B. Retaliation for First Amendment Rights

An individual can bring a claim for retaliation against a government actor when that actor retaliates against the individual for exercising the right to free speech. Anderson, 125 F.3d at 161 (3d Cir. 1997); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L Cussin' the cops caselaw . Ed. 2d 471 (1977). [*20]  "The Supreme Court has explicitly held that an individual has a viable claim against the government when he is able to prove that the government took action against him in retaliation for his exercise of First Amendment Rights." Anderson, 125 F.3d at 160, citing Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471. It is well established that a plaintiff's retaliation claim is subject to a three-step, burden shifting methodology. Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002) (citing Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675, 116 S. Ct. 2342, 135 L. Ed. 2d 843 (1996)).

First, a plaintiff must show that his conduct was constitutionally protected. Second, he must show that his protected activity was a substantial or motivating factor in the alleged retaliatory action. Finally, the defendant may defeat the plaintiff's case "by showing that it would have taken the same action even in the absence of the protected conduct."

Id. (quoting Bd. of County Comm'rs v. Umbehr, 518 U.S. 669, 675 (1996)); see Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 793 (3d Cir. 2000); Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997)[*21]  Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir. 1994).

C. Whether Plaintiff Engaged in Protected Speech

1. Constitutionally-Protected Expression In General and the Spence Test

What counts as constitutionally-protected expression under the First Amendment varies according to the particular context at issue. As the United States Supreme Court explained, "[i]t is possible to find some kernel of expression in almost every activity a person undertakes -- for example, walking down the street or meeting one's friends at a shopping mall -- but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." Dallas v. Stanglin, 490 U.S. 19, 25-26, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989).

While not speech in the literal sense, the Supreme Court long has recognized that non-verbal gestures and symbols may be entitled to First Amendment protection. See Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). For example, in Johnson the Supreme Court held that burning [*22]  the United States flag in protest of the renomination of the president is communicative activity protected by the First Amendment. Id. at 406; see Cohen v. California, 403 U.S. 15, 25, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (holding that wearing a jacket which contained a four-letter expletive criticizing the draft is protected by the First Amendment); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (holding that wearing black armbands to school in protest of the Vietnam War is constitutionally-protected expression by the First Amendment).

The Supreme Court articulated a test for determining whether non-verbal conduct is constitutionally protected. In Spence v. Washington, 418 U.S. 405, 410-411, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974) (per curiam), the Court held that non-verbal conduct is protected when it (1) is intended to convey a particularized message and (2) in light of the circumstances, the likelihood is great that the message would be understood by those who viewed it. Id. In Spence, the Court reversed the conviction of an individual under a Washington statute which proscribed the exhibition of a United States flag with figures, symbols or [*23]  other materials attached or superimposed on it. Id. at 408. The defendant in that case had taped a peace sign to an American flag. Id. at 405. The Court held that the conduct at issue was protected speech because the conduct occurred roughly simultaneously to the tragedy at Kent State University and the American invasion of Cambodia and could be understood as communicative in nature. Id. at 410. The Court stated: "This was not an act of mindless nihilism. Rather, it was a pointed expression of anguish . . . about the then-current domestic and foreign affairs of his government." Id.

2. Use of the Middle Finger Towards a Police Officer as Protected Expression

Several courts have found that the use of the middle finger toward a police officer is protected speech. See, e.g., Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1102 (W.D. Ark. 2000); Brockway v. Shepherd, 942 F. Supp. 1012, 1015 (M.D. Pa. 1996); see also Commonwealth v. Kelly, 2000 PA Super 254, 758 A.2d 1284, 1288 (Pa. Super. Ct. 2000). [*24]  Many of these decisions examine the issue in the context of an arrest under a disorderly conduct or related statute. They deal with whether the use of the middle finger and accompanying expletives is protected by the First Amendment or instead is obscene speech, fighting words, or otherwise unprotected by the First Amendment; and whether a police officer is entitled to qualified immunity for an arrest based in whole or in part upon this kind of expression. The instant action does not deal with an arrest pursuant to a disorderly conduct statute. The analysis in many of these decisions, however, is relevant to the issues the court must examine in this case.

