By Breck Hapner
February 6, 2014
“When someone is communicating in a public street, he is expressing himself in a way that’s protected by the First Amendment.”
— Tony Rothert, Legal Director
ACLU of Missouri
“It won’t have any practical effect on police operations in the city of Ellisville because for the past nine months we haven’t been enforcing this ordinance in this way anyway.”
— Peter Dunne
Attorney for Ellisville, MO
You’re driving down I-71 on your way back from Cleveland to Delaware County. The highway has been widened to three lanes, traffic is light and you’re in a hurry. Maybe you’re just not paying attention to your speed or maybe you’ve decided that it’s OK to drive a few extra miles per hour over the speed limit. Either way, you’re going faster than Ohio’s new highway limit of 70 mph.
A turn is approaching and as you come toward it you notice that a vehicle on the northbound side of the highway is flashing its headlights at you. Is there some dangerous road condition? Is something wrong with your vehicle? Or is that driver trying to alert you to the presence of a white Ohio Highway Patrol cruiser waiting up ahead to nab you? Thinking that it might be the last one, you slow down.
Has the driver who flashed their lights at you just committed a traffic offense by doing so? If the tables were turned and you were the one doing the flashing, could you be ticketed for doing it?
Just such a thing happened to a driver by the name of Michael Elli in Ellisville, Missouri, in November of 2012. He was pulled over and cited for a violation of a local ordinance entitled, “flashing lights on certain vehicles prohibited, warning of RADAR ahead.” The offense was one that mandated a court appearance and Elli appeared and entered a plea of not guilty. Once in court he was informed by the judge that the standard fine for such an offense was $1,000 and when he told the judge that he wished to plead not guilty, the judge asked him if he knew what ‘obstruction of justice’ was.
In February of 2013 the charge was dismissed without further explanation. Not satisfied, Elli brought suit against the city seeking an injunction against future enforcement of the code section. He cause was picked up by the Missouri chapter of the ACLU, which argued that the flashing of headlights was an exercise of free speech and the municipal ordinance therefore violated the First Amendment.
On Monday of this week the United States federal District Court for the Eastern District of Missouri ruled in favor of Elli. The Judge presiding over the case, Henry Autrey, appointed to the federal bench by President Bush in 2002, concluded that the speech was, indeed, protected by the First Amendment and that any argument that it was undertaken in an effect to hinder prosecution was overcome by the fact that it was made with the intention of bringing others into compliance with the law and making their driving safer.
Having reached that conclusion, the Judge issued the temporary restraining order prohibiting the city from any further enforcement of the ordinance, at least until any other hearings in this case. The holding applies only in that case, against that ordinance, but is likely to be raised as a reason for prohibiting any future enforcement of any similar ordinances in other parts of the country.
What do you think? Should flashing your headlights to warn other drivers of a speed trap be protected speech? You can read the full text of the federal court decision on the website of the Wall Street Journal at http://online.wsj.com/public/resources/documents/michaelelli2.pdf.
David Hejmanowski is a Magistrate and Court Administrator of the Delaware County Probate/Juvenile Court and a former Assistant Prosecuting Attorney.