dissenting.
The District Court, relying upon Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), held that defendant Larion was entitled to qualified immunity in attempting to arrest plaintiff for violation of two sections of Livonia’s disorderly person ordinance. DeFillippo holds that where an officer arrests under an ordinance as to which there is no controlling precedent that the ordinance is unconstitutional and there is probable cause to believe that the terms of the ordinance have been violated, he is entitled to qualified immunity. In DeFillippo, the ordinance was held unconstitutional after the arrest was made. The Court stated:
On this record there was abundant probable cause to satisfy the constitutional prerequisite for an arrest. At that time, of course, there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance. A prudent officer, in the course of determining whether respondent had committed an offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional.
Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.
Id. at 37-38, 99 S.Ct. at 2632 (emphasis added).
Here, we have an ordinance never declared unconstitutional and the absence of any Michigan case law which has held a similar ordinance unconstitutional. Indeed, plaintiff did not seek to challenge the constitutionality of the ordinance. The panel concludes that a reasonable officer would have known there was no probable cause to find a violation of the ordinance.
I agree with the District Court — that there was probable cause under the terms of the ordinance to arrest plaintiff. Defendant maintains that plaintiff was arrested under two sections of Livonia’s disorderly persons provisions. These are as follows:
9.40.010 Disorderly Persons — Designated Acts Prohibited. It is unlawful to be a disorderly person, as hereinafter defined within the section:
F. Immoral Behavior.
1. Any person who uses any indecent, insulting or immoral language in the presence of others,
9.40.040 Acts constituting breach of peace and disorderly conduct. Any person who makes or assists in making any noise, disturbance, trouble or improper diversion, or any rout or riot, by which the peace and good order of the city are disturbed, shall be guilty of a breach of the peace and disorderly conduct.
Arrest without a warrant does not violate the Fourth Amendment if probable cause exists for the arresting officer’s belief that a suspect has violated or is violating the law. DeFillippo, 443 U.S. at 36, 99 S.Ct. at 2631; Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir.1988). Larion testified he attempted to arrest Sandul for the obscene gesture and the “F” word. The language plus the gesture would seem to be at least insulting. Shouting “F— you” from a car at abortion protestors is arguably a disturbance.
Only if the ordinance is so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws is Officer Larion hable. I submit that the ordinance does not reach that level of unconstitutinality and indeed I do not *1258believe that the panel would find all its provisions unconstitutional.
The Court points to several cases which it holds would put the officer on notice that the ordinance was unconstitutional. Had defendant examined Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), in which the defendant had “f— the draft” printed on his jacket, he would find its holding in the last paragraph where the Court says
It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be reversed.
Id. at 26, 91 S.Ct. at 1789. The Court’s restrictive language relates its statement earlier in the opinion of what is not involved in the case.
This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called “fighting words,” those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U.S. 568 [62 S.Ct. 766, 86 L.Ed. 1031] (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not “directed to the person of the hearer.” Cantwell v. Connecticut, 310 U.S. 296, 309 [60 S.Ct. 900, 906, 84 L.Ed. 1213] (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 [71 S.Ct. 303, 95 L.Ed. 295] (1951); Terminiello v. Chicago, 337 U.S. 1 [69 S.Ct. 894, 93 L.Ed. 1131] (1949).
Id. at 20, 91 S.Ct. at 1785-86. The words used by defendant here were arguably directed as a personal insult.
Had the officer read Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), he would have found that
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Id. at 571-72, 62 S.Ct. at 769. The Court then affirmed the constitutionality of a state statute with the following test for fighting words:
The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight....The English language has a number of words and expressions which by general consent are “fighting words” when said without a disarming smile.
Id. at 573, 62 S.Ct. at 770.
When he looked to the words which the Court found were not protected, he would find that defendant accused a police officer of being a “damned racketeer” and a “damned fascist.” These words, the Court held, are likely to provoke the average person to retaliation and therefore cause a breach of the peace.
The panel finds that the “f ’ word and the finger are not fighting words because they were spoken from a moving vehicle and thus could not provoke lawless action. While they did not, they could have provoked one of the protestors to chase plaintiffs vehicle. As noted, they were at least insulting. As stat*1259ed in Texas v. Johnson, 491 U.S. 397, 409, 109 S.Ct. 2533, 2542, 105 L.Ed.2d 342 (1989), fighting words are words which an onlooker would consider “as a direct personal insult or an invitation to exchange fisticuffs.” While the ordinance here has its frailties, I cannot say it is so grossly and flagrantly unconstitutional that the officer was bound to see its flaws. I respectfully dissent.