The citation of a motorist for displaying his middle finger to a police officer -– what a judge described as a “somewhat innocuous” gesture -- turned out to be quite expensive for the City of Pittsburgh as it agreed to pay $50,000 to the bird-flipper.

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

The settlement of the case followed a judge's ruling granting summary judgment to Hackbart on the issue of whether his free-speech rights were violated. It averted a trial on the remaining issues of whether the city had a policy of citing people for displaying middle fingers and what damages Hackbart should recover.

“The gesture has become somewhat innocuous, and without more, Hackbart’s display of his middle finger did not constitute fighting words and is entitled to the full protection of the First Amendment,” U.S. District Judge David S. Cercone ruled.

As part of the settlement, the city also agreed to “provide additional training to all officers on the Constitutional rights of an individual to use profane language and gestures.”

In October 2006, the Pennsylvania state police settled a similar case. But the City of Pittsburgh hung tough during nearly three years of litigation, arguing, among other things, that 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,” it said in a brief, 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.”

Cercone flatly rejected that argument because Elledge “did not issue a citation for a violation of the Pennsylvania Motor Vehicle Code. Nor did Elledge mention such criminal conduct in the disorderly conduct citation.”

The citation said, “Disorderly Conduct. Driver made an obscene gesture towards me. Flipped me off while driving by. Also flipped off another driver.” Cercone also noted that the city's “own training materials instruct that the middle finger gesture is not obscene for purposes of disorderly conduct.”

In a deposition, Elledge admitted that Hackbart's gesture was not illegal. "I have occasionally, yes, given people the finger," he said.

Comparing dispositions in civil cases may be a dubious exercise. But the settlement of Hackbart's case appears quite generous considering the City of Boise, Idaho recently agreed to pay only $150,000 to a man who alleged police sodomized him with a taser and tasered him on the buttocks during an arrest.

Gerald Amidon filed his excessive force suit in November and the City of Boise may have limited its liability by settling after only three months of litigation. Pittsburgh taxpayers should be questioning why it took their city so long to see the light.

By Matthew Heller
2/18/10