Second Circuit Rejects Middle Finger As A Cry For Help

3682The Second Circuit has reinstated a civil rights lawsuit by former airline pilot John Swartz, a Vietnam veteran who sued after he was arrested in New York for disorderly conduct. Swartz, a Vietnam veteran, says that he was arrested after he signaled his displeasure with a speed trap by extending his middle finger in a universal sign of contempt. The officer however insisted that he took the gesture as a cry for help and followed Swartz. The case is Swartz v. Insogna, 2013 U.S. App. LEXIS 186 (2d Cir. 2012).

Here is the account given by the Court:

In his deposition John gave the following account of the incident. In May 2006, he and Judy were driving through the Village of St. Johnsville on their way to the home of Judy’s son. Judy was driving; John was in the passenger seat. At an intersection, John saw a local police officer, Defendant Insogna, in a police car using a radar device, of which John became aware because he had a radar detector. John expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof. The Plaintiffs, who were not speeding or committing any other traffic violation, continued to the home of Judy’s son. Upon reaching their destination on Monroe Street, the Plaintiffs got out of the car and saw a police car with its lights flashing approaching from the corner of the street they were on, ultimately stopping behind Judy’s car. When John walked to the trunk of the car, Insogna ordered him and Judy to get back in the car. John initially refused, telling Insogna that he had not been driving the car. Insogna again told John to get back in the car, stating that this was a traffic stop. Judy then urged John to reenter the car, and they both did so.

Insogna then asked to see Judy’s license and registration. John then told her not to show the officer anything, prompting Insogna to say, “Shut your mouth, your ass is in enough trouble.” Insogna then collected Judy’s license and registration, returned to his police car to check the documents, and called for backup. Three other officers soon appeared.

Insogna returned to Judy’s car, gave her back the documents, and told the Plaintiffs they could go. John then got out of the car and asked if he could speak to Insogna, saying “I’d like to speak to you man to man.” As he started walking toward Insogna, who was more than 20 feet away, three other officers stepped in front of him. John stopped, walked away from the officers, and said to himself in a voice apparently too low for his words to be understood, “I feel like an ass.” One of the other officers asked John what he had said, and John repeated his remark loud enough to be heard. At that point Defendant Collins said, “That does it, you’re under arrest,” but did not say for what.

The officer, Richard Insogna, says that Swartz called him vulgar names after Insogna followed him. Insogna however insists (rather implausibly) that he considered Swartz waiving his middle finger to be an attempt to get his attention. He said that he feared Swartz might be involved in some type of domestic dispute and needed his help.

There is no court that could better take judicial notice of the use of the middle finger than a New York court and the Second Circuit expressed skepticism at the officer’s explanation in a 14-page opinion written by Judge Jon O. Newman for a three-judge panel:

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.

Indeed, in New York, the traffic would come to a virtual standstill.

What is particularly enlightening however is the court’s exploration of this particular gesture: “Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.”

I wonder if the lawyers asked Isogna in deposition if he was a Giants fan.

Thomas K. Murphy, a lawyer representing the officer and a sheriff’s deputy in the case, took a cultural defense approach, insisting that such displays may be common in New York City but “[t]his is St. Johnsville, New York. Not the Bronx. Not Manhattan. It’s a sleepy little town.”

If the officer is correct, however, it would mean that George W. Bush and Nelson Rockefeller both made a widely misunderstood cry for help in their careers.

The ruling was joined by Judges Gerard E. Lynch and Raymond J. Lohier Jr., and reinstated the lawsuit alleging an illegal traffic stop, false arrest and malicious prosecution. What I do not get is why the police department has litigated this case with such absurd defenses. Any argument of this kind was probably received as the legal equivalent of the gesture at the heart of the case.

Source: New York Times

63 thoughts on “Second Circuit Rejects Middle Finger As A Cry For Help”

  1. One thing that was once tried in America, but most practiced in USSR is the citizen witness.

    All was naturally done according to SOP. But you could count on you, the accused, never getting out living. Few who complained actively lived more that a few days. So citizen witnesses won’t do it.

    They knew their place and what is expected. And on which dotted line to sign off.

  2. Rafflaw,

    All you say is correct.
    But who has the insanity or guts to resist. Not many, I fear.

    Any views on how this can be brought home to our LEO organizations?
    “Our rules, not yours”.

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