Eric Thurairajah v. Bill Hollenbeck, 925 F.3d 979

Background

In 2015 Trooper Lagarian Cross, conducting a traffic stop on a five-lane highway in Fort Smith, Arkansas, heard Eric Thurairajah drive by and shout “fuck you!” from ~50 feet away while traveling in the opposite direction at ~35 mph.
The shout was two words, unamplified; a van stopped on the shoulder with a mother and two young children inside; Cross observed the children react.
Cross ended his traffic stop, pursued and stopped Thurairajah, and arrested him under Arkansas’s disorderly conduct statute for making “unreasonable or excessive noise.” Charges later were dropped.
Thurairajah sued under 42 U.S.C. § 1983 alleging (1) First Amendment retaliatory arrest and (2) Fourth Amendment unreasonable seizure.
The district court denied Cross qualified immunity on both claims; Cross appealed. The Eighth Circuit affirmed, concluding (a) Cross lacked arguable probable cause to arrest and thus violated the Fourth Amendment, and (b) the arrest was retaliatory against protected speech and the First Amendment right was clearly established.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the warrantless arrest supported by probable cause/arguable probable cause under Ark. Code § 5-71-207(a)(2)?	Thurairajah: two-word unamplified shout was not unreasonable/excessive noise; no crowd, no disruption, no complaints — so no probable cause.	Cross: reasonable officer could believe the shout met the statute’s “unreasonable or excessive noise” element; at least arguable probable cause.	Held: No arguable probable cause; arrest violated Fourth Amendment.
Was the arrest retaliatory for protected First Amendment speech?	Thurairajah: his profane shout was protected speech; arrest would chill speech; Cross was motivated at least in part by content; lack of probable cause.	Cross: arrest was lawful under disorderly conduct statute (thus not retaliatory).	Held: All four retaliatory-arrest elements satisfied; First Amendment violation.
Were Thurairajah’s First and Fourth Amendment rights clearly established at the time?	Thurairajah: settled law bars arrests unsupported by probable cause and protects profane/critical speech; Cross had fair notice.	Cross: law re: disorderly conduct/noise was not sufficiently clear to put a reasonable officer on notice.	Held: Rights were clearly established; qualified immunity denied.
Does existing precedent permit arrest for fleeting, unamplified two-word profanity from a moving car?	Thurairajah: precedents require prolonged, amplified, or disruptive conduct; no case upholds a two-word outburst as disorderly conduct.	Cross: statute text covers unreasonable noise; reasonable reading could encompass loud profane shouts.	Held: Context matters; no precedent upholds such a brief, unamplified outburst as disorderly conduct — arrest unreasonable.

Key Cases Cited

Pearson v. Callahan, 555 U.S. 223 (qualified immunity two-part framework)
Hartman v. Moore, 547 U.S. 250 (elements for retaliatory-prosecution/retaliatory-arrest claims)
Cohen v. California, 403 U.S. 15 (protection for profane speech)
City of Houston v. Hill, 482 U.S. 451 (police criticism is protected speech)
Hoyland v. McMenomy, 869 F.3d 644 (Eighth Circuit precedent on retaliatory-arrest framework and clearly established law)
Baribeau v. City of Minneapolis, 596 F.3d 465 (Fourth Amendment probable-cause principles in arrest context)