If you had asked me before this story broke whether giving someone the finger counts as protected free speech, I would have said, “Yes.” After all, it’s an expression that doesn’t hurt anyone physically and is simply a gesture that expresses one’s feelings. If burning an American flag is considered free speech, as it is, then so should be “giving the bird.”
But, according to the New York Times (article below), a cop in Michigan didn’t think so. After Debra Cruise-Gulyas was stopped for speeding in Taylor, Michigan, she got a break: Officer Matthew Mindard gave her a ticket for a “non moving violation”—less serious than a ticket for speeding. She wasn’t grateful, though, and as she drove off she gave this sign to the officer:
Then the machinery of the law began to grind finely, as the paper reports:
Officer Minard was clearly offended, and he stopped Cruise-Gulyas again, giving her the more serious ticket for speeding. Cruise-Gulyas filed suit, claiming not only that her speech was protected (First Amendment), that the officer was retaliating against her protected speech (First Amendment), and that the cop “restricted her liberty” (a due-process violation of the Fourteenth Amendment). This would go to a federal court as she was objecting on constitutional grounds, not on anything about Michigan law.
Cruise-Gulyas won in a lower court, the government appealed, and then the Sixth Circuit Court of Appeals just ruled unanimously that the second stop was illegal (pdf of decision is here). Cruise-Gulyas won on the First Amendment claim, while the judges didn’t bother to rule on the Fourteenth Amendment claim. Here’s part of the decision:
But why, then, can judges change a plea deal if the accused behaves offensively? The court dealt with that, too.
That’s a bit less convincing, as it counts the interval between the two events (deal/revocation of deal, non-moving ticket/moving ticket) as the significant factor. Well, the judges have ruled, and in this case I think they’re right.
As the Times notes, there is a legal precedent for this ruling:
There are at least two earlier cases in which federal courts made similar decisions.
In 2013, the United States Court of Appeals for the Sixth Circuit decided against qualified immunity for a police officer who had arrested a teenage girl after she raised two middle fingers in front of him; the girl’s mother had been killed by the police a few years earlier. Also in 2013, the United States Court of Appeals for the Second Circuit decided that an officer should not have been granted qualified immunity after he arrested a man who had raised a middle finger while passing by in a car. The officer had followed the car and a verbal confrontation had ended in the man’s arrest.
These courtroom decisions do not necessarily mean that people can be rude to police officers with impunity, or that people would feel safe doing so, especially since police officers have used deadly force against unarmed people and avoided facing charges.
Joanna C. Schwartz, a law professor at the University of California, Los Angeles, and an expert on police misconduct litigation, noted that Ms. Cruise-Gulyas and a few others had their rights recognized only after they went through the trouble of bringing their cases to court.
“The right is there, but the enforcement of that right is a more complicated matter,” she said, noting that many people who experience police misconduct do not report it. “There is a gap between what the Constitution allows and requires, and how police behave on the street. And getting from the street to the courthouse is a long and expensive process.”
The lesson is that you still shouldn’t be rude to cops for two reasons: they might rough you up or give you more serious charges, and if you want redress for that you’ll have to go through the expensive and time-consuming process of litigation. Ms. Cruise-Gulyas should have been grateful for the lesser ticket—assuming that she was speeding.
h/t: Tim
Rep Devin Nunes, R-Calif, says he’s suing Twitter & three users for defamation. Fox News reported that the complaint was filed in Virginia on Monday & Nunes is seeking $250M in damages.
The NYT.
He should get sued for being Nunes. This guy was so busy doing Trump’s business he had no time to be an actual representative of the people, whoever they are, who sent him to Washington.
Nunes comes from a part of California where it is plausible that his dogged support of Trump is exactly what most of his constituents want him to do.
I think it is the Fresno area or some where around there. Sadly there are lots of immigrants in that area but probably many who do not vote. But those are the people that make farming work out there.
Yes, that’s the area. Mostly industrial farming and oil. They feel that they are the forgotten part of California politically. The Central Valley is a virtual red state contained within a never-going-back blue state. They hate us coasties.
Which prompts me to contemplate how any elected official running for POTUS can claim to fulfill his duties to the his constituents/the public.
I would never do that!
I’d use two fingers in the traditional English way…
remember the film Kes?
https://i.ebayimg.com/images/g/NhAAAOSw8lBTqbPs/s-l300.jpg
In the U.K. you get two fingers for the price of one. Twice the free speech.
