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Federal Judge Denies Qualified Immunity for Cops Who Detained Motorist for Giving Them the Finger

by Dale Chappell

Can police conduct a traffic stop simply because someone in the car gave them the finger? The U.S. District Court for the Western District of Virginia held that they cannot, allowing a lawsuit to move forward in just such a case. 

When Brian Clark and some friends were stopped by Patrick County, Virginia, sheriff’s deputies after police accused Clark of having given them the finger, Clark filed a federal lawsuit, claiming he had been illegally detained by the stop in violation of the U.S. Constitution. 

In his suit, Clark claimed that one of his friends heard the deputies say that “Brian doesn’t know what we have in store for him,” and one said he couldn’t “wait to see his face when we take him down.” 

Minutes later, Clark said, police stopped their car, accusing Clark of making a “gesture” that “concerned” him. One deputy in particular, Rob Coleman, asked Clark why he “gigged” him, meaning that he gave him the middle finger. 

Clark denied doing so, but Coleman still detained Clark for about 20 minutes. During that time, a total of seven police cars arrived on the scene. After being served with an old “no trespass notice” for an unrelated event, Clark was released. 

Clark sued, and Coleman claimed “qualified immunity” and asked the court to rule in his favor. 

A traffic stop is a “seizure” for purposes of the Fourth Amendment and must not be “unreasonable” under the circumstances, the U.S. Supreme Court has reiterated time and again.

The stop is considered reasonable if police have cause to believe a traffic violation has occurred. 

Even if the stop is unreasonable, police may still claim qualified immunity, if their conduct does not violate “clearly established” statutory or constitutional rights ‘‘of which a reasonable person would have known,’’ the Supreme Court has also held. This means that a reasonable officer, in the same situation, would not have known his actions were violating an established right. 

While the Fourth Circuit has never addressed whether giving police the finger is sufficient grounds to allow a traffic stop, other courts have held that a person has a First Amendment right to challenge the police, as long as the person doesn’t use “fighting words” or threats. Even swear words are allowed, if used for expression. 

A case similar to Clark’s happened almost 20 years earlier, and the court there held that giving the finger and swearing at police were protected speech. The law having been “clearly established,” the Court here determined that Coleman could not claim qualified immunity. 

Accordingly, the Court denied Coleman’s motion for summary judgment, and allowed the case to proceed to trial. See: Clark v. Coleman, 335 F.Supp. 3d 818 (W.D. Va. 2018). 

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Additional source: techdirt.com 

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