Buffalo Cops Denied Qualified Immunity for Arresting Man Who Called Officer an 'Asshole'

R. Anthony Rupp III was cited and detained after he called a police officer an "asshole" after the cop nearly drove into two pedestrians. 

Buffalo, New York, police arrested and cited R. Anthony Rupp in 2016 after he cursed at a police officer for nearly hitting two pedestrians. Now, after an already extensive legal battle, a federal appeals court has denied the officers qualified immunity, paving the way for a successful suit against the officers.

On December 1st, 2016, Rupp and his wife were leaving a restaurant around 8:30 pm, when they noticed a car, driven by Buffalo police officer Todd McAlister, "rapidly approaching" a crosswalk without headlights or running lights. According to legal documents, McAlister stopped just short of hitting two pedestrians—about two feet from them.

Seeing McAlister almost hit the two women, Rupp shouted "Turn your lights on, asshole." At the time, Rupp says that he didn't realize that the car was a police cruiser. According to the complaint, McAlister turned his car to approach Rupp and his wife, and told them that Rupp could be arrested for yelling at him. Rupp retorted that McAlister shouldn't be driving without his headlights. 

McAlister then got out of his vehicle and told Rupp he was being detained. McAlister demanded identification from Rupp, who then produced his attorney identification card. As the two men began arguing about the incident, two more Buffalo police officers arrived at the scene. One of the officers eventually handed Rupp a summons for violating a local noise ordinance, and all parties departed. Rupp later complained about the interaction, and the citation against him was eventually dismissed.

Rupp decided to file a lawsuit against the officers in 2017, alleging that they violated his First and Fourth Amendment rights. However, in 2021, a federal court dismissed the case, ruling that Rupp's shout was not First Amendment-protected criticism of police, and granting the officers qualified immunity protections.

Rupp appealed this ruling, and the U.S. Second Circuit Court of Appeals ended up agreeing, overturning the lower court's ruling and reinstating the case. The circuit court ruled that the lower court erred in finding that "Rupp's shout did not concern a matter of public safety that was entitled to First Amendment protection," and found that the officers were not entitled to qualified immunity protections.

"But while a mere mistake in the performance of an official duty may not deprive the officer of qualified immunity," wrote Judge Amalya Lyle Kearse in the court's opinion. "That doctrine does not shield performance that either (a) was in violation of clearly established law, or (b) was plainly incompetent." Kearse added that no reasonable officer would believe Rupp's comment "constituted an unreasonable infringement on his own comfort and repose."