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Federal Judge Rules Flashing Headlights is Free Speech

We have all seen drivers do it.  You are driving down the highway and notice a car coming toward us with flashing headlights.  We hit the brakes and start looking around to find where the police speed trap is set.  It gives you the butterflies of guilty, because you realize that you almost got caught speeding.  Was the person who warned you wrong to do it?

GavelNot according to U.S. District Judge Henry Autrey, a federal judge in Missouri.  A resident, Michael Elli, filed a lawsuit when he flashed his headlights to warn oncoming vehicles of a radar trap set by police in the town of Ellisville.  An officer saw the flash and cited Elli for his actions.  He faced both a civil fine and points on his license.

While the city dropped the charge, the ACLU took the case up on Elli’s behalf, alleging that the stop and Elli’s arrest violated his First Amendment right to free speech.  Judge Autrey, following a hearing, ruled that the flashing of headlghts “sends a message to bring one’s driving in conformity with the law – whether it be by slowing down, turning on one’s own headlamps at dusk or in the rain, or proceeding with caution.”  “The chilling effect of Ellisville’s policy and custom of having its police officers pull over, detain, and cite individuals who are perceived as having communicated to oncoming traffic by flashing their headlamps and then prosecuting and imposing fines upon those individuals remains, regardless.”

This is in some ways a departure from legal precedents that have been set in the past forty-five years.  The courts have long held that you cannot shout “fire” into a crowded room and claim protection by the First Amendment. Nor can you exhibit hate speech or acts in yards of others, as was done by the Ku Klux Klan in the Civil Rights era.   In Indiana, individuals are routinely charged with the misdemeanor crime of ‘false informing,’ which is the knowing or intentional making of a statement to a law enforcement officer in the course of his or her investigation while knowing the statement to be false.  Telling a police officer that a person isn’t in a residence when he or she is in fact there is one example of this crime.  The First Amendment doesn’t protect any of these types of speech, so why protect the flashing of headlights?

So why isn’t Elli’s conduct tantamount to the ‘obstruction of justice?’  The police are allowed to set up speed traps, within reason, and are certainly allowed to pull over individuals who speed and commit other traffic infractions.  The flashing of headlights is putting people who are already breaking the law by speeding on notice so that they don’t get caught.   Sure, maybe the speeding driver slows down for a few seconds to get past the trap, and then speeds back up.  What makes a driver safer?  Flashing headlights or getting pulled over?  Others might say that visible and plain sight police cars are the best deterrent for speeding.

On the flip side, the Indiana traffic code has a criminal offense of ‘aggressive driving’ for which one of the methods of committing the offense is the repeated flashing of headlights and brights.  Does the flashing of lights to warn other drivers rise to the level of aggression?

295_constitution-150x150Perhaps the answer rests in the multiple meanings that flashing one’s headlights can have.  Not only can it be a signal to slow down for police nearby, but it may also be a symbol to exercise caution.  Maybe it is because the speech being relayed is not to watch for police but rather to drive in a lawful manner.  Is it any different than noticing a checkpoint on the way to work and telling co-workers about it when you arrive, or calling friends who travel the same stretch of road that you do?  Personally, I think not.

Time will tell if Judge Autrey’s position becomes the majority opinion.  Until then, drive safe and drive smart.  If you find yourself in trouble with traffic or criminal matters, keep in mind that the attorneys of Dillon Legal Group, P.C. regularly practice in  these areas throughout Central Indiana.  We would appreciate the opportunity to discuss your case and how we can be of assistance.


Dillon Legal Group, P.C., Protecting your best interests.