Bicyclist Convicted of Careless Driving After Flipping Off Cop

Posted in Constitutional Rights,General on January 2, 2017

Most people would not find a bicyclist flipping off a cop to be an interesting article, but, to a legal nerd like me, it is thought-provoking for a few reasons. First, the man’s name was David Smith. The Huntingdon County District Attorney is also named David Smith. While the idea that a local prosecutor would break the law by giving a cop the middle finger did cross my mind, I am quite sure that the David Smith in this Westmoreland County case is a different David Smith and not the head prosecutor in Huntingdon County. I have worked on a few cases over the years with the Huntingdon County District Attorney, and I am quite certain that he would not engage in this type of behavior.

Traffic Laws Apply to Vehicles

A second interesting thing was that Smith was charged with Careless Driving, a Vehicle Code or traffic violation in Pennsylvania, while he was riding a bicycle. Many people do not realize that bicycles are “vehicles” in Pennsylvania, and most traffic laws apply to “vehicles.” A bicyclist can be charged with major traffic violations such as DUI or even Aggravated Assault by Vehicle. I have seen a few bike-DUIs over the years as Penn State students sometimes stop at a bar and have a few drinks before pedaling home.

Flipping Off a Cop is Not a Crime

Probably the most interesting part of this case is that the man appears to have asserted a defense that he must be found not guilty of Careless Driving because flipping off a cop is not a crime but is instead free speech that is protected by the First Amendment. Smith’s argument that flipping off a cop is not a crime is generally correct. In the case of Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super. 2000), Ms. Kelly was charged with Disorderly Conduct and the Pennsylvania Superior Court held that the woman’s conviction of Disorderly Conduct must be overturned. In Kelly, a woman was sitting in her car, stuck in construction traffic, and she flipped off a construction worker and dropped the F-bomb as she drove by. A charge of Disorderly Conduct under 18 Pa.C.S.A. § 5503(a)(3) requires proof that person use obscene language or an obscene gesture. The Kelly Court stated that the defendant’s actions were “disrespectful, insulting and offensive,” but they were not “obscene,” which meant that the defendant could not be convicted of Disorderly Conduct.

At this point, I must throw in a disclaimer. The Kelly case states that flipping the bird in a normal situation is not obscene and thereby does not constitute Disorderly Conduct. I can imagine a person using the middle finger salute and also saying inappropriate things that were of a sexual nature, which would make them obscene, and thereby would be considered Disorderly Conduct. A person should NOT assume that the Kelly opinion allows a person to use sexual language and gestures without being prosecuted.

Careless Driving Charge

Most people have probably already realized the flaw in Smith’s First Amendment argument. Smith was not charged with Disorderly Conduct, so Smith was not being punished for flipping off the cop. The cop charged Smith with Careless Driving. The Careless Driving charge under 75 Pa.C.S.A. § 3714 prohibits a person from driving a “vehicle in careless disregard for the safety of persons or property.” Here, the trooper testified that Smith was riding his bicycle on a very busy, multiple lane roadway, with 20 to 25 cars immediately behind his bike, and by removing his hands from the handlebars to flip off the trooper, Smith was then unable to stop or steer his bicycle. The critical issue was the removal of Smith’s hands from the handlebars because Smith then operated his bike in an unsafe manner, but the gesture of flipping off had nothing to do with the charge or conviction.

Many people will probably state that the trooper only cited Smith because of the gesture, which is quite possible. However, I must note that the trooper stopped Smith after being flipped off and released Smith with a warning about the unsafe operation of the bike. It was only after Smith re-entered traffic, began to ride away, and then gave the trooper yet another two-armed finger salute that the trooper conducted a second stop and issued the citation. Had Smith heeded the trooper’s advice, Smith would not have been cited and ultimately convicted of Careless Driving.