Police cannot arrest a man who warned motorists of an upcoming police-highway operation

This interesting case holds that a man who protested police activity by warning other motorists that the police were conducting a distracted-driving enforcement operation could not be arrested for interfering with police operations. He wins on First Amendment grounds.

The case is Friend v. Gasparino, issued on February 27. Friend stood on the road with a sign for other motorists. The sign said, "Cops Ahead." This sign warned other drivers that the police were ticketing distracted drivers, i.e., people who were using their cell phones while driving. The police arrested him for posting these signs. They charged him with violating Connecticut law against interference with an officer. The arresting officer set plaintiff's bail at $25,000, claiming he set that amount because of plaintiff's "actions on the scene" and "his personality," whatever that means. Plaintiff did not post bail but was released in the middle of the night.

The trial court said plaintiff cannot prevail on his false arrest or free speech claims, but the Court of Appeals reverses and finds that plaintiff can win the case, which reiterates a few solid First Amendment principles and allows people like Friend to protest police actions without fear of arrest. The Court of Appeals notes that the Connecticut law under which plaintiff was arrested only prohibits physical obstruction of a police officer or any speech that would be unprotected under the First Amendment, like incitement to riot, fighting words or something else that would cause breach of the peace. Plaintiff did none of those things. He should not have been arrested for holding up these signs. So that takes care of the false arrest claim.

The First Amendment claim has a similar analysis. Remember, holding up a sign in a public forum is pure speech. While the district court said plaintiff's speech had no real value, the Second Circuit notes this is not a judgment for a district court to make. Even crude or unconventional speech is protected under the First Amendment. And while this is not critical to the analysis, plaintiff did speak on a matter of public concern, as he was commenting on police practices. What is more, while the government may have a compelling interest in ensuring that drivers are not playing with their cell phones behind the wheel, plaintiff's arrest was not narrowly tailored toward that end, which is the standard under the First Amendment when protected speech is restricted. The reason for this is that nothing in Connecticut law allowed the police to arrest him in the first place, and there were not exigent circumstances that allowed the police to interfere with plaintiff's speech. 

This case may seem simple but it was not. The appeal was argued in December 2021, and the decision came down on February 27, 2023. That's a long time for the Second Circuit. But First Amendment law is actually complex, and it takes time for federal judges in New York City to gain a full understanding of how the Connecticut statutes operate.