Police Seek Immunity for "Flipping the Bird" Citation

"Flipping the bird" is clearly protected speech. But the city of Pittsburgh is continuing to fight the civil rights suit of a motorist who was cited for directing his middle finger at a police officer.

The citation alleged that David Hackbart violated a subsection of Pennsylvania's disorderly conduct statute which applies to a person who “uses obscene language, or makes an obscene gesture” with an intent “to cause public inconvenience, annoyance or alarm, or recklessly creating the risk thereof ...”

Hackbart flipped the bird at Sgt. Brian Elledge during an altercation over a parking space with another motorist in April 2006. After prosecutors dropped the disorderly conduct charges, he sued the city in February 2007, arguing that Elledge retaliated against him for “engaging in constitutionally protected speech.”

Courts have found that the display of the middle finger is not “obscene” and falls “squarely within the protective umbrella of the First Amendment.”

In October 2006, the Pennsylvania state police settled a similar case. But the city of Pittsburgh is hanging tough and has filed a motion for summary judgment which says giving the finger to a police officer was not the reason for Hackbart's citation.

Elledge's “objective reasons for writing the citations were because Plaintiff was obstructing traffic and refused to move when told,” the motion says, and

It makes no difference to the existence of probable cause if Sgt. Elledge incorrectly wrote the citation for disorderly conduct, rather than for obstruction of traffic.

To support this argument, the city cites Devenpeck v. Alford, 543 U.S. 146 (2004), in which the U.S. Supreme Court said the offense establishing probable cause need not be “closely related” to the offense the police officer invoked at the time of arrest.

The evidence here is not as clear-cut as in the case against an Arkansas police officer who cited a driver for giving him the finger and admitted that he “gave him what he deserved, a citation” for disorderly conduct. Nichols v. Chacon, 110 F. Supp. 2d 1099 (2000).

But Hackbart alleges that Sgt. Elledge was quite specific about why he pulled him over. “During the vehicle stop, Sgt. Elledge ... continued to shout at Plaintiff: 'You don’t flip me off!'” he said in his complaint.

As in the Pennsylvania state police case, that should at least “raise sufficient suspicion [as to the officer's] motives for issuing the citation that summary judgment in [his] favor is inappropriate.” Corey v. Nassan.

According to Hackbart, moreover, what happened to him was not an “isolated incident.” Between March 2005 and October 2007, he says, Pittsburgh police issued 188 disorderly conduct citations for using obscene gestures or language -– none of which “involved language or gestures that were 'obscene' under the statute.”

“Such a large number of citations issued for First Amendment-protected expression in a twenty-month period demonstrates a pattern of underlying constitutional violations,” Hackbart argues in his own summary judgment motion.

In Maine, a snowmobiler recently sued two state game wardens who cited him for disorderly conduct after he flipped one of them off.

By Matthew Heller
7/14/08