New York lawyer fights 'First Amendment retaliation' for cursing out police officer in free speech saga
Buffalo attorney Tony Rupp told Fox News Digital he "doesn't typically call people a------- and doesn't typically sue people." Regardless, he's recently made international headlines for precisely those two things.
Before 2016, Rupp primarily litigated personal injury cases. But a chance interaction with a police officer punctuated by a contentious vulgarity changed the trajectory of his practice and life forever.
In December of that year, Rupp called out "Turn your lights on, a------" to Todd McAlister after he and his wife saw McAlister driving with no running lights and "rapidly approach" two women whom he nearly hit while they were crossing a street, according to a lawsuit he filed in March 2021.
Rupp then realized McAlister was a Buffalo police officer, and he was given a citation for violating the city's noise prohibition. The ticket was later dismissed, court records show, but the incident prompted Rupp to file a lawsuit and launch a First Amendment fight.
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A decision from the U.S. Court of Appeals earlier this month reversed an earlier ruling by a Buffalo U.S. district judge who had dismissed Rupp's case. Rupp's statement, however profane, could be considered an "eminently reasonable" effort to prevent an accident, the higher court ruled.
Now, Rupp is suing the police department, the two officers and the city of Buffalo. He told Fox that he is only seeking $1, his own legal fees and an acknowledgment that the officers acted inappropriately.
"I'd rather not be the guy that called a cop an a------. It makes me look uncouth," Rupp told Fox News Digital. "I don't want to be the guy who makes frivolous lawsuits. I weighed that against my civil responsibility… they deliberately trampled on my civil rights [and] exacerbated a situation that I was walking away from."
Moreover, he said, "no juror in the world [would] believe this [incident was] anything other than First Amendment retaliation."
Paul Mauro, the former commanding officer of the NYPD's legal bureau, told Fox News Digital that the rights of the public versus certain powers police have is "always a difficult line to delineate."
"A lot of lawyers are going to be watching this case – it potentially expands the ability of similarly situated plaintiffs to go after police departments for taking actions that they think they have probable cause for," Mauro said.
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Rupp said he spotted the outline of a large vehicle without its lights on barreling toward him and his wife as they crossed a downtown Buffalo street – he told Fox News Digital he "[thought he was] going to witness a murder" when he reached the other side and saw two women step off the curb.
But the driver managed to stop – Rupp's wife said it was just inches from the women, according to court documents, while Rupp said they were several feet away from the women – and flashed its high beams.
In retrospect, the gesture could have been apologetic – at the time, Rupp thought the driver was "telling them off" for stepping out onto the street outside the crosswalk.
It was at that point Rupp called out "turn your lights on, a------!"
"It wasn't planned. I almost ran for my car at that point. I didn't want it to be this 35-year-old guy who was going to stomp me like a bug. I was 50 at the time, my fighting days are long gone," Rupp recalled.
As it turns out, the driver was McAlister, in his lieutenant's vehicle alongside his partner Nick Parisi – it is still unclear why his headlights were not switched on.
Rupp said he and his wife were walking away when McAlister made a right into the parking lot, opened his window and remarked, "You know you could be arrested for that."
Rupp allegedly replied, "Are you kidding?" and at that point he was detained.
"I said to him, ‘Do you realize that you almost killed two people?’ You know what he said to me? [That] they were jaywalking," Rupp recalled. "I said are you out of your mind? Is that a capital offense in Buffalo now?"
"My poor wife stood there and I told her I can't back down on this guy, I've never backed off in my life and I can't to this guy," Rupp recalled. "[I told her] 'I'm sorry you're in the middle of this.'"
Rupp and the officer argued for about 40 minutes, the attorney said – when five more police officers came to the scene, including the men's supervising lieutenant, Rupp demanded that McAlister be ticketed for driving without his running lights, according to Rupp and his lawsuit.
