UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEBRA LEE an
Case No. 18-11169
Plaintiff,
Paul D. Borman
v. United States District Judge

MATTHEW WAYNE MINARD,
individually and in his of?cial capacity
as a Taylor Police Of?cer,

Defendant.


 

OPINION AND ORDER
DENYING MOTION TO DISMISS

Plaintiff? amended complaint based upon 42 U.S.C. 1983 alleges that Defendant
violated her constitutional rights under the First, Fourth, and Fourteenth Amendments to
the Constitution.

Plaintiff contends that Defendant Minard, while acting as a Taylor Police Of?cer,
violated her rights on June 1, 2017, by seizing her and her vehicle, without probable cause
or even reasonable suspicion. Speci?cally, Plaintiff states that after Defendant completed
a traf?c stop for speeding and issued her a ticket for impeding traf?c, as she pulled away
she ??ipped him the bird? (raised her middle ?nger) whereupon he stopped/seized her a

second time for no legitimate reason thereby Violating her constitutional rights.

Plaintiff claims are:

1. Count One - First Amendment Retaliation 42 U.S.C. 
1983

2. Count Two - Fourth Amendment (42 U.S.C. 1983;
Unlaw?il Detention and Seizure)

3. Count Three - Substantive Due Process (42 U.S.C. 1983;
Fundamental Liberty)

On June 19, 2018, Defendant ?led a Motion for Judgment on the Pleadings
Pursuant to Fed. R. Civ. P. 12(c) (ECF On July 3, 2018, Plaintiff ?led a Response
(ECF On July 11, 2018, Defendant ?led a Reply (ECF On September 21,
2018, the Court held oral argument.

The evidence before the Court included a state court record that established that
Plaintiff had received and paid a ticket for impeding traf?c. That ticket was written by
Defendant Minard after the initial stop for speeding. While Defendant could have, at that
time, issued a ticket for speeding, he did not. It was only after the initial stop had been
completed, and Plaintiff drove off and ??ipped the bird? that Defendant stopped her a
second time without any legal justi?cation.

The Court noted on this record that precedential case law, dating back years before
this offense clearly established that ??ipping the bird? to a police of?cer is protected as
freedom of speech under the First Amendment and also clearly established Fourth
Amendment precedent protects Plaintiff from being stopped and seized by police without

probable cause or even reasonable suspicion.

2

The following cases inform this decision:

Whren v. United States, 116 S. Ct. 1769, 1772 (1996).
Temporary detention of individuals during the stop of an
automobile by the police, even if only for a brief period and
for a limited purpose, constitutes a ?seizure? of ?persons?
[under the Fourth Amendment].

Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) ?This
ancient gesture of insult [giving him the ?nger] is not the
basis for a reasonable suspicion of a traf?c violation or
impending criminal activity.? (emphasis in original)

Wilson v. Martin, 549 Fed. Appx. 309 (6?h Cir. 2013) 
gesture (raising middle ?nger toward an adult male police
of?cer) . . . was crude, not criminal; and the of?cers were
patently without probable cause to arrest her for it. . . . Hence
the district court was correct to deny quali?ed immunity . . . 

Greene v. Barber, 310 .3d 889, 896-97 (6th Cir. 2002). ?Mr.
Greene?s characterization of Lt. Barber as an ?asshole? was
not egregious enough to trigger application of the ??ghting
words? doctrine. [W]as Greene?s right not to be arrested for
insulting a police of?cer ?clearly established? in March of
1997? Mount Healthy v. Doyle, 97 568 (1977) . . . held
that where constitutionally protected speech is ?a motivating
factor? in governmental action adverse to the plaintiff, the
adverse action is unconstitutional . . . 

Sandul v. Larion, 119 F.3d 1250, 1254-55 (6th Cir. 1997). It is
well-established that ?absent a more particularized and
compelling reason for its actions, a State may not, consistently
with the First and Fourteenth Amendments make the simple
public display . . . of a four-letter expletive a criminal offense.
Cohen v. California, 403 US. 15, 26 (1971). In Cohen, the
words of individual expression were also f?k you . . . . First
Amendment protection is very expansive.?

Finally, at the September 21, 2018 hearing, Defendant?s counsel conceded: ?No

doubt the gesture helped it probably was the foundation for the change of his
[Defendant?s] mind? [to implement a second stop] . . . can?t argue around that, your
Honor.?

For the reasons stated on the record, and in this Opinion, the Court DENIES
Defendant?s Motion to Dismiss, and Orders the parties to commence facilitation before

Magistrate Judge Elizabeth Stafford.

?51%
DATED: SEP 21' 2018 i

Paul D. Borman
United States District Judge