Anthony Rupp isn’t going to get rich off the case. Buffalo police officer Todd McAlister isn’t going to go broke. How Rupp’s lawyers will get paid would be anybody’s guess, but for the fact that Tony Rupp happens to be the founder of the law firm, Rupp Pfalzgraf, and, well, doesn’t have to take it.

McAlister picked the wrong guy to violate his constitutional rights when he informed Rupp that he could be arrested for yelling at the cop to “put your lights on, asshole,” after almost hitting two women crossing the street as the cruiser without lights almost ran them down. Instead of saying “sorry,” and turning on his lights, McAlister informed the law firm’s name partner and civil rights lawyer, “You know you can be arrested for that.” As Tim Cushing at Techdirt explained, Rupp was not amused.

Well, that just seems to be wrong. There’s no law against yelling at cops or calling them assholes or telling them to turn on their headlights when driving down dark streets. Rupp reminded the officer of these facts, which led to the officer telling Rupp he was being detained and demanding he show some identification. Two more officers arrived to handle the dangerous shouter and, after a brief huddle, they came up with some bullshit to charge Rupp with.

After [officer] Parisi arrived, McAlister admitted that he had been driving the vehicle without using headlights. (See Undisputed ¶ 17.) Rupp repeatedly argued to McAlister, Parisi, and Giallella, that McAlister had violated the New York Vehicle and Traffic Law (“VTL”) by driving at night without headlights. Rupp insisted that McAlister was not exempt from complying with the VTL just because he was a police officer; he asked Parisi and Giallella to cite McAlister for that violation; both refused. (See, e.g., Undisputed ¶¶ 16, 19, 23.)

After McAlister, Parisi, and Giallella conferred privately, Giallella returned Rupp’s identification to him and handed Rupp a “citation,” signed by McAlister, “for violating the City of Buffalo’s noise prohibition, Chapter 293, Sections 4 and 7, of the Buffalo City Code.”

Somehow, the lower court was fine with this and awarded the officers qualified immunity, reasoning that… well, just read it for yourself.

The district court granted summary judgment in favor of defendants, holding principally that plaintiff’s shout was not protected by the First Amendment because he did not know he was addressing a police officer, and that all of his claims were barred by the existence of probable cause–or at least arguable probable cause sufficient to give the officers qualified immunity–for plaintiff’s arrest

So… expression is only protected if you know exactly who’s on the receiving end of it? What fresh Constitutional hell is this?

Western District of New York Judge William M. Skretny held that because McAlister was a cop, he had plausible probable cause to believe that Rupp violated the local noise ordinance by yelling. The unanimous Second Circuit panel, in an opinion by Judge Amalya Kearse, didn’t find plausibility to hinge on Rupp’s knowing the dangerous driver was a cop.

[N]ot knowing that the vehicle’s driver was a police officer had no bearing on whether Rupp’s shout was speech on a matter of public concern. 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 the two pedestrians.

And unlike Judge Skretny in the hinterlands of Buffalo, calling an asshole an “asshole” didn’t trouble the panel.

[A]s to the substance of Rupp’s five-word shout, the court focused on the fact that it “contained an expletive,” id. As discussed in Part II.C.1. below, 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.

On the other hand, would it be any less protected speech if all five words shouted at an asshole were “asshole”? The Circuit took issue with pretty much every aspect of Judge Skretny’s decision, even while being fairly kind to Buffalo’s dubious noise ordinance, which prohibits “unreasonable” noise, whatever that means.

[T]he Buffalo noise ordinance prohibits noise that is “unreasonable,” and a rational jury could well find, based on facts as shown in this record, that McAlister had no belief, and no basis for a reasonable belief, that Rupp’s yelling at him to turn on his lights was either in substance or in volume unreasonable. With the record viewed in the light most favorable to Rupp, and given the undisputed facts that McAlister’s vehicle was moving in the dark with no headlights–both before and after a near-accident with the two pedestrians–a jury could well find that the “nature” of Rupp’s yell, urging the driver to put on his light was entirely appropriate.

Further, given that the goal of the shout was to alert the driver to turn on his headlights, the yell obviously needed to be loud enough for the driver to hear it inside his running vehicle. The jury could easily conclude that the “volume” of the yell was not unreasonable.

It seems too obvious for words to note that it is reasonable when informing someone inside a vehicle, whether cop or not, to turn on their lights at night requires a voice sufficiently loud to be heard, but then the panel seems to have glossed over the rather stunning failure of notice as to what constitutes reasonable and is too loud for the delicate ears of the nice folks of Buffalo.