A Vermont man is suing the state and a law enforcement officer after he was arrested for flipping off the officer. The case highlights questions about the boundaries of free speech and constitutional rights.

The incident happened on February 9, 2018, when Gregory Bombard was pulled over by State Trooper Jay Riggen, who erroneously believed that Bombard had flipped him off while driving by. The situation escalated when Bombard actually did flip Riggen off while driving away from the initial traffic stop. The officer pulled him over again and arrested him for disorderly conduct.

The entire incident was captured on bodycam footage.

Now, the Foundation for Individual Rights and Expression (FIRE) and the American Civil Liberties Union (ACLU) of Vermont are involved in the case.

The lawsuit argues that “it is clearly established law that it is unlawful for a police officer to stop a vehicle upon a perception that the motorist made an insulting gesture at the officer, whether purportedly to investigate crime or the well-being of the gesturer.”

The police video of the illegal stop shows that Vermont State Trooper Jay Riggen abused his power by retaliating against Bombard for flipping him the bird. The First Amendment protects the right to engage in rude or offensive speech — including the middle finger — especially when directed at government authorities.

“I respect the police and other first responders,” said Bombard. “But I respect officers who first respect the Constitution. Those who betray their oath have to be held accountable.”

From a constitutional perspective, the officer’s actions are troubling. The First Amendment protects freedom of expression, one of America’s most cherished values. This protection even extends to offensive, rude, or disrespectful gestures, even those directed at police officers or other government officials. Indeed, the U.S. Court of Appeals for the Second Circuit established that the middle finger cannot be reasonably interpreted as cause for a traffic stop or arrest.

In 2013, the United States Court of Appeals for the Sixth Circuit decided against qualified immunity for a police officer who had arrested a teenage girl after she raised two middle fingers in front of him; the girl’s mother had been killed by the police a few years earlier. Also in 2013, the United States Court of Appeals for the Second Circuit decided that an officer should not have been granted qualified immunity after he arrested a man who had raised a middle finger while passing by in a car. The officer had followed the car and a verbal confrontation had ended in the man’s arrest.

The lawsuit further argues that “[p]rotesting the actions of a police officer by expressing displeasure and frustration through curse words and insulting gestures constitutes speech that is protected by Article Thirteen of the Vermont Constitution.”

The state trooper’s actions are also problematic in light of the Fourth Amendment, according to the plaintiff’s lawyers.

The traffic stop on the belief that Mr. Bombard gave Defendant Riggen the middle finger was a violation of Mr. Bombard’s right to be free from unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution and Article Eleven of the Vermont Constitution.

In this case, it is difficult to argue that Officer Riggen’s actions were warranted, given that there was no valid reason for stopping Bombard in the first place. The officer made the situation even worse by arresting him. Bombard was held in jail for over an hour for raising his middle finger. This incident underscores the need for us to be vigilant in protecting our constitutional rights by holding the government accountable when it violates them.