Home » News » 2nd Circuit reinstates attorney’s First Amendment retaliation claim 

By David L. Hudson Jr. , published on February 7, 2024

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An attorney who was cited for unreasonable noise for yelling at a police officer who was driving without his headlights on had his First Amendment retaliation claim reinstated by a federal appeals court. The appeals court reasoned that a jury could find that the attorney engaged in protected speech when he yelled at the officer. 

In December 2016, attorney R. Anthony Rupp III and his wife were leaving a restaurant in Buffalo, N.Y. They crossed a street followed by two women. A vehicle with no lights on stopped just short of hitting the pedestrians. Rupp yelled, “Turn your lights on, a–hole.” It turned out that the vehicle was a police car.  

The officer driving the vehicle cited Rupp for violating a city anti-noise ordinance. Rupp went to court on the charge and the charges were dismissed. 

Rupp then sued the officer for violating his First Amendment rights and other claims. A federal district court dismissed Rupp’s lawsuit. With regard to the First Amendment claim, the district court said Rupp was not entitled to First Amendment protection for criticizing a government official because he did not know he was yelling at a police officer. 

On appeal, a three-judge panel of the 2nd U.S. Circuit Court of Appeals unanimously reversed the district court in Rupp v. City of Buffalo. The panel reasoned that the record establishes that Rupp yelled at the officer because the officer nearly hit some pedestrians. The appeals court also said it was irrelevant whether Rupp knew the driver was a police officer, writing: “[N]ot knowing that the vehicle’s driver was a police officer had no bearing on whether Rupp’s shout was speech on a matter of public concern.” 

The 2nd Circuit said a jury could find that Rupp’s speech clearly addressed a matter of public concern, as he was worried about pedestrian safety and vehicles driving without their lights on. 

The appeals court concluded: “The record did not permit the court to rule that Rupp’s shout did not concern a matter of public safety that was entitled to First Amendment protection.” 

David L. Hudson Jr. teaches First Amendment law and constitutional law classes at Belmont University College of Law. He is the author, co-author, or co-editor of more than 50 books, including The Constitution Explained: A Guide for Every American (Visible Ink Press, 2022) and The First Amendment: Freedom of Speech (Thomson Reuters, 2012).  

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