Can you be arrested for flipping off a cop?

A 35 year old man in Colorado was criminally charged in May 2011 for exactly this conduct – flipping off a cop. Shane Boor was on his way to work when he passed a state trooper who had pulled over another motorist off the side of the road. As he passed by, Shane gave the trooper the finger as an expression of his disapproval and belief the trooper was harassing an innocent motorist. Shortly after he arrived at his work site, another state trooper showed up and questioned Shane about the hand gesture. He was issued a summons to appear in court for “harassment”. Shane has no criminal record and was facing up to six months in jail.

The American Civil Liberties Union (ACLU) quickly got involved and represented Shane against the charges. The ACLU legal director, Mark Silverstein, stated, “our client engaged in peaceful, silent symbolic expression that is protected by [the] First Amendment.” Shortly after the charges were filed and the ACLU attorney’s notice of appearance was filed with the court, the Colorado State Patrol (the law enforcement agency the troopers are employed with) requested the matter be dropped and the charges dismissed.

Photo by Pithawat Vachiramon

The Colorado State Patrol did the right thing when it requested that the charges be dismissed as other courts already have decided that flipping off a cop, although impolite and disrespectful, is protected expression under the First Amendment. It’s important to note that the First Amendment is about freedom of speech and protecting not just civil, polite speech, but speech that is offensive and insulting.

We certainly do not condone or encourage this type of behavior. There are better, more mature, sensitive and respectful ways to communicate your feelings with the police. Although flipping the bird may be considered protected expression by a court of law, it is not the “right” thing to do to an authority figure or anyone else for that matter. Think before you flip.

Update: How things turn out when you decide to use your middle finger depends on your location. On June 30, 2011, 28 year old Matthew Bartlett gave the finger to lawyer Jeff Ashton. Bartlett was in Judge Belvin Perry’s courtroom at the time in Florida. He was a spectator during the trial of Casey Anthony who was charged with the murder of her two-year-old daughter, Caylee Marie Anthony. His gesture was caught on camera. The proceedings were stopped and Bartlett was called before the judge. After determining that he could read the posted sign on the door of the courtroom that prohibited any speaking, outbursts and gestures once in the courtroom, Judge Perry found Bartlett in contempt of court and sent him to jail for six days. The message here? Think before you speak or act.

The Latest: In March, 2019, the Sixth Circuit Court of Appeals ruled in a case where the defendant was stopped speeding but issued a ticket for a non-moving violation. As the lady drove off, she flipped the officer the finger. Based on her gesture, the officer pulled her over again and amended the ticket to a moving violation, a higher offense. On appeal, the court recognized her free speech right to express herself in a non-threatening manner. The lawsuit filed by the driver against the officer for violating her civil rights was allowed to proceed. The officer was not protected by any immunity available in certain circumstances. (See Cruise-Gulyas v. Minard, (6th Circuit, Michigan, March 13, 2019)).