is there a constitutionally protected right to flash your lights at oncoming traffic
in order to warn them of an approaching speed trap there's remarkably few legal rulings out
there on this issue and a quick search reveals very little guidance from either the judiciary
or the legal community that doesn't mean that this isn't a common occurrence i
hear about it from time to time and there's a few instances out there of it being captured on video
perhaps my favorite is an old video from the guy they call the godfather of first amendment
auditors jeff gray i'll show you some of the footage of his encounter then we'll go over
the current status of the law on this question this occurred in florida near jacksonville
on i-10 and involves a classic florida speed trap full of unnecessary government employees
who have nothing else better to do than to harass people and to flex their egos and authority
jeff sets the trap with the bait and the cops can't resist it just about to approach the
duval county lions out here and they got quite a speed trap set up out here they got uh the highway
patrol and jso out here and i saw a d.o.t officer also so what i'm to do is i'm just going to
flash my high beams let people know slow down help them slow people down a little bit
we'll see what happens here's the speed trap right out here show you what's going on
there they are a gaggle of them all right i got one he's pulling me over
he's back there that one pulling me over see what's happening
hey how's it going good how you doing good all right yes sir what's going on
i just let people know help you slow people down that's it yeah that's all i thought you
were calling for help or something like no no no no i'm good okay let's see real quick all right
i'm audio on video recording okay
i just saw you guys out there actually i saw the uh state
troopers mr gray yes sir is this a good address yes it is all right
all right give me one second all right all right all right i got two of them back there
they pulled me over they say it's because they're uh wondering if i'm okay what we have here
is an acknowledgment that jeff was subjected to a traffic stop as a sole result of flashing
his lights there's no allegation of speeding seatbelt or other pretext for the stop remember
every traffic stop is already in investigative detention by definition and therefore reasonable
suspicion must be present to justify this invasion of fourth amendment protections
now reasonable suspicion is generally pretty easy to justify even for the dumbest of police officers
in the context of a traffic stop basically they're encouraged to lie all they have to say is that
they saw you violate one of the hundreds if not thousands of traffic laws out there so here had
they known ahead of time who they were dealing with they probably would have made something up or
at least they could have but the first thing that popped out was this feigned concern about helping
or protecting jeff they know that that's a lie jeff knows that that's a lie they know that jeff
knows that that's a lie leading to the next issue that pops up so if this were true there would be
no fourth amendment justification to continue to detain jeff however the footage clearly shows that
they indeed do continue to detain jeff what likely happens is that the officers now go back to their
police cruisers and discusses the situation now being aware that jeff is filming them for police
officers who were already willing to lie about the reason that they pulled jeff over this could
be a problem and as you'll see their strategy is to stop jeff from recording but jeff refuses
calling their bluff hey mr gray yes sir can you put that down for me please what's the phone yes
put it down i'd rather not i'd like to have it recorded mr gray yes sir can you please put it
down i'm not touching it i got it right there yes i know and i know what that phone does please put
it down so it's not recording me please no sir i'd rather not i'm gonna go ahead and record
i know it's my right to be able to report excuse me uh i know it's my right to be able to record
not to record me yes sir audio and video no i'll let you know when i first pulled up now it's a uh
citizen have the right to film public officials okay it's first amendment protected free speech
okay put the phone down please that's i just got to sit in there it's recording i'm on and
you know it's recording okay am i being detained or am i free to go you're free to go all right
that's know i'm just recording it's just for uh my protection of yours
you want to go go ahead go get my id i'll let you know i'll let you know what i was going
to say as soon as you put it down so you tell me well i'm not going to turn it off
i can't go anywhere without my
id it's officer valero i'm just i'm just trying to help y'all slow people
down as a matter of fact i just remember about something else i'm gonna check one more thing
so whenever you want to leave just let me know all right
so i guess he's making me sit here until i turn the camera off which i'm not gonna do
all right mr gray everything's in order okay you flash your lights that many times we're gonna
think you're calling for help okay understood thank you try safely make sure you use your turn
signal all right be careful out there even now in 2022 there's still no clear federal law on the
issue of whether there's this federally protected first amendment right to warn oncoming traffic
about a speed trap but there's a wealth of clearly established law and the right not to be detained
by the police in the absence of reasonable suspicion if the officers in jeff's video had
just been honest about the reason that they were pulling jeff over and if they were able to point
to a florida statute that he was violating they may have been justified in their actions or at
the very least entitled to qualified immunity but however they basically admitted that they
pulled him over in retaliation for warning other motorists without bothering even to lie about some
pretextual reason for their doing so thereafter repeatedly trying to intimidate jeff into turning
off his camera there are no supreme court cases on this there are no federal appellate cases to my
knowledge there are only a couple of u.s district court opinions that's the trial level and a couple
of state circuit court opinions there was a 2019 memorandum opinion from the u.s district court
for the western district of wisconsin holding that a policy and practice of stopping detaining
and citing drivers who flash their headlights to warn oncoming drivers of a speed trap violates his
right to free speech under the first amendment that was obrecht versus splinter so the first
amendment provides that congress shall make no law abridging the freedom of speech but it protects
symbols non-verbal communications that express or convey a particularized message reasonably
understood by viewers that's texas versus johnson u.s supreme court so flashing headlights could
easily be placed into the category of expressive conduct under that definition in the object versus
splinter case from 2019 that point was conceded by the state however even expressive conduct can
be regulated by the government depending on the circumstances for example speech that incites or
produces imminent lawless action or is integral to criminal conduct such as fighting words
threats solicitations another similar case from the u.s district court for the eastern district
of missouri held in 2014 that this conduct was entitled to protection under the first amendment
at least two state circuit courts have found that drivers have a constitutional right to flash their
headlights that was state versus oregon in 2014 and state versus walker from tennessee in 2003.
the problem with the lack of legal precedent on this issue leads to a big problem for potential
plaintiffs filing civil rights violations lawsuits qualified immunity the standard for
qualified immunity requires establishing that the police officer violated clearly established law
where there's almost no established case law on a particular issue that's going to be a tough task
however as we saw from jeff's video if police are going to pull people over for flashing
their lights at other motorists they need to be honest about why they're doing what they're doing
and identify a state or local statute that they're alleging this conduct is violating
then the victim of that stop can mount a first amendment challenge
and that's how this law this issue will become clearly established in the future at the same time
if they're not being honest only video footage is going to protect the motorist from pretextual
lies from police officers which if documented can establish liability for fourth amendment violation
with no good argument for the application of qualified immunity as always thanks for
watching and you'll find more information in the link below to my blog at thecivilrightslawyer.com
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