Free Speech Victory for Man Who Flipped Off Cop in Unmarked Car

February 16, 2016

NEWARK – Prosecutors dismissed charges against a Bergen County man who was cited for disorderly conduct after showing his middle finger to an aggressive driver who turned out to be a police officer in an unmarked car. In a vindication of free speech rights, the New Milford municipal prosecutor dismissed the charges against William Martin, who was represented by the ACLU of New Jersey.

“When I received a summons, I felt that my free speech rights were under attack for nothing more than expressing my frustration with someone whose driving had put people at risk,” Martin said. “I’m relieved to know that the town of New Milford recognized it wasn’t worth prosecuting me for expressing my frustration.”

Martin received a disorderly conduct summons in New Milford, Bergen County, after flipping the bird to an officer in an unmarked car. On the narrative portion of the ticket (PDF) the officer wrote, “Behaved or exhibited disorderly conduct, specifically by extending his left arm out the driver’s side window and raise his left middle finger [at the officer].” Legal precedent has firmly established that a raised middle finger, even one directed toward a police officer, is an act of speech protected under the First Amendment.

“Enforcing manners rather than public safety is a poor use of police resources,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero, who represented Martin. “Our client expressed his frustration using a peaceful, silent gesture that is protected by the First Amendment. In this case, an officer chose to initiate and escalate an encounter instead of just ignoring it. It might be rude to flip off a police officer, but it isn’t a crime.”

In the incident leading up to the summons, Martin was followed closely by an unmarked passenger car while on an errand. The driver began to tailgate Martin’s vehicle, and Martin became concerned. Martin tapped his brakes lightly as a signal for the driver to stop following so closely. As Martin slowed to make a turn into the bank, the driver behind him stopped just inches from Martin’s bumper.

Shaken by the situation, Martin lowered his window and stuck out his middle finger. The driver followed him into the parking lot, activated the unmarked police car’s grill lights, and blocked Martin’s car.

Martin was prosecuted under a municipal disorderly conduct ordinance that is so broad as to be virtually unenforceable. The ordinance, which puts a blanket prohibition on any behavior deemed a disturbance, is much more punitive than state law, which requires that the action be an intentional, materially harmful disturbance.

“This experience really made me question what I thought I knew about my rights,” Martin added. “It was extremely upsetting for the police to punish me for an understandable response to an aggressive driver. I felt powerless. Now that the prosecutor has dismissed the charges, I feel like I’ve been vindicated.”

The ACLU of Pennsylvania won a case in 2009, Hackbart v. Pittsburgh, that affirmed the constitutional rights of a man in circumstances nearly identical to Martin. Hackbart was attempting to parallel park when a driver blocked the space he was backing into. When Hackbart gave him the finger, the officer in the unmarked car cited him based on an anti-obscenity law. U.S. District Court Judge David Cercone ruled that the police violated his rights by citing him with disorderly conduct for showing the officer his middle finger.

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