First Amendment Protects Warning Drivers About Police Checkpoints

Police in Stamford, Connecticut violated the First Amendment when they arrested and jailed Michael Friend for holding a sign that read “Cops Ahead.” The First Amendment does not “permit the government to imprison any speaker so long as his speech is deemed valueless or unnecessary,” the Second Circuit U.S. Court of Appeals unanimously declared late last month.

“This decision is a solid affirmation of the fact that people have the right to protest the police,” said Elana Bildner, senior staff attorney for the ACLU Foundation of Connecticut, which represents Friend. “This decision is good news for protesters’ rights and should serve as a reminder to all police in Connecticut that they cannot and should not silence speech like Mr. Friend’s.”

Back in April 2018, the Stamford Police Department was running a campaign to crack down on distracted driving. Objecting to the heightened police presence, Friend stood on the sidewalk about two blocks away from the checkpoint and held a handmade, cardboard sign that simply warned drivers, “Cops Ahead.”

One Stamford officer, Sgt. Richard Gasparino, noticed Friend and told him to leave, warning him that he was “interfering with our police operation.” The sergeant also confiscated the sign for good measure.

Not one to back down, Friend came back with an even bigger sign and began standing a block further away. After about half an hour, Gasparino again saw Friend. But this time, the sergeant arrested Friend, charging him with criminal interference with a police officer. Friend was jailed and had his cell phones seized.

Further rubbing salt into the wound, Gasparino set bail at $25,000, even though, as the Second Circuit recounted, “Friend was charged with a misdemeanor, had no criminal record, and was a longtime resident of Stamford.” The next day, a bail commissioner reduced Friend’s bail to $0 and he was free to leave.

Ultimately, prosecutors dropped the charge against Friend. In fact, they even said he “actually was helping police do a better job than they anticipated because when [drivers] saw the signs, they got off their cellphones.”

To vindicate his rights, Friend sued. He asserted that Gasparino infringed on his First Amendment right to free speech as well as his Fourth Amendment right to be free from malicious prosecution. At first, a federal judge sided with the city, absurdly declaring that Friend’s signs weren’t protected by the First Amendment because the signs had “little, if any, public concern.”

But on appeal, the Second Circuit overturned that ruling, declaring “there was no basis for suggesting that Friend’s speech does not receive the protection of the First Amendment.” By protesting the way police were issuing tickets, “Friend was speaking on a matter of public concern.” “A citizen does not need to show that a police practice is unlawful—or that it deviates from some notion of propriety—in order to object to it,” the appellate court added.

Moreover, the court revived Friend’s malicious prosecution claim. “Friend was violating no law by standing on the sidewalk and displaying his sign,” the Second Circuit noted, “and Gasparino had no lawful reason to order him to desist from that conduct.” In fact, the sergeant could not “identify a crime that he would have had probable cause to suspect was occurring.”

“To let a policeman’s command become equivalent to a criminal statute comes dangerously near making our government one of men rather than of laws,” the Second Circuit asserted, citing a 1969 opinion by Justice Hugo Black.

However, Friend’s case is not over yet. Despite his victory last week, Friend could still ultimately lose. The Second Circuit sent Friend’s First and Fourth Amendment claims back down to the district court to decide if Gasparino was entitled to “qualified immunity.”

As the Institute for Justice explains, qualified immunity was created by the U.S. Supreme Court more than four decades ago to shield all government employees (not just police officers) from civil rights lawsuits. Anyone working for the government can only be sued if they violated a “clearly established” right. Typically, that requirement forces victims to scour federal appellate court decisions and find a case with an almost identical fact pattern.

In other words, even if federal courts determined that Gasparino violated Friend’s constitutional rights, the sergeant could still be protected by qualified immunity and prevail.

Hat tip to the Short Circuit newsletter from the Institute for Justice.