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Flipping the Bird to Cops – Not a Basis for the Cop to Stop You (Federal Court Decision)

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Let’s be honest. How many times have we wanted to flip the bird to a cop after pulling us over for a mundane traffic violation? Countless? Maybe just a couple? Either way, it’s probably crossed our minds when we think the minor infraction is hardly worthy of the cops attention. Now the question is – how many times did you actually do it? None? Yeah, not surprising. Well, a Michigan woman did it, got in further trouble, sued for it, and won in federal court. What did she win? The privilege to flip off cops!

This case involved a rather standard fact pattern (you know, until flipping the bird comes into play) – the woman was pulled over for a traffic violation, the cop issued a ticket for a lesser violation than the original stop and let her go. Unsatisfied, the woman let the cop know who was number 1 as she drove away. The cop didn’t take this kindly and stopped her again, solely because of the middle finger in the air, and issued her a ticket for the more serious traffic violation that was initially reduced. The woman brought a civil suit, arguing her First Amendment rights were infringed upon. While it’s a civil suit, the federal court still scrutinized the legitimacy of the stop under typical Fourth Amendment principles.

As we know, when you are pulled over, it’s a seizure under the Fourth Amendment. To justify the seizure – i.e. the stop – the cop needed reasonable articulable suspicion of some infraction or moving violation. It can be as trivial as an equipment violation or the simplest traffic violation. But it must be something legitimate, not merely based on whim, caprice, or idle curiosity.

So the question before the court was: does flipping the bird to the cop justify a traffic stop under the Fourth Amendment? The answer: NO! The court commented that while “crude,” it was not criminal behavior. And the court cited with approval a 2013 federal case, which held that “this ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”

Important things to note: this was a recent decision (March 2019) by a federal court in Michigan. Minnesota state courts are free to make their own decisions, regardless of the outcome in this federal case. Point being, this blog was more for the fun of the unique fact pattern and outcome, and not intended to be an endorsement of such activity or that Minnesota courts would follow suit.

Frankly, we’d all be wise to avoid doing this because any fleeting moment of joy it may bring us to flip off a cop is significantly outweighed by the risk of bringing the ire of said cop. It is always – let us repeat, ALWAYS – better to be respectful and courteous to the cops. And if/when they wrong you and violate your constitutional rights, we bring the fight to them and hold them accountable in court.



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