Friendly warning: Cops ahead! By: Ken Wallentine

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Friend v. Gasparino, 2023 WL 2229363 (2nd Cir. 2023)

A police department conducted a distracted-driving enforcement operation in which officers ticketed drivers for “using a hand-held mobile telephone” or “mobile electronic device” to “call” or “text” while driving.

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Michael Friend made a sign reading “Cops Ahead” and held it up as he stood on a public sidewalk approximately two blocks south of the operation. An officer approached Friend and told him he was “interfering with a police investigation.” The officer seized Friend’s sign and told him not to return with another sign or he would be arrested.

Friend walked one block further away from the operation and displayed a second sign, which also read “Cops Ahead.” He again stood on the public sidewalk and displayed the sign to passing cars. The same officer approached and arrested Friend for “interfering” with the distracted driving investigation, taking Friend to jail. The officer had discretion to set bail; he set Friend’s bail at $25,000. A bail commissioner subsequently reassessed Friend’s bail to zero dollars and he was released on a promise to appear in court.

The prosecutor asked the judge to dismiss the charge, stating, “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 charge was dismissed.

Friend sued, alleging infringement on his freedom of speech, malicious prosecution, and equal protection and due process violations. The trial court granted summary judgment in favor of the officer and city. Friend appealed.

The appellate court held that the trial court should not have granted summary judgment on all Friend’s claims, finding no state law that barred Friend’s conduct. Therefore, the officer did not have probable cause to arrest him.

The trial court ruled Friend’s speech – holding up the “Cops Ahead” sign – was not protected speech because it did not address a matter of public concern. The court of appeals disagreed, holding the trial court applied the wrong test. Because Friend was not a public employee or accused of defamation, he did not need to establish that his speech addressed “a matter of public significance” in order to receive the protection of the First Amendment. Moreover, the appellate court held that Friend was expressing a matter of public concern as he protested how the police were doing their job: “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state” (City of Houston v. Hill, 482 U.S. 451 (1987)).

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