Police Officer Pulls Over Driver for Giving Her the Middle Finger and May Lose Qualified Immunity for Doing So

Unlike social media platforms, police officers are actually instruments of the government.  As such, they are prohibited from restraining speech, just like any other government entity.  This can be a difficult thing to avoid, due to the sheer number of public interactions the average police officer is involved in on a daily basis.  However, police officers are also protected from being sued as a result of these interactions through qualified immunity.  For those who are not aware, qualified immunity protects law enforcement officers from liability for civil damages so long as their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have known.

In Garcia v. City of New Hope, et al, the plaintiff sued the City of New Hope and several officers who were involved in detaining Garcia after he gave one city police officer the middle finger as he drove past her.  After the plaintiff refused to provide his license to the officer, he was removed from his vehicle by the officer as she pulled his license from him and handcuffed him.  The plaintiff was eventually cited for disorderly conduct as well as a license plate violation.  To resolve the charges against him, the plaintiff entered into an “Agreement to Suspend Prosecution,” but did not admit to any criminal conduct.  This would be important after the plaintiff filed a suit against the detaining officers for violating his fourth and first amendment rights, among other claims.  The officers defended themselves by asserting they were entitled to qualified immunity on the constitutional charges.

After the trial court ruled the officers were entitled to qualified immunity on all constitutional claims, the Eighth Circuit Court of Appeals reversed in part.  In defending herself, the police officer responsible for the traffic stop claimed that her stop was reasonable because it was supported by probable cause, based on the plaintiff’s disorderly conduct and license plate violation.  The problem with her defense was that, while being recorded, the officer never made mention of the license plate violation to the plaintiff, and only discussed the driver flicking her off.  Thus, a genuine issue of material fact was raised as to whether the officer had probable cause to pull over the plaintiff in the first place.  Thus, the officer was not found to be entitled to qualified immunity for the detaining of the plaintiff.

The court then discussed the plaintiff’s First Amendment claim.  The court made clear that raising one’s middle finger at a police officer is a constitutionally protected speech activity.  The court also found that the police officer’s detaining of the plaintiff on that basis had a chilling effect on the plaintiff’s speech that was motivated in part by the plaintiff’s protected speech.

After the 8th Circuit decision, the only question that remains to be answered by the trial court is whether the officer had probable cause to stop the plaintiff if the first place.  If probable cause did not exist, the officers would not be eligible for qualified immunity, the exposing the officers to civil liability.

At a time when police-civilian relations are fraught, it is incredibly important for all police officers to have thick skin.  They are representatives of the government, and their actions are deemed to be the actions of the government.  Furthermore, as many governments have agreed to defend and indemnify officers for actions taken during the course of duty, it is incumbent upon public employers to ensure their officers are properly trained in all aspects of civilian relations.  If you, or your organization need assistance with training your officers, or defending your officers after an incident occurs, contact the Wiley Law Office, for legal advice that works.