Showing a middle finger while driving by a police officer isn't a crime

|The Volokh Conspiracy |

(Kent Nishimura/Los Angeles Times via Associated Press)

From the U.S. District Court, Western District of Texas decision last week in Brown v. Wilson:

On the morning of December 10, 2010, Plaintiff was driving his car and observed Defendant [police officer] parked along the side of the road working a traffic patrol. Plaintiff did not recognize Defendant, but as he drove by, he "firmly gave [Defendant] the middle finger, the bird, whatever you want to call it," through the closed window of his car. Defendant "immediately noticed" that Plaintiff's vehicle did not have a front license plate, and subsequently saw Plaintiff looking at him and giving him the finger as he drove by. Defendant then pulled Plaintiff over.

Defendant walked to Plaintiff's car, asked why Plaintiff had given him the finger, and inquired about the absence of a front license plate on the car. Plaintiff stated that he had a constitutional right to display his middle finger, to which Defendant responded that Texas law did not see it that way. Defendant believed that giving someone the finger was a violation of Texas's disorderly conduct statute. Defendant cited Plaintiff for not having a front license plate, disorderly conduct, and failure to obtain a Texas driver's license within 90 days of moving to Texas….

[Plaintiff sued], alleging that Defendant had violated his constitutional rights by citing him for disorderly conduct ….

"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." "Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." …

Determining whether a government official is entitled to qualified immunity requires a two-step inquiry into (1) whether the facts shown by plaintiff establish violation of a constitutional right, and (2) if so, whether the right was clearly established at the time of the defendant's alleged misconduct….

The relevant portion of Texas's disorderly conduct statute provides that "[a] person commits an offense if he intentionally or knowingly makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace." Because the First Amendment prohibits laws that abridge the freedom of speech, Texas courts have "uniformly held that section 42.01 applies to fighting words," which are not protected under the First Amendment.

Fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." … [They] are "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Texas courts construing the disorderly conduct statute have held that "[a]ctual or threatened violence is an essential element of a breach of the peace." …

The "contours of the right" at issue have long been clear—speech or expressive conduct cannot be criminalized as disorderly conduct unless it would be "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." … The Court thus finds that the law was clearly established that only fighting words are subject to regulation under the disorderly conduct statute.

[Footnote: In addition to this direct controlling authority, which establishes that expression that does not amount to fighting words may not be punished as disorderly conduct, the Court also notes that other courts have found that use of the middle finger while driving did not qualify as fighting words. See Coggin v. State, 123 S.W.3d 82, 90 (Tex.App.2003) (reversing conviction for disorderly conduct where the defendant showed his middle finger to the driver of another vehicle while passing on a highway"); State v. Rivenburgh, 933 S.W.2d 698, 701 (Tex.App.1996) (affirming trial court's finding that stop for disorderly conduct based on driver giving middle finger to another driver via the rear view mirror while at a stoplight was not supported by probable cause); Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir.2013) (holding that giving middle finger to a police car while driving by did not justify a traffic stop of the vehicle).] …

[Here,] Plaintiff gestured through the closed window of his moving vehicle, and "was not part of a confrontational face-to-face exchange." While offensive, Plaintiff's gesture, directed toward an on-duty police officer while Plaintiff was driving by, was not "a direct personal insult or an invitation to exchange fisticuffs." See also Spiller, 130 F.3d at 165 (noting that a police officer "may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words" (quoting Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (J. Powell, concurring) (internal quotation marks omitted))). Without any indication of "actual or threatened violence," Plaintiff's gesture could not reasonably be interpreted as "tend[ing] to incite an immediate breach of the peace," Tex. Penal Code § 42.01(a)(2)….

As a result, Defendant is not entitled to qualified immunity on the part of Plaintiff's § 1983 claim based on his citation for disorderly conduct.

There's more to the case as well; if you're interested, check out the full opinion.