Pig Bird

It may not be a get out of jail free card, but you can feel free to express yourself. With your middle finger.

A Federal judge ruled a city police sergeant was wrong to cite a motorist for flipping him off in traffic three years ago. U.S. District Judge David Cercone granted summary judgment to David Hackbart, who said in a federal suit that Sgt. Brian Elledge violated his constitutional rights by issuing him a citation. "Elledge's response to Hackbart's exercise of his First Amendment right was to initiate a traffic stop and issue a citation for disorderly conduct," the judge wrote. "Clearly, Elledge's conduct was an adverse action in response to Hackbart flipping him off." The case will now proceed to trial in U.S. District Court on the underlying claim that the city doesn't adequately train its officers to know when they're violating someone's rights.

The Supreme Court has consistently ruled that giving someone the finger, even a police officer, is protected free speech. In 2003, police cited a man for flipping off the local fire chief, but later ended up settling the case for $9,000. In a 2005 suit, a flight attendant sued a PA state trooper for issuing a $75 traffic citation for giving the trooper the finger. That incident differed slightly from the prior one in that the flight attendant said they never made the gesture. Whether they did or not, the suit was also settled for a nominal fee.

In Mr. Hackbart's case, he said he was trying to parallel park on back in April 2006. As he tried to pull into a space, the car behind him pulled too close and blocked him. So he flipped off the driver. As he did, he heard the voice of another driver say, "Don't flip him off," according to the suit. He immediately flipped off the second driver, who turned out to be Sgt. Elledge.

The sergeant turned his car around and pulled Mr. Hackbart over. On the disorderly conduct citation, he wrote: "Driver made an obscene gesture towards me. Flipped me off while driving by. Also flipped off another driver." In a court filing, the city said the citation was not for Mr. Hackbart's gesture but for blocking traffic. Judge Cercone disagreed, saying he found the sergeant's conduct "retaliatory."

As part of his suit, Mr. Hackbart's lawyers asked the city to turn over the number of similar citations, a legal tactic designed to hold the city liable for a pattern of violations based on a claim of improper training. In the 2005 suit, the plaintiff made the same complaint against the state police. The city didn't provide any citations, so the ACLU filed a Right to Know request with the court system and came up with 188 citations between March 1, 2005, and Oct. 31, 2007. "They have specific authority under the law," Hackbart's lawyer said. "They can't just retaliate."