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First Amendment Right to Call Yourself a Terrorist

How did Fogel v. Collins, No. 06-15395 (9th Cir. June 27, 2008) (opinion) escape the blogosphere's attention?

In Fogel, a 22-year-old Nevada City resident painted his van with some interesting messages:

The words 'I AM A FUCKING SUICIDE BOMBER COMMUNIST TERRORIST!' were painted in block letters on the back of the van above the rear window.  On the rear window was painted 'PULL ME OVER! PLEASE, I DARE YA[.]' Below the window in slightly smaller letters was the text 'ALLAH PRAISE THE PATRIOT ACT . . . FUCKING JIHAD ON THE FIRST AMENDMENT! P.S. W.O.M.D. ON BOARD!' A small American flag was attached to the van below the lettering. The rest of the van was decorated with slogans and paintings that had no political or threatening character.

The police officer who saw this van, unlike Barack Obama supporters, had a sense of humor.  Id. at *7687 ("[The police officer] concluded that the messages on the van were just 'political satire' and returned to the police station after taking digital photographs of the van.")  His supervisor disagreed, ordering the officer to impound the vehicle.

Keep in mind that Fogel had not committed any crimes.  He had not been pulled over.  Rather, his van was parked in his apartment's parking lot. 

After police officers found Fogel in his apartment, they asked him if they could search his van.  He consented to a search.  No evidence of any crime was found. 

Police arrested Fogel, charged him with making terrorist threats.  They also impounded his vehicle:

Sergeant Hooker called a private towing company to impound the van. He instructed the company not to release the van until Fogel removed or painted over the writing. Fogel was told he would have to remove or paint over the entire message in order to retrieve his vehicle from the impound lot.

Id. at *7689.  Fogel sued. 

The Ninth Circuit held that the messages on his van were protected political satire.  The panel noted:  "When we take into account the entire context of Fogel's statements on the van, it is hard to see how any reasonable observer would have believed the statements were serious expressions of an intent to cause harm."  Id. at *7695.

Yet, amazingly, the panel holds that the police officers were entitled to qualified immunity.  How?

If a court wants to grant qualified immunity, makes it seem as though liability may be imposed only if there has been a case with identical set of facts.  Thus, the court noted:

[I]n no case had a court held on identical or closely comparable facts that the speech was protected by the First Amendment. That is, in May 2004, when the officers acted, there was no reported case in which a person in the post-September 11 environment satirically proclaimed himself or herself to be a terrorist in possession of weapons of mass destruction.

Id. at *7699.  There is, however, a long line of cases protecting satire.  There is also a long line of cases holding that one cannot be arrested for non-threatening speech.  Indeed, the panel spent several pages explicating those cases! See id. at *7791-97.

Are police officers so stupid that they can't apply a general rule ("You can't arrest someone for satire") to a specific set of circumstances (messages on a van)?  Or is it that, when it comes to letting police officers escape liability for unconstitutional conduct, where there's a will, there's a way?