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Help! Are my first amendment rights in trouble?

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ridetehwalrus

Junior Member
I live in North Carolina and I was arrested yesterday for flipping off a state trooper who was in pursuit of a speeding vehicle who almost caused me to get into an accident with an 18 wheeler, the trooper not the speeding vehicle. I flipped the state trooper off as he wizzed past me - he immediatly stopped pursuing the other vehicle and pulled me over and arrested me for disorderly conduct. What should I do?
 


Just Blue

Senior Member
I live in North Carolina and I was arrested yesterday for flipping off a state trooper who was in pursuit of a speeding vehicle who almost caused me to get into an accident with an 18 wheeler, the trooper not the speeding vehicle. I flipped the state trooper off as he wizzed past me - he immediatly stopped pursuing the other vehicle and pulled me over and arrested me for disorderly conduct. What should I do?
I am curious to know how the first amendment covers flipping the bird at law enforcement???:confused: :rolleyes:
 

justalayman

Senior Member
No, I do not. As a matter of fact, unless you have some extraordinarily tough disorderly conduct statute, I doubt your courts will either.

Not only would I fight it but I would call the state chapter of the ACLU to see if they would be interested in representing you.

This is an abuse of power that should not be let go unchecked.
 

Ohiogal

Queen Bee
try googling "Chaplinsky vs. New Hampshire" which is still good case law. Also many states consider such a gesture obscene. So be prepared to pay a fine.
 

Ohiogal

Queen Bee
No, I do not. As a matter of fact, unless you have some extraordinarily tough disorderly conduct statute, I doubt your courts will either.

Not only would I fight it but I would call the state chapter of the ACLU to see if they would be interested in representing you.

This is an abuse of power that should not be let go unchecked.
Actually I disagree due to prevailing case law which would allow him to be arrested this.
 

tranquility

Senior Member
I'm going to have to look it up to find if it is the Supreme Court or the ninth circut which has a case which fits exactly. It is not illegal to flip the bird at a police officer. It is illegal to pull someone over for doing so. Freedom of speech is allowed against government officials you disagree with.

If the case is the ninth circut, obviously it is not controlling in North Carolina as being on point. However, the reasoning would be the same and I don't know of a circut split on the matter.

If the sole reason to pull over the OP is because he flipped the bird at a passing police officer, the police officer violated the law.
 

xylene

Senior Member
try googling "Chaplinsky vs. New Hampshire" which is still good case law. Also many states consider such a gesture obscene. So be prepared to pay a fine.
I would like to see what that line of reasoning would do for road rage case... :rolleyes: "He uttered (flipped) fighting word on the roads." :D

This is called prosecution by police (where the time you spend fighting bogus charges IS the intended punishment)

I urge this poster to fight this vigourously, and I strongly urge this policeman with the overly sensivitive, perhaps effeminate tempermant to resign in humilitated disgrace upon realizing this BRUTUAL SMEAR ON HIS HONOR will go unavenged.

YAY! :) :) :)
 

You Are Guilty

Senior Member
From an unreported 2006 PA case (Corey v. Nassan):
Several courts have found that the use of the middle finger toward a police officer is protected speech. See, e.g., Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir.1997); Duran v. City of Douglas, 904 F.2d 1378 (9th Cir.1990); Nichols v. Chacon, 110 F.Supp.2d 1099, 1102 (W.D.Ark.2000); Brockway v. Shepherd, 942 F.Supp. 1012, 1015 (M.D.Pa.1996); see also Commonwealth v. Kelly, 758 A.2d 1284, 1288 (Pa.Super.Ct.2000). Many of these decisions examine the issue in the context of an arrest under a disorderly conduct or related statute. They deal with whether the use of the middle finger and accompanying expletives is protected by the First Amendment or instead is obscene speech, fighting words, or otherwise unprotected by the First Amendment; and whether a police officer is entitled to qualified immunity for an arrest based in whole or in part upon this kind of expression. The instant action does not deal with an arrest pursuant to a disorderly conduct statute.
Lots more analysis in the case (surprisingly good, too - I'm surprised this went unpublished), but this should provide a good start.
 

tranquility

Senior Member
It was the ninth circut Duran case I was thinking of.

In Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 06/04/1990):

"Plaintiff Ralph Duran directed a series of expletives and an obscene hand gesture at defendant Gilbert Aguilar, a police officer. Officer Aguilar responded by detaining and arresting Duran, who, along with his wife, now brings this lawsuit for injuries he suffered during the incident."
...
"[31] Inarticulate and crude as Duran's conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech - such as stopping or hassling the speaker - is categorically prohibited by the Constitution. Aguilar admits that he stopped Duran because he made an obscene gesture and yelled profanities toward him. Aguilar Depo. at 85-86. Because Aguilar might have detained Duran in retaliation for engaging in this protected speech and conduct, summary judgment in favor of Aguilar would have been inappropriate. At the same time, because Aguilar claims that he had no retaliatory motive - that he honestly believed Duran's actions indicated that criminal activity might be afoot - the district court's grant of summary judgment in favor of Duran on this issue was also error. There remains a material issue of fact, therefore, whether Aguilar intended to hassle Duran as punishment for exercising his First Amendment rights. To the extent the trier of fact determines that officer Aguilar stopped Duran in retaliation for Duran's method of expressing his opinion, this would constitute a separate constitutional violation that could form the basis of liability under section 1983.*fn5
 

You Are Guilty

Senior Member
Of course, there's always the "we don't care what the 9th Circuit says" mentality to get over :D

However, while the flipping would probably be considered protected speech, there is, I think, some disagreement amongst the circuits whether the officer would be entitled to qualified immunity (not that it's germane to the OP, just interesting from a legal perspective).
 

ForFun

Member
This is called prosecution by police (where the time you spend fighting bogus charges IS the intended punishment)
Great way to put it. Or maybe it should be called "sentencing by police" since the punishment has already begun.

Great thread, everyone.
 

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