Is Flipping Off an Officer Protected By Free Speech?

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Cruise-Gulyas v. Minard, 2019 (6th Cir. 2019)

An officer stopped Debra Cruise-Gulyas for a speeding violation, but kindly opted to issue her a warning, rather than a speeding citation. To show her thanks, Cruise-Gulyas flexed her middle finger upward in “an all-too-familiar gesture.” Indeed, the raised middle finger has been an expression of sexual vulgarity for more than 2,400 years. Aristophanes wrote a satirical play, The Clouds, in 423 B.C., in which Strepsiades raises his middle finger and shoves it directly in front of the venerable Socrates. Plato later claimed the offensive portrayal of Socrates in the play contributed to Socrates’ execution a quarter-century later.

The officer, whether a scholar of ancient Greek drama or not, clearly got the message and was just as offended as Socrates. He stopped Cruise-Gulyas again just 100 yards from the first stop and amended the citation to a speeding violation.

Taking offense at the one-finger salute and acting on it may not lead to a fate similar to Socrates’ but could result in a lost lawsuit.

Cruise-Gulyas sued, claiming the officer retaliated against her First Amendment-protected exercise of free speech (or free flipping-the-bird). Aristophanes didn’t enjoy the protection of the First Amendment, but Cruise-Gulyas did. She claimed, correctly, she had committed no further violation after receiving the warning and ending the initial stop. The officer sought qualified immunity and asked the court to dismiss the lawsuit. Based on this other case that dealt with qualified immunity, can you predict the court’s decision?

The court denied qualified immunity to the officer. The court held the officer “clearly lacked authority to stop Cruise-Gulyas a second time” and “should have known better.” The court added, “Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal or for that matter punishable or for that matter grounds for a seizure.” Citing cases from nearly 50 years ago, the court held, “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.” Taking offense at the one-finger salute and acting on it may not lead to a fate similar to Socrates’ but could result in a lost lawsuit.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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