CRUDE AND FOOLISH BUT NOT CRIMINAL: POLICE CANNOT ARREST YOU IF YOU GIVE THEM “THE BIRD” OR FLIP THEM OFF

It is my opinion that police officers should be paid more and receive more training.  "There are around 18,000 police agencies in the US, but with no national standards on training, procedures and timescales vary across the country. On average, US officers spend around 21 weeks training before they are qualified to go on patrol. That is far less than in most other developed countries, according to a report by the Institute for Criminal Justice Training Reform (ICJTR). Also, many other countries require officers to have a university degree - or equivalent - before joining the police, but in the US most forces just require the equivalent of a high-school diploma." Jake Horton, How US police training compares with the rest of the world, (BBC Reality Check 2021), https://www.bbc.com/news/world-us-canada-56834733; Police Training Requirements By Country 2025, https://worldpopulationreview.com/country-rankings/police-training-requirements-by-country. A good argument can be made that more training is better for the officer and better for the public that they have sworn to protect.  Additional training teaches police how to de-escalate situations without using unreasonable force.  Jake Horton, How US police training compares with the rest of the world, id. Unfortunately, because some police officers lack the necessary training, they react inappropriately when confronted by a citizen who expresses themselves crudely to the police officer.

For instance, the Sixth Circuit decided Cruise-Gulyas v. Minard, 918 F.3d 494 (6th Cir. 2019), in which the court examined whether an officer violated the First and Fourth Amendments when he stopped a driver for giving him “the bird.” The relevant facts of Cruise-Gulyas, taken directly from the case, are as follows:

Officer Minard pulled over Debra Cruise-Gulyas for speeding. He wrote her a ticket for a lesser violation, known as a non-moving violation. As she drove away, apparently ungrateful for the reduction, she made an all-too-familiar gesture at Minard with her hand and without four of her fingers showing. That did not make Minard happy. He pulled her over again and changed the ticket to a moving violation —a speeding offense and what counts as a more serious violation of Michigan law. Id. at 496.

Cruise-Gulyas subsequently sued the officer in federal court for a violation of her Fourth Amendment rights for stopping her a second time, without reasonable suspicion or probable cause, and a violation of her First Amendment rights for arresting her for exercising free speech. The officer filed a motion for qualified immunity, and the district court denied the motion. The officer then filed an appeal with the Sixth Circuit Court of Appeals.

When an officer is sued for constitutional violations, he or she is entitled to qualified immunity if the officer was engaged in a discretionary function. A discretionary function is one that requires an officer to make a decision from a variety of options such as stop someone or do not stop them, arrest or not arrest, and what offense to charge a person under, to name a few. In order to defeat qualified immunity, a plaintiff must show (1) the officer violated a federally protected right, and (2) the right was clearly established such that a reasonable officer would have known the conduct was unlawful.

First, the court began its Fourth Amendment discussion by stating:

All agree that Minard seized Cruise-Gulyas within the meaning of the Fourth Amendment when he pulled her over the second time. Whren v. United States, 517 U.S. 806, 809-10 (1996 ). To justify that stop, Minard needed probable cause that Cruise-Gulyas had committed a civil traffic violation, id. at 810, or reasonable suspicion that she had committed a crime, United States v. Arvizu, 534 U.S. 266, 273 (2002). He could not rely on the driving infraction to satisfy that requirement. Any authority to seize her in connection with that infraction ended when the first stop concluded. Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).  Id.

Thus, in light of the above, the court examined whether the obscene gesture, particularly, “the bird,” provided a legal justification for the second stop. The Sixth Circuit examined their precedent and stated:

Wilson v. Martin explained that, where a girl extended her middle fingers at officers and walked away, her “gesture was crude, not criminal,” and gave the officers “no legal basis to order [her] to stop.” 549 F. App’x 309, 311 (6th Cir. 2013); see Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (“This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”).  Id. at 496-97

See also, Coggin v. Texas, 123 S.W.3d 82, 90 n.3 (Tex. App. 2003); Pennsylvania v. Kelly, 758 A.2d 1284, 1288 (Pa. Super. Ct. 2000); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1110 (W.D. Ark. 2000); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (gesturing with the middle finger is protected speech); Duran v. City of Douglas, 904 F.2d 1372, 1377-78 (9th Cir.1990) (“While the citizens behavior was "boorish, crass and initially at least, unjustified...it was not illegal.... But disgraceful as [the defendant's] behavior may have been, it was not illegal; criticism of the police is not a crime.”); Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L.R. 1403 (2008); Vermont man jailed for flipping off cop receives $175K settlement: Bombard v. Riggen (Fire June 26, 2024), https://www.thefire.org/news/victory-vermont-man-jailed-flipping-cop-receives-175k-settlement.  Cf., Greene v. Barber, 310 F.3d 889 (6th Cir. 2002) (calling an officer an “asshole” and telling him he was “stupid” was protected speech and not fighting words; the fighting words doctrine is “very limited” as “[s]tandards of decorum have changed dramatically since [Chaplinsky was decided] and indelicacy no longer places speech beyond the protection of the First Amendment”)

Thus, since the first stop had ended and Cruise-Gulyas had been released, the second stop required its own justification. Since “the bird” was not a sufficient legal reason to justify the stop, the court concluded the officer violated the Fourth Amendment. This satisfied the first requirement to defeat qualified immunity.

In fact, the court went on to find that “[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, 1255 (6th Cir. 1997) (gesturing with the middle finger is protected speech); see Cohen v. California, 403 U.S. 15, 19, 26 (1971).”  Id. 497.

Likewise, United States v. Poocha, 259 F.3d 1077, 1082 (9th Cir. 2001), the Court held that, "criticism of the police, profane or otherwise, is not a crime."  Justice William J. Brennan wrote in holding that flag burning is a form of offensive speech protected by the Constitution, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."  Texas v. Johnson, 491 U.S. 397, 414 (1989).  Indeed, Mr. Justice Frankfurter has said, "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures — and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U.S. 665, 673-674 (1944); Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (“Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects.”)

As succinctly stated by Justice Harlan, “"Governmental bodies may not prescribe the form or content of individual expression." Cohen v. California, 403 U.S. at 23.

Offensive speech does not lose its protection just because it may be directed to a police officer.  City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987) ((protected by the First Amendment since a significant amount of verbal criticism and challenge directed at police officers is protected speech.)  See also, Gooding v. Wilson, 405 US 518 (1972) (statement to police officer “White son of a bitch, I'll kill you." "You son of a bitch, I'll choke you to death" protected speech and to another officer, "You son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces.")

Therefore flipping the bird to a cop may be an insult, but nevertheless you are at least constitutionally protected.  However, that may not be enough on the street.