You know, rather than paying out thousands or millions in lawsuits for retaliatory arrests, maybe states should just spend more money on skin thickening for their police officers.
It’s not like case law isn’t pretty much completely established at this point. Flipping the bird to a cop is protected speech. So is complaining, however profanely, about your recent experience with said officer.
The precedent is everywhere. Obviously, cops will never be happy when someone they stop or address responds with one finger salutes and/or insulting verbiage. But being unhappy is not the same thing as probable cause for an arrest. “Contempt of cop” is not a crime. But try convincing cops of that fact. It’s impossible.
Refusing to learn isn’t the same thing as being a “reasonable” officer. And that means it’s almost impossible to secure qualified immunity when you’ve arrested someone for being rude to you.
Since that’s the direction this case was headed, the state of Vermont has chosen to exit early, rather than wait and see just how bad the damages might get if handed over to a jury.
Vermont has agreed to pay $175,000 to settle a lawsuit on behalf of a man who was charged with a crime for giving a state trooper the middle finger in 2018, the state chapter of the American Civil Liberties Union said Wednesday.
The lawsuit was filed in 2021 by the ACLU of Vermont on behalf of Gregory Bombard, of St. Albans. It says Bombard’s First Amendment rights were violated after an unnecessary traffic stop and retaliatory arrest in 2018.
All Bombard had to do was extend a finger and use his voice a bit following a traffic stop. In return, he’ll be walking away with $100,000 for himself and $75,000 for his legal representative from FIRE and the ACLU.
As his lawsuit alleges, he was pulled over after driving away from the initial traffic stop with a middle finger extended. (Bombard denies he flipped off the cop.) When he was pulled over for a second time, he cursed at the officer, who then unbelievably (and unconstitutionally) told Bombard his actions and words were “disorderly conduct 101.” Bombard was arrested, his car was impounded, and he was jailed for an hour.
The officer was clearly in the wrong, something made clear almost immediately as the criminal court dropped one of the charges against him and the state soon dropped the other charge. Qualified immunity was denied and the trial court’s decision contained this great paragraph that expresses incredulity at the ridiculous defenses raised by the government.
The State also argues that Mr. Bombard has insufficiently pleaded that his free speech rights have been “chilled.” It asserts: “because the second stop, arrest, and towed vehicle were lawful and he continued to later protest these actions in both criminal and civil court, Plaintiff does not cognizably allege such actions chilled his speech.”
It supports this argument largely by reference to cases in which, under the circumstances presented, no injury was apparent or at least only an indirect injury was asserted. The State’s argument is out of step with Vermont’s Rule 12(b)(6) standard. Moreover, if filing a lawsuit based on chilled speech itself proved that no speech was chilled, no legal claim premised on chilled speech could ever be cognizable.
So, that’s how things were going late last year. Six months later, Bombard and his legal reps are getting paid for an arrest any reasonable cop should have known would be impermissible under the Constitution. Unfortunately for Vermont residents, they’ll be paying $175,000 extra for this level of service.
