‘Flipping the bird’ at police: Crime or free speech?

Mark May, a self-employed carpet cleaner from rural western Indiana, was driving his car through the town of Terre Haute on Aug. 17 when he spotted an Indiana State Police patrol car zooming up from behind.

As May slowed at an intersection, the police vehicle cut in front of him — too aggressively, May thought, according to his federal lawsuit. If May had pulled that maneuver in front of a police officer, he would have earned a ticket, he believed. May correctly guessed that the trooper was pulling ahead to stop another motorist, and as he passed the patrol car, he signaled his displeasure.

He waved a middle-finger in the trooper’s direction.

The universal single-digit gesture of contempt is now the center of a federal lawsuit May filed last week against the man behind the patrol car’s wheel, Indiana State Police Master Trooper Matt Ames. According to the legal complaint, after seeing May’s middle-finger, Ames went after the driver, issuing him a ticket for “provocation.”

But May’s middle finger is his constitutional right, his attorneys from the American Civil Liberties Union argue.

“While perhaps ill advised, Mr. May’s gesture, which in no way interfered with the Master Trooper’s lawful activities, was fully protected by the First Amendment,” the complaint states. “The traffic stop was unreasonable under the circumstances and was made without probable cause.”

Captain David R. Bursten, the chief public information officer with the Indiana State Police told The Washington Post the agency has yet to be served with the legal and complaint, and cannot comment on any pending litigation.

May’s situation, however, is not unique. The same month May was pulled over in Indiana, the ACLU of Louisiana complained to the Louisiana State Police after an officer from the agency pulled over and ticketed a finger-flashing driver on the Bayou State’s Interstate 20. A local prosecutor declined to enforce the ticket, and a State Police spokesman later told the Associated Press the agency “has tremendous respect for the First Amendment even when the citizens we serve choose to be vulgar and disrespectful.”

Vulgar as it is, there are lots of vulgar people. On any given day, no doubt, one or more of them is giving the finger to an officer. And the gesture — which actually dates back to the ancient Greeks — has already been the subject of previous litigation in the U.S. courts.

In 2006, a St. Johnsville, N.Y., man named John Swartz was riding in his car with his wife when he spotted some police officers using a radar gun at an intersection. Swartz flashed his finger, and he was later arrested for disorderly conduct.

The charges were later dropped, but Swartz sued the officers for violating his civil rights. The case worked its way to the U.S. Court of Appeals for the 2nd Circuit. In 2012, the court ruled for Swartz, stating the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”

According to May’s lawsuit filed in the Southern District of Indiana, after the gesture, Ames pursued May in his patrol car, turning on his flashing lights to signal a stop. May pulled into a parking lot. Ames followed.

“The Master Trooper exited his car and told Mr. May that it was illegal to ‘give the finger’ to a law enforcement officer,” the complaint says. “The Master Trooper was quite angry and loud and Mr. May was concerned about the Master Trooper’s demeanor.”

Ames issued May a ticket for “provocation.” He also issued a warning ticket to May for not using his turn signal as he entered the lot.

The “provocation” offense, according to the Indiana Criminal Code, is issued when a person “recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery” and is punishable with a $500 fine, the Indianapolis Star reported. May fought the ticket at a trial in Terre Haute City Court. “At the trial . . . Master Trooper Ames admitted that the sole reason he stopped Mr. May was because of his gesture,” the lawsuit states.

May was convicted.

But under Indiana law, the defendant had the opportunity for a fresh review with the Vigo County Superior Court. The higher court sided with May, tossing out the conviction. The county prosecutor did not refile the case. The charges were dismissed with prejudice.

Although May won his legal battle in the criminal court, the court appearances cost him two days of work, the lawsuit alleges. He’s suing for unspecified damages.

“Mark May’s gesture to Master Trooper Ames was expressive conduct that was fully protected by the First Amendment to the United States Constitution,” his lawsuit says. “Master Trooper Ames had no grounds whatsoever to initiate the stop of Mr. May and the traffic stop represents a seizure implicating the Fourth Amendment to the United States Constitution.”

ORIGINAL ARTICLE