Michigan Criminal Lawyer, Josh Jones

Insulting Gesture is NOT Unlawful or Illegal

In Cruise-Gulyas v Minard, the Court of Appeals for the 6th Circuit ruled that an individual who makes an insulting gesture is not unlawful or illegal. This ruling effectively creates the inability for an officer to arrest, stop or seize an individual simply for making an insulting gesture toward the officer or another individual.

The underlying facts of the case are as follows: an individual was pulled over for speeding, and the officer, rather than writing a speeding ticket, wrote a impeding traffic ticket and let the lady go. As the driver was pulling away, she raised her middle finger in the air, and the officer then proceeded to pull her over a second time, amending the ticket issued for the prior speeding infraction. The driver filed a 1983 Action against the individual officer, and the officer moved to dismiss the action because of qualified immunity. The immunity of an officer’s actions will only be upheld if the officer does not violate a clearly established constitutional or statutory right.

Freedom of Speech – Insulting Gesture

And thus, the question before the 6th Circuit Court of Appeals was whether an insulting gesture was unlawful or illegal, which would have allowed the officer to properly or legally stop and detain the individual a second time. This is based upon the understanding and rationale that the ability to stop or seize the individual ended upon the issuance of the civil infraction. Therefore, the insulting gesture is not unlawful or illegal, the officer has no ability, power or right to stop the driver after being issued the citation. The inquiry and analysis of the court did not stop there. The court explained that the the individual driver must also show that she maintain protected speech in her gesture, that officer’s action would later deter her from free expression and that the conduct was influenced by such free expression.

The court concluded that a reasonable officer, in the same situation, would know or should know that the insulting gesture is not unlawful or illegal. Therefore, because it is reasonable to also believe that she would be deterred by future expression, the officer in the individual case did not have nor hold immunity in that particular case. NEVER rely on this website or any other website that identifies, explains or analyzes legal opinion or otherwise. Whenever you want, desire or are trying to represent yourself in a court of law or otherwise, you should and must always consult with legal counsel on the matter. This is not legal advice. Nothing will protect you more than obtaining proper and competent advice from a legal professional. Lawyer-up.