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Rude gesture toward police officer spawns constitutional battle

Jason Cato
| Saturday, May 16, 2009

David Hackbart had no idea a couple of middle-finger gestures would lead to a three-year legal odyssey.

What started as a fight over a ticket following a 2006 parking dispute in Squirrel Hill has turned into a battle over a constitutional issue some thought was resolved years ago.

"I don't want people to have to jump through hoops to clear their names for something they didn't do wrong," said Hackbart, 34, of Regent Square. "People say I was disrespectful, but being disrespectful isn't illegal."

A hearing held Friday in federal court failed to settle a lawsuit Hackbart filed two years ago against Pittsburgh and Sgt. Brian Elledge, the officer who cited him for disorderly conduct for flipping off a motorist and then Elledge.

U.S. District Judge David S. Cercone already ruled Elledge violated Hackbart's constitutional rights. Now the judge must decide whether the city failed to properly train and supervise officers who wrote 187 citations similar to Hackbart's over a 20-month period from 2005-07.

Hackbart would have apologized for the gesture at the time, but it is too late now, he said. Not only does he want his name cleared, but he wants Pittsburgh police to stop trampling on constitutionally protected speech and for the public to better understand its rights, he said.

"Publicity is good for public education," said Hackbart, a part-time valet who starts paralegal classes this summer and dreams of becoming a lawyer.

Elledge and Assistant City Solicitor Michael Kennedy declined to comment. Police said the city's law department barred them from discussing training on protected speech and gestures or any measures taken to improve those practices.

A number of federal and state courts, including in Pennsylvania, have determined a middle-finger salute is constitutionally protected speech.

In sworn testimony, Elledge admitted Hackbart's "bird" was not illegal.

"I have occasionally, yes, given people the finger," Elledge said during a deposition.

Still, that did not stop Elledge from ticketing Hackbart in April 2006 when the Butler native flipped off a motorist who blocked him from a parking space near Murray Avenue Grill. When a voice from his right commanded, "Don't flip him off," Hackbart fired the same gesture in that direction. The voice belonged to Elledge.

District judges who hear cases involving such summary citations are taught that obscene language and gestures can be constitutionally protected speech — even when directed at police officers, said Nancy Galvach, who manages Allegheny County's district courts.

"I vividly remember ... being told it is not illegal to flip off an officer," Galvach said. "(Police) will write a ticket, but it's not illegal."

However, a district judge in 2006 found Hackbart guilty and ordered him to pay $119.50. Court records do not identify the judge.

Hackbart instead paid $50 to file an appeal. He won.

Hackbart said he has been blasted on Internet sites and by a Pittsburgh radio talk-show host, who Hackbart said criticized lawsuits like his for driving up taxes and blamed his parents for his upbringing. Hackbart's mother died in 2001. His father is a retired banker in Butler.

"My father didn't approve, but he was proud of me for sticking up for my rights," Hackbart said. "To me, it was right over wrong, legal over illegal."

He's looking to change the system but hopes to get some money for his trouble. He said his first purchases probably would be a new bicycle and exercise weights, or "simple things," as he called them.

"I've accepted the fact I'm a poor man, and I will probably continue to be a poor man," Hackbart said. "But how else do you make somebody change without hitting them monetarily• Negative publicity isn't enough to change bad policies."

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