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New York: Appeals Court Upholds Right to Flip Off Cop
Second Circuit US Court of Appeals allows motorist to sue police officers who arrested him for contempt of cop.

Officer Richard Insogna
Motorists may freely express their displeasure at a speed trap using their middle finger, the Second Circuit US Court of Appeals ruled Thursday. A three-judge panel allowed a malicious prosecution lawsuit to proceed against police officers who arrested a man because he flipped them off.

The incident took place in May 2006, while Judy Swartz was driving through the village of St. Johnsville to visit a family member with her husband John. Looking out the window from the passenger seat, John Swartz noticed a village police officer, Richard Insogna, running a speed trap with a radar gun. Swartz held his right arm out the window and gave Insogna the finger over the roof. Judy Swartz was not speeding and committed no traffic violation.

When the couple reached their destination on Monroe Street, they were met by Officer Insogna, who performed a traffic stop. When Insogna asked Judy Swartz for her license and registration, her husband urged her not to show the cop anything.

"Shut your mouth, your [expletive] is in enough trouble," Officer Insogna snapped back.

Three more policeman arrived at the scene as backup. After the stop was completed, John Swartz got out of the car and asked to speak to Insogna "man to man." He then muttered something else, and the officers became outraged.

"That does it, you're under arrest," Montgomery County Sheriff's Deputy Kevin Collins said.

John Swartz was taken away in handcuffs, booked and released for disorderly conduct. The charge remained pending for several years, and after he made three court appearances it was dropped on speedy trial grounds. Afterward, Swartz filed a lawsuit for false arrest against the policemen. Officer Insogna insisted he was acting to protect public safety as he understood the middle finger to be a distress signal.

"It appeared to me he was trying to get my attention for some reason," Insogna testified. "I thought that maybe there could be a problem in the car... I just wanted to assure the safety of the passengers... I was concerned for the female driver, if there was a domestic dispute."

Federal District Court Judge David N. Hurd agreed the officers had reason to believe Swartz was about to engage in violence against his wife and threw out the lawsuit. The three-judge appellate panel found the lower court's ruling absurd.

"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," Judge Jon O. Newman wrote for the appellate court. "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."

The appellate court cited The Clouds, a Greek play by Aristophanes from 420 BC, as evidence the middle finger has been understood exactly the same way throughout history. One of the play's characters flipped off Socrates (not Aristotle, as Judge Newman wrote).

"This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity," Judge Newman wrote. "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."

Noting that nothing John Swartz had done raised a public disturbance, it was impossible for the officers to believe he was guilty of disorderly conduct. The lower court's decision was remanded and the malicious prosecution lawsuit may now proceed.

A copy of the decision is available in a PDF file at the source link below.

Source: PDF File Swartz v. Insogna (US Court of Appeals, Second Circuit, 1/6/2013)

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