FLASHING HIGH BEAM HEADLIGHTS AT ANOTHER CAR TO SIGNAL SPEED TRAP AHEAD IS NOT ILLEGAL UNDER THE FIRST AND FOURTH AMENDMENT

The other day, as I was driving along the road and  a car flashed its lights at me and sure enough about two blocks further there was a cop clocking for speeders.  Luckily, by flashing his lights, the other car told me to check my speed because a cop was clocking on-coming cars.  Of course, in case you were wondering, I was not speeding anyway.

However, I wondered about the motorist flashing his lights.   I wondered if by flipping her lights on and off like that, the motorist could be cited with some traffic violation or even obstructing.  At first, I ran through a Fourth Amendment analysis in my head trying to determine if a driver flashing lights at another driver gave reasonable suspicion or probable cause for an arrest.  "No Supreme Court case squarely deals with crime-facilitating speech." Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1128 (2005) (reviewing cases and citing Stewart v. McCoy, 537 U.S. 993, 995 (2002) (Stevens, J., respecting the denial of certiorari) ("Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech.")). One federal district court has addressed conduct similar to that in this case and found that it is entitled to protection under the First Amendment. Elli v. City of Ellisville, Mo., 997 F. Supp. 2d 980, 984 (E.D. Mo. 2014) ("Even assuming, arguendo, that Plaintiff or another driver is communicating a message that one should slow down because a speed trap is ahead and discovery or apprehension is impending, that conduct is not illegal.").

Two state circuit courts also have found that drivers have a constitutional right to flash their headlights. See State of Oregon v. Hill, Citation No. 034117 (Jackson Cty. (Ore.) Justice Ct. Apr. 9, 2014) (flashing vehicle headlights to warn others about presence of law enforcement is protected free speech under state constitution) https://media.oregonlive.com/commuting/other/HEADLIGHTCASE.pdf,  Oregon Judge: Flashing Headlights To Warn Drivers Of Cops Is Protected Free Speech (CBS News April 10, 2014) https://www.cbsnews.com/sacramento/news/oregon-judge-flashing-headlights-to-warn-drivers-of-cops-is-protected-free-speech/; State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003) (accepting First Amendment defense to charge of knowingly interfering with officer where defendant flashed headlights to warn oncoming motorists about speed trap).

Of course, Wisconsin Statute 347.12 (1) (a) specifically entitles an operator of a vehicle to intermittently flash the vehicle's high-beam headlamps at an oncoming vehicle but only if the other vehicle’s high-beam headlamps are lit.  See, Waukesha County v. Meinhardt, 2001 WI App 146, ¶¶ 9-10, 630 N.W.2d 277 (UNPUBLISHED)  (holding that Meinhardt did not commit a violation by flashing his high-beam headlights two times at an oncoming vehicle, because the plain language of the statute did not prohibit the quick flashing of high-beam headlights).  But what if the other vehicle’s high beams are not lit?  Can high beam headlights be flashed?

It could be argued that Wisconsin Statute 347.12 (1) (a) should be read like New York Vehicle and Traffic Law Section 375 (3).  In New York, the practice of flashing high beams is not illegal. Rather, New York Vehicle and Traffic Law Section 375 (3) merely states that headlamps “shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle.” In a 1994 decision, the Appellate Division, Second Department held that flickering high beams do not amount to “dazzling lights.” People v. Lauber, 162 Misc.2d 19, 617 N.Y.S.2d 419 (2d. Dept. 1994). In 2009, the Fourth Department declared more directly that the flashing of lights by itself is not a violation of the New York Vehicle and Traffic Law Code, and that stopping a vehicle based upon the driver flashing his or her high beams is illegal. People v. Rose, 67 A.D.3d 1447, 889 N.Y.S.2d 789 (2009).

Suddenly, I realized one driver was communicating with another driver.  But is the communication thwarting law enforcement and therefore illegal?  An argument could be made equating warning drivers to slow down to warning criminals of an impending law enforcement raid. A federal district court rejected just such an argument. Obriecht v. Splinter, 18-cv-877-slc (W.D. Wis. Apr 23, 2019):

As the Supreme Court has made clear, “the prospect of crime . . . by itself does not justify laws suppressing protected speech.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002) (citing Kingsley Int’l Pictures Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) (“Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech” (internal quotation marks and citation omitted)). See also NAACP v. Claiborne Hardware, 458 U.S. 886, 909-10 (1982) (knowingly publishing names of people who were not complying with boycott was constitutionally protected, even though some non-participants had been violently attacked and publication clearly could facilitate such attacks).