The lieutenant refused, and Rupp was given a ticket for violating the city's noise ordinance – despite the fact that the argument took place near a buzzing local freeway. The wording of the local law outlaws noise that "disturbs the quiet, comfort or repose of a reasonable person of normal sensitivities."
"I was pretty sure that they weren't going to have any citizens who were disturbed by my yell. The whole point was to bother me with a [court appearance]," Rupp told Fox News Digital. "They know they're going to inflict the court system on you. That's your punishment for contempt of cop."
The ticket would later be dismissed, and the U.S. Appeals Court wrote in their recent decision that they "[had] difficulties with the rationale" of the officers issuing the ticket, and kicked the issue back down to District Court so the facts of the case could be reviewed by a jury.
After the incident, Rupp wrote a five-page letter to the Buffalo police commissioner, attached below.
"If I was their captain, I [would tell them]… when you do something wrong, own up to it and get on with your day when a citizen calls you out," Rupp said. "Even if you didn't do anything wrong, citizens of the United States can call police a------- whenever they want."
Two months later, Officer McAlister and his partner Officer Parisi tackled 20-year-old Wardel "Meech" Davis, who fled from police after they tried to arrest him on suspicion of a drug offense.
Parisi admitted to "punching Mr. Davis several times in the face" during the interaction, according to the attorney general's decision.
Davis, who had asthma, died after he was handcuffed and placed on his stomach for several minutes – the attorney general ultimately cleared the two officers in his death, saying Davis died due to his medical condition and not his injuries.
"I was just going to get the stupid ticket dismissed – then one of my colleagues dropped the front page of the Buffalo News on my desk and said, ‘You are going to want to read this article,’" Rupp recalled. "When I disrespected them for calling out McAlister for turning off his headlights, they lashed out at me. Davis disrespected them by resisting arrest, he died."
"They ignored my letter, they didn't train these guys… to have thicker skins. That's when I thought I had an obligation to sue," Rupp said. "I still wonder if these guys had gotten a talking to, if ‘Meech’ Davis would still be alive. If they had gotten training. I can't stop thinking about that."
Mauro said there are two likely reasons the Buffalo Police Department hasn't settled with Rupp in their seven years of litigation:
"For whatever reason they don't want to set that precedent," Mauro said. "Or maybe they think they were completely right and he went too far.
"It is very, very hard legally to do anything that will impinge on the citizenry's First Amendment rights against the government. Unless you have real specific justification – a police officer's discomfort is not going to fly.
"Every cop learns that a certain amount of verbal abuse comes with the job. But that said, the [court] has asked for a finding of fact and so I assume that there are fact issues here that still need to be resolved," he continued.
"Maybe there's more facts here that the Circuit didn't go into – he was at dinner, he comes out of the restaurant, he's got a few drinks in him… maybe he was very, very loud then where they said, 'Pal, you'd better calm down here, you're talking yourself into a lot of trouble,'" Mauro said. "Now you've got a whole different kettle of fish."
Mauro also remarked that although Rupp is only asking for his dollar, legal fees and an apology, the publicity that he's garnered from this legal dispute must be "invaluable," and remarked that "anyone mad at the cops in the Western District is going to call this guy."
Rupp's law firm, Rupp Pfalzgraf LLC, has litigated multiple cases against the Buffalo Police Department since that fateful interaction outside the Italian restaurant.
Among them is the case of James Kistner, who was accused of attacking a police vehicle, thrown into an involuntary psych hold at an area hospital, and charged after police hit him with their car, according to WIVB.
Karyn Kenny, a former attorney adviser for the U.S. Department of Justice, said the fate of the case now rests on a jury's findings.
"One of the issues of fact was how dangerous it was," Kenny told Fox News Digital. "They both agree about what happened on most of the facts, but according to Rupp and his wife [the police] came dangerously close, whereas police officers said [they didn't.] It's up to a jury to decide."
"[But] if he's getting jammed for that, you could arrest half of Manhattan," Kenny added.
Neither the Buffalo Police Department nor city attorney David Lee responded to Fox News Digital's requests for comment.