Two courts of appeals have examined these issues and provided useful guidance. In Sandul v. Larion, the United States Court of Appeals for the Sixth Circuit addressed whether summary judgment was improperly granted in the defendants' favor in a civil rights action brought pursuant to section 1983 based upon an arrest of the plaintiff-appellant after he had leaned out of a vehicle as it passed a group of abortion protesters, shouted "f-k you," and extended his middle finger to the group, which included a police officer standing [*25]  nearby. Sandul, 119 F.3d at 1252. One of the defendants in Sandul, the police officer, believing that the plaintiff's conduct violated a disorderly conduct ordinance, pursued the plaintiff's vehicle to the plaintiff's home, had an altercation with the plaintiff, called for backup assistance, and ultimately assisted in arresting the plaintiff and charging him with disorderly conduct based upon his use of the middle finger and the shouted expletive. Id. at 1252-53. n2 The plaintiff in Sandul asserted violations of his First, Fourth, and Fourteenth Amendment rights under section 1983. Id. at 1253. After one round of appeal, the district court on remand entered summary judgment with respect to the First Amendment issue in favor of the defendant officer, holding that there was no violation of plaintiff's First Amendment rights based upon the arrest for disorderly conduct and that, even if the ordinance was unconstitutional, the defendant officer was entitled to qualified immunity. Id.

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n2 The plaintiff in Sandul was also charged with felonious assault based upon his subsequent altercation with the police. Id.

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The United States Court of Appeals for the Sixth Circuit reversed the district court's grant of summary judgment and remanded the case for further proceedings. Id. at 1252. The court of appeals first determined that the plaintiff's actions were protected speech, relying on precedent from the United States Supreme Court. Id. at 1254-55. The court of appeals relied in part upon the Supreme Court's holding in Cohen v. California, 403 U.S. 15, 26, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971), that use of an expletive -- indeed use of the same phrase as the phrase at issue in Sandul, "f-k you" -- is not in itself criminal behavior absent some further showing. Sandul, 119 F.3d at 1255. "It is a well-established that 'absent a more particularized and compelling reason for its actions, [a] State may not, consistently with the First and Fourteenth Amendments, make the simple public display . . . of [a] four-letter expletive a criminal offense.'" Id. at 1254 (quoting Cohen, 403 U.S. at 26). This kind of language is entitled to First Amendment protection, the court of appeals explained, although it appears to have [*27]  little redeeming value [because] "while the particular four-letter word being litigated here is perhaps more distasteful than others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. . . . [and] largely because governmental officials cannot make principled distinctions in this area[,] the Constitution leaves matters of taste and style so largely to the individual."

Id. at 1254-55 (quoting Cohen, 403 U.S. at 25).

In addition, the court of appeals in Sandul, noting the expansiveness of First Amendment protection, found that the use of the middle finger and expletive did not fall within the "fighting words" exception to First Amendment protection set forth by the Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). Sandul, 119 F.3d at 1255. In Chaplinsky, the Supreme Court defined "fighting words" as words which by their very utterance inflict injury or tend to incite an immediate breach of the peace, noting that "any benefit from them is clearly outweighed by the social interest in order and morality." 315 U.S. at 572. The court of appeals in [*28]  Sandul noted the limited nature of the fighting words exception and determined that the plaintiff's words and actions in that case did not rise to the level of fighting words. 119 F.3d at 1255. The court of appeals determined that the plaintiff's words and actions were speech protected by the First Amendment. Id. n3

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n3 The court of appeals in Sandul further determined that under Chaplinsky and Cohen, and the Supreme Court's more recent decision in Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), Sandul's right to use the "f-word" unless it constituted fighting words was clearly established and, applying the objective reasonableness standard, "a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech." Id. The court of appeals held that the defendant officer was not entitled to qualified immunity because his actions violated the plaintiff's clearly established First Amendment rights which a reasonable officer should have known. Id. at 1256-57. The court of appeals found that the district court erred in granting summary judgment in favor of the defendant officer. Id. at 1257. The issue of qualified immunity will be discussed in more detail in Part III infra.