Some car owner's manuals, which identify the steering column control lever which allows headlight flashing as the "optical horn". Headlight flashing can be used simply to let other drivers know of one's presence and the other car is passing.  See, Chevy Sonic Owner Manual 2015, https://www.chevrolet.com/content/dam/Chevrolet/northamerica/usa/nscwebsite/en/Home/Ownership/Manuals_and_Videos/02_pdf/2015-sonic-owners-manual.pdf. Some drivers flash their headlights as a signal that they are yielding the right of way to another driver, for example at an intersection controlled by stop signs.

The point is that there is communication going on between drivers by means of vehicle head lamps.  Moreover, this communication has a message.  “When “[a]n intent to convey a particularized message [is] present, and in the surrounding circumstances the likelihood [is] great that the message would be understood by those who viewed it,” it is protected speech. See Spence v. Wash., 418 U.S. 405, 410-11 (1974).  So is it possible that flashing headlamps between drivers is protected speech?  Moreover, the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality).  Therefore, the chilling effect of a municipalities’ policy and custom of having its police officers pull over, detain, and cite individuals who are perceived as having communicated to oncoming traffic by flashing their headlamps and then prosecuting and imposing fines upon those individuals is a violation of your First Amendment rights.  Cf., State v. Taylor, 297 A.2d 216, 121 N.J.Super. 395 (N.J. Cty. Dist. Ct. 1972) (displaying sign that says radar ahead protected speech)

For instance in Elli v. City of Ellisville , 997 F.Supp.2d 980 (E.D.Mo.2014) a driver challenged the constitutionality of a local traffic ordinance that prohibited flashing vehicular lights except on specified vehicles. Elli , 997 F.Supp.2d at 982–83. The Elli court held that a driver's flashing of headlamps to warn drivers approaching the opposite direction of a speed trap was expressive conduct protected by the First Amendment. Id. at 984.  See,   Commonwealth v. Beachey, 728 A.2d 912, 913 (1999).  See also, Andrew Rice, “High-Beam Conviction Overturned \ Pa. Supreme Court: Man Broke No Law By Flashing Headlights To Warn Cars of Speed Trap".(The Philadelphia Inquirer. April 23, 1999), http://articles.philly.com/1999-04-23/news/25519260_1_speed-trap-beams-police-car; Stutzman, Rene, "Sanford judge rules in favor of motorist who flashed his headlights". Orlando Sentinel (Orlando Sentinel May 22 2012), http://articles.orlandosentinel.com/2012-05-22/news/os-flashing-headlights-ruling-20120522_1_ryan-kintner-free-speech-headlights; "Judge: Drivers Allowed to Warn Fellow Motorists of Speed Traps". (Wall Street Journal. 02-04-2014), http://blogs.wsj.com/law/2014/02/04/judge-drivers-allowed-to-warn-fellow-motorists-of-speed-traps/.  In New Jersey, drivers are allowed to flash their headlights to warn approaching drivers about a speed trap ahead.  Drivers Allowed to Flash Speed-Trap Alerts, http://www.nytimes.com/1999/08/01/nyregion/drivers-allowed-to-flash-speed-trap-alerts.html 

The Superior Court of New Jersey Appellate Division held that a statute limiting how far high beams may project is not violated when a motorist flashes his or her high beams to warn oncoming motorists of radar. The Court also concluded that a stop by a police officer based upon high beam flashing is also improper.  State v. Luptak, A-6074-97T1 (Superior Court of New Jersey Appellate Division July 29, 1999), http://www.dpdlaw.com/Luptak.PDF.  In Ohio, courts have held that the act of flashing one's headlights so as to alert oncoming drivers of a radar trap does not constitute the offense of obstructing a police officer in the performance of his duties, where there was no proof that the warned vehicles were speeding prior to the warning.  Warrensville Hts. v. Wason, 361 N.E.2d 546 (1976); Akron v. Matteson, 299 N.E.2d 315 (M.C. 1972).  In another case, where a driver received a citation under an ordinance prohibiting flashing lights on a vehicle, a court held that the ordinance referred to the noun of flashing lights and did not prohibit the verb of flashing the headlights on a vehicle.  Vill. of Kirtland Hills v. Garcia, 644 N.E.2d 691 (1994).  In a different case, a court held that a momentary flick of the high beams is not a violation of Ohio R.C. 4513.15 (which prohibits drivers from aiming glaring rays into the eyes of oncoming drivers).  State v. Woods, 621 N.E.2d 523 (1993).

If you have a you are charged with a crime, whether or not it involves driving, contact Attorney Paul Ksicinski at 414-530-5214 or www.paulksicinskilaw.com