No citations for giving the finger to police, judge says

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Memo to cops everywhere: You can't cite someone for giving you the finger.

That's essentially what a federal judge ruled yesterday when he said a city police sergeant was wrong to cite a Regent Square man 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 in 2006.

"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.

Police officers in this region have been successfully sued before on the same grounds in federal court.

In 2003, for example, Sewickley police cited David R. Dickinson of Ambridge for flipping off the local fire chief.

The borough ended up settling the case for $9,000.

In a 2005 suit, a flight attendant sued state Trooper Samuel Nassan for issuing a $75 traffic citation for giving the trooper the finger. That incident differed slightly from the Sewickley one in that the flight attendant said he never made the gesture. Whether he did or not, the suit was settled for $7,500.

In Mr. Hackbart's case, he said he was trying to parallel park on Murray Avenue in Squirrel Hill on April 10, 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 against Trooper Nassan, the plaintiff made the same complaint against the state police.

The city didn't provide any citations, so the American Civil Liberties Union filed a Right to Know request with the court system and came up with 188 citations between March 1, 2005, and Oct. 31, 2007.

Those, the ACLU said, will be its main piece of evidence against the city as the suit goes to trial.

Judge Cercone noted, however, that while most defendants were charged under the disorderly conduct statute, many of the citations also describe violent or threatening behavior that could be charged under other statutes.

City attorney Michael Kennedy said he couldn't comment on the Hackbart ruling.

Sara Rose, an ACLU lawyer handling the case, said the bottom line is that police have to understand what they can and cannot do.

"They have specific authority under the law," she said. "They can't just retaliate."


Correction/Clarification: (Published Mar. 25, 2009) U.S. District Judge David Cercone ruled that a city police officer was wrong to cite a man for giving him the finger. This story as originally published Mar. 24, 2009 incorrectly said it was a different judge.

Torsten Ove can be reached at tove@post-gazette.com or 412-263-1510.


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