Constitutional Law

Cop who arrested man for vulgar bumper sticker is entitled to qualified immunity, federal judge rules

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A federal judge in Jacksonville, Florida, has ruled that a police officer is entitled to qualified immunity for arresting a man for his “I Eat A- -” bumper sticker because the phrase is arguably obscene.

U.S. District Judge Marcia Morales Howard of the Middle District of Florida ruled that the arrest was “arguably justified under Florida’s obscenity law,” giving the officer and his supervisor protection from the lawsuit.

Reason and the Volokh Conspiracy have coverage of the Sept. 23 decision.

Howard ruled in the case of Dillon Shane Webb, who had sued for alleged violations of his First Amendment and Fourth Amendment rights.

A deputy with the Columbia County, Florida, sheriff’s office had stopped Webb’s vehicle in May 2019 because he thought that the bumper sticker on his rear window was obscene in violation of Florida law.

Florida law prohibits “any sticker, decal emblem or other device attached to a motor vehicle containing obscene descriptions, photographs or depictions.”

The officer issued a notice to appear and ordered Webb to remove a letter from the bumper sticker, so that it would no longer be obscene. Webb refused.

The officer then consulted with his supervisor, arrested Webb, searched his vehicle and had the vehicle towed to a parking lot. Prosecutors declined to prosecute.

Howard said if the bumper sticker referred to a sexual act, it would be protected speech under the First Amendment only if it had serious literary, artistic, political or scientific value. Reasonable officers could think that the bumper sticker was obscene, making it an arrestable offense, she concluded.

“Even if Webb’s speech—his display of, and refusal to alter, the sticker—was constitutionally protected, the law protecting such speech was not clearly established at the time of his arrest,” Howard wrote.

Webb had cited the 2019 U.S. Supreme Court decision Nieves v. Bartlett, which held that an officer who has probable cause to make an arrest may still be liable for First Amendment retaliation if officers typically exercise their discretion not to make arrests in such circumstances.

Howard said Webb can’t benefit from Nieves because it was decided three weeks after his arrest.

“As of the date of Webb’s arrest, the right to be free from a retaliatory arrest that was otherwise supported by probable cause was not clearly established,” Howard wrote.

Howard allowed Webb’s claim that his Fourth Amendment right was violated by a search and impoundment of his vehicle after his arrest.

Writing at the Volokh Conspiracy, Eugene Volokh, a professor at the University of California at Los Angeles School of Law, said he thinks that the decision is wrong.

“Obscenity is limited to ‘hard-core pornography,’ and it’s hard for me to see how a short vulgar description of sex such as ‘I eat a- -’ would qualify,” he wrote.

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