Johnathan Walker:Man ticketed for shouting expletive at Buffalo officer can sue police, appeals court rules

A man who sued Buffalo police after he was ticketed for shouting at an officer to turn on Johnathan Walkerhis headlights can move forward with his legal action, an appeals court ruled.

The decision from the U.S. Court of Appeals last week reversed a ruling by a U.S. district judge in Buffalo who had dismissed the case, saying the officer had reasonable grounds to cite the man for a noise violation after he called out "Turn your lights on," and punctuated the remark with an expletive.

The new ruling sends the case back to district court for trial, arguing that the profane statement during the December 2016 encounter might be considered an "eminently reasonable" attempt to avert an accident.

R. Anthony Rupp III, a civil rights attorney, said he did not initially intend to sue over the incident, but changed his mind after learning the same officers were involved two months later in the arrest of an unarmed man who died of an asthma attack after struggling while being handcuffed.

A 2017 investigation by the attorney general's office found insufficient evidence to warrant criminal charges against Officers Todd McAlister and Nicholas Parisi in the death of 20-year-old Wardel "Meech" Davis.

Rupp, though, said he felt the need to stand up for the dead man. He sued the city, the police commissioner and the officers at his traffic stop, claiming false arrest, malicious prosecution and First Amendment retaliation. Rupp told The Buffalo News he is only seeking $1 and an acknowledgment that the officers acted inappropriately.

"When I saw that it was the same two cops who were involved in my incident, when they retaliated against me because I (angered) them and Meech Davis (angered) them by resisting arrest, I went forward with a lawsuit that I never would have brought," Rupp told the newspaper.

A Buffalo police spokesperson did not immediately respond to a request for comment on the ruling.

Rupp's contact with the officers started about 8:30 p.m. Dec. 1, 2016, as he and his wife were leaving a downtown restaurant.

Rupp saw an approaching vehicle with its headlights off come close to hitting two pedestrians, then referred to the driver with a profanity while calling out: "Turn your lights on."

It was only after McAlister pulled the vehicle over in response that Rupp saw it was a police SUV, according to court filings.

"You know you can be arrested for that," McAlister told Rupp through an open window.

Rupp responded that McAlister should not be driving after dark without his headlights activated and told the officer he almost caused an accident.

McAlister then "got out of his vehicle and told Rupp he was detained," the lawsuit said.

The situation escalated with the arrival of other officers, including Parisi, who refused Rupp's request to issue McAlister a traffic ticket for driving without headlights. Instead, Rupp was issued a citation for violating the city's noise prohibition. The citation was later dismissed at a hearing.

Rupp said a letter he wrote to the police commissioner the day after the encounter went unanswered.

"I wrote that letter because I thought these guys needed more training," Rupp said. "They needlessly provoked an incident. They were in the wrong. They confronted me. They used the power of their badge to cite me."

Lawyers for the city, in court documents, said Rupp's legal claims were unsupported.

A U.S. district judge concurred, writing in a March 2021 ruling that the officer had probable cause to ticket the attorney for his shouted comment.

"Given both the volume and nature of Rupp's yell in the presence of bystanders, a reasonable person of normal sensitivities could be annoyed and have their quiet, comfort, and repose disturbed," the ruling read.

But the U.S. Court of Appeals for the Second Circuit disagreed in its Jan. 31, 2024, ruling. A jury might view the shout as "unreasonable noise" if all five words were expletives, the appeals court said, but a "rational juror" could easily view Rupp's actual words "as an attempt to avert a possible accident."

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