Immunity Denied To Cop Who Ticketed A Man For Telling The Cop To Turn On His Headlights

Cops shouldn't be able to arrest you for saying things to them, even if they're things they don't like. But it still happens with alarming frequency. This is unconstitutional retaliation. But even if courts admit that much, if this retaliation doesn't match up with the facts of a previous case they've handled, they'll acknowledge the rights violation but grant the vindictive officer(s) qualified immunity.

This case, handled by the Second Circuit Appeals Court, reverses the extremely poor call made by the lower court. The facts are pretty simple. R. Anthony Rupp, the plaintiff, was leaving a Buffalo (NY) restaurant with his wife one evening. He and his wife crossed the street to the restaurant's parking lot, followed by two other women. Rupp spotted a cruiser driven by Buffalo police officer Todd McAlister coming down the street with no headlights on. According to Rupp's testimony, he and his wife accelerated their crossing but the two women behind them were nearly hit by Officer McAlister.

The facts are disputed about how close the officer came to hitting the women. What's undisputed is that his headlights and running lights were off. According to Rupp, McAlister's response to (almost [or not]) running down the two women was to flash his hi-beams at them before turning his lights back off.

Rupp responded this way, as recounted (succinctly) by the Second Circuit decision [PDF]:

After McAlister had avoided hitting the pedestrians, Rupp called out turn your lights on, asshole."

Almost hitting pedestrians didn't bother Officer McAlister, but Rupp's shout did. McAlister pulled his cruiser into the restaurant parking lot to confront Rupp, who didn't actually realize he had shouted at a cop until that moment.

Here's how the officer (allegedly) responded:

McAlister rolled down the front passenger window, leaned across the console, and said, You know you can be arrested for that.'"

Well, that just seems to be wrong. There's no law against yelling at cops or calling them assholes or telling them to turn on their headlights when driving down dark streets. Rupp reminded the officer of these facts, which led to the officer telling Rupp he was being detained and demanding he show some identification. Two more officers arrived to handle the dangerous shouter and, after a brief huddle, they came up with some bullshit to charge Rupp with.

After [officer] Parisi arrived, McAlister admitted that he had been driving the vehicle without using headlights. (See Undisputed 17.) Rupp repeatedly argued to McAlister, Parisi, and Giallella, that McAlister had violated the New York Vehicle and Traffic Law (VTL") by driving at night without headlights. Rupp insisted that McAlister was not exempt from complying with the VTL just because he was a police officer; he asked Parisi and Giallella to cite McAlister for that violation; both refused. (See, e.g., Undisputed 16, 19, 23.)

After McAlister, Parisi, and Giallella conferred privately, Giallella returned Rupp's identification to him and handed Rupp a citation," signed by McAlister, for violating the City of Buffalo's noise prohibition, Chapter 293, Sections 4 and 7, of the Buffalo City Code."

Somehow, the lower court was fine with this and awarded the officers qualified immunity, reasoning that... well, just read it for yourself.

The district court granted summary judgment in favor of defendants, holding principally that plaintiff's shout was not protected by the First Amendment because he did not know he was addressing a police officer, and that all of his claims were barred by the existence of probable cause-or at least arguable probable cause sufficient to give the officers qualified immunity-for plaintiff's arrest

So... expression is only protected if you know exactly who's on the receiving end of it? What fresh Constitutional hell is this?

Well, it's the kind that gets overturned immediately upon further review. Here's part of the Second Circuit's take on that absurdly bad take on the First Amendment.

[N]ot knowing that the vehicle's driver was a police officer had no bearing on whether Rupp's shout was speech on a matter of public concern. Rupp did not need to know who was driving in the dark without headlights in order to understand that such conduct was dangerous. And he had not shouted at the driver until he saw the vehicle nearly hit the two pedestrians.

The lower court also rationalized its bad decision by claiming the presence of a single expletive was enough to strip Rupp's shout of First Amendment protections. Ridiculous, says the Appeals Court:

[A]s to the substance of Rupp's five-word shout, the court focused on the fact that it contained an expletive," id. As discussed in Part II.C.1. below, a jury would be entitled to view a shout as unreasonable noise if all five words were asshole" or other expletives; but in fact Rupp shouted turn your lights on, asshole." We have no doubt that he was upset; but his shout was an exhortation that was forward-looking in the interest of public safety. A rational juror could easily view the shout as an attempt to avert a possible accident by (a) a vehicle without lights, (b) whose driver appeared not to know he was driving without lights, (c) who had just had to stop for two pedestrians in his path attempting to cross the street, and (d) who even after that abrupt stop, resumed driving without headlights-and thus could easily view the shout as eminently reasonable.

Yeah, the Appeals Court has plenty of problems with the lower court's decision, which sounds like it was written by a cop, rather than by a neutral member of the judiciary. I won't quote all the disputes at length, but here's a sampling of the Appeals Court's lead offs towards multi-paragraph dismantlings of the lower court's reasoning:

We have many difficulties with this rationale..."

the court did not view the record in the light most favorable to Rupp, or in light of the record as a whole - or even in light of that section of the affidavit as a whole..."

We also note our puzzlement at the court's reliance on the fact that [officer] McAlister himself did no[t]... view the situation with the two pedestrians as dangerous...'"

The Appeals Court reverses on the First Amendment retaliation claim, ruling the lower court was not permitted to rule in favor of the defendants given the number of disputed facts and - this is important - Rupp telling an asshole to turn his headlights on was a matter of public safety."

Of course, if literally any probable cause exists to charge (or ticket) someone, it's almost impossible for retaliation claims to survive. But the Appeals Court says the lower court got that wrong too. There was likely no probable cause for the confrontation, detainment, and ensuing ticket.

[T]he Buffalo noise ordinance prohibits noise that is unreasonable," and a rational jury could well find, based on facts as shown in this record, that McAlister had no belief, and no basis for a reasonable belief, that Rupp's yelling at him to turn on his lights was either in substance or in volume unreasonable. With the record viewed in the light most favorable to Rupp, and given the undisputed facts that McAlister's vehicle was moving in the dark with no headlights-both before and after a near-accident with the two pedestrians-a jury could well find that the nature" of Rupp's yell, urging the driver to put on his light was entirely appropriate.

Further, given that the goal of the shout was to alert the driver to turn on his headlights, the yell obviously needed to be loud enough for the driver to hear it inside his running vehicle. The jury could easily conclude that the volume" of the yell was not unreasonable.

No qualified immunity. The lawsuit moves forward. Not that Rupp's hoping to get rich. He's seeking a declaration on the record that the officers violated his rights with this ticket. That, and $1. It's the principle of the thing. And now that this has already traveled to appellate level once, Rupp might be able to obtain something truly priceless: precedent that would prevent officers who engage in the same sort of retaliation from claiming their Constitutional violations are reasonable."