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In Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990), the United States Court of Appeals for the Ninth Circuit confronted a similar issue. In Duran, one of the plaintiffs was arrested for disorderly conduct after shouting expletives in Spanish and making obscene gestures towards a police officer. Id. at 1372. The incident arose after the plaintiff, who spent the night drinking, was asked to leave a bar by the defendant officer. Id. Later, while patrolling the highway, the defendant officer noticed someone, later determined to be the plaintiff, shouting expletives and making obscene gestures towards him. Id. The defendant officer subsequently followed the plaintiff and his wife, who was driving their vehicle, to their home while the plaintiff continued to shout expletives and make obscene gestures at him. Id. At the plaintiff's residence, the defendant officer initiated a traffic stop and arrested the plaintiff for disorderly conduct. Id. at 1375. A scuffle ensued and the plaintiff required medical care for a dislocated elbow. Id. The plaintiff and his wife brought a section 1983 action against the defendant [*30]  officer and the municipality for an unlawful stop and arrest. Id. The plaintiffs moved for partial summary judgment asking for a determination of liability with respect to the defendant officer and the defendant officer moved for summary judgment on the issue of qualified immunity. Id. The district court entered an order in favor of the plaintiffs on both motions.

The United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded the case for further proceedings. Id. at 1379. The court of appeals upheld the district court's determination that the plaintiffs were entitled to summary judgment on the issue of the defendant officer's liability for a violation of the plaintiff's Fourth Amendment rights. Id. at 1377. The court noted that "[m]issing from the record here is any legitimate, articulate reason for [the defendant officer] to have detained [the plaintiff]." Id.

However, because the car was traveling late at night on a deserted road on the outskirts of town, [the plaintiff's] conduct could not have disturbed the peace or incited a riot; [the defendant officer] has presented no [*31]  evidence showing that it could have. Nor could [the plaintiff's] conduct suggest that he had committed or was about to commit any other illegal act. Indeed, one would expect someone engaged in shady business to act in a more stealthy fashion than did the plaintiff here. In sum, we don't see how [the plaintiff's] boisterous conduct -- tasteless though it may have been -- gave [the defendant officer] any cause to detain him. Absent such cause, the stop and detention was illegal and may be the subject of liability.

Id. (footnotes omitted).

The court of appeals in Duran determined that the defendant officer's conduct suggested a possible motive for plaintiff's detention "upon which law enforcement officers may not legitimately rely." Id. at 1377. Evidence suggested that the defendant officer may have stopped the plaintiffs' car at least partly in retaliation for the insult he received from the plaintiff. Id. at 1377-78. The court of appeals commented: "If true, this would constitute a serious First Amendment violation [because] 'the First Amendment protects a significant amount of verbal criticism and challenge directed at police [*32]  officers.'" Id. at 1378 (quoting City of Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987)). "The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state." Hill, 482 U.S. at 461. The court of appeals in Duran explained that "while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment." Duran, 904 F.2d at 1378.

Inarticulate and crude as [the plaintiff's] conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech -- such as stopping or hassling the speaker -- is categorically prohibited by the Constitution.


The court of appeals decided, however, that although the defendant officer [*33]  admitted in a deposition that he stopped the plaintiff because he made an obscene gesture and yelled profanities toward him, and summary judgment in favor of the defendant officer would have been inappropriate, the defendant officer's claim that he had no retaliatory motive meant that summary judgment in favor of the plaintiff was also error. Id. "There remains a material issue of fact, therefore, whether [the defendant officer] intended to hassle [the plaintiff] as punishment for exercising his First Amendment rights." Id. The court of appeals, having upheld the district court's grant of summary judgment on plaintiff's Fourth Amendment claim, determined that adjudicating the plaintiffs' First Amendment claims would probably be redundant and left that issue for the district court to determine on remand. Id. n.5.

