24 hours after blogging about a case where a Public Defender challenged a prosecution based on his client’s use of a four letter word, I have stumbled upon yet another 'middle finger episode,' which has led to a vacated verdict, a false arrest suit, and a judgment for the accused.
On April 10, 2006, David Hackbart was attempting to parallel park his car on a street in Pittsburgh when a car pulled up behind him, blocking his path. Hackbart responded by giving the driver behind him "the middle finger," and promptly heard another voice outside his car tell him, “Don’t flip him off.”
Hackbart, of course, then gave the finger to the interloper who he would soon learn was Sgt. Brian Elledge of the Pittsburgh Police Department, seated in his patrol car at the time. Law Man then issued Hackbart a citation charging him with violating Pennsylvania’s disorderly conduct statute based on Hackbart's giving the middle finger to Sgt. Elledge and the other driver.
Hackbart challenged the citation but at his preliminary hearing, a district justice found him guilty of violating the disorderly conduct statute and imposed a fine and court costs totaling $119.75. Hackbart appealed the decision and on Oct. 17, 2006, the Allegheny County District Attorney’s Office finally decided to withdraw the charges against him, and the sentence was vacated.
Enter the ACLU. They filed a federal civil rights lawsuit against the City of Pittsburgh and Sgt. Elledge on Hackbart's behalf. The complaint alleged, among other things, that the defendants violated Hackbart's rights under the First Amendment "to be free from criminal prosecution or to be retaliated against in any way for engaging in constitutionally protected speech."
Sara Rose, an ACLU staff attorney, stated that "the law is clear that using one's middle finger to express discontent or frustration is expressive conduct that is protected by the First Amendment. The City has an obligation to train its officers to respect citizens' free-speech rights."
Pittsburgh has tentatively agreed to pay $50,000 ($10,000 to Hackbart, $40,000 to the ACLU and lawyers' fees) to settle his lawsuit. As part of the settlement, the city promised to "train its officers in recognizing when they are violating someone's civil rights, including taking action against anyone who flips them off," the Pittsburgh Post-Gazette reports.
The Post-Gazette also notes that this latest blow to law enforcement's effort not to have people give them the finger is part of a growing line of such losses. In the most high-profile example, the 9th U.S. Circuit Court of Appeals ruled in Duran v. City of Douglas, AZ in 1990 that a man pulled over in Douglas for flipping off and swearing at a police officer did not break the law.