No Friend of the Court: Federal Judge Dismisses Lawsuit Challenging Arrest For Warning “Cops Ahead” In Connecticut

ACLU of Connecticut

In Connecticut, U.S. District Judge Alfred V. Covello has dismissed a free speech challenge that could have sweeping implications for protests against police operations or policies. Michael Friend was arrested in 2018 after he held up a sign warning motorists “Cops Ahead.” The police were looking for distracted drivers in Stamford. Covello ruled that Friend did not have a free speech right in making such a protest. As will likely surprise few on this blog, I disagree. Covello’s decision dismisses the obvious political and social viewpoints reflected in Friend’s protest. Under this standard, a wide variety of speech could be curtailed as inimical to police operations.

The charge against Friend was eventually dropped but he was still arrested and forced to get an attorney. When the state dismissed the misdemeanor charge against him, the prosecutor told the court that Friend “actually … help[ed] the police do a better job than they anticipated because when [drivers] saw the signs, they got off their cell phones.” The ACLU of Connecticut took up his case and filed a challenge.

In his  lawsuit, Friend said that Gasparino stopped him from holding the sign because he was “interfering with our police investigation.” It then alleges that Gasparino took his cellphone and explained that the seizure was to “protect [him]self from any false claims of physical abuse.” It also recounts that:

On the ride to the police station, [Officer] Deems told Mr. Friend that he attracted police attention because he was “interfering with our livelihood.”

Deems explained to Mr. Friend that the cellphone sting was operated as an overtime assignment, funded by a federal grant which would require the Stamford police to issue a certain number of tickets in order for the grant to be renewed.

By warning motorists, Deems claimed, Mr. Friend was decreasing the number of tickets that the Stamford employees could issue, and therefore decreasing their chances of earning overtime on a cellphone sting grant in the future.

Putting aside the credible case of possible police abuse, the action clearly curtailed Friend’s free speech rights.

However, in his 30-page ruling, Covello granted summary judgment against Friend in favor of Sgt. Richard Gasparino. He held that “[i]n this case, it is questionable whether Friend’s act of holding a ‘Cops Ahead’ sign a few blocks from a location in which officers were stopping distracted drivers, rises to the level of expression of an opinion related to a matter of public significance.”

I was particularly concerned with this part of the ruling:

“Even assuming that his speech was protected, however, and was content-based, the court concludes that Gasparino’s actions pass strict scrutiny. Although Friend identifies the government interest at stake as one of “generat[ing] ticket-writing opportunities,” instead, the police department’s interest was in saving lives by stopping distracted drivers and issuing citations for their behavior. More than simply writing tickets, the police operation sought to stop and cite violators in order to deter not only current behavior, but also future distracted driving and, therefore, save lives. The court concludes that this was a sufficiently ‘compelling interest.'”

All police operations could be justified as deterring unlawful conduct and protecting lives. This was not an “investigation” into a specific person but an effective roadblock looking for possible violators.  Under this logic, it is hard to see how any free speech challenge could be sustained. The strict scrutiny test is designed to be difficult to satisfy. However, the court was using the general function and value of police operations to negate the claim.

We have previously seen cases involving the arresting of citizens who merely warn others of a speed trap. Despite rulings that correctly recognize such acts as free speech, the arrests continue. Covello’s analysis would be equally applicable as a basis to dismiss those challenges. Whether it is speeding or distracted driving, all of the operations could be justified as efforts to protect the public.

The ACLU should be commended for taking this case but it should now appeal in the interests of free speech.

17 thoughts on “No Friend of the Court: Federal Judge Dismisses Lawsuit Challenging Arrest For Warning “Cops Ahead” In Connecticut”

  1. My guess is that the freedom of speech may not vitiate a legal code.

    The following example may bear:

    The Revised Code of Washington
    RCW 9A.76.020

    Obstructing a law enforcement officer.

    (1) A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.

    (2) “Law enforcement officer” means any general authority, limited authority, or specially commissioned Washington peace officer or federal peace officer as those terms are defined in RCW 10.93.020, and other public officers who are responsible for enforcement of fire, building, zoning, and life and safety codes.

    (3) Obstructing a law enforcement officer is a gross misdemeanor.

    1. If the law is in conflict with free speech it is the Law that is wrong not the speech.

      To be a crime something must be an act. There are instances where speech is a crime, but those instances are where the speech constitutes and act – such as directing someone to murder someone.

  2. “This was not an ‘investigation’ into a specific person but an effective roadblock looking for possible violators. Under this logic, it is hard to see how any free speech challenge could be sustained.”

    It’s incredibly easy to see how a free speech challenge could be sustained if the accused were truly “protesting” police behavior – as Turley puts it – and not interfering with it, which he clearly was. For example, he could have held his sign in front of city hall or police headquarters. Anyone would recognize that as a protest, and there would be no question of interference. To call this person’s action a “protest” seems bizarre. And though it seems almost equally bizarre to call the police activity an “investigation,” that point seems irrelevant.

  3. In today’s parlance the sign should have read Brutal Force ahead slow down. I do agree the gentleman had free speech rights, but why warn law breakers of the presenance of law enforcement ahead. This shows a total disregard for traffic laws.

  4. Seems like anyone using waze is ripe for arrest. Where are the looters and rioters, er ah, police protesters when we need them?

  5. Of course, It’ll be overturned on free speech grounds but what is interesting is this passage: “On the ride to the police station, [Officer] Deems told Mr. Friend that he attracted police attention because he was “interfering with our livelihood.”Deems explained to Mr. Friend that the cellphone sting was operated as an overtime assignment, funded by a federal grant which would require the Stamford police to issue a certain number of tickets in order for the grant to be renewed.”