Depends on how it is presented.
In the UK for example.
Palm out, from the body, v for victory, as famously used by Churchill during WWII.
Palm in , colloquialy, up yours, as in Kes.
I’m afraid one sees more and more of the imported economy model.
I HATE that! i’d give them two fingers…
This is an easy case in keeping with the First Amendment’s “Symbolic Speech” (or “Expressive Conduct”) doctrine.
It’s what protected students who wore black armbands during the Vietnam War moratorium and what keeps USians from being compelled to salute the flag.
And the religion part of that amendment keeps them from having to pledge allegiance.
Students haven’t been required to recite the pledge since a 1943 Supreme Court ruling. We can thank the Jehovah’s Witnesses for this! I think, however, it would take a brave student not to at least feign reciting the pledge out of fear of ostracism by the rest of the students.
CNN has a nice summary of the pledge reciting issue.
https://www.cnn.com/2019/02/19/us/pledge-of-allegiance-explainer-trnd/index.html
Yeah, I think we knew what the outcome of this case would be. There was already established precedent, not just generally, but regarding this specific expression. This was an easy one. I would have been absolutely shocked if it turned out any other way.
By the way, have you ever seen The Silent Partner? A 1978 film with Elliot Gould as the protagonist and Christopher Plummer in an excellent turn as the villain. It’s not a well-known movie, but I got= it from Amazon last week and really enjoyed it. If you’ve never seen it, I highly recommend getting a copy. It’s only $10 on Amazon and the DVD is in widescreen (I wouldn’t buy it if it wasn’t).
Elliot Gould in the 70’s. Reminds me of my favorite Altman film, The Long Goodbye.
I’ll check out The Silent Partner. (Christopher Plummer is the energizer bunny of actors; he just keeps going and going. I saw him play J. Paul Getty in Ridley Scott’s All the Money in the World last year.)
One of my favorite Elliot Gould performances is in another Altman film, the gambling flick California Split.
Ah, California Split is another in my top five Altman films. The chemistry between Gould and George Segal is fantastic. It really feels like you’re watching two best friends.
I was very disappointed with All the Money in the World, but I’ve been disappointed with Ridley Scott for nearly two decades. The last movie of his that I would watch again on a whim is Matchstick Men, and that was made back in 2003. Body of Lies is probably the best movie he’s made since then, and that’s not saying much. I know everyone loves The Martian, but I’ve tried sitting through that multiple times and never made it. I hate The Martian. American Gangster should have been a great movie, but it was somehow cocked up by his flat direction and the even flatter script. I’ll give him some props on The Counsellor because, while it might not be a great movie, it’s certainly a fun watch. Kingdom of Heaven has some good action, but the brutally dishonest script and long stretches of dullness kill it.
I like The Counselor. A lot. But it took me a couple viewings to get there. I think Cormac McCarthy’s script is great, though I understand why he wrote it on spec, since no studio would’ve commissioned it, inasmuch as it breaks so many Hollywood conventions.
I’ve been gratified to see that a number of film critics have come around to a similarly revisionist view of it since its initial release. See, e.g., here and here
That’s so strange. It took me three viewings to appreciate it as well. I wonder why that is?
Although (and this is not the fault of the director, but rather of Hollywood action movie conventions), I’m always bothered by a taught wire cutting somebody’s head clean off when they hit it while riding a motorcycle. No matter how fast you’re going, the physics of that just doesn’t work. It would simply break your neck and pull you off the vehicle. It’s in so many movies. This scene also had an additional problem, which was the idea that the guy setting up the wire would know exactly how high the man on the bike would be positioned.
But I digress. It’s just one of those weird pet peeves I have.
Also, if I was Brad Pitt’s character in that movie, I would always carry a small wire cutter in my pocket. He didn’t have to die. Dummy.
That scene with Cameron Diaz and the windshield is still disturbing to me. If Bardem’s character was still alive, he’d still be thinking about it every time he saw a car or an octopus.
I got a kick out of, among other things, the intertexual reference to Body Heat.
It’s tough to pick a top five out of the Altman oeuvre. There’s The Player and Short Cuts and McCabe & Mrs. Miller, of course — and the obvious ones like MASH and Nashville and Gosford Park. But I’ve also got a bunch of other favorites like California Split and The Long Goodbye and 3 Women and Kansas City and Dr. T and even his last, Prairie Home Companion. The list could go on.
