SAN FRANCISCO (CN) – California police are immune from claims that they violated a man’s First Amendment rights when they arrested him for painting “I am a fucking suicide bomber communist terrorist!” on his van, the 9th Circuit ruled.
Matthew Fogel, 22, sued the Grass Valley Police Department and six officers for civil rights violations, false arrest, and assault and battery after he spent a night in jail for painting allegedly offensive political phrases on his 1970 white Volkswagen. An anonymous caller told police she felt frightened when she saw the decorated van, which read, “Pull me over! Please, I dare ya. Allah praise the Patriot Act … Fucking Jihad on the First Amendment! P.S. W.O.M.D. on board!”
Sgt. Michael Hooker concluded that the messages were “political satire” and returned to the station with digital pictures, but his superior called the van painting “a criminal act” and told Hooker to “handle this as a bomb threat.”
Officers soon abandoned bomb-threat procedure after meeting a “mild-mannered” Fogel. According to the officers, Fogel explained that he wanted to “scare people into thinking” and “terrorize the people of Nevada County like the Iraqi people are being terrorized by the U.S. military.” Fogel denies making these statements. He was arrested on charges of threatening to commit a crime resulting in injury or death, false report of explosives, and use of offensive words likely to provoke an immediate violent reaction.
The 6th Circuit ruled that Fogel cannot claim damages against the officers because the van statements could be read as a true threat – an unprotected exception to the First Amendment, reserved for speech meant to incite violence. Further, not all officers recognized the speech as protected, as Hooker said he found Fogel “unstable,” and the Department of Homeland Security informed an officer that Fogel was “anti-government” and a “local nut.”
The court granted the officers qualified immunity, saying Fogel offered no proof of an unconstitutional department policy suppressing free speech.