.

The court ruled on those claims earlier this month, finding for the motorist on both arguments and refusing to dismiss her lawsuit on the officer’s alleged grounds of qualified immunity.

The court held that no such immunity attaches when constitutional rights are clearly infringed. The tribunal panel’s opinion stressed that it is not even a close call that “a citizen who raises her middle finger engages in speech protected by the First Amendment.” The court found “no proper basis for seizing [the motorist] a second time.”

Legions of motorists will undoubtedly be buoyed by such a ruling, although it hardly invites similar conduct, of course. Drivers with questions regarding outcomes relevant to on-the-road encounters might reasonably opt for using their finger to dial up a proven criminal defense attorney rather than to make a farewell gesture to a state trooper.

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