It’s tough, but my list basically conforms to my specific genre tastes. My top five (in no particular order, except The Long Goodbye being at the top) are The Long Goodbye, The Player, Nashville, Gosford Park, and McCabe & Mrs. Miller (the last two are interchangeable with California Split, depending on my mood. I guess it’s a top seven, if I’m being honest).
Not a Short Cuts fan, BJ?
I thought it, coming just a year after The Player, was one of the best one-two punches ever landed by an American director.
But then, I’m a fan of the Raymond Carver short stories it was based on, too.
Hey, I think it’s a great film! But he has so many great films. You could just as easily replace Short Cuts in your comment with Secret Honor, 3 Women, MASH…
Sorry, I meant the last three could be changed out for California Split and that it’s a top six.
Altman’s Images was hauntingly beautiful and I had nightmares for weeks after watching. I need to watch again. I need something to replace my current White House nightmares.
I’m with you there, Amyt.
Much of the credit for the haunting images, and many other haunting images from that film-making era, goes to cinematographer Vilmos Zsigmond and his Hungarian running-mate, László Kovács. Two of ’em served as DPs on some great pictures.
Sign language can be confusing. In Japanese sign language that middle finger sign means ‘older brother’. GROG
My younger brother would find that amusing.
NYT:
The link is to a story on Stephon Clark, who was killed by Sacramento police. A poor example (though perhaps not in the woke-o-sphere the NYT resides in), as no charges should have been made. Clark was a career criminal who was actively evading the police after an evening of breaking into & robbing parked cars, while arial surveillance had informed the police on foot that the suspect was armed with a lethal object (he had been just moments before). Instead of obeying instructions to drop the unidentified object in his hand — a cellphone he was using to try to get his grandmother to let him into the house — Clark persisted in evading arrest.
Yes, I thought that was a strange a needlessly placed digression dropped into the middle of the article. I guess they couldn’t help themselves.
I once offered this expression to a NC state trooper. He deserved it.
I speed habitually. When I get pulled over, and the officer says, “I clocked you going xx mph.” I respond with: “Yes, I believe that, I’m pretty sure I was going too fast; but I wasn’t paying attention.” Generally, I get a warning.
My wife has be reduced to sputtering “you, you, you, just talked your way out of that!! …” after we drive away.
(Now watch, I’ll get a ticket tomorrow! 🙂 )
And I am invariably calm and polite to police officers.
I am always polite as well but I think I’ve only been graced with a warning once in my life. Not sure why. Just the luck of the draw I guess.
Luck of the draw I’d say.
I think about it this way. The cop is a person just like me. How would I like to be treated? I treat them that way. A smile and non-argument goes a long way. Everyone’s mileage will vary of course.
(In NZ): I am polite to policemen (even traffic cops) if they are polite, as 90% are. If they’re rude, then I’m pragmatic.
I once got stopped by a very rude young traffic cop (I was doing about 40 in a 30 area, no traffic around). “Do you know what speed you were doing?” “Not really, I wasn’t watching my speedo.” “Then you should have been, you’re a danger to your family and other road users!”
I thought: This a**hole is going to give me a ticket, whatever I say. Mental check: Licence OK, Warrant of Fitness OK, nothing else he can do to me, so NO reason to be polite. So I said “That is f**cking stupid. It is ridiculous”. The debate went downhill from there, anyway I got the ticket and drove off.
Much later I checked and my car’s Warrant of Fitness had actually expired, but I wound the cop up so much he forgot standard practice and never looked at it!
Bad behaviour sometimes pays off 😎
cr
On the other hand…
Decades later I was stopped by the side of the motorway, fiddling with the carburettor, when a motorway cop pulls up.
“Can I help you sir, and by the way, your Warrant of Fitness appears to have expired long ago.”
“Yes, I know, it was stolen, the thieves cut a chunk out of the front panel to take the engine out, I’ve just got it back on the road, there’s no way it will get a warrant like this so I’m taking it down to Cambridge (80 miles away) where I have a mate who’s a panelbeater and he’s going to fix it properly.”
“Okay sir, well, may I suggest you stay off the motorway. Drive safely sir!”
And that was that.
cr
I had an employee once that told us that he’d just got a speeding ticket. The office asked him “Why were you speeding?” He said, “I like to go fast.” I think he was serious.
