Indiana

Do You Have a First Amendment Right to Flip Off the Cops?

A lawsuit filed by the Indiana ACLU says yes.

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middle finger
Paulus Rusyanto/Dreamstime.com

The Indiana branch of the American Civil Liberties Union is fighting for your constitutional right to flip off the cops.

Last week the group filed a lawsuit on behalf of Mark May of Vigo County, Indiana. May was ticketed $500 for flipping off Indiana State Trooper Matt Ames while driving down a state highway last year.

According to May, Ames had "aggressively" cut him off in the attempt to pull over another vehicle. Not believing Ames' actions to be "a wise use of police resources," May did what any red-blooded patriot would do and gave the trooper the finger.

The gesture so enraged Ames that he broke off the traffic stop he was engaged in and instead pulled over May, issuing him a $500 ticket for "provocation."

Provocation is a Class C infraction in Indiana, defined as "recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery."

May challenged the ticket in Terre Haute City Court. He lost there, but he did have his conviction vacated by Vigo County Superior Court. The ACLU's suit seeks damages for the violation of his constitutional rights, and for the days of work May lost while having to appear in court.

Giving Ames the middle finger, the lawsuit claims, does not qualify as provocation and did nothing to interfere with the officer's duties. Thus, while May's gesture was "perhaps inadvisable," he was nevertheless "engaged in expressive activity fully protected" by the First Amendment to the U.S. Constitution. The lawsuit also argues that because Ames' reason for pulling May over was illegitimate, the traffic stop was both unreasonable and done without probable cause, in violation of the Fourth Amendment.

Needless to say, it's poor form to give someone the middle finger in traffic, or indeed pretty much anywhere. But cops ought to know the difference between a violation of etiquette and a violation of the law.

CORRECTION: The original version of this article referred to Matt Ames as an Iowa State Trooper. He is an Indiana State Trooper.

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  1. Cap can’t control his temper ’cause… My fault!

    “You looked at me funny, giving me NO CHOICE WHATSOEVER, other than to kill ya!”

  2. So basically the cop is admitting he became so enraged by being flipped off he wanted to punch the guy. Very professional.

    1. And, by law, reasonable.

      1. Huh? Punching someone because they flipped you off would be considered assault. Of course a cop would mostly like get away with it, but it would still be illegal to punch someone based on either a verbal provocation or a gestural one.

    2. He should be given a month off & sentenced to Anger Management classes.

  3. Good luck to May and the ACLU, but I think it is a reasonable assumption now that any kind of talk back or disrespect to a cop is likely to result in a shooting.

    1. As libertarians, we should extend this principle to its logical conclusion. It is an expression of your First Amendment rights to walk around with your penis sticking out of your fly.

      1. I don’t know if you were joking, but I do agree with this. Public nudity should not be a crime. I’m not saying we should do it, but I can’t really think of a justification as to why it’s a major crime.

        1. What am I supposed to tell my daughter??

          1. The truth about sex/human anatomy rather than lying to her in an effort to extend her childhood beyond reasonable limits?

          2. That we live in a mentally ill society that is not able to differentiate between nudity and sexuality?

            1. One of the parks along the riverfront in my city has a prolific nudist, he’s a retired engineer from our local power company. It’s a mile walk down a fairly intense trail to get to his preferred spot, and the cops hate making the journey, so it’s mostly just college kids drinking and smoking weed down there, peacefully co-existing with the man with the great booty-tan.

              He’s in the paper at least once a year giving parents a heads up to stay near the trail head, which they tend to do anyway because 4-year-olds aren’t so hot on rock-hopping.

              1. It always struck me as odd, from an American point of view, but perfectly normal from a libertarian one, that there is a nudist beach right in the middle of Vienna in a public park, Austria being one of the most Catholic countries in the world.

                1. Very Nanarchy of you.

        2. Because this country was founded in large part by Puritans, whose views on physicality were subsumed into law and politics completely without reference to their marginalized religion?

    2. This is settled case law in multiple jurisdictions and appellate courts. My only question is if the judge is going to make the cop pay out of his own pocket (deny indemnity, in part or in full).

      1. That’s how I understand it too, well-settled at the Supreme Court level. You can cuss out cops as long as you don’t interfere with whatever they are doing. This looks like a slam-dunk to me.