    Oh, a certain number of summonese or the grant won’t be rewed. Sounds like the old “pay the magistrate by the warrant issued game,” which is a blatantly unconstitutional violation since the rendering public official is not “neutral and detached.” Friend may blow open the whole grant system! Connally v. Georgia, 429 U.S. 245 (1977) to the rescue.

  6. Even signaling oncoming drivers that a police car with radar is ahead is going to get you at least a heavy fine, if your caught. Sometimes a second police car is stationed to catch the one who is signaling.

  7. Everybody in the law enforcement cycle has a financial interest in abundant arrests/fines/court costs.

    Not much objectivity by the judge.

    I will keep flashing my lights to incoming motorists when I pass a parked cop car.

  8. The objective of speed traps and highway patrol should be to keep motorists from speeding, texting, etc. and maintain a reasonable level of driver focus. If the objective is to raise money then we have a third world country where police are free to do what they want. Welcome to Tijuana. This activity goes on throughout the US and ranges from the police being protected when they ‘raise money’ to failures like Chauvin being protected as he racks up the misuses of authority and abuses his badge. Accountability means transparency.

    1. Please forgive me for this somewhat wandering reply.

      I agree with JT that a First Amendment right has been violated.

      I live in NE Ohio. The Township that adjoins mine is known statewide as notorious for passing out speeding tickets to Township non-residents. My next door neighbor was ticketed for going 38mph in a 35mph zone. Not only do the traffic violation fines pay the costs of the entire police department (most officers are part time working as mall cops when off duty), but the surplus adds to the Township’s General revenue. This has been a continuous operation since I moved here 30 years ago.

      Unlike Pennsylvania which currently does not permit operation of radar/laser speed traps to be set up by local police departments (State Police only), Ohio permits the use of radar and laser speed measurements by any Township, City, and Sheriff’s department including some Ohio parks and recreation patrol rangers. It’s common for drivers to alert one another with flashing of headlights to alert fellow motorists of upcoming dangers, be they a police radar trap, an accident or any multiple of other road hazards ahead.

      So I very much try to stay within the speed limits, but I have been ticketed for speeding on several occasions throughout my 50+ years and million plus miles of driving. My wife of 50 years has never had a single traffic violation, not even a parking ticket.

      This takes me back to a story from some years ago. Are police allowed to warn of traffic stops ahead?

      We were vacationing in southern Florida. We were driving on a major highway but that section had few exits with “services”. I needed to use a restroom so was looking for an exit with services. Then we see a large sign alongside the road ahead. It read something like “Be prepared to stop. Drug traffic checkpoint ahead”. Needing a restroom, I was dismayed to think I would soon be stopped for an unknown period. After passing the “Drug Checkpoint” road sign there was another regular highway sign reading “Exit Ahead. No Services”. I was frustrated and a bit uncomfortable knowing there wasn’t any sense in exiting the highway there and would soon have to stop for the “Drug Checkpoint”. But as we passed that “No Services exit”, we looked up to our right and indeed there was a checkpoint with a lot of police vehicles and police officers and police dogs. The checkpoint was in actuality at the end of the off ramp for the “Exit Ahead. No Services” exit. I found the exit with services a few more miles down the road.

      So my wife and I chuckled at their cleverness. Put up a Drug Checkpoint Sign Ahead of the exit with no services then check the vehicles that exited the highway before the purported Drug Checkpoint.

      Off Topic
      I wish someone would bring up for discussion No Knock Search Warrants. Here in Ohio we have a Castle Doctrine. That is, I can use lethal force against a home intruder. Under the law, the police are not obligated to protect me in any manner. That leaves personal protection falling upon the individual. I am well armed and know how to use my equipment very effectively. I use my firearms for sport (between 5,000 and 10,000 rounds down range per year) and home defense. In the case of a No Knock Search Warrant being executed at my home, wouldn’t that set up a conflict between a lawful search warrant and lawful home defense?

      Personally I wish there were no such thing as No Knock Warrants.

      1. Calvin N Hobbes, I read that the only way you could successfully defend your home from a no knock warrant is IF you managed to kill every cop before they could return fire. The point was made during the Breona Tailor case. If police officers don’t announce themselves and barge in while you are home and you were armed and ended up killing every officer you would have not been able to be charged for murder since you were reasonably expected to assume they were intruders because they never announced themselves upon breaking down your door. That is the risk they face with no knock warrants,.

        A castle doctrine scenario would apply if the officers messed up so badly that none survived your shooting YOU would be in the right to kill them, finding out they were police officers afterwards would have been irrelevant to the case because you exercised your right to defend yourself against unknown intruders. The only catch would be, as i said before, to have been able to kill every officer before they would shoot back. OR if you managed to kill a couple before they announced who they were you would still not be able to be charged. Any firefight after that would be in defending yourself from officers attempting to kill YOU because they in turn would be “defending themselves” . The outcome of that scenario at best would be a stalemate where they simply take you into custody. Your actions would be seen as acting in self defense.

        1. Resisting arrest is a bad choice. Resisting a no knock warrant is a really bad choice. That’s how it went down at Waco. The Dravidians won the first engagement and then definitely lost the war. Government made its point and we won’t soon forget.

          at the same time, it’s why no knock warrants, are no good. I say this without reference to the Taylor incident or not., just as a general principle.

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