A police officer violated the First Amendment rights of a female motorist when he pulled her over a second time in retaliation for her giving him the middle-digit salute, a federal appeals court has ruled.

“Fits of rudeness or lack of gratitude may violate the Golden Rule,” wrote Judge Jeffrey Sutton for a unanimous three-judge panel of the Sixth U.S. Circuit Court of Appeals in Cruise-Gulyas v. Minard. “But that doesn’t make it illegal or … punishable or for that matter grounds for a seizure.”    

Officer wrote a second ticket after driver gave him middle finger

The controversy began in June 2017 when Matthew Minard, a police officer for the city of Taylor, Michigan, pulled over motorist Debra Cruise-Gulyas for speeding.   Instead of issuing her a speeding citation, officer Minard cited for a lesser offense known as a non-moving violation.

Instead of being grateful for the reduced offense, Cruise-Gulyas apparently was displeased.  She responded by flipping a bird at Minard as she drove.   In response, Minard pulled Cruise-Gulyas over for a second time and issued her a speeding citation. 

Cruise-Gulyas sued Minard in federal court, alleging that he engaged in an unconstitutional seizure in violation of the Fourth Amendment, retaliated against her in violation of the First Amendment, and deprived her of a liberty interest in violation of the Fourteenth Amendment.

Minard filed a motion for qualified immunity, a doctrine that shields government officials from liability for constitutional violations unless they violate clearly established law.  A federal district court denied Minard’s motion and he appealed to the Sixth Circuit.

Middle finger gesture was expressive speech, judge said

The Sixth Circuit ruled in favor of Cruise-Gulyas on all her constitutional claims.

Regarding the First Amendment claim, Judge Sutton reasoned that Cruise-Gulyas must show three things: (1) that she engaged in protected speech or expressive conduct; (2) that Minard took an adverse action that would chill an ordinary person from engaging in that expressive conduct; and (3) her protected expression motivated Minard at least in part. 

“Precedent clearly establishes the first and second elements,” wrote Sutton.  “Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”   Furthermore, it was common sense that punishing a person with an “unwarranted police stop” clearly constitutes an adverse action that would impact future expression.

Judge ruled officer retaliated because of driver's gesture

Sutton also reasoned that Cruise-Gulyas also established that Minard retaliated against her because of her vulgar gesture.   “She alleged in the complaint that Minard stopped her because she made a crude gesture,” Sutton wrote. “That counts as a cognizable, and clear, violation of her speech rights.”

Minard argued that this case is similar to a prosecutor who exercises his or her discretion and imposes a greater sentence on a defendant when the defendant has acted offensively.  Sutton rejected that analogy, writing that a closer fit would be a prosecutor who agrees to a plea deal and then tries to revoke the deal after not liking something the defendant said.

The Sixth Circuit’s decision accords with other precedent.  Other courts have held clearly that a person making a vulgar gesture to a police officer, however rude, is a form of protected speech.  Officers should not retaliate against persons for such offensive expression.