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Arrest for Shouting ‘F—k You’ to Arkansas Trooper Violates First and Fourth Amendments Rights, Eighth Circuit Rules

by Michael Berk

An Arkansas state trooper violated a motorist’s First and Fourth Amendment rights when he arrested him for yelling “F--k you,” the U.S. Court of Appeals for the Eighth Circuit held in June 2019, affirming the district court’s denial of qualified immunity for the official.

In 2015, trooper Lagarian Cross was conducting a traffic stop on the side of a five-lane highway in Fort Smith, Arkansas. On the other side of the road, Eric Ross Thurairajah was driving past and yelled “F--k You” in the trooper’s direction. Cross abandoned his quarry – the proverbial “bird in the hand” – to chase Thurairajah and arrested him for disorderly conduct.

After several hours in jail, Thurairajah was released, and all charges were dropped.

Thurairajah sued Cross (and associated entities) for deprivation of civil rights under 42 U.S.C. § 1983, and Cross moved for summary judgment on the basis of qualified immunity. The district court, concluding Cross’ arrest of Thurairajah violated the latter’s First Amendment right to be free from retaliation for the exercise of his right to protected speech and his Fourth Amendment right to be free from unreasonable seizure [of his person] both of which were clearly established at the time, denied immunity. Cross appealed.

Qualified immunity shields a state actor from liability except where a two-part test is met: (1) the state actor violated a constitutional right and (2) the right was “clearly established” such that a reasonable officer would know of the right at the time of the violation. Pearson v. Callahan, 555 U.S. 223 (2009).

As the Eighth Circuit explains, the First Amendment to the U.S. Constitution guarantees that “protected speech” be “free from retaliatory government actions.”

Applying the relevant four-prong test for the demonstration of a constitutional violation in this context, the Court determined that, first, “Thurairajah’s profane shout was protected activity,” relying on Cohen v. California, 403 U.S. 15 (1971) (state powerless to punish for “underlying content” of similar public message). Second, “being arrested for exercising the right to free speech would chill a person of ordinary firmness from exercising that right in the future.” Third, even Cross’ own affidavit suggests that “the arrest was motivated, at least in part, by the content of the shout” Finally, the Court said, “Cross had neither probable cause nor arguable probable cause to arrest Thurairajah.”

“Arguable probable cause,” the Court went on to explain, exists when an arrest is based on an objectively reasonable – even if mistaken – belief that it is supported by probable cause. That is, the arrest is based on information “sufficient to lead a reasonable person to believe that the [suspect] has committed or is committing an offense.” The Court noted that “the verbal content of Thurairajah’s yell is irrelevant” to the disorderly conduct statute’s prohibition of “only unreasonable or excessive noise.” A reasonable officer could not have reasonably believed, based on the objective facts available to Cross, that Thurairajah violated the law “by shouting the two-word insult from a moving vehicle with an unamplified human voice.”

As to Thurairajah’s Fourth Amendment claim, the Court noted that a “warrantless arrest, unsupported by probable cause, violates the Fourth Amendment.” Citing several decisions affirming probable cause in cases involving “extended loud shouting and disruptive behavior or amplified sound,” the Court pointed out that Arkansas courts have never found that “a two-word yell” could trigger the statute. Indeed, even “20 seconds of public shouting involving foul language” was insufficient, in a previous case, to establish disorderly conduct.

Having thus concluded that Cross’ arrest of Thurairajah violated both his First and Fourth Amendment rights, the Court, by citations to prior decisions, easily showed that those rights were clearly established at the time of the incident.

Accordingly, the Court affirmed the denial of qualified immunity with respect to both constitutional claims. See: Thurairajah v. City of Fort Smith, 925 F.3d 979 (8th Cir. 2019). 

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