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‘Flipping off’ cop doesn’t justify stop

PEven if a litigious gadfly under police scrutiny gave the finger to a sheriff’s lieutenant, the lieutenant was not justified in stopping the car the man was in, according to a federal judge.

A traffic stop merely for “gigging” an officer would not comport with the 1st or 4th Amendments, said U.S. District Judge Jackson L. Kiser in an Aug. 14 opinion.

The ruling sets the stage for a trial next month that that pits a Patrick County lawman against a man who was banned from a court clerk’s office for allegedly harassing and threatening the staff.

Kiser’s 16-page opinion is Clark v. Coleman (VLW 018-3-339).

Pulled over

Brian Clark was well-known to officials in Patrick County, including law enforcement, when he came to the courthouse July 25, 2016. He did not enter the building – he had been banned by Judge Martin F. Clark Jr. (no relation).

Brian Clark had been involved in litigation since 2013. His disputes expanded to include differences with a variety of public officials, according to court documents. He delivered a host of strongly worded emails and letters to courthouse staff. His filings in the clerk’s office suggest that “various court officials, banks, attorneys, judges and the state bar are in a Lyndon-LaRouche-like plot to do harm to him,” according to a 2016 letter from Judge Clark.

The judge said Brian Clark was “absolutely prohibited from coming into the clerk’s office by himself.”

So when he needed to file documents in July of 2016, his companions went in the courthouse while he waited outside, according to Kiser’s opinion. While in the courthouse, one of the companions said she overheard sheriff’s deputies planning some action against Clark. One officer said he could not wait to “see his face” when the deputies “take him down,” according to the companion.

As Brian Clark left the courthouse in a car driven by his sister, the car was stopped by Lieutenant Rob Coleman. Coleman said he was concerned when he saw Clark make a “gesture.” Clark denied any such gesture.

Clark and his sister were detained for 20 minutes. The officer asked Clark why he had “gigged” him, according to Clark’s account of the incident. Kiser said he assumed the term referred to display of one’s raised middle finger.

Clark said seven police vehicles arrived at the scene, the final one bearing a deputy with a “no trespass notice” that was then served on Clark.

Coleman later said that, in his experience, “people do not wave inappropriate or obscene gestures to a law enforcement officer unless something is wrong.” Kiser seemed unimpressed with the lieutenant’s explanation for the stop.

“Tellingly, he does not allege that he ever asked Clark if he was safe or that he inquired anything of the driver, nor does he assert any other interaction throughout his entire career where an ‘obscene’ gesture was displayed towards him in an effort to indicate duress or request police assistance,” Kiser wrote in a footnote.

Trial to focus on reason for stop

Clark sued the sheriff, five other officers and a county official. On summary judgment motions, Kiser dismissed every defendant except Coleman. Some of the law enforcement defendants were dismissed pursuant to a separate, Aug. 16 opinion (VLW 018-3-344).

Kiser recited Clark’s account of events leading to the traffic stop, including Clark’s denial of any obscene gesture. “The vehicle was stopped without probable cause or reasonable suspicion, and Coleman’s expressed reason for stopping the vehicle is belied by Plaintiff’s testimony, which I accept as true,” the judge wrote. “Clearly, Plaintiff has presented sufficient evidence to show that Coleman, acting under color of law, violated Plaintiff’s right to be free from unreasonable seizures,” Kiser said.

The right not to be stopped without reason was clearly established, so Kiser denied Coleman the protection of qualified immunity on that scenario.

Even if Clark did display his middle finger, Kiser said Coleman’s qualified immunity claim would fail. The judge referred to a 1990 decision by the 9th U.S. Circuit Court of Appeals that a middle finger gesture falls within the protective umbrella of the 1st Amendment.

“Thus, while police, no less than anyone else, may resent having obscene words or gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment,” the appeals court said in language quoted by Kiser.

Kiser said the traffic stop claim against Coleman must proceed to trial.

“In light of the relevant precedent, even if Plaintiff had gigged Coleman, Coleman still lacked any authority to seize him during a traffic stop, and a reasonable officer should have known that any seizure was in contravention of the Constitution,” Kiser said.

In the Aug. 14 opinion, Kiser also dismissed the county sheriff and a county official who signed a “no trespass” notice. Other law enforcement officials were removed from the case in the Aug. 16 opinion. Kiser said Clark had failed to offer evidence that any officer other than Coleman “seized” him in connection with the disputed traffic stop.

Clark is represented by Richmond’s Henry W. McLaughlin, who declined to comment because the case remained pending. Coleman is represented by John C. Johnson of Roanoke, who said only that the outcome will be determined by facts at trial.

“At this point, it just means that, as pleaded, sufficient facts were alleged to take the case to trial,” Johnson said. Trial is scheduled for Sept. 24-27 in Danville federal court.