Appeals Court Reverses Awful Decision Finding That Holding Up A Sign Telling Drivers There Are Cops Ahead Is Not Free Speech

Officer Richard Gasparino of the Stamford, Connecticut police department couldn’t stand to have his “revenue diverted.” So, he arrested Michael Friend for the imaginary crime of holding up a sign warning motorists there was a sting operation in progress further up the road.

The officer claimed Friend was “interfering with a police investigation” despite there being no real investigation, but rather some opportunistic officers sitting in squad cars hoping to catch “distracted” drivers. He also seized Friend’s phone and prevented him from recording his interaction with the officer under the theory the recording would be used to make a “false claim of physical abuse.”

Then he took Friend to jail, managed to get his bail set at $25,000(!!), forcing him to spend a night in jail before the bail commissioner arrived and set it at a much more reasonable $0.

And I’m not paraphrasing the officers who arrested Friend. They told him directly he was “interfering” with their opportunity to make money.

On the ride to the police station, [Officer] Deems told Mr. Friend that he attracted police attention because he was “interfering with our livelihood.”

Deems explained to Mr. Friend that the cellphone sting was operated as an overtime assignment, funded by a federal grant which would require the Stamford police to issue a certain number of tickets in order for the grant to be renewed.

By warning motorists, Deems claimed, Mr. Friend was decreasing the number of tickets that the Stamford employees could issue, and therefore decreasing their chances of earning overtime on a cellphone sting grant in the future.

Somehow, a federal judge saw all of this and came down on the side of the cops. He granted Officer Gasparino’s request for qualified immunity while ruling that holding up a sign warning drivers about a sting operation was not expressive speech. Judge Alfred Covello managed to talk himself around longstanding First Amendment protections clearly established by prior precedent. This would include precedential rulings that have found something as simple as flashing headlights at oncoming motorists (to warn them of police presence) was expressive enough to be considered protected speech.

Although Friend states that he “objected to the way [police] were issuing tickets,“ nowhere does Friend state how such issuance was unlawful or improper. While he makes reference to the procedure by which Gasparino stood “behind a column” and “radio[ed] ahead to his colleagues whenever he alleged a driver to have been using a cell phone,” he never discusses how this procedure was unfair to individuals driving by or was a deviation from normal police procedure. His signs did not discuss a topic or express his opinion on it. The court agrees with Gasparino that Friend’s speech was “of little, if any, public concern.“

Just completely wrong on so many levels. Fortunately, this decision has been reversed by the Second Circuit Appeals Court. In a decision [PDF] handed down late last month, the Appeals Court strips immunity from Officer Gasparino while stating affirmatively that, of course, this is clearly protected expression and the underlying issue has been clearly settled for some time. (h/t Clearly Established, whose periodic [and invaluable] roundup of court decisions alerted me to a opinion I missed when it was first published)

The decision contains this fun bit of information, in which the prosecutor sided wholeheartedly with Friend and his “cops ahead” signs.

At Friend’s hearing, the state’s attorney entered a nolle prosequi and stated to the court that Friend had in fact “helped the police.” The prosecutor explained that “Friend actually was helping the police do a better job than they anticipated because when [drivers] saw the signs, they got off their cell phones.” The misdemeanor interference charge was dismissed.

First off, the Appeals Court reinstates Friend’s Fourth Amendment claims, finding that unlawfully ordering someone to stop engaging in protected First Amendment activity cannot form probable cause for arrest, especially when the law used to effect the arrest doesn’t actually apply to the arrested person’s actions.

Gasparino argues that Friend violated § 53a-167a by refusing to comply with Gasparino’s directive to leave the area and not to return with another sign. We do not believe that Gasparino’s directive could create probable cause where there was none before. Gasparino still cannot identify a crime that he would have had probable cause to suspect was occurring. As we have explained, § 53a-167a proscribes only “physical conduct” and “fighting words.” Friend’s refusal to end his protest was neither.

To be sure, the Connecticut Supreme Court has said that § 53a-167a covers the refusal to comply with “lawful police commands or orders.” State v. Aloi, 911 A.2d 1086, 1097 n.22 (Conn. 2007). But Gasparino’s directive was not such a command or order because Friend was violating no law by standing on the sidewalk and displaying his sign, and Garparino had no lawful reason to order him to desist from that conduct.

In short, you can’t order someone to stop breaking the law when they’re not actually breaking the law. And you certainly can’t arrest them for refusing to comply with an unlawful order.

The order was unlawful because why? The First Amendment, of course. Those claims are reinstated and there will be no immunity to protect the officer from the revived lawsuit. The Appeals Court says the lower court this issue completely wrong.

The district court said that speech must “rise[] to the level of expression of an opinion related to a matter of public significance” in order to receive First Amendment protection. But that is not correct. The First Amendment does not “permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary.”

The lower court chose the wrong standard in order to give a cop a free pass. This injustice will not stand.

Friend is neither a public employee alleging retaliation by his employer nor a defamation defendant seeking protection from tort liability. He is a private citizen who was speaking on a public sidewalk when the police confiscated his signs and arrested him. He does not need to establish that his speech addressed “a matter of public significance” in order to receive the protection of the First Amendment.

The First Amendment can sometimes be constrained if there’s a justifiable and overriding state interest. But there’s nothing here that justifies the silencing of Michael Friend, much less the ensuing arrest.

The compelling interest asserted in this case is properly defined as the state’s interest in saving lives or perhaps in the enforcement of distracted driving laws. We do not question the seriousness of the state’s interest in enforcing traffic laws, including laws regulating distracted driving. But we must ask whether Gasparino’s arrest of Friend and confiscation of Friend’s signs were narrowly tailored to advance those arguably compelling interests. As explained above, Connecticut has not enacted any law that proscribes conduct such as Friend’s. As a result, Gasparino cannot establish that his discretionary restriction of Friend’s speech was “necessary to serve” Connecticut’s interests in saving lives or in enforcing traffic laws.

The Appeals Court points out this interest can be served in many ways. It is not restricted solely to officers issuing citations to distracted drivers. In fact, it could be argued Friend’s warning of drivers furthered that compelling interest far more successfully than the sting operation. And we know it could be argued because this argument was actually advanced by the state’s attorney when they declined to prosecute Friend’s case.

The case now travels back to the court that screwed it up. There’s a good chance the town of Stamford is now in the process of putting together a settlement offer. Hopefully, its re-review of this case will prompt it to consider whether or not officers like Richard Gasparino are still worth the expenses they inflict on taxpayers.