Federal district court opinions also shed light upon the issues before the court in this case. See, e.g., Nichols v. Chacon, 110 F.Supp.2d 1099 (W.D.Ark. 2000); Brockway v. Shepherd, 942 F.Supp. 1012 (M.D.Pa. 1996). In Brockway, a vehicle passenger was arrested for disorderly conduct after gesturing toward a police officer [*34]  with his middle finger. 942 F.Supp. at 1013-14. The passenger brought a section 1983 lawsuit against the officer alleging that he was arrested without probable cause. Id. The court in Brockway reached the question whether the expression at issue was protected under the First Amendment because Pennsylvania's disorderly conduct statute prohibited "obscene language" and "obscene gestures" and courts had determined that for the purposes of Pennsylvania's statute, "the definition of 'obscene' is consistent with that applied for purposes of determining what material is not protected under the First Amendment." Id. at 1015. The court determined that the gesture made by the plaintiff in Brockway did not support a charge of disorderly conduct under the statute. Id. at 1017. The court found that the gesture was not sufficient to constitute "fighting words." Id. By inference, Brockway can be interpreted to hold that the use of the middle finger in that context was protected expression under the First Amendment. n4 See Nichols v. Chacon, 110 F.Supp.2d 1099, 1102 (W.D. Ark. 2000) (section 1983 lawsuit based upon [*35]  defendant officer issuing a citation for disorderly conduct in response to plaintiff gesturing at him with his middle finger). In Nichols, the district court discussed the precedents cited above, including, inter alia, the Supreme Court's decisions in Cohen v. California, Chaplinsky v. New Hampshire, and City of Houston v. Hill, as well as Sandul v. Larion, Duran v. City of Douglas, and Brockway v. Shepherd, all discussed infra. The court in Nichols determined that granting summary judgment in favor of the plaintiff was appropriate. "While we agree the gesture utilized by [the plaintiff] was crude, insensitive, offensive, and disturbing to [defendant's] sensibilities, it was not obscene under the relevant Supreme Court precedent, did not constitute 'fighting words,' and was protected as 'free speech' under the First Amendment." Id. at 1110. n5

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n4 The court in Brockway nonetheless dismissed plaintiff's section 1983 claim on the defendant officer's Rule 12(b)(6) motion on qualified immunity grounds because the court found that the right in question was not clearly established at the time. The court cautioned that going forward:

It is important, however, at some point to establish firmly the right in question. We therefore emphasize: The use of profane or vulgar language is protected by the First Amendment unless some exception to the general principle applies. That is, standing alone, profane or vulgar language is not itself obscene and does not amount to fighting words. The same principle applies to the use of a gesture which represents profane or vulgar language, and the communication must be looked at in its entirety and in context to determine whether an exception to the general protection of speech applies.

Brockway, 942 F.Supp. at 1017[*36] 

n5 The court in Nichols held that the right was clearly established as of August 6, 1998, and that the defendant officer thus was not entitled to qualified immunity. Nichols, 110 F.Supp.2d at 1110.

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The weight of federal authority establishes that directing the middle finger at a police officer is protected expression under the First Amendment absent some particularized showing that the gesture in the specific factual context constitutes "fighting words"or is otherwise illegal. See Commonwealth v. Kelly, 2000 PA Super 254, 758 A.2d 1284, 1288 (Pa. Super. Ct. 2000) (overturning a conviction for disorderly conduct when the defendant said "f--k you, a--hole" and gestured with his middle finger at a street department worker). What makes this case more challenging than the situations described in the decisions discussed previously is that plaintiff denies directing the middle finger toward defendant Nassan. The evidence of record, including defendant Nassan's handwritten notes on the citation and his own testimony, however, could support a finding that plaintiff did gesture with [*37]  his middle finger.