City to pay $50,000 for citation issued over obscene gesture

The city of Pittsburgh has tentatively agreed to pay $50,000 to settle a federal lawsuit brought by a man who was cited in 2006 for giving the middle finger to a motorist and a police officer.

As part of the settlement, the city promised to train its officers in recognizing when they are violating someone's civil rights, including taking action against anyone who flips them off.

Supervisors also will review all citations issued by officers to make sure people aren't being cited for exercising their rights under the Constitution.

David Hackbart, 35, a paralegal formerly from Regent Square, and the American Civil Liberties Union sued the city after an incident in 2006 in which Mr. Hackbart gave the finger to a driver in Squirrel Hill and then gave the finger to Sgt. Brian Elledge, who then cited him for disorderly conduct.

U.S. District Judge David Cercone ruled in March that Sgt. Elledge violated Mr. Hackbart's First Amendment right to free speech.

The judge granted summary judgment to Mr. Hackbart, but the case proceeded on damages and an underlying claim that the city doesn't train its officers properly on civil rights issues.

Sara Rose, an ACLU lawyer, said her organization was pleased with the settlement, which had been in the works for months.

The city Law Department couldn't be reached for comment.

Of the $50,000, Mr. Hackbart will get $10,000. The rest will go to the ACLU and attorney Tom Farrell, who helped prepare the case.

Citations for giving the finger have been central to several suits here in recent years, and the cops have lost each time.

That's because the federal courts have consistently ruled that giving someone the finger, even a police officer, is protected free speech.

One of the best-known cases came in 1990, when the 9th U.S. Circuit Court of Appeals in San Francisco ruled that a man pulled over in Douglas, Ariz., in 1987 for flipping off and swearing at a police officer did not break the law.

The appellate judges certainly made it clear that the plaintiff, Ralph Duran, acted like a jerk.

"But disgraceful as Duran's behavior may have been," wrote Judge Alex Kozinski, "it was not illegal; criticism of the police is not a crime."

Police have been slow to get the message and their employers have ended up on the hook.

In 2003, Sewickley police cited David Dickinson of Ambridge for flipping off the local fire chief. The borough settled 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. Either way, the state police settled the suit for $7,500.

In Mr. Hackbart's case, he said he was trying to parallel park on Murray Avenue on April 10, 2006, but a car behind him pulled too close and blocked him. So he flipped off the driver. As he did, he heard another driver say, "Don't flip him off."

He immediately flipped off the second driver, who turned out to be Sgt. Elledge.

The city had argued that the disorderly conduct citation was for blocking traffic, not the middle finger.

But Judge Cercone disagreed and ruled that the sergeant's action was "retaliatory."