Yelling at police officer, "Turn your lights on, asshole," is protected under the First Amendment

This is a pure First Amendment case that does not involve classic protesting or political speech. Instead, it involves foul language directed toward a police officer. The Court of Appeals says the plaintiff has a case.

The case is Rupp v. City of Buffalo, issued on January 31. It all started when plaintiff and his wife saw someone driving their car at night without any headlights. The motorist almost hit two pedestrians. Plaintiff, who was also a pedestrian, shouted at the driver, "turn your lights on, asshole." The driver was not just any driver, however. After Rupp called the driver an asshole, he realized the driver was behind the wheel of a City of Buffalo police car. The driver was a police officer. He told Rupp he could be arrested for what he had just said. When Rupp reminded the officer that he cannot drive his car without the headlights activated and had almost caused a pedestrian accident, defendant exited the car and told Rupp he was detained. When other officers arrived, Rupp -- who is an attorney -- told them that police officers not exempt from the rule that cars must drive at night with their headlights on. Rupp was arrested for violating the City's noise ordinance. 

Plaintiff sued under the First Amendment. The district court noted that while cases hold that you can mouth off to the police under the First Amendment, those cases do not help Rupp because he did not know he was shouting at a police officer when he called him an asshole.

The Court of Appeals finds that the district court had resolved numerous disputed factual issues in granting summary judgment, essentially taking these disputes away from the jury. While the district court said that Rupp has no case because he was unaware he was addressing a police officer, "not knowing that the vehicle's driver was a police had no bearing on whether Rupp's shout was speech on a matter of public concern" and therefore protected under the First Amendment. "Rupp did not need to know who was driving in the dark without headlights in order to understand that such conduct was dangerous. And he had not shouted at the driver until he saw the vehicle nearly hit two pedestrians." And while the district court noted that plaintiff had used an expletive, that does not mean the police had a legitimate basis to arrest him. The Court of Appeals reasons:

a jury would be entitled to view a shout as unreasonable noise if all five words were "asshole" or other expletives; but in fact Rupp shouted "turn your lights on, asshole." We have no doubt that he was upset; but his shout was an exhortation that was forward-looking in the interest of public safety. A rational juror could easily view the shout as an attempt to avert a possible accident by (a) a vehicle without lights, (b) whose driver appeared not to know he was driving without lights, (c) who had just had to stop for two pedestrians in his path attempting to cross the street, and (d) who even after that abrupt stop, resumed driving without headlights--and thus could easily view the shout as eminently reasonable. 

As for the noise ordinance arrest, the Court of Appeals says the jury may find there was no probable cause for that because it may find that Rupp's shout was neither excessive nor unreasonable and that Rupp instead intended to protect public safety in telling the driver to turn on his lights. Again, the Court of Appeals:

Given that the intent of the Buffalo noise ordinance is in part to "promote health, safety and welfare" in the City, we see no valid basis for concluding that it was intended to criminalize a brief shout intended to urge a person driving in the dark without headlights--especially when his vehicle has just nearly hit two pedestrians--to turn on his lights. Although the court acknowledged at the start of its decision that    McAlister turned his lights back off after his encounter with the two pedestrians, it never mentioned that fact in its discussion of the circumstances surrounding Rupp's shout. Instead, it mentioned at least three times that Rupp's shout contained an "expletive," despite the fact that the   presence of an expletive did not eliminate or diminish the character of the shout as a warning.