The One Fingered Salute: It’s Rude, But It’s Not Probable Cause To Arrest

Officer Matthew Minard of the Taylor, Michigan Police Department pulled over Debra Cruise-Gulyas for speeding.  He cut her a break and cited her only for a non-moving violation. A lot of people would’ve been grateful, but those people are not Ms. Cruise-Gulyas. What happened in the next few moments is a short course on First and Fourth Amendment law and the less glamorous side of police work.

As Cruise-Gulyas pulled away from the stop, after receiving her ticket, she extended her arm out the window. As the U.S. Court of Appeals for the Sixth Circuit delicately described it, “she made an all-too-familiar gesture at Minard with her hand and without four of her fingers showing.” (To be clear, she was not giving Minard an encouraging “thumbs up” and she wasn’t expressing her view that the University of Michigan was “number one.”  Her meaning was less charitable.)

Officer Minard, no doubt offended that Ms. Cruise-Gulyas was so demonstrably unappreciative, took umbrage. He pulled her over a second time, just a hundred yards from the first stop, and, during the second stop, wrote her a new ticket for the more serious speeding charge he’d earlier determined to forego.

Cruise-Gulyas took umbrage of her own. She sued Minard. She claimed he violated both her First Amendment right to speech and her Fourth Amendment right to be free from unreasonable searches and seizures. She won in a unanimous ruling in the the Sixth Circuit.

The Court readily concluded that when Cruise-Gulyas gave Minard the finger, that was speech and Constitutionally protected speech. The Court also concluded that when Minard stopped Cruise-Gulyas after she gave him the finger, the stop was in retaliation for the offensive gesture. Finally, the Court held that what motivated Minard to stop Cruise-Gulyas the second time was her “middle salute.”

Those facts together made out claims that Minard violated Cruise-Gulyas’s First and Fourth Amendment rights. As for Minard’s claim that he should enjoy qualified immunity in the case because previous cases hadn’t explicitly ruled on this fact pattern, the Sixth Circuit dispensed with that argument quickly: “Minard should have known better.”

In fairness, Cruise-Gulyas should have known better, too. Telling anyone, including the police, what flipping the bird explicitly tells them is corrosive and inappropriate. But it isn’t illegal. Officials charged with upholding the Constitution, as Officer Minard was, have the important obligation to honor its protections even when people are disrespectful and rude, even when they’re ungrateful, and even when they’re foolish.