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Flying the finger leads to a traffic stop, then a lawsuit

Here’s the thing to remember: It is well-established law that a person can lawfully flip the bird at an officer

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This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Garcia v. City of New Hope, 2021 WL 28012 (8th Cir. 2021)

This is another case of the pesky bird–the bird constituted by extension of the middle finger, also known as the one-finger salute or “the finger.” It’s said that Diogenes would extend the finger whenever someone mentioned the name of his rival, Demosthenes. The ancient Romans had a fancy Latin term for it, the digitus impudicus, or the unchaste finger. Here in America, bird-flipping was first photographically documented in the 1886 Boston Beaneaters team photo at a game against the New York Giants. The Giants won (83–84) and secured the league pennant.

Reuben Garcia traveled past Officer Kaitlyn Baker in a school zone. Officer Baker waved at Garcia to stop and told him he was speeding (traveling 25 mph in a 20 mph zone). Officer Baker shouted for him to slow down, but Garcia responded that he was going the speed limit. That afternoon, Garcia again saw Officer Baker at the school and gave her the one-finger salute as he drove past.

Officer Baker followed Garcia, intending to stop him. She called for a backup officer, activating her emergency lights. Garcia pulled over and Officer Baker approached the passenger side. Officer Baker told Garcia there were children present where he passed, and his actions constituted disorderly conduct. She repeatedly asked for Garcia’s license, but he ignored her requests. Other officers arrived on the scene and Officer Baker told Garcia to get out his “g*d d**n D.L.” Garcia did not produce a driver license but yelled that he was “protected by the First Amendment.”

Officer Baker moved around to the driver-side door and again demanded Garcia’s license. She told him to get out of the car and he refused. Officer Baker opened the door, grabbed Garcia as he stepped out, placed him against his vehicle and handcuffed him, stating that he was being detained for disorderly conduct. Officer Baker placed Garcia in her patrol squad car for around seven minutes. After issuing a citation, another officer took Garcia out of the squad car and removed his handcuffs. As Garcia drove off, he yelled, “f**k you.”

Garcia was cited for disorderly conduct and having an obscured license plate. As part of a deferred prosecution agreement, Garcia apologized in writing and took a defensive driving course. Garcia subsequently filed a complaint against Officer Baker, which was not sustained. Garcia then sued, claiming illegal seizure, assault and battery (alleging his hand was injured in the handcuffing), First Amendment retaliation and malicious prosecution. The trial court granted qualified immunity on all counts and Garcia appealed.

The appellate court reversed on several counts. First, the court held that Officer Baker was not entitled to qualified immunity for the traffic stop. The video recording did not clearly show that a part of Garcia’s license plate was covered, and the court was compelled to construe the facts in the light most favorable to Garcia. The fact that Garcia entered a deferred prosecution agreement and apologized did not help as he was not required to admit any guilt as part of the deferred prosecution agreement.

The court agreed the handcuffing was proper. Considering the totality of the circumstances of the stop and Garcia’s refusal to cooperate, the officers’ use of force in handcuffing Garcia was objectively reasonable. Therefore, Officer Baker was entitled to qualified immunity on Garcia’s excessive force claim.

Next, the court turned to the act that prompted the traffic stop—the bird flipping: “Garcia’s raising his middle finger at Officer Baker is a rude and offensive gesture but nonetheless, under current precedent, is a constitutionally protected speech activity.” The court held a jury could reasonably find that an ordinary person would have been deterred from expressing the First Amendment right to flip the bird after being stopped by an officer, being handcuffed, and receiving a citation. Thus, Officer Baker was not eligible for qualified immunity on the First Amendment retaliation claim.

Here’s the thing to remember: It is well-established law that a person can lawfully flip the bird at an officer and can utter the equivalent epithet to “f*** off.” “Criticism of law enforcement officers, even with profanity, is protected speech” (Thurairajah v. City of Fort Smith, 925 F.3d 979 (8th Cir. 2019)).

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 four 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.