I may be one of the few people who can say – never had a ticket of any kind from the police. Not saying I never did anything wrong but never got caught.
I was stopped by the traffic police and the officer said “ did you know that when you passed this patrol vehicle you were traveling at one hundred and twenty two point six miles per hour?
I replied, is the point six significant?
He replied, no, you will automatically be disqualified for a minimum period of one calendar month. The magistrate my extend this period at discretion because the point six puts your speed closer to one hundred and twenty three miles per hour. The magistrate will choose which month.
He was correct. Disqualified for two calendar months, fined three hundred and fifty pounds, but no licence points, just an endorsement valid for three years.
Cured me of speeding for ever!
KPH?
197.31 kph
Thanks, I was asking if the speed you originally gave was KPH or MPH. Evidently it was MPH.
So, you got caught going 122.6 MPH and you didn’t even get any points on your license? Very lucky!
Hmm. And now I see you clearly wrote “miles per” in your original comment. Sorry.
He got a ban, which means he got all the points straight away, effectively. It will also affect his insurance for the next three years.
I tried that once. Did not work.
I recommend consistently doing it.
I still get tickets sometimes. Cost of doing business. I don’t get upset by them.
” . . . I wasn’t paying attention.”
Hmm, I wonder if that would work with running a stop sign.
Also, I wonder if a policeman is any less entitled to also give the finger in return to an obstreperous, mouthy civilian. Ah, but civilians are quick to vocalize their expectation that police, teachers, etc. adhere to a standard higher than that expected of the general public. I.e., perhaps one should not expect all that much from the public.
I take it that the courtroom still remains a venue where finger speech directed at a judge is not tolerated.
” . . . I wasn’t paying attention.”
Hmm, I wonder if that would work with running a stop sign.
Also, I wonder if a policeman is any less entitled to also give the finger in return to an obstreperous, mouthy civilian. Ah, but civilians are quick to vocalize their expectation that police, teachers, etc. adhere to a standard higher than that expected of the general public. I.e., perhaps one should not expect all that much from the public.
I take it that the courtroom still remains a venue where finger speech directed at a judge is not tolerated.
” . . . I wasn’t paying attention.”
Hmm, I wonder if that would work with running a stop sign.
Also, I wonder if a policeman is any less entitled to also give the finger in return to an obstreperous, mouthy civilian. Ah, but civilians are quick to vocalize their expectation that police, teachers, etc. adhere to a standard higher than that expected of the general public. I.e., perhaps one should not expect all that much from the public.
I take it that the courtroom still remains a venue where finger speech directed at a judge is not tolerated.
“Ah, but civilians are quick to vocalize their expectation that police, teachers, etc. adhere to a standard higher than that expected of the general public.”
This is because police on duty have more power than the general public. With power comes responsibility. They are seen as representing their organisation.
(In my opinion, what policemen or teachers do in their own time off is their business. When they’re not being paid, it’s not their employers’ business what they do, within reason).
I don’t run stop signs (or red lights). Both are very hazardous. (I have stopped at an empty intersection with a red light and waited … waited … waited …. with no other traffic in sight, and finally crossed the intersection against the light.)
One time I ran a stop sign; but didn’t realize I had done so until later in the day when I recrossed the intersection. The first time, it had been so foggy I hadn’t seen the sign. I guess I was over-driving my vision, even though I was truly crawling at 10-20 mph. 🙂
I surely don’t blame the officer for being pissed. But of course this must be the right ruling.
Wasn’t there a story about an employee (federal, I think) that got fired for shooting the bird as she passed a tRump motorcade? Would this apply in this instance. Maybe the lawyers can chime in on this.
From DML News (the first place I found the article, but it was highly publicized when it happened)
—–
Democrat fired for flipping off President Trump
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BY TEAM DML / NOVEMBER 6, 2017 /
GET the DML NEWS APP (FREE) Click Here
Last month, Democrat Juli Briskman was riding her bike alongside President Donald J. Trump’s motorcade in Virginia. Seizing the moment, Briskman flipped him the bird (see photo below). Unfortunately for her, the gesture was captured in a photograph that later went viral, leading to her being fired from her job with a government contractor.
President Trump was on his way back to the White House after leaving his Virginia golf club when his motorcade rolled past Briskman, infuriating the 50-year-old marketing executive.
