Flipping-off the cops is totally constitutional
More than six years after John Swartz was handcuffed and arrested for flipping-off a police officer in St. Johnsville, New York, the US Court of Appeals for the Second Circuit says he committed no crime.
Swartz was riding in the passenger side of his wife’s car in 2006 when he gave the finger to a police officer stationed nearby with a radar detector aimed at traffic. When the couple pulled up to their home, a cop came up behind them and asked for Judy Mayton-Swartz’ license and registration, to which her husband insisted she should refuse.
“Shut your mouth, your ass is in enough trouble,” Mr. Swartz recalls Officer Insogna telling him.
After the information was processed and Mr. Swartz exited the car outside of his home, he approached one of the four officers on the scene. “I’d like to speak to you man to man,” he recalls saying.
John Swartz remembers telling the officers that he felt “like an ass” for the whole ordeal, but he never managed to have the conversation that he wanted. Instead, he was handcuffed and charged with disorderly conduct.
According to court filings, the officer that Mr. Swartz initially flipped off considered the gesture a signal of distress. Insogna says he decided to initiate a traffic stop because it appeared Swartz was “trying to get my attention for some reason.”
“I thought that maybe there could be a problem in the car,” he told the court. “I just wanted to assure the safety of the passengers,” and “I was concerned for the female driver,” he added, citing the possibility of a domestic dispute within the vehicle. By the time the car was stopped, however, the officers learned that everyone was okay. Except for John, however, who was brought in to a local police station and released shortly thereafter.
A District Court initially dismissed a lawsuit waged by Swartz that alleged he had been falsely arrested, claiming Officer Insogna’s claim of a possible domestic disturbance wasn’t that far-fetched. The plaintiffs appealed, however, and this week an appellate judge agreed that giving the finger was not reason enough to warrant a stop.
“An irate automobile passenger’s act of ‘giving the finger,’ a gesture of insult known for centuries, to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal,” Circuit Judiige Jon O. Newman writes this week. Newman has appealed the earlier decision that granted summary judgment to the defendants — Officer Insogna and a colleagues — and has remanded for further proceedings.
“The only act Insogna had observed prior to the stop that prompted him to initiate the stop was John’s giving the-finger gesture,” he adds. “Insogna acknowledged in his deposition that he had not observed any indication of a motor vehicle violation. He stated, somewhat inconsistently, that he thought John ‘was trying to get my attention for some reason’ and that he ‘was concerned for the female driver.’”
“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”
“Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.”