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Commentary: Giving Cops the Finger Might Soon Be Legal in Pittsburgh

Commentary: Giving Cops the Finger Might Soon Be Legal in Pittsburgh

In a case whose outcome might prove handy when the Extreme Associates case comes to trial in Steeltown, a man has sued a police officer and his employer (the city) for giving him a ticket for "giving the middle finger in objecting to [the officer's] verbal direction to refrain from giving the middle finger to another citizen."

David Hackbart alleges that he was trying to parallel park on a street in one of Pittsburgh's upscale districts when another car pulled up behind him, preventing Hackbart from being able to back into his parking space. Hackbart's response was to give the other driver the finger.

"As Plaintiff gave the other driver the middle finger," reads Count 10 of the complaint, "he heard a voice outside of the vehicle instruct him, 'Don't flip him off.' Upon hearing this, Plaintiff proceeded to give the middle finger to the person speaking to him."

Whoops; the "person speaking to him" was Sgt. Brian Elledge, who was seated in his patrol car at the time. Elledge promptly turned on his patrol car's lights and conducted a traffic stop of Hackbart, during which Elledge demanded Hackbart's driver's license and social security number, and shouted at Hackbart, "You don't flip me off!"

Elledge wrote Hackbart a ticket for disorderly conduct, but the statute makes it a crime to "use obscene language, or make an obscene gesture" with intent to cause "public inconvenience, annoyance or alarm, or recklessly creating the risk thereof."

According to Hackbart's complaint, "The courts have interpreted the language of the disorderly conduct statute narrowly to permit application only when the language or gesture satisfies the United States Supreme Court's test for obscene sexual conduct."

We're guessing that Hackbart's lifting of his middle finger neither appealed to the cop's prurient interest nor, since Pittsburgh is host to several colleges and universities, not to mention a couple of sports teams, did it offend local community standards.

In any case, Sgt. Elledge didn't bother to attend the preliminary hearing for the ticket, but that didn't stop the district judge from finding Hackbart guilty and fining him $119.75, including court costs.

Hackbart appealed that ruling, and the county eventually withdrew all charges – whereupon Hackbart sued under the First, Fourth and Fourteenth Amendments, claiming that his finger-lift was constitutionally-protected speech, and that Elledge's stop of Hackbart's vehicle was an illegal search and seizure.

The case was filed on Thursday, and its outcome may be several months away ... but when it happens, we'll report on it.

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Mark Kernes

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