“He was passing by and my blood just started to boil,” Briskman told the Huffington Post. “I’m thinking, DACA recipients are getting kicked out. He pulled ads for open enrollment in Obamacare. Only one-third of Puerto Rico has power. I’m thinking, he’s at the damn golf course again.”
She added: “I flipped off the motorcade a number of times.”
A “flipper” cannot be ticketed or charged by the state. But their employer can fire them. Rather different jurisdiction.
“The lesson is that you still shouldn’t be rude to cops for two reasons: they might rough you up or give you more serious charges,”
I read this as an acknowledgement that police can behave as a gang of thugs with impunity.
Which is true.
Yes I saw that and I regarded it as a rather shocking statement.
What is *wrong* with American cops?
I’m in New Zealand. I don’t think all our cops are great, far from it sometimes, however I’m reasonably confident that, however rude I am to one, he may try and throw the book at me but he will not ‘rough me up’. (Only exception is if I deliberately and sustainedly provoked him as much as I could, which is different from ‘being rude to’ him.)
cr
As a P.S. though, in the Michigan case, I think being rude to the cop after he let her off with a warning was just asking to be given the speeding ticket. The driver should probably be disqualified on grounds of being too dumb to be allowed in charge of a motor vehicle.
cr
+1
For me, it’s a matter of power.
A cop is carrying a gun. I take that VERY seriously. I keep my hands visible. I make no fast moves. If the cop tells me to do something, I do it*.
For all I know, the cop just found out his wife/her husband has been sleeping with their best friend and this is the worst day of their life. I don’t want to be an accidental casualty.
I may be 100% in the right — but I don’t want to be dead right.
The fact is, they can treat you poorly (to whatever degree is locally acceptable) and get away with it. There’s a sliding scale; but I want to remain firmly off the left-hand end of that scale. This is true everywhere in the world, not just the US.**
You (the generic you, not you personally) will some day perhaps run into a real dickhead cop. Remain calm and compliant: This too shall pass.
* I once was pulled over driving on a local highway after a hike. The State Trooper pulled me over and asked for my license, which was in my wallet, which was in my pack, which was in the back seat. I got out of the car to get my pack (explaining to the trooper as I did this) and she immediately said, “get back in the car!” Which I did, immediately, without arguing.
** The worst experiences I’ve had with cops were all with street cops in Seattle, pulling me over for moving violations. They were rather rude to me; but so what?! I was still polite and compliant. I got a ticket each time; but again, so what? Cops have wide latitude as to whether they ticket you or not (they can withhold tickets on their judgement, for the most part). Why not always stack the deck? Smarting off to a cop is basically a zero-benefit and risks a much worse penalty. Why do it? Makes no sense to me at all.
P.S. I often hear about how terrible it is that black parents have to have “the talk” with their kids (especially sons) on how to behave with cops.
Well, I got the talk from my white, middle class, US parents. And from my teachers. And from my driver’s ed. teachers.
This stuff seems really simple and obvious to me. Do what the cop says. Don’t argue. Don’t be aggressive with cops.
I have never heard of an instance where a benefit followed from arguing with a cop. (Does anyone have an example?) And I have heard from many friends who regretted doing so.
I suspect the black parents’ talk also includes a section on what to do if the cop is aggressive even if you are not. That wasn’t covered in my driver’s ed class.
Right after I got my license I got pulled over for not stopping for a school bus that was on the far side of a 4 lane road, with a turn lane between the opposed lanes, that had stopped for a pick up. Having just taken the written test for my license I argued with the officer that “the book” stated that if there was more than X feet separating the two opposed lanes that you are not required to stop for a bus in the opposing lane. I won the argument and the officer sent me on my way.
I later figured out that I hadn’t been quite right. It wasn’t simply X feet of separation, it had to be X feet of some sort of barrier, like a median. A center turn lane did not qualify.
Police have discretion when faced with possible, or minor violations. They can look the other way, give a verbal earring, write a ticket for a lessor offense or write a ticket or arrest the person for the most serious offense possible.
Everything the person does, including body language, verbal and nonverbal behavior will influence what the officer does.
I know if no rule that the officer xznnit change his mind after the original decision.
I know of no rule that the officer cannot change his mind and his action after the original decision. To say that he cannot is bad law.
This is all true. I am real nice to cops.
I’m not sure I would try this with my boss, though.
Back in my high school days, 1965-70, for true pricks we’d give ’em the little finger. “For those who don’t deserve the very best.”
🙂
Memories …