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Federal judge issues injunction, says flashing headlamps is free speech

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Elli stated no reasonable officer would believe he had violated Section 375.100

ELLISVILLE, Mo. – On Feb. 3, U.S. District Judge Henry Edward Autrey issued a preliminary injunction against the city of Ellisville, Mo., to prevent police officers from pulling over, detaining, citing, prosecuting and fining individuals whom they believe are communicating to oncoming traffic that a speed trap is ahead by flashing their headlamps.

Michael Elli filed a class action suit in April 2013 challenging the city’s policy of citing and prosecuting individuals for violation of an ordinance “that no reasonable officer would believe the individuals had violated, without reasonable suspicion or probable cause to believe they had violated any law,” and which Elli asserts is in retaliation for individuals engaging in expressive conduct protected by the First Amendment.

Elli was pulled over and cited under Section 375.100, entitled “Limitations on Lamps Other than Headlamps – Flashing Signals Prohibited Except on Specified Vehicles.”

The ordinance states:

“Any lighted lamp or illuminating device upon a motor vehicle other than headlamps, spotlamps, front direction signals or auxiliary lamps which projects a beam of light of an intensity greater than three hundred (300) candlepower shall be so directed that no part of the beam will strike the level of the roadway on which the vehicle stands at a distance of more than seventy-five (75) feet from the vehicle. Alternately flashing warning signals may be used on school buses when used for school purposes and on motor vehicles when used to transport United States mail from post offices to boxes of addressees thereof and on emergency vehicles as defined in Section 300.010 of this Title and on buses owned or operated by churches, mosques, synagogues, temples or other houses of worship and on commercial passenger transport vehicles that are stopped to load or unload passengers, but are prohibited on other motor vehicles, motorcycles and motor-drawn vehicles except as a means for indicating a right or left turn.”

Although Elli stated no reasonable officer would believe he had violated Section 375.100, when he appeared in court, the municipal judge advised him the standard punishment imposed in the city of Ellisville for using headlamps to communicate the presence of a speed trap is a $1,000 fine.

According to Elli, when he appeared in court on Dec. 20, 2012 and told the judge he wished to plead not guilty because he didn’t believe flashing his headlamps violated Section 375.100, the judge became agitated and asked Elli if he ever heard of “obstruction of justice.”

After entering a plea of not guilty, Elli was ordered to appear back in court on Feb. 21, 2013.

However, about a week before he was to reappear, the prosecution dismissed the charge against Elli.

The complaint asserts the city’s practice of citing and prosecuting individuals on this basis is widespread and in retaliation for the individuals having engaged in conduct protected by the First Amendment.

Relief sought by Elli includes certification as a class consisting of current and future individuals who drive vehicles within the city of Ellisville and have communicated (or would communicate but for fear of detention, citation, prosecution and punishment) by flashing their headlamps; a declaration that the city’s policies and customs violate the Constitution; and entry of preliminary and permanent injunctions prohibiting the city from stopping, detaining, citing, prosecuting or punishing any individual for the act of flashing his or her headlamps.

Even though the citation was ultimately dismissed, Elli states he suffered harm, including the unlawful deprivation of liberty during the time he was pulled over to the side of the road and the time he was required to appear in court.

The complaint states, “In initiating a proceeding against plaintiff, defendant acted maliciously, in retaliation for plaintiff’s message, or for additional purposes other than bringing plaintiff to justice.”

In granting the preliminary injunction, Autrey stated Elli is likely to succeed on the merits of his free speech claim and, citing Elrod v Burns, he wrote, “The ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,’” and said, “The equities and public interest are likewise in favor of an injunction.”

He also said the defendants will suffer no harm as a result of the injunction, noting “there appears to be no immediate or imminent danger to public safety health or welfare through plaintiff’s flashing his headlamps.”

Autrey ordered Elli to pay a nominal bond of $100 to support the preliminary injunction.

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