Thurairajah v. City of Fort Smith

In Thurairajah v. City of Fort Smith, the U.S. Court of Appeals for the Eighth Circuit found that police lacked probable cause to arrest Eric Roshaun Thurairajah for disorderly conduct after he drove by a traffic stop and yelled, “F**k you!” to an officer on the side of the road, because the shout constituted protected political speech. Thurairajah was one of a line of cases in federal and state appellate courts in Arkansas and elsewhere in which the judiciary used a minor incident, such as uttering offensive words or brushing the American flag during a protest, to hold that an arrest merely for offensive conduct violated a person’s First Amendment rights.

In 2015, Arkansas State Trooper Lagarian Cross was performing a routine traffic stop on a van pulled to the shoulder of a highway in Fort Smith (Sebastian County). From fifty feet away, Trooper Cross heard Thurairajah, who was driving by, yell, “F**k you!” out of his car window as he drove by. Thurairajah was driving about thirty-five miles per hour in the far lane of the road moving in the opposite direction. The van’s occupants were a mother and her two young children. Cross testified that the two children reacted to the yell by putting their hands over their mouths. Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him for disorderly conduct for allegedly making “unreasonable or excessive noise.” Thurairajah spent several hours in jail before being released, and the disorderly-conduct charge against him was later dropped.

Thurairajah then filed a lawsuit against Cross alleging that he violated Thurairajah’s First Amendment right to be free from retaliation and his Fourth Amendment right to be free from unreasonable seizure. Cross moved for summary judgment based on qualified immunity, which shields a state actor like Cross from legal liability unless he violated a constitutional right, specifically one that was clearly established so that a reasonable officer would know of that right at the time of the violation. The trial court denied Cross qualified immunity, finding that Cross’s arrest violated Thurairajah’s clearly established constitutional rights. Cross then appealed the trial court’s denial of qualified immunity to the Eighth Circuit.

The Eighth Circuit affirmed the trial court’s denial of qualified immunity in 2019, allowing Thurairajah’s case to proceed to trial back in the trial court. Cross asked the court to reverse the lower court and dismiss his case based on qualified immunity. Cross first argued he was entitled to qualified immunity because he had probable cause to arrest Thurairajah, which the Eighth Circuit rejected. The court noted that Arkansas’s disorderly-conduct statute did not penalize offensive speech, only unreasonable or excessive noise. Specifically, the Eighth Circuit found: “Thurairajah’s shout was unamplified and fleeting, no crowd gathered because of it, city traffic was not affected, no complaints were lodged by anyone in the community, business was not interrupted, nor were an officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was not an unreasonable or excessive noise. Trooper Cross lacked even arguable probable cause for an arrest and thus violated Thurairajah’s Fourth Amendment right to be free from unreasonable seizure.”

The Eighth Circuit also found that Thurairajah’s two-word shout constituted protected speech under the First Amendment. Further, the Court found that Cross’s arrest was motivated by the content of the shout. Specifically, the Eighth Circuit found that “Thurairajah’s First Amendment right to be free from retaliation was clearly established at the time of his arrest.”

The Eighth Circuit upheld the lower court’s denial of qualified immunity based on the trooper’s First and Fourth Amendment violations. Following the Eighth Circuit’s decision in 2019, the case proceeded to jury trial where Thurairajah was awarded $1 in nominal damages and $15,100 in attorney fees. The Eighth Circuit subsequently affirmed these awards in July 2021. The Eighth Circuit agreed with the trial court that Thurairajah was entitled only to one dollar in damages and the attorney fees and not to punitive damages because he had not proved that he was grievously harmed by the arrest or that the trooper had arrested him out of personal malice rather than a sincere belief that the young man had committed a crime by his shout. One of the three judges who heard the appeal dissented on the matter of punitive damages because, under the Arkansas Civil Rights Act, the hostility and violence during the arrest and the trooper’s remarks at the jail (including, “This kid said ‘F**k you’ to a cop, so I thought I would bring him in.”) seemed to cross the threshold that justified punitive damages.

For additional information:
Thurairajah v. City of Fort Smith, 925 F.3d 979, 982 (8th Cir. 2019).

Thurairajah v. City of Fort Smith, 3 F.4th 1017 (2021).

Michael Kiel Kaiser
Little Rock, Arkansas