By Stacey Rose Harris
Don’t flip off a traffic cop. But if you do, they can’t pull you over. At least, they can’t pull you over JUST for that. The U.S. District Court for the Western District of Virginia has decided that a police officer was not justified in stopping a vehicle whose passenger flipped him the middle finger. In 2016, Brian Clark had been a witness in a civil proceeding in the Patrick County Courthouse, a Courthouse from which he had been banned except under certain circumstances, as a result of his behavior. Lieutenant Coleman was aware of Clark and had observed him during the case. When Court adjourned, Lieutenant Coleman proceeded to the parking lot of a nearby grocery store to stop and check his messages. The car in which Clark was driving passed him, and as it did, Clark flipped him off. Coleman proceeded to stop the car, and when he radioed dispatch, learned that Clark had outstanding papers to be served on him. Coleman served the papers, and then let Clark go.
Clark sued Coleman for violating his constitutional rights in conducting an illegal stop, arguing that there was not probable cause. Coleman argued that he has never been given the middle finger unless that person was intoxicated, and that was his justification for the stop. However, his testimony that he had seen Clark in court immediately before, where he had not appeared to be intoxicated, contradicted his assertion that he pulled Clark over for such a suspicion. At trial, the jury found that Clark’s rights were not violated. The Court, however, granted his motion to set aside the verdict, as contrary to law, on the grounds that Coleman lacked reasonable suspicion to detain Clark. The Court denied Clark’s motion for a new trial on the issue of damages, and awarded him $1 and attorneys’ fees.
Under well-settled law of the Fourth Amendment, the Court held, any search or seizure must be based on reasonable suspicion to believe the plaintiff had committed or was committing a crime. “Displaying one’s middle finger is not illegal, nor does the gesture ‘on its own create probable cause or reasonable suspicion’” that Clark violated the law. The mere fact that, in Coleman’s experience, he has never been flipped off unless the person stopped is intoxicated, is not enough, particularly when Clark had seen Coleman just minutes before in Court, where he appeared fine. Nor did either exception to “reasonable suspicion” apply, that is, there was no basis for application of the community caretaking doctrine (routine procedures such as impoundment of a vehicle that impedes traffic or entry into a car after an accident to assess passengers’ conditions), nor were there exigent circumstances (emergencies of any nature or danger to public safety).
DiMuroGinsberg has decades of experience in representing parties to proceedings with constitutional issues like this one, including which raises both Fourth Amendment (search and seizure) and First Amendment (freedom of speech and expression) questions. Our attorneys have represented both plaintiffs and defendants subject to these types of claims, and have a depth of experience in a broad array of civil rights cases, including issues like the ones presented here, as well as excessive force and other Section 1983 actions. Reach out to our firm if you would like to speak to someone further about representation in connection with a constitutional rights claim.