Hello Officer, read my middle finger!!

By Andrew J. Contiguglia

In a 14-page opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” Read this: giving a cop the finger!

This case all started when John Swartz  flipped off an officer who was using a radar device at an intersection in St. Johnsville, N.Y. Swartz was later charged with a violation of New York’s disorderly conduct statute. Swartz and his wife Judy Mayton-Swartz sued the two police officers who arrested him.

The officer’s record and explanation as to why he pulled over the couple on this case is classic! Richard Insogna, the officer who stopped Swartz and his wife claimed he pulled the couple over because he believed Swartz was “trying to get my attention for some reason.” The officer further claimed: “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and “I was concerned for the female driver, if there was a domestic dispute.”

Thankfully the appeals court didn’t buy that crap, ruling that the “nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.”

This opinion is awesome. In a wonderful analysis of the standard of “reasonable suspicion” the Court lamented

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.

Hey officer Krupke, Krup you!

indexHere’s the opinion.

Originally posted at ContiFazz

10 Responses to Hello Officer, read my middle finger!!

  1. Roy Warden says:

    “Ancient Gesture of Insult?”

    NOW you know just why I LOVE reading cases! Beautifully said! Now I have to find a way to work it into my routine before the Mayor and City Council, and in my demonstrations, elevating it to the status of “symbolic political speech” protected by the First Amendment

  2. Hmm, if the cops were so “concerened” (eye roll) then why site/arrest them for giving the finger? I’m reading this on my WP reader, I don’t see any links; is there a copy of the Police Report (P.R.) or Written Opinion (W.O.) <— Sorry if that's the wrong legal abbreviation.
    Oh, one more thing, this is the first I heard about this particular case ( I heard about the one with the kid who held the sign warning ppl about a speed trap, got fined, then the Innocence Project defended him and was ruled on their behalf and the $ won was donated ?I think, or most of it? to the Innocence Project) its do obvious that's not the reason this hit was pulled over. LOL!
    Perfect example on how cops think they're untouchable.
    And Yes, I do appriciate cops, but not the ones who LIE like this.

  3. I mean kid, not hit. Pardon the brevity of my comment. I’m struggling with this touch pad phone and reader.

  4. MKC says:

    The author of the article cited in the first FN had a brief appearance in a bit on the Colbert Report in 2010.

    If somebody is mildly angry, they might just give the middle finger. If they’re very angry, they might give it with some sort of words or facial expression that shows anger. And if they’re off the charts angry, they may give a double.

  5. Is this the first time in recent memory that a court has ruled that expression of frustration and mild disrespect for law enforcement does not constitute “contempt of cop”?

    • MKC says:

      Mmmm–usually such cases don’t make it to trial, much less an appeal. There’s almost always either a plea or charges are dropped. Also, I consider openly recording police activity, like in Glik and ACLU v. Alvarez to be expressive conduct communicating criticism and concern as well as the gathering of information.

  6. [...] For more info on this case and the full court opinion, Andrew Contiguglia has it all right here. [...]

  7. Roy Warden says:

    THIS is an opportunity for … mischief and entertainment, for those of us who occasionally “get in the face” of local government officials who, because they control the local apparatus for law enforcement and ajudication, also believe they can hold themselves “above” the law.

    Try it out! See for yourselves!!

  8. [...] Facts: New York Times, Legal Satyricon [...]

  9. captainobviousfoeofobfuscation says:

    All hail Digitus Impudicus.

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