Raising the middle finger
by Jerome Veldsman
The USA Court of Appeals for the Sixth Circuit, based in Cincinnati, Ohio, is one of thirteen USA courts of appeals. On 13 March 2019, in Cruise-Gulyas v Minard, this Court (three Judges unanimously) delivered judgment in a constitutional matter concerning a raised middle finger.
The judgment starts with a succinct summary of the facts:
Officer Matthew Minard pulled over Debra Cruise-Gulyas for speeding. He wrote her a ticket for a lesser violation …. As she drove away, apparently ungrateful for the reduction, she made an all-too-familiar gesture at Minard with her hand and without four of her fingers showing. That did not make Minard happy. He pulled her over again and changed the ticket to a [more serious] violation.
And that did not make Cruise-Gulyas happy. She sued Minard (in his personal capacity) for violating her constitutional rights by pulling her over a second time and changing the original ticket to a more serious violation.
Cruise-Gulyas relied on the following constitutional rights:
- the right not to be deprived of liberty without due process of law; and
- freedom of speech.
Minard denied that he had violated Cruise-Gulyas’ constitutional rights. The court of first instance ruled against him, and the appeal concerned only that aspect.
The Court held that Minard had indeed deprived Cruise-Gulyas of her liberty:
To justify [the second] stop, Minard needed probable cause that Cruise-Gulyas had committed a civil traffic violation …, or reasonable suspicion that she had committed a crime … He could not rely on the [first] driving infraction to satisfy that requirement. Any authority to seize her in connection with that infraction ended when the first stop concluded.
That leaves Cruise-Gulyas’s gesture as a potential ground for the second stop. But the gesture did not violate any identified law. … Wilson v. Martin explained that, where a girl extended her middle fingers at officers and walked away, her “gesture was crude, not criminal”, and gave the officers “no legal basis to order [her] to stop”. … All in all, Officer Minard clearly lacked authority to stop Cruise-Gulyas a second time.
It is likely that on similar facts a South African court will come to a similar conclusion. In Fuduswa v Minister of Police, a decision of the High Court, Grahamstown on 17 July 2018) it was held that “showing the middle finger to a person is no more than a rude gesture“, and “such behavior may at worst be considered unacceptable when measured against conduct expected of members of polite society“.