        1. Look, yes, but that ruins the sardonic joke, OK?

  4. Do You Have a First Amendment Right to Flip Off the Cops?

    Yes. But that won’t stop them from assaulting you.

  5. Back in the day, Norman Mailer flipped off a cop (in Martha’s Vineyard. Not that ballsy) I think he included a long, tedious write up of the incident in “Advertisements for Myself”, not written by him, that appeared (I think) in the New Yorker. Anyway, wherever it was, I got about half way through it before deciding that I was spending too much time reading about a self-indulgent asshole. But self-indulgent assholes have rights too!

    1. BEST ASSH*LE EVAH!

    2. It’s lovely to see that one things stays consistent over time: no one likes Norman Mailer as a person.

      1. or Alan Vanneman, for that matter.

  6. It’s considered reasonable to initiate violence based on a hand gesture?

    1. Any excuse is reasonable for agents of the State.

      1. Good shoot officer! He had it coming!

    2. It depends on the hand gesture, doesn’t it? What about a gesture of a fist traveling toward your face?

  7. The gesture so enraged Ames that he broke off the traffic stop he was engaged in and instead pulled over May, issuing him a $500 ticket for “provocation.”

    “Provocation”=”failure to respect muh authoritah”

  8. conduct that is likely to provoke a reasonable person to commit battery

    Because what could be more reasonable than committing battery while in a fit of violent rage?

  9. And of course, if you called the cops because someone “provoked” you and broke this law, they would laugh in your face. Ok, not really. They’d laugh behind your back.

  10. WHY MUST ALL ARTICLES NOW INCLUDE A VALUE JUDGMENT QUALIFIER ON OUR INTERACTIONS WITH EACH OTHER AND WITH THE STATE? Nonverbal gestures can be just as valid a way of communicating displeasure as verbal ones, and either can be considered rude. Most of you Millennials would have no problem affixing a “poop emoji” to your social media intercourse.

    1. Too bad the ACLU couldn’t find a deaf guy to flip off a cop. That would have made their case a little stronger, I think.

    2. Poop intercourse. Go on.

  11. recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery.

    It does say reasonable person, are we supposed to start with the assumption that cops are reasonable?

  12. But cops ought to know the difference between a violation of etiquette and a violation of the law.

    Sure, but if we’re gonna sit around listing all the differences* cops ought to know, nobody will get anything done all day.

    *between a pit bull and a scared Pomeranian, between cannabis and a tomato plant, etc.

    1. Between crying huddled on the ground begging for them to stop, and actively rushing and attacking them.

      1. Jesus fucking H Christ. Those poor officers stood a very real chance of being drowned to death in that man’s tears! Their lives were in danger! There was no choice but to execute the fucker before he murdered them with his damn tears!

      2. Between a wallet and a gun, between choking a dude to death and not choking him to death, between two small Hispanic women in a light blue truck and a single large black man in a dark gray truck…

        1. I feel like Alanis Morisette wrote a song about this.

          1. No, “You Oughta Know” was about Dave Coulier.

            1. I was referring to “So Unsexy.”

              1. On second thought, that one is also about Dave Coulier.

  13. You absolutely have the right to flip off a cop, provided you aren’t getting in their way while they perform a legitimate function.

    HOWEVER, it’s wise to remember who you’re dealing with when you do so, and not act shocked that there are consequences. Play stupid games, win stupid prizes.

    1. Sounds like it means more people should flip off cops then. It it’s your right, but the consequence is a representative of the state will harm you for it, then your right is being abridged and we must stand up against this.

      1. I don’t disagree in principal.

        I do, however, think that libertarians spend way too much time living in “oughta” land and not enough living in the real world. It simply doesn’t shock and appall me when somebody does something with an entirely predictable consequence, and then that consequence (predictably!) manifests.

        The answer, IMO, isn’t to go around provoking cops. That simply creates an us-against-them dynamic, which doesn’t sell to the public (which, as voters, it’s the public that you’re ultimately trying to convince). Just look at BLM and their failure.

        The answer is to bust pubsec unions that enable shitty policing to begin with.

        1. entirely predictable consequence

          Flipping the bird is justification for a ticket (or beat-down) by an armed snowflake of the state?

          1. not justification, but unfortunately, I think it is fairly predictable. It’s almost like an ingrained rule you don’t know when you learned, but is true nonetheless.

        2. Good one!

          I do, however, think that libertarians spend way too much time living in “oughta” land and not enough living in the real world.

