The U.S. Sixth Circuit Court of Appeals released their opinion in Cruise-Gulyas v. Minard, No. 18-2196, slip op. (6th Cir. Mar. 13, 2019) and held that an individual flashing the vulgar middle finger gesture at a police officer does not create grounds for a search or seizure under the Fourth Amendment.
Officer Minard of the Taylor City Police pulled over Debra Cruise-Gulyas for speeding. The officer did issue a ticket but cut her a break and cited her for a non-moving violation that would not result in points on her Michigan driver's license. The legality of the initial stop is not controverted. It is well settled law in both the United States and Michigan that a law enforcement officer may stop a vehicle for a brief detention if he or she has probable cause that the driver violated a traffic law. Whren v United States, 517 US 806, 813 (1996); People v Jones, 260 Mich App 424, 427-429 (2004).
However, the conflict is in what happened next. As Ms. Cruise-Gulyas drove away, she displayed the well-known middle finger gesture to the police officer. Minard then pulled over Ms. Cruise-Gulyas again and changed the previously issued ticket to a more severe moving violation. Ms. Cruise-Gulyas subsequently filed suit in federal court under 42 U.S.C. §1983 alleging that the police officers violated her constitutional rights by pulling her over a second time without probable cause. She argued that she was wrongfully seized under the Fourth Amendment and her right to free speech under the First Amendment was violated.
In the U.S. District Court, Minand filed a Rule 12(c) motion asking the court to issue a judgment on the pleadings alone based on his qualified immunity. He argued that he is entitled to qualified immunity because he was acting in the scope of his duties as a police officer and, even if he violated Ms. Cruise-Gulyas' rights, her rights were not clearly established in her pleadings. The district court judge denied the motion on the basis that Ms. Cruise-Gulyas could not be stopped a second time without articulating a violation of law and that she had a free speech right to make the middle finger gesture. Before the case could proceed to trial, Minand appealed.
The Sixth Circuit Court of Appeals agreed with the trial judge that Ms. Cruise-Gulyas' rights were violated to the extent that the police officer forfeited qualified immunity. To justify the second traffic stop, Minand needed either probable cause that the driver committed a traffic violation or reasonable suspicion that she committed a crime. He could no longer rely on the basis for the first traffic stop because his authority to seize ended when he drove away. Surprisingly enough, there is no Michigan statute that criminalizes the middle finger gesture in public. In fact, it is considered protected free speech under the First Amendment. Since there was no probable cause of a traffic infraction or reasonable suspicion of the crime, the police officer does not have qualified immunity to avoid suit for his violation of Ms. Cruise-Gulyas' Fourth Amendment rights. Ms. Cruise-Gulyas' civil rights claim may now proceed to trial in the U.S. District Court.
As far as the Sixth Circuit is concerned (Michigan, Ohio, Kentucky and Tennessee), a middle-finger gesture to a police officer will not create grounds for a traffic stop under the Fourth Amendment. This doesn't mean that people should feel encouraged to draw attention to themselves by flipping the bird to law enforcement. A traffic violation can be as simple as a cracked windshield, a burned-out license plate light or even following another vehicle too closely. Attracting police attention with crude gestures can cause the most creative cop to find a permissible reason on your vehicle to make the traffic stop legal. Absent some definable violation of the law, the First Amendment continues to protect free speech even when it offensive to police officers. The U.S. Court of Appeals wisely respected the boundaries of the law rather than polity to avoid unconstitutional government intrusion into the lives of private citizens.