Flipping off cop didn’t justify stop

A second federal judge in Virginia has concluded that giving the finger to a police officer does not create enough suspicion of trouble to justify a traffic stop.

The decision overturns a jury verdict in favor of a Patrick County sheriff’s deputy who pulled over a car after a passenger displayed his middle finger to the deputy. The ruling opens the door for the passenger to recover attorneys’ fees, but the judge refused a new trial and awarded only one dollar in compensatory damages.

The March 24 decision by Chief U.S. District Judge Michael F. Urbanski is Clark v. Coleman (VLW 020-3-170).

Short stop

Brian Clark was not in good favor with authorities in Patrick County, according to Urbanski’s summary of facts. He had been banned from the county courthouse, with certain exceptions. On July 25, 2016, he was allowed to appear before a judge on a civil matter.

In the courtroom at the time was Rob Coleman, then a lieutenant with the local sheriff’s office.

Coleman was watching Clark. He later testified nothing untoward happened in court and Clark did not act intoxicated.

Clark left the courthouse riding in a car with his sister driving. Their path took them past Coleman, who was in his official car checking messages and emails on his phone. Clark took the opportunity to display what one court termed an “ancient gesture of insult” – a raised middle finger.

Coleman told the jury he was surprised by the insult.

“In 20 years of doing this job in uniform, I’ve never had anybody that would flip me off that was not under the influence of drugs or alcohol or not suffering from some sort of mental illness,” the officer said.

Coleman pulled the car over. A radio call revealed there were papers waiting to be served on Clark. After the papers were retrieved and given to Clark, he was allowed to leave.

The traffic stop took 10-20 minutes. Coleman agreed Clark did not appear intoxicated or deranged. Clark agreed it was a brief stop with minimal inconvenience. No record of the stop appeared in any official record until Clark sued Coleman.

Explanation questioned

In 2018, U.S. District Judge Jackson L. Kiser reviewed depositions and allowed Clark’s claims against Coleman to go to trial. He cited a 1990 federal appeals court ruling that the middle finger gesture is protected by the First Amendment.

After hearing evidence, a jury decided Coleman had reasonable suspicion to stop and detain Clark. Clark then asked the court to set aside that verdict and order a new trial on damages.

Urbanski framed the key issue: “[M]ay an officer, consistent with the First and Fourth Amendments, seize a vehicle and its passengers simply because a passenger in the vehicle displayed his middle finger at the officer?”

The 6^th U.S. Circuit Court of Appeals provided guidance in 2019, ruling that flashing the middle finger is not illegal nor does it, on its own, create probable cause or reasonable suspicion of law breaking. The decision is Cruise-Gulyas v. Minard, 918 F.3d 494 (6^th Cir. 2019).

Coleman’s proffered reason for the stop – that Clark might be signaling distress – was undermined by his prior observation of Clark in the courtroom, Urbanski said. The officer’s purported safety concerns “cannot ring true” when Clark behaved normally and did not appear intoxicated just minutes before the traffic stop.

The same analysis undercut the officer’s later explanation that Clark might have been mentally ill, Urbanski said. The judge rejected the theory that Coleman was in the role of a community caretaker or concerned about exigent circumstances.

“The fact the Coleman did not permit Clark to leave after confirming he was okay casts doubt on his intentions,” Urbanski wrote.

Viewing the evidence in total, Coleman made a seizure of Clark “without reasonable suspicion of wrongdoing,” the judge said.

“Because the evidence does not reveal any reasonable basis for the seizure of Clark following his constitutionally protected speech, however crude, inappropriate, and unwarranted it may have been, the jury’s verdict is contrary to law and must be set aside, and the court will direct judgment be entered for Clark,” Urbanski wrote.

No damages shown

Kiser had rejected a qualified immunity claim when ruling on summary judgment, and Urbanski found no new basis to support immunity. Officers are on “abundant notice” of stringent free speech protections, he said.

“Coleman cannot make a colorable claim that presenting the middle finger gives rise to a reasonable concern for public safety,” the judge continued.

But Urbanski declined to allow a jury to set damages because Clark did not demonstrate any compensable injury at trial. Punitive damages were not appropriate because evidence suggested Coleman bore no ill will toward Clark, Urbanski said. He awarded nominal damages of one dollar.

Attorney’s fees

But the judge said Clark was eligible for attorney’s fees. “An unreasonable stop based on an insulting gesture implicates not one, but two constitutional violations, and so this case is plainly of legal significance,” Urbanski wrote. He also noted courts in the Fourth Circuit have not examined the interaction of Fourth Amendment reasonable suspicions with First Amendment freedoms.

“That this court has had an opportunity to resolve the matter helps guide both officer behavior and future judicial determinations,” Urbanski said.

Coleman – now a captain with the sheriff’s office – is represented by John C. Johnson of Roanoke. “We are reviewing all options at the moment,” was Johnson’s only comment on March 30.

Clark is represented by Henry W. McLaughlin of Richmond, who declined to comment.