You have the right to cuss out and flip off your favorite sports team, lawsuit argues

What started as a tough game for a couple of New York Giants fans might end up being a lesson in the First Amendment.

Last year, the Giants lost 31-21 against the San Francisco 49ers at Levi’s Stadium in Santa Clara, California. It was the first game the 49ers had won all season long, and it left the Giants with a record of 1-8.

For brothers Kyle and Patrick Flynn, who are Giants fans, the game brought out some pretty raw emotions. As reported by NJ.com, the two were arrested during the November 2017 game after police say they repeatedly cussed out and flipped off Giants players at the 49ers stadium.

The brothers filed a lawsuit this month, arguing it’s free speech to flip the bird or tell their favorite sports team that “you f------ suck.” They also argue that the officers who arrested the brothers acted with excessive force during the jarring arrest.

As reported by The Mercury News, “a spokeswoman for the city of Santa Clara, which employs the officers, could not be immediately reached for comment.”

The lawsuit alleges that Nicholas Cusimano, an officer with the Santa Clara Police Department, had warned Patrick and Kyle Flynn that they needed to stop cussing out Giants players and giving them the middle finger during the game’s second half.

It continues, “neither Patrick Flynn, nor Kyle Flynn, were warned that further similar behavior would lead to ejection or arrest.”

But when the 49ers padded their lead with a touchdown, the lawsuit says, the brothers decided to make their displeasure known with the same expletive and hand gesture. And this time, “Cusimano determined the actions of Patrick Flynn and Kyle Flynn to be a violation of the Levi’s Stadium Code of Conduct” and attempted to eject them.

From there, things grew violent, according to the lawsuit and video footage of the arrest.

The first person arrested was Kyle Flynn, “who did not believe he had done anything wrong.” The lawsuit says he wasn’t told why he was being arrested, and instead a cop choked him as he sat in his seat “despite no evidence that Kyle was a danger to himself, others, or the officers.”

He was taken to the stadium’s temporary holding facility, the lawsuit says, and continued to argue against his treatment.

“Even though Kyle Flynn was not threatening or committing any force or violence against any officers,” the lawsuit says, “he was put in a control hold used for combative prisoners and laid prone on the ground with his legs crossed.”

Another attendee of the game captured footage that appears to show Patrick Flynn resisting arrest and eventually tumbling to the field below. It was obtained and shared by NJ.com.

The lawsuit said Patrick Flynn was arrested after he “took a knee” as a display of support for his and his brother’s First Amendment rights. His arrest, along with silencing his ability to voice his opinion, also violated his right to take a knee, the lawsuit argues.

As he held on to the guardrail in front of him, Patrick Flynn fell 10 feet from the seats and onto the football field, the lawsuit says. Around five officers were on top of the man, the lawsuit says, and they hit him multiple times and used a Taser on him once.

A third person with the brothers, Lauren Alcarez, grabbed an officer’s baton because he had used it to hit Patrick Flynn’s hand, which “had recently been broken,” the lawsuit says. She was also arrested after the lawsuit says an officer used his elbow to hit her.

This story was originally published December 26, 2018 at 11:18 AM with the headline "You have the right to cuss out and flip off your favorite sports team, lawsuit argues."