          And then for a real world suggestion, you say

          The answer is to bust pubsec unions that enable shitty policing to begin with.

          HA HA HA HA HA HA

          1. HA HA HA HA HA HA HA HA HA

      2. I don’t disagree in principal.

        I do, however, think that libertarians spend way too much time living in “oughta” land and not enough living in the real world. It simply doesn’t shock and appall me when somebody does something with an entirely predictable consequence, and then that consequence (predictably!) manifests.

        The answer, IMO, isn’t to go around provoking cops. That simply creates an us-against-them dynamic, which doesn’t sell to the public (which, as voters, it’s the public that you’re ultimately trying to convince). Just look at BLM and their failure.

        The answer is to bust pubsec unions that enable shitty policing to begin with.

        1. Sorry for unintentional double-post.

          1. It happens. Often. Don’t worry about it.

            The answer, IMO, isn’t to go around provoking cops. That simply creates an us-against-them dynamic, which doesn’t sell to the public (which, as voters, it’s the public that you’re ultimately trying to convince).

            I don’t see this as someone just going out and picking a fight with cops. This is someone basically acting normally around a cop. They were cut off, they flipped them off as if they were a normal person. I don’t believe that value is created from constantly kowtowing to police either.

            The answer is to bust pubsec unions that enable shitty policing to begin with.

            That is probably a valid way. And I think that not treating police as sancrosect is one of the things we need to achieve this result. Until then, the unions will always fall back on the image of the police of as a holy enforcer of public safety and civilization.

    2. People generally aren’t wise after being cut off in traffic.

      1. Traveling at high speed and barely missing a collision because of an aggressive, unsafe maneuver by anyone is frightening and would naturally evoke anger. An expression of that anger is natural. The recipient should stop and think about his part in the interaction, e.g., replay his actions in his mind’s eye and question, “Was I to blame?”

        In this light, who was the least rational, the citizen or the cop? Who looks more like a fool?

        I’ll bet cops are all in agreement on this. And most citizens would side with the citizen. Why? Can both groups be correct? Of course not. But the idea that cops can be given a power a citizen doesn’t have is fundamentally irrational because how can a citizen or a group thereof grant authority they don’t have? There is the break with reality, the disconnect, the socially indefensible institution.

  14. Needless to say, it’s poor form to give someone the middle finger in traffic, or indeed pretty much anywhere.

    Oh, Britches… *sigh*

    1. EVERY SHORT-ASS PM LINKS THREAD YOU POST IS A MIDDLE FINGER TO LOYAL COMMENTERS, BRITCHES.

      1. I like them now. They have a poetry. He is the E. E. Cummings of Reason.

          1. Seriously. Everyone knows it’s e. e. cummings.

          2. Look, Crusty’s been dropping the ball lately. We all know it.

          3. l(BUCS’ tears of semen)oneliness.

    2. Needless to say, you say? To be sure, says I.

  15. Guy is lucky to be alive.

    1. He’s lucky his dog wasn’t with him.

  16. “likely to provoke a reasonable person to commit battery.”

    You mean, like Indiana’s “provocation” definition?

  17. Wasn’t flipping off cops is free speech decided decades ago? Oh, I forgot, if the cops imagine something is illegal then it’s okay to act like it’s illegal.

  18. Moral of the story: Don’t hand badges, guns, and authority to paste eaters.

    1. Shots fired.

      No, literally.

  19. Vigo County, get prepared to cut this guy a check:

    https://www.npr.org/sections/thetwo-way/
    2014/12/12/3704455
    72/georgia-woman-gets-100k
    -over-her-arrest-for-cursing-at-police

    Dagnabit, why wont links work here!

    1. You haven’t paid your squirrel tax.

    2. Because Reason has the most infuriatingly incompetent blog software, with the worst possible actual deployment, known to humanity. I’ve seen illiterate Nigerian princes code up better blog frameworks while blind drunk on monkey glands. [okay, not really, but it’s easily imaginable].

      Lots of people gave Reason lots of money in their bleg this year; I think it’s only reasonable [ahem] that we expect some slight improvement in this god-awful relic that might barely have been usable on a Kaypro in dial-up BBS days.

      Seriously, Reason, your coders and your web presence are a gross embarrassment.

      And that’s why we can’t have nice things. Like links.

      1. It’s extra stupid because they can just use Disqus. It seems they prefer we sit here all day refreshing the page to see it we get a reply.

        1. I’ve never used Disqus, but I do like being able to us HTML on Reason. A lot of commenting software has no options for formatting.

          Other than that … yeah. Greasonable at least boxes replies in green for me, but I still often forget where I’ve commented.

          1. Disquis lets you use most HTML. I personally use the basic formatting stuff (bold, italics, strikethrough) as well as blockquote without error in Disquis comments. And my HTML links work no problem.

            Seriously, I have stupid problems with getting HTML links to work here, and I know HTML. I use it elsewhere. Reason’s comment s/w just has weird unstated restrictions that you only discover by trial and error.

  20. It’s the same thing as when cops arrest people for filming them. It has been established over and over by the courts that the actions did not amount to a crime, but the cops continue to arrest people for it.

    Why?

    Because they face no consequences for their illegal actions.

    Nothing will change.

    1. The people do have the option to dispense 280 grains of Trepanizine in a variety of formats.

    2. That and there are still negative consequences for the people they arrest. It cost time, money, energy and emotion to deal with being arrested even if charges are dropped later. Go to court and it’s even more. Found guilty and fight it in higher courts and it’s more. It makes the cops happy.

    1. Why not just humankind? People already say that, so you don’t have to coin an awkward neologism.

      Or, shit, why not just say “people” that’s the same idea.

      1. Look, Justin Trudeau is not very smart.

        1. He’s like the unholy offspring of Caramel Nixon & Creepy/Crazy Uncle Joe.

      2. Human still has “man” in it.

      3. Because why isn’t is huwoman?

    2. I though saying man in ‘mankind’ was a reference to the species being called human. But what do I know. I’m just a cis, straight, white shitlord.

  21. “Do You Have a First Amendment Right to Flip Off the Cops?”

    Yes.

    1. Pack up boys, we’re done here.

  22. The gesture so enraged Ames that he broke off the traffic stop he was engaged in and instead pulled over May, issuing him a $500 ticket for “provocation.”

    Provocation is a Class C infraction in Indiana, defined as “recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery.”

    IOW the ‘roided up goon believes that a “reasonable person” would commit battery over a middle finger. I guess May should just thank his lucky stars he didn’t get his ass kicked or worse.

  23. Gave the cops the bird many times and only got harassed for it a few times. They run for warrants and other BS but have to let me go.

    Its a one finger political protest!

  24. Some New York City cops once tried to haul me into court for flipping them off. The judge had no problem with me giving them the middle finger, and said that the cops had failed to prove that I was purposely blocking traffic.

  25. “recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery.”

    He didn’t do that. He may have provoked a cop into wanting to bash his skull in, but not a reasonable person, who would be fully aware of his lack of impunity.

  26. free speech also applies to finger waving lol.

  27. “…cops ought to know…the law.” ?? Many cops act like they are literally the law, e.g., what do or say is law. They get this idea over time because in practice their authority is not challenged. When it is, it does not end well for the challenger, correct or not. The message is clear: Might makes Right. Police abuse of authority is rampant. And the police attitude toward their bad rep? A “us versus them” mentality. They alienate, then blame their victims. They don’t accept their part in creating fear of them. It’s as if they are drunk on power.

    1. Since 9-11 even more so,cops do anything they want without any fear of even reprimand.

      1. Almost everything we hate about cops in America today can be traced directly or indirectly to the drug war.

  28. This reminds me of the video (I might have seen posted here?) of the Difference Makers segment on Colbert Report of a man who flipped off the police in Oregon and won the case in 2010. He settled for $4000. Looks like Comedy Central has done a good job scrubbing it off YouTube:

    http://www.cc.com/video-clips/…..obert-ekas

  29. Provoke a reasonable person to commit battery. Ah, therein lies the problem. Police in this country are not, by any stretch of the imagination, “reasonable” people. And every time one of them comes up with yet another stupid excuse for their unconscionable behavior (walking toward a cop, walking away from a cop, looking, not looking, touching, speaking, not speaking) they only reinforce that fact.

  30. Damn! I’m sad they vacated it. This should have gone all the way to the supreme court, so that flippin’ cops off would be vindicated nation wide as one of our constitutional rights!

  31. I would say it’s inalienable, a Natural right, before it was an amendment.

  32. I think the citizen was fortunate that the cop did not take the liberty to introduce the citizen to the cop’s friend Billy Club.

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