Many people in Louisiana and around the country consider it a common courtesy to flash their high beams to let other drivers know about a speed trap looming ahead. Others, including some police departments, consider it a crime. A handful of recent court cases, however, suggest that drivers enjoy a free speech right to warn others that cops are shooting radar on the road ahead.

The most recent case to capture national attention comes from a federal district court in St. Louis, Missouri. In that case, the judge ruled that drivers have a First Amendment right to flash their headlights to warn oncoming vehicles about speed traps.

The challenge was filed on behalf of Michael Elli, who was ticketed in November 2012 for violating a town ordinance that generally prohibited flashing headlamps when another vehicle is within 75 feet. According to the lawsuit, Elli passed a speed trap and communicated by flashing his headlamps to drivers approaching in the opposite direction that they should proceed with caution. A policeman in an unmarked cruiser pulled him over and issued him a citation.

Elli appeared in court and learned the standard punishment for his violation was a $1,000 fine. He pleaded not guilty, but before his case proceeded to trial, the prosecutor dismissed his case. Elli then filed a separate civil rights lawsuit against the town to challenge the constitutionality of the ordinance. The judge agreed with Elli that even the potential enforcement of the ordinance posed a significant “chilling effect” on the First Amendment rights of motorists.

Elli is just the most recent example of a driver to win similar decisions in court. For instance, in May 2012 a state court judge in Sanford, Florida ruled that using one’s headlights to communicate was free speech protected by the First Amendment. Courts in New Jersey, New York, Ohio, Pennsylvania, and Tennessee (amongst others) have also ruled that flashing headlights to warn others is not illegal under their state laws.

How about Louisiana? No Louisiana court has weighed in on the issue yet. However, even though these decisions do not apply directly to drivers in Louisiana, their reasoning raises serious questions about the constitutionality of some state and local laws. For example, La. R.S. 32:327(A) is virtually identical to the ordinance at issue in the Elli case. Applying the compelling rationale of the court in Elli, flashing headlights to warn other drivers of a speed trap is protected speech, and Louisiana motorists should not be cited, arrested, or prosecuted under that law.

If you or a loved one has been cited for flashing their headlights to warn other drivers of a speed trap, call us.