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Flipping the Bird, Even Toward a Cop, Is a Constitutionally Protected Right

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit affirmed that raising one’s middle finger without the four other fingers showing is an expression protected by the First Amendment.

In doing so, the Court also affirmed the district court’s denial of Officer Matthew Wayne Minard’s plea of qualified immunity.

Minard stopped Debra Cruise-Gulyas for speeding. Minard showed Cruise-Gulyas leniency by writing her a ticket for a less serious non-moving violation. As Cruise-Gulyas drove away, she expressed her true sentiment by flipping Minard the finger. Minard pulled her over again and then amended the ticket to a speeding violation. Cruise-Gulyas filed suit under 42 U.S.C. § 1983, claiming Minard’s stopping her the second time was an unreasonable seizure in violation of the Fourth Amendment and that changing the ticket was retaliation for her protected speech in violation of the First Amendment. 

Minard moved for judgment on the pleadings based on qualified immunity. The district court denied his motion. Minard took an interlocutory appeal, arguing that even if he violated Cruise-Gulyas’ rights, those rights were not clearly established.

The Court noted that “[q]ualified immunity protects police from personal liability unless they violate a person’s clearly established constitutional or statutory rights.” Kisela v. Hughes, 138 S.Ct. 1148 (2018). And “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.” Sandul v. Larion, 119 F.3d 1250 (6th Cir. 1997).

To prevail on her First Amendment claim, Cruise-Gulyas had to show: (1) she engaged in protected conduct, (2) Minard took adverse action against her that would deter an ordinary person from continuing to engage in that conduct, and (3) her protected conduct motivated Minard at least in part. Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999).

Having determined her action was protected conduct, the Court next determined that seizing Cruise-Gulyas a second time and amending her ticket to one for a speeding violation was an adverse action. Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807 (6th Cir. 2007). And the second stop could not be justified by the earlier speeding because any authority to seize her for that offense ended with the first traffic stop. Rodriguez v. United States, 135 S. Ct. 1609 (2015). The Court concluded the second traffic stop was motivated by Cruise-Gulyas’ protected conduct.

Regarding the Fourth Amendment claim, the second traffic stop was a seizure. Whren v. United States, 517 U.S. 806 (1996). It was unlawful because Minard did not have probable cause to suspect Cruise-Gulyas had committed any crime. Her gesture was crude, not criminal, and gave Minard no legal basis to stop her. Wilson v. Martin, 549 F. App’x 309 (6th Cir. 2013).

The Court concluded that Cruise-Gulyas’ right to raise her middle finger was clearly established, as was her right to be free from unreasonable seizure. Accordingly, the Court affirmed the district court’s denial of Minard’s motion for judgment on the pleadings that he had based on the defense of qualified immunity. See: Cruise-Gulyas v. Minard, 918 F.3d 494 (6th Cir. 2019). 

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