Court: Arresting A Driver For Shouting 'Fuck You' Out The Window At A Nearby State Trooper Is Unconstitutional

Slowly but surely, law enforcement officers are being made to understand that speech they don't like isn't illegal speech. I mean, several of them likely already know this but they're willing to roll the dice on a lawsuit rather than endure a minimal hit to their self-image.

This isn't to say it's a good idea to give cops the finger or tell them to go fuck themselves. This is just to say that doing these things isn't a crime. It's protected speech. Cops aren't obliged to serve and protect citizens. That's just a cool slogan to paint on the side of cruisers. But they are obligated to uphold Constitutional rights, which is something they seem to have a hard time doing.

Courts have reminded cops that flipping the bird isn't an arrestable offense. It's protected speech. They've also reminded cops that this is a form of protected criticism, as crude as it is. The very heart of First Amendment protections is the right of citizens to criticize their government. Sometimes criticism takes the form of a fleeting f-bomb from a passing vehicle.

Here's how this latest reminder starts, courtesy of the Eighth Circuit Court of Appeals [PDF]:

In 2015, Trooper Cross was performing a routine traffic stop on a van pulled to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard Thurairajah, who was driving by, yell “f**k you!” out of his car window. The van’s occupants were a mother and her two young children. Thurairajah was driving at about 35 miles-per-hour on the far lane of the road moving in the opposite direction. Trooper Cross observed the two children in the van react to the yell.

Trooper Lagarian Cross should have let the story end there. At best, the story could have made it way back to the station with some embellishment and resentful commentary about ungrateful citizens and their big mouths. Instead, Trooper Cross did this:

Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas’s disorderly conduct law. Trooper Cross believed the shout constituted “unreasonable or excessive noise” under the law.

A stupid response to a stupid move. The arrestee spent several hours in jail before all charges were dropped. Thurairajah sued Trooper Cross and prevailed in the lower court. The trooper appealed. The Appeals Court doesn't have any good news for him.

Cross argued he was entitled to qualified immunity because he reasonably believed Thurairajah's "fuck you!" violated the law. The Appeals Court takes a not-so-subtle dig at the trooper's rationale when discussing his arguments.

In other words, Trooper Cross is protected by qualified immunity if a reasonable officer in his shoes would have reasonably believed, even if mistaken, based on objective facts, that Thurairajah was violating the disorderly conduct statute’s excessive noise prohibition by shouting the two-word insult from a moving vehicle with an unamplified human voice.

The hinting at the ridiculousness of the trooper's argument is followed by some case law, which shows there's nothing on the books backing the trooper's "reasonable officer" assertions.

Under the statute, the verbal content of Thurairajah’s yell is irrelevant. The statute does not penalize offensive speech, only unreasonable or excessive noise. Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision. To be sure shouting can form the basis of disorderly conduct. Those cases where shouting was part of a scenario that resulted in a finding of disorderly conduct, however, involved extended loud shouting and disruptive behavior or amplified sound. As the district court noted, context matters in analyzing the facts. In no case, has a two-word unamplified outburst constituted disorderly conduct.

It's not even close.

Thurairajah’s shout was unamplified and fleeting, no crowd gathered because of it, city traffic was not affected, no complaints were lodged by anyone in the community, business was not interrupted, nor were an officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was not an unreasonable or excessive noise.

That's the Fourth Amendment violation -- depriving the passing driver of his freedom with a completely bogus arrest. Then there's the First Amendment violation. Thurairajah claimed the arrest was a retaliatory response to his protected, two-word criticism of Trooper Cross. The court agrees.

First, Thurairajah’s profane shout was protected activity. See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971) (holding where defendant walked through courthouse corridor wearing jacket bearing the words “F**k the Draft” in place where women and children were present and no showed no intent to incite disobedience to or disrupt the draft, state lacked power to punish defendant for underlying content of message the inscription conveyed). Second, Trooper Cross’s arrest was an action that would chill continued activity by a person of ordinary firmness. As we recognized in Hoyland, “there can be little doubt that being arrested for exercising the right to free speech would chill a person of ordinary firmness from exercising that right in the future.” And, according to a fair reading of Trooper Cross’s affidavit, the arrest was motivated, at least in part, by the content of the shout. Finally, as discussed above, Cross had neither probable cause nor arguable probable cause to arrest Thurairajah.

That's all four prongs of the free speech retaliation test. And there's no squeaking out of this, thanks to limited case law. Both rights were clearly established at the point Trooper Cross decided to terminate a traffic stop and arrest a passing driver for his drive-by f-bomb. Cross is headed back to the lower court to face the consequences of his stupid, retaliatory actions.