The Ninth Circuit has rendered an interesting first amendment decision on the right to cover one’s car with unpopular or obnoxious statements. Matthew Fogel painted his van with such ditties as “ALLAH PRAISE THE PATRIOT ACT . . . F***ING JIHAD ON THE FIRST AMENDMENT! Most notably, he taunted police with “PULL ME OVER! PLEASE, I DARE YA[.]” The police agreed and did precisely that. He was arrested- then forced by police to paint over the words as a condition for his release. He was charged as a bomb threat by Grass Valley, California police.

This case (which was posted on Howard Bashman’s How Appealing site) is a strong defense of free speech. The Court decided the facts:

Police officers of the City of Grass Valley, California, arrested plaintiff-appellant Matthew Fogel and impounded his van because of messages painted on the back of the vehicle.
Fogel brought suit against Grass Valley and six police officers under 42 U.S.C. § 1983, alleging a violation of his First Amendment rights. The district court assumed without deciding that Fogel’s First Amendment rights had been violated.

On that assumption, it granted summary judgment for defendants, holding that the City of Grass Valley had not implemented an unconstitutional policy or custom, and that the
police officers were entitled to qualified immunity. We hold rather than assume that Fogel’s First Amendment rights were violated. We nevertheless affirm, for the reasons given by the
district court.

I. Background
On May 25, 2004, Sergeant Michael Hooker of the Grass Valley Police Department received an anonymous phone call about a parked white Volkswagen van. The caller reported that messages written on the van frightened her. Sergeant Hooker located the unattended 1970 van in the lot of an apartment complex. The words “I AM A FUCKING SUICIDE BOMBER COMMUNIST TERRORIST!” were painted in block letters on the back of the van above the rear window. On the rear window was painted “PULL ME OVER! PLEASE, I DARE YA[.]” Below the window in slightly smaller letters was the text “ALLAH PRAISE THE PATRIOT ACT . . . FUCKING JIHAD ON THE FIRST AMENDMENT! P.S. W.O.M.D. ON BOARD!” A small American flag was attached to the van below the lettering.

The rest of the van was decorated with slogans and paintings that had no political or threatening character. Sergeant Hooker was able to determine that the van belonged to Matthew Fogel, a 22-year-old resident of Nevada City, a town four miles away from Grass Valley. Hooker concluded that the messages on the van were just “political satire” and returned to the police station after taking digital photographs of the van. Hooker then called his superior, Defendant Captain Jarod Johnson, who was on back-up on-call duty. Hooker read Johnson the words on the van. Johnson disagreed with Hooker’s characterization of the writing as mere satire. Johnson was “quite certain that a criminal act had been committed” and that the van needed to be removed from its location at the apartment lot.
Captain Johnson ordered Sergeant Hooker to “handle this as a bomb threat,” citing the high terror alert in the country. Now, based on Johnson’s instruction, Hooker “determined that in fact this was not protected speech, but was criminal.”

Hooker assigned the criminal investigation to Defendant Officer Jason Perry, who contacted the Department of Homeland Security (“DHS”) and the Federal Bureau of Investigation
(“FBI”). Perry soon learned that Fogel had no criminal history.

. . .
While they were in the parking lot with Fogel, Officer Perry received word from DHS that the agency was “familiar with Fogel . . . as being a local anti government type of person” who was considered a “local nut.” Perry then arrested Fogel for violation of California Penal Code § 422 for “willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person”; § 148.1 for a “false report of secretion of explosive or facsimile bomb”; and § 415 for the “use[ ] of offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”

Sergeant Hooker called a private towing company to impound the van. He instructed the company not to release the van until Fogel removed or painted over the writing. Fogel was told he would have to remove or paint over the entire message in order to retrieve his vehicle from the impound lot.
No one informed the towing company that a bomb might be inside because, according to Hooker, “at that point we did not believe there was one.” Fogel was held in the Grass Valley jail overnight. The local District Attorney declined to press charges, and Fogel was released from jail the following morning. Fogel recovered his van later that day after painting over the messages with white paint.

It is an amazing response from Grass Valley police, particularly the decision to charge a bomb threat. It is equally astonishing that this supervisor can keep his job after such a raw and abusive use of authority. There is no conceivable way that he thought that this was really a bomb threat — a point reaffirmed by the decision to drop all charges.

For the opinion, click here.