Sean O’Sullivan

The News Journal

The Delaware American Civil Liberties Union is alleging Smyrna police are routinely violating individuals' free speech rights, including ticketing a driver who flashed his headlights to warn of a speed trap.

"The First Amendment gives people the right to flash their lights to send a message," said Delaware ACLU Legal Director Richard Morse.

The ACLU also alleges in the suit that Smyrna routinely tickets drivers, regardless of guilt, "for the sole purpose of generating revenue for the town."

The expectation of the town and the Police Department, according to the ACLU, is that motorists, like the plaintiff in this case, will pay the ticket regardless of guilt in order to avoid the inconvenience of contesting the charges.

The lawsuit seeks damages and a court order imposing reforms in the training and practices of the town's police force, said Delaware ACLU Executive Director Kathleen MacRae.

In a federal civil rights complaint filed Monday, and an earlier one filed in May, the ACLU also charges that Smyrna police improperly arrested a man for cursing at an officer and should not have charged a high school student because his mother demanded charges be filed against a boy bullying him.

Town officials declined to comment Monday. The town denied allegations in the May lawsuit.

University of Delaware criminal justice professor Ken Haas said the ACLU is on pretty firm footing in the cursing incident and the one where the high schooler was charged.

Haas said the incident where the driver flashed his headlights as a warning is "a closer call." Lower courts around the country have ruled for and against police departments in similar cases, he said.

According to the suit, plaintiff Anthony Jackson was driving through Smyrna on April 19 on Main Street when he flashed his headlights at oncoming drivers to warn them "they should drive in conformity with the law" because there was a police car farther ahead, according to the suit.

A different Smyrna police officer on patrol saw Jackson flash his headlights and quickly did a U-turn to pull over Jackson, according to the lawsuit.

Jackson was charged with improper use of a turn signal, according to the suit, which the ACLU said was "clearly incompatible" with Jackson's actual conduct.

The ACLU states Jackson's actions were "expressive conduct" and therefore protected by the First Amendment and that the officer had no probable cause to arrest him.

The charge against Jackson was later dropped when Jackson turned up in court with an attorney to contest the traffic ticket and the officer, identified as "W. Davis" – and named as a defendant in the suit – did not appear.

Haas said while some courts have backed the ACLU's interpretation, other courts have found that flashing headlights as a speed trap warning is indirectly promoting conduct that undermines public safety and therefore is an area where free speech is limited.

"There is a rational basis for the state going after someone," he said.

In the other incident detailed in Monday's lawsuit, a student at Smyrna High School got into an altercation on Dec. 17 with another student at the school who "was displeased" that the plaintiff was speaking Spanish to a classmate.

The other student, after verbally criticizing the plaintiff, then "grabbed and ripped" the plaintiff's shirt "and struck him in the face" causing the boy to retaliate by grabbing the other student's arm. The school resource officer, Smyrna Patrolman Evan Leighty, investigated but decided not to charge either student.

But the mother of the plaintiff – whose name is being withheld by The News Journal because he is a minor and the apparent victim of bullying – was upset about the incident due to the ongoing harassment of her son by this student.

The mother spoke to Leighty, according to the suit, and demanded that the officer bring charges against the aggressor. Leighty said that if he pressed charges, he would also have to bring charges against the woman's son.

The mother persisted and Leighty – who is named as a defendant – charged both students.

The ACLU contends the offensive touching charge filed against the plaintiff was retaliation for his mother's request that charges be filed. The ACLU charges that the officer did not have probable cause to arrest the high school plaintiff, and according to the officer's own account it was clearly a case of self-defense.

The offensive touching charge was later dropped by state prosecutors before trial, according to the suit.

Based on this and other incidents, the ACLU charges that the town has shown "deliberate indifference to the constitutional rights of persons in Smyrna" and it fails to adequately investigate citizen complaints of misconduct.

MacRae said Monday that as far as she knows, this is the first time in recent memory that the Delaware ACLU has filed two lawsuits in such quick succession against a single police department.

Contact Sean O'Sullivan at (302) 324-2777 or sosullivan@delawareonline.com or on Twitter @SeanGOSullivan