Cook v. BD. OF COUNTY COM'RS OF CTY. OF WYANDOTTE
1997 WL 309855, 966 F. Supp. 1049, 1997 U.S. Dist. LEXIS 7830 (1997)
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Rule of Law:
Making an offensive gesture, such as 'flipping the bird,' at a police officer from a moving vehicle is a form of expressive conduct protected by the First Amendment and does not, as a matter of law, constitute 'fighting words' sufficient to establish probable cause for a disorderly conduct arrest. An officer who makes an arrest under such circumstances is not entitled to qualified immunity because a reasonable officer should know that this conduct does not meet the narrowly construed definition of disorderly conduct.
Facts:
- Officer Edward Drake, a highway patrol officer, was parked in his patrol car monitoring the speed of passing vehicles in Wyandotte County, Kansas.
- A plaintiff, who was a passenger in a passing car, made an offensive gesture commonly known as 'flipping the bird' directed at Officer Drake.
- In response to the gesture, Officer Drake initiated a traffic stop of the car in which the plaintiff was a passenger.
- Officer Drake then arrested the plaintiff and issued him a citation for disorderly conduct in violation of Kansas statute K.S.A. § 21-4101.
- The plaintiff alleged that the Wyandotte County District Attorney’s Office had a policy giving the arresting officer 'absolute control' over the decision to prosecute or dismiss cases on the traffic docket.
Procedural Posture:
- The plaintiff filed a lawsuit under 42 U.S.C. § 1983 in the United States District Court for the District of Kansas against Officer Drake and the Board of County Commissioners of Wyandotte County.
- The plaintiff filed a Second Amended Complaint alleging his First, Fourth, and Fourteenth Amendment rights were violated.
- Defendant Officer Drake filed a Motion to Dismiss based on the argument that the plaintiff's gesture constituted 'fighting words' and that he was entitled to qualified immunity.
- Defendant Board of County Commissioners filed a Motion to Dismiss, arguing that the claims were barred by absolute prosecutorial immunity.
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Issue:
Is a police officer entitled to qualified immunity from a civil rights lawsuit after arresting an individual for disorderly conduct, where the sole basis for the arrest was the individual's act of 'flipping the bird' at the officer from a moving vehicle?
Opinions:
Majority - Vratil, District Judge.
No. A police officer is not entitled to qualified immunity for arresting an individual under these circumstances. The court reasoned that the First Amendment protects a significant amount of verbal and expressive criticism directed at police officers. The 'fighting words' doctrine, which is an exception to First Amendment protection, is narrowly construed in Kansas to apply only to words or conduct which 'by their very utterance inflict injury or tend to incite an immediate breach of the peace.' The plaintiff's gesture, made from a moving vehicle, did not pose a risk of an immediate breach of the peace. Therefore, a reasonable officer should have known that there was no probable cause to arrest the plaintiff for disorderly conduct, and the arrest violated clearly established First Amendment law.
Analysis:
This decision reinforces the high constitutional protection afforded to expressive conduct, even when it is offensive and directed at law enforcement. It clarifies that the 'fighting words' exception is extremely narrow and context-dependent, requiring a threat of imminent violence that is absent when an insult is delivered from a moving vehicle. The ruling serves as a significant check on police authority, preventing officers from using disorderly conduct statutes to punish individuals for perceived disrespect. For future cases, it establishes that an officer's claim of qualified immunity is significantly weakened when an arrest is based on protected speech that does not plausibly threaten public order.
