Driver Sues City Over 1st Amendment Right to Flash Headlights

Car headlights


It’s a time-honored karmic exercise almost as old as the radar gun: flashing your headlights to warn other drivers they’re about to drive into a speed trap.

While this kind gesture is almost universally appreciated by civilian motorists, traffic cops tend to be less fond of the practice.

So was officer John Doe, as he is named in a class action lawsuit against the City of Ellisville, Mo. The suit was filed by Michael J. Elli, who claims he was unlawfully pulled over, detained and ticketed by Doe for ratting out Ellisville’s speed trap by flashing his headlights. Doe is also named as a defendant in the suit.

The suit defines the class as “current and future individuals who drive vehicles within the City of Ellisville, Missouri, and have communicated (or would communicate but for fear of detention, citation, prosecution, and punishment) by flashing their headlamps.”


Ticket Was ‘Retaliation’

When Elli was pulled over in November 2012, Doe wrote him a ticket for violating an ordinance that prohibits flashing lights on certain types of vehicles. The lawsuit claims “no reasonable officer” would find Elli in violation of the ordinance for flashing his headlights, and says Doe wrote the ticket “in retaliation for … having engaged in expressive conduct protected by the First Amendment.”

“Plaintiff communicated by flashing his headlamps to drivers approaching in the opposite direction — none of whom plaintiff suspected of violating any law — that they should proceed with caution,” the lawsuit says. “The flashing of headlamps is commonly understood as conveying the message to slow down and proceed with caution.”

Elli fought the ticket in court, where a municipal judge told him the standard punishment for flashing headlights to expose a speed trap is a $1,000 fine. When Elli told the judge he intended to plead not guilty, “the judge became agitated and asked Plaintiff if he had ever heard of ‘obstruction of justice,’” according to the suit.

Elli was ordered to return to court on Feb. 21, 2013, but the charges were dropped about a week before Elli’s court date.


Promoting Lawfulness is Lawful

Elli is represented by Anthony Rothert, legal director of the American Civil Liberties Union of Eastern Missouri, who says the judge was wrong to suggest that any obstruction of justice took place.

Attorney Anthony Rothert headshot

Anthony Rothert

“It is unlawful to tell someone they’re about to be apprehended for a crime, unless you’re telling them to bring their actions into conformity with the law,” Rothert said.

Even though a tip-off about a speed trap might help some motorists avoid paying fines, Rothert said that flashing one’s headlights is “telling them to slow down.”

“You’re telling them to follow the law.”

Rothert said citations or charges can be warranted against those who give warning to known lawbreakers to help them avoid police detection, but you can’t go wrong by telling people to obey the law.

“I think it could come down to what the message is,” Rothert said, referring to the example of using social media to alert others about a sobriety checkpoint. “If the message is ‘don’t drive drunk by a sobriety checkpoint,’ I think it is [protected].”


Not the First Class Action

The suit alleges it is a “widespread practice” for Ellisville police to cite drivers for flashing their headlights as a heads up to drivers. While Ellisville is the latest defendant to be sued for such a practice, it isn’t the first.

Erich Campbell filed a class action suit in 2011 against the Florida Highway Patrol for citing him for “improper flashing of high beams” after he alerted fellow motorists to a pair of FHP cruisers on the highway.

The suit said FHP wrote more than 10,429 citations for the same violation between 2005 and 2011, and sought damages in excess of $15,000 for drivers who were cited. Had the suit been successful, it could have cost the state more than $150 million in damages. It was ultimately dismissed after FHP ordered its troopers to stop writing the tickets and the Florida legislature approved changes to the state traffic code.

Do you agree that flashing your headlights is protected speech under the First Amendment? Tell us why or why not in the comments section below.

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