Lawsuit: Giving middle finger to police a First Amendment right

By Lawrence Smith | Aug 12, 2011


CHARLESTON –- Though perhaps not the most civil way to express displeasure with their actions, a Charleston woman is asserting it's her right to give police the middle finger.

Marlene Mells filed a civil rights suit against Sgt. Kenneth G. McCord of the West Virginia State Police and two other unnamed troopers in U.S. District Court.

In her complaint filed July 7, Mells, 53, alleges McCord and the two other troopers violated her right to free speech when they arrested her after she gave them the middle finger following her conviction on a moving violation in 2009.

According to her complaint, Mells was cited by McCord on April 17, 2009, for driving too fast for road conditions. Her bench trial was scheduled for July 8.

During her trial, McCord was present and testified against her. Finding his testimony sufficient, Magistrate Kim Aaron found Mells guilty, and fined her $5 plus $159.33 in court costs.

Following the hearing, Mells gave the middle finger to McCord and the two other troopers. According to her complaint, they immediately placed her under arrest, and charged her with one count of disruption of government process.

Following her arrest, Mells was taken to the South Central Regional Jail in South Charleston "where she was forced to remain until the next morning" and "subjected to unsanitary conditions." Records show she was released on $2,500 bond.

Two months later, Mells' attorney, Michael Carey, made a motion to have the case transferred to Kanawha Circuit Court. Records show Magistrate Tim Halloran granted the motion on Oct. 8, 2009.

Since the Kanawha County Prosecutor's Office opted not to refile it within the one-year statute of limitations, the charge against Mells was ultimately dismissed.

In her complaint, Mells maintains McCord and the two other troopers had no reason to arrest her since the "First Amendment of the United State Constitution a citizen's right to gesture with the middle finger at and verbally criticize law enforcement officers."

As a result of her spending the night in jail on the charge, she alleges she suffered emotional distress and humiliation.

Mells seeks unspecified damages, attorney fees and court costs. She is represented by S. Benjamin Bryant and David R. Pogue with the Charleston law firm of Carey, Scott, Douglas and Kessler.

The case is assigned to Judge Joseph R. Goodwin, Jr.

U.S. District Court for the Southern District of West Virginia, case number 11-cv-469

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