CA6: No QI for stopping ptf for “flipp[ing] him the bird”

Officer Minard stopped the plaintiff for a minor traffic offense, and he let her off with a warning. Despite the break, she “flipped him the bird,” and the officer blue lighted her again and this time ran into her trying to stop her. The second stop violated the Fourth Amendment, and Minard should have known it: this was protected speech. Therefore, he gets no qualified immunity. Cruise-Gulyas v. Minard, 18-2196 (6th Cir. Mar. 13, 2019):

Fourth Amendment. Under the facts set forth in the complaint, Minard violated Cruise-Gulyas’s right to be free from an unreasonable seizure by stopping her a second.

All agree that Minard seized Cruise-Gulyas within the meaning of the Fourth Amendment when he pulled her over the second time. Whren v. United States, 517 U.S. 806, 809–10 (1996). To justify that stop, Minard needed probable cause that Cruise-Gulyas had committed a civil traffic violation, id. at 810, or reasonable suspicion that she had committed a crime, United States v. Arvizu, 534 U.S. 266, 273 (2002). He could not rely on the driving infraction to satisfy that requirement. Any authority to seize her in connection with that infraction ended when the first stop concluded. Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).

That leaves Cruise-Gulyas’s gesture as a potential ground for the second stop. But the gesture did not violate any identified law. The officer indeed has not argued to the contrary. Nor does her gesture on its own create probable cause or reasonable suspicion that she violated any law. Wilson v. Martin explained that, where a girl extended her middle fingers at officers and walked away, her “gesture was crude, not criminal,” and gave the officers “no legal basis to order [her] to stop.” 549 F. App’x 309, 311 (6th Cir. 2013); see Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (“This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”). All in all, Officer Minard clearly lacked authority to stop Cruise-Gulyas a second time.

Minard counters that Wilson concerns whether officers had probable cause to arrest a girl who extended her middle fingers at them, not about whether they could stop her. But Wilson says that the girl’s salute provided the officers “no legal basis to order [her] to stop.” 549 F. App’x at 311. Minard should have known better here.

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