Is flipping the bird at a police officer protected by the First Amendment?
The answer, according to a lawsuit settled earlier this month between Gregory Bombard and the Vermont State Police, appears to be yes.
Bombard, who was arrested in 2018 after brandishing his middle finger and cursing at a state trooper, will receive $100,000 in damages from the state of Vermont. A further $75,000 will cover legal fees incurred by the American Civil Liberties Union and the Foundation for Individual Rights and Expression, which filed the lawsuit on Bombard’s behalf.
“The striking thing about this case is that giving the middle finger is clearly constitutionally protected speech,” said Hillary Rich, a staff attorney for the Vermont ACLU who worked to reach the settlement.
Bombard was driving in St. Albans on February 9, 2018, when Vermont State Police Sgt. Jay Riggen pulled him over because, according to the civil complaint, Riggen believed that Bombard had shown him the middle finger as he drove past his cruiser.
In the ensuing conversation, Riggen acknowledged that he might have mistaken Bombard lighting a cigarette for the obscene hand gesture. FIRE made the dash cam footage of the arrest public late last year.
In his response to Bombard’s lawsuit, Riggen admitted that he told Bombard: “Once I realized that you weren’t flipping me off, you’re free to go.”
As Bombard pulled out to leave, however, he cursed and displayed his middle finger, according to the civil complaint.
In the dash cam video, Riggen can be heard saying: “He called me an asshole and said ‘Fuck you.’ Flipped the bird. I’m gonna arrest him for disorderly conduct.”
Following a second traffic stop by Riggen, Bombard was taken into custody and jailed for an hour in what the ACLU called “a retaliatory arrest.” He was later charged with disorderly conduct. Nearly a year after the stop, that charge was dropped, but Bombard was left with legal fees and the cost of rescuing his car from the pound.
In 2021, the ACLU and FIRE filed a civil complaint on Bombard’s behalf, alleging that his “ability to speak-out similarly has been and continues to be chilled,” according to the filing.
Through the process of litigating the case, Rich said that the ACLU and FIRE learned that “the Vermont State Police only has First Amendment training as relates to crowds” but not individuals — a major policy deficiency, in their opinion.
“Our hope is that Vermont State Police and lawmakers seriously reassess how our officers are being trained,” said Rich.
“We wouldn’t tolerate police officers who don’t understand traffic laws or parking laws. Well, the Constitution is the highest law in the land, and it doesn’t allow cops to abuse their power to punish protected speech,” said Jay Diaz, a senior attorney at FIRE, according to a joint statement with the ACLU released Wednesday.
Adam Silverman, a spokesperson for the Vermont State Police, declined to comment on the case, but said that “Jay Riggen retired from VSP effective May 31, 2024” — a week before the state of Vermont settled the case with Bombard.
Silverman referred all questions on police training to the Vermont Criminal Justice Training Council. Bill Sorrell, who chairs the council, said that “if there is any training on First Amendment issues, it’s minimal compared to Fourth and Fifth Amendment” instruction for new police recruits.
However, Sorrell indicated that the council was in the process of reviewing its curriculum, and that “the ACLU should certainly communicate if they want some or more First Amendment training.”
After surviving a motion to dismiss, the Bombard case passed into mediation, where the ACLU and FIRE agreed to accept a sum of $175,000 from the state of Vermont and drop the complaint.
In the statement released by both groups, Bombard said he hoped the settlement would push the Vermont State Police to “train its troopers to avoid silencing criticism or making baseless car stops.”
“And at least now I can pay my criminal attorney for defending me from the bogus charges
and take my 88-year-old mother out for a nice dinner,